Second year work product the Illinois Coastal Zone Management Program

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

* ~~Coastal Zone'
Information
Center
INFORMATION CENER

Second Year Work -Product
VolueI

Legal Analysis ~:UL 0 7:1977

TheIllnoisCasa Zn

'~ ~Qjyj~Imiof Water Resources
Department of Transportation

, 393
I1 .44
1976

LIST OF SECOND YEAR WORK PRODUCTS

VOLUME I: LEGAL ANALYSIS:'
VOLUME II: COASTAL GEOLOGICAL STUDIES
VOLUME III: BEACH & BLUFF PROTECTION
VOLUME IV: COASTAL BIOLOGICAL STUDIES
VOLUME V: COASTAL USE NEEDS & CAPACITIES
VOLUME VI: PUBLIC PARTICIPATION
V :fi:::i; :04::S':00.:C~t'0::0:; :0::00; f::000Fe~f::0v~rD0;00 ifif 000X00:f~fffa~o~o:: \:0 ;0:00!R;00ff \S;00::00; iti ::: :; :00040:0X;f

; 00 0; 0f 7i 00 f;0u0 S ; 0 f0 ~t : aS fL f gSS tS tH St0 ; 4SDd;00 f >fi> T07 t ni$
:0:0::000: :030:00000:0 V000020:00: ;; ff:0000:70: U:00Et 0 g0e00fV00 S:\:000 f;t~C0:0

VOLUME: 0VIr .:t t: -:- PUB LIC:;PART:I C:IPA~tON0- -00f tt 0a;00000000 0:0030000X:00000 000 000

THE LEGAL FRAMEWORK:
TOWARD A MANAGEMENT PROGRAM

by
TAUSSIG, WEXLER AND SHAW, LTD.

submitted to:
THE ILLINOIS COASTAL ZONE MANAGEMENT PROGRAM

STATE OF ILLINOIS
DEPARTMENT OF TRANSPORTATION

propertY Of cSC Library

'U. S. DEPARTMENT OF COMMERCE NOAA
COAS'IAL SERVICES CENTER
2234 SOUIH HOBSON AVENUE
CHARLESTON, SC 29405-2413

m =-l

June, 1976

I- "D
_ o

THE LEGAL FRAMEWORK:
TOWARD A MANAGEMENT PROGRAM

A Report to the
ILLINOIS COASTAL ZONE MANAGEMENT PROGRAM
STATE OF ILLINOIS
DEPARTMENT OF TRANSPORTATION

The preparation of this Report was financed in part by the National
Oceanic and Atmospheric Administration, United States Department of
Commerce under the Coastal Zone Management Act of 1972, through the
State of Illinois Department of Transportation, Division of Water
Resources.

RICHARD L. WEXLER
ILENE DOBROW DAVIDSON
TAUSSIG, WEXLER AND SHAW, LTD.
LEGAL CONSULTANT

CONTENTS

Acknowledgments ........................... .......................I

CHAPTER I
INTRODUCTION--THE CHANGING CONTEXT OF ANALYSIS .................... 2

CHAPTER II
LOCAL GOVERNMENT PREROGATIVES IN THE COASTAL ZONE--
A STUDY IN THE NEED FOR A LOCAL/STATE PARTNERSHIP ................. 4

1. Home Rule Emergent ...................................... 4
2. The Constitutional Framework:
Negative and Positive Preemption .; ...................... 6
3. "Pertaining to its Government and Affairs"--
The Built-In Preemption ................................. 10
4. " . . . Of More Than Local Interest"--
The Home Rule Experience Elsewhere ..............18
5. Greater Than Local Resources in Illinois:
The Public Trust Applied _: ............................. 20
a) The Public Trust Doctrine .......................... 21
b) The State of the Law ............................... 30
c) Connecticut ......................................... 31
6. Conclusion .............................................. 33
a) Implications for Illinois ............... .......... 33
FOOTNOTES .................................................... 35

CHAPTER III
EXISTING TECHNIQUES OF MANAGEMENT ................ 43

1. Planned Unit Development ................................ 43
2. Setback Regulations . 47
3. Special Uses . 49
4. Aesthetic Controls ..................................... 52
5' Environmental Controls--Flood Plains,
Ravines &'Special Regulatory Districts ......... ........4
6. Non-Conforming Uses .59
7. Performance Standards ................................... 64
8. Procedures and Process ................................. 65

CHAPTER IV.
TECHNIQUES OF MANAGEMENT--'
A PROCESS OF INNOVATION ........................................... 71

1. New Techniques.71
2. Timing of Development Controls.72
3. Judicial Response to Timed Development Controls .........78
4. Conclusion.81

CHAPTER V
GOVERNMENTAL INTERESTS IN LAND:
EASEMENTS AND BUILDING RESTRICTIONS ...............................82

1. A Brief Look at the Life and Times
of the Easement.83
2. Creation ..............84
3. Construction...85
?...................................84..
3. Constrionablt .........,........ .......................... 8
4. Assignability.88
5. Enforcement .............................................88
6. Valuation and Acquisition Methods .......................90
7. A Brief Look at the Life and Times
of Things in the Nature of Easements ....................92
8. Creation ...............................................3
9. Construction ...........................................93
10. Assignability.94
11. Enforcement .95
12. Valuation.
13. Summary.96

CHAPTER VI
PERFORMANCE STANDARDS.99

1. Performance Standards in Lieu of Use Districts.99
2. Performance Standards to be Utilized in
Combination With Existing Techniques:
Community Wide Implementation ...........................103
3. Special District Implementation .........................105
FOOTNOTES .................................................... 109

CHAPTER V*II
ZONING OF LAKE MICHIGAN--TIME SHARING AND CONTROL OF WATER USE .... 125

1. Existing Illinois Law ...................................125
2. The Use and Implementation of Lake Zoning ...............126
3. "Protective Space Zoning" ...............................129
4. Conclusion ..............................................130
FOOTNOTES ..131..................................

CHAPTER VIII
FINANCING TECHNIQUES:
STATE AND LOCAL ALTERNATIVES--A STUDY IN COMPLEXITY ............... 132

1. The Illinois Constitutional Framework--
Revenue Techniques ...................................... 132
2. Local Units of Government--Revenue ........... 134
3. Statewide Taxation ...................................... 136
4. Local Taxation .......................................... 137
5. Special Service Areas ................................... 139
6. General Obligation and Revenue Bonds .................... 141
7. Shoreline Erosion Protection Districts ....... 143
8. Bonding--Local Units .................................... 144
9. Intergovernmental Cooperation and
Financing Techniques .................................... 146
10. New Legislative Schemes ................................. 148
11. Vermont ................................................. 148
12. Other Tax Alternatives .................................. 149
Conclusion .................................................... 153
FOOTNOTES .................................................... 154

CHAPTER IX
PROPERTY OWNERS A-ND THE SHORELINE:
PAYING THE COSTS OF BENEFITS CONFERRED ............................ 164

1. Herein of Local Improvements .......... 164
a) What is an Improvement? ............................ 164
b) What is a "Local Improvement"? ..................... 165
c) Authority to Finance Local Improvements
by Special Assessments? ............................ 168
d) How Must or Can a Local Improvement
be Financed? ....................................... 169
e) How May the Costs of Local Improvements
be Allocated? ...................................... 170
2. Herein of in-kind Consideration ......................... 171
3. Summary ................................................. 173
FOOTNOTES ........................ ...... .................... 174

CHAPTER X--CONCLUSION
MANAGEMENT IN THE ILLINOIS COASTAL AREA:
AN OPPORTUNITY FOR PARTNERSHIP ..................................... 180

1. Toward a Management Program .............................
2. 'The Framework ........................ .................. 181
a) The Federal Level .................................. 181
b) The Illinois Context ....................... 183

c) The Public Trust .................................... 189
d) Home Rule .......................................... 190
3. Rules Applied--The Emerging Partnership .................191
a) The Lake Area ...................................... 191
b) The Shore Area (SA) ................................ 194
c) The Inland Area (IA) ............................... 199
4. Conclusion .............................................. 199
FOOTNOTES .................................................... 202

APPENDIX A, Chicago Lakefront
Protection Ordinance .......................................206

ACKNOWLEDGMENTS

The preparation of this Work Product was enabled by the maximum par-
ticipation of individuals whose contributions and criticisms were ex-
tremely meaningful, important and always constructive.

I wish to thank the members of the Lake Michigan Shoreline Advisory
Committee whose dedication to their community of interest was inspira-
tional. The continuing work of Robert Teska in reminding the author of
the planning and management setting was vital to this Report's prepara-
tion and conclusions. I received the immeasurable help and encourage-
ment of Harry Feehan and Eilene Mulaney, Counsel and Great Lakes Re-
gional Coordinator, respectively, from the U. S. Department of Commerce,
Office of Coastal Zone Management, for which I remain grateful. The
continuing analysis of our work product by Kathy Scheele, Office of Gen-
eral Counsel, Illinois Department of Transportation, was a continuing
prod to our further research.

To Donna Christman, Susan Moyer, Ralph Fisher, Mark Mugler and Chris
Shafer, the Illinois Program Staff, go my special thanks for continuing
to challenge me with new ideas, criticisms and their vitality. And to
Peter Wise, the Program's Coordinator, goes my thanks and respect for
leading by example--for taking on responsibility and discharging it re-
sponsibly.

Richard L. Wexler
Taussig, Wexler and Shaw, Ltd.
June 30, 1976

CHAPTER I
INTRODUCTION--THE CHANGING CONTEXT OF ANALYSIS

The Illinois Coastal Zone Management Program's First Year Legal
Analysis was designed to contribute to the overall Program a detailed
statement of Illinois' relevant legal structure--the wheel within which
the spokes of the Program would be developed. In The Legal Framework:
Lake Michigan and Its Shore, the authors articulated the "state of the
law" as it now exists in Illinois and, often with reference to the
emerging law of our sister states, indicated the trend of legal develop-
ments that will impact an the concepts of coastal zone management.

In the first year of our research and study we found:

The Illinois Lake Michigan shore is but fifty-nine
miles in length--in size one of the smallest coas-
tal zones in the Nation. Yet, it is certainly the
most urbanized and one that has been given no small
degree of attention by the Illinois General Assem-
bly, the courts, State agencies and thie governing
bodies of the municipalities bordering it. This
small area, so affected with the public interest,
-presents, almost in microcosm, so many of the
great issues of land use and planning law as to
be almost a treasure trove for the lawyer: pri-
vate and public property rights, the public trus-
teeship, environmental issues, government organi-
zation, home rule, and the fullest measure of land
use control and acquisition techniques. Thus,
with our mandate--to describe the state of the law
of Illinois as it relates to the Lake and its shore--
came our direction: to explore Illinois' laws,
case and statutory, in full, as they relate to these
issues so critical to the Lake, our State and the
law itself.

In the course of our research and analysis, we have
found that the extreme pressures of urbanization in
northeastern Illinois and the constantly changing
concepts of public purpose and benefit as they im-
pact on this most fragile and special natural re-
source lead to issues and conflicts that have, to
date, been resolved too frequently in the courts.
The lack of a clearly articulated State policy
toward Lake and shore must and will be cured in
the course of the Coastal Zone Management Program.

-2-

With the constant assistance and direction of the Program staff,
commencing in September 1975, the authors turned their attention toward
the development of a state policy toward Lake and shore that would be
legally and technically defensible to be vested ultimately in the polit-
ical and judicial crucibles in our State.

The singular approach to legal analysis is to: first, identify
what the law is, then, identify the r'elevant facts; then apply the law
to-the facts; and, reach the necessary conclusion. in our first year,
the authors, with notable assistance, identified the law in place while
the program staff and consultants gathered the relevant facts. In this
Report, the Program has begun the long and arduous process of applica-
tion of rules of law to facts--the ultimate conclusions to emerge in
the Third Year.

CHAPTER II
LOCAL GOVERNMENT PREROGATIVES IN THE COASTAL ZONE--
A STUDY IN THE NEED FOR LOCAL/STATE PARTNERSHIP

In the First Year Legal Analysis, we briefly touched on the implica-
tions of home rule1 within the context of the zoning and subdivision reg-
ulatory processes. This first-cut analysis and the historic negative
reaction of local and regional officials to other proposals for state
involvement in regulatory systems,2 demands an examination of the nature
and extent of home rule authority in Illinois in the mid-70's. Although
this section does not pretend to be a comprehensive examination of the
totality of home rule--a task we leave to others3--our analysis requires
an examination of home rule within the context of Illinois' urban history
to gain a perspective of the implications this doctrine has for the Pro-
gram.

1. Home Rule Emergent

The development of the home rule concept is viewed by most as the
touch stone of a common sense process:

The concept of 'home rule' emerged as a logical cul-
mination of efforts to impose constitutional limita-
tions upon the state's power to deal with local prob-
lems--efforts based principally upon general dissat-
isfaction with the common law status of local govern-
ments as wholly creatures of and subservient to the
state legislature. The intensified urbanization of
the nation in the latter part of the nineteenth cen-
tury, fed by streams of immigrants from abroad and
nurtured by the economic revolution growing out of
technological changes, had produced a need for
greatly increased governmental activity. As de-
mands grew for more municipal services and for broad-
er powers of local government, legislative authori-
zations were increasingly sought; avarice and cor-
ruption likewise played a significant role in com-
petition for legislative favors . . . . Special
legislation became the common order of the day.
The inevitable reaction often took the form of limi-
tations and restrictions on legislative powers, such
as the common prohibitions ajainst local and special
legislation, examined above.

-4-

Yet, home rule was also the "logical culmination" of a reaction to
and against that hoaried principle of the law memorialized as "Dillon's
Rule." Although the "rule" was a traditional one, its clearest enunci-
ation was by Justice John Dillon of the Iowa Supreme Court:

It is a general and undisputed proposition of law
that a municipal corporation possesses and can ex-
ercise the following powers, and no others: First,
those granted in express words; second, those neces-
sarily or fairly implied in or incident to the pow-
ers expressly granted; third, those essential to
the accomplishment of the declared objects and pur-
poses of the corporation . . . not simply convenient
but indispensable.5

As a corollary to this rule, Dillon mandated that any reasonable doubts
as to the existence of a power should be resolved against the municipal7
government6-- construction approved with vigor by the Illinois courts.7

Some form of municipal home rule now exists in at least nineteen
states8 other than Illinois. Although many observers of the home rule
process have historically criticized the "movement" as " . . . out of
harmony with modern ideas about public administration, which stress flexi-
bility and adaptability in governmental arran~ements,119 a critic has
~~nte neetihoe rue a-from waning, has increased
in recent years" reaching its culmination. in Illinois in 1970. Yet, in
the context of the Lake'Michigan shore c~ertain criticisms of the home
rule concept ring-loud and clear:

Recent developments in metropolitan areas have di-
vested the concept of home rule of much of the sanc-
tity it possessed at various times in the past. The
Values of maximum citizen participation and local
control implicit in home rule are in tension with
the limited ability of small units of government to
meet modern service standards, with the spread of
.public policy concerns to the metropolitan scale,
and with the poor public performance that often re-
sults from divided authority. Effective local con-
trol--the goal of home rule advocates--often re-
quires a larger jurisdiction than the typical lo-
cal unit.11

Yet, even with criticism, none can deny the true viability of the home
rule concept in Illinois today, nor the opportunities home rule provides
to enhance the operation of our cities and villages. This realization
was nowhere better expressed than in the report of the Local Government
Committee of the Sixth Illinois Constitutional Convention:

The fundamental reason for favoring home rule over
the existing system of legislative supremacy is
this: Local governments must be authorized to ex-
ercise broad powers and to undertake creative and
extensive projects if they are'to contribute ef-
fectively to solving the immense problems that have
been created by increasing urbanization of our
society. 1

These conflicts between critic and advocate emerged on the convention
floor and in the proceedings giving rise to the context for constitu-
tional home rule in our state.

2. The Constitutional Framework:
Negative and Positive Preemption

Local political fragmentation, the constraints of Dillon's Rule,13
added to the legislative restraints upon local units imposed by the Illi-
nois General Assembly combined in the mid-century to catalyze a major
effort to include within any constitutional revision a strong home rule
article. This movement, if you will, reached its logical, apex in the
1970 constitution of Illinois:14

SECTION 6. POWERS OF HOME RULE UNITS

(a) A County which has a chief executive officer
elected by the electors of the county and any muni-
cipality which has a population of more than 25,000
are home rule units. Other municipalities may elect
by referendum to become home rule units. Except as
limited by this Section, a home rule unit may exer-
cise any power and perform any function pertaining
to its government and affairs including, but not
limited to, the power to regulate for the protec-
tion of the public health,- safety, morals and wel-
fare; to license; to tax; and to incur debt.

(b) A home rule unit by referendum may elect not
to be a home rule unit.

(c) If a home rule county ordinance conflicts with
an ordinance of a municipality, the municipal ordi-
nance shall prevail within its jurisdiction.

Cd) A home rule unit does not have the power (1)
to incur debt payable from ad valorem property tax

receipts maturing more than 40 years from the time
it is incurred or (2) to define and provide for the
punishment of a felony.

(e) A home rule unit shall have only the power
that the General Assembly may provide by law (I) to
punish by imprisonment for more than six months or
(2) to license for revenue or impose taxes upon or
measured by income or earnings or upon occupations.

(f) A home rule unit shall have the power subject
to approval by referendum to adopt, alter or repeal
a form of government provided by law, except that
the form of government of Cook County shall be sub-
ject to the provisions of Section 3 of this Arti-
cle. A home rule municipality shall have the power
to provide for its officers; their manner of selec-
tion and terms of office only as approved by refer-
endum or as otherwise authorized by law. A home
rule county shall have the power to provide for its
officers, their manner of selection and terms of
office in the manner set forth in Section 4 of this
Article.

(g) The General Assembly by a law approved by the
vote of three-fifths of the members elected to each
house may deny or limit the power to tax and any
other power or function of a home rule unit not
exercised or performed by the State other than a
power or function specified in subsection (1) of
this section.

(h) The General Assembly may provide specifically
by law for the exclusive exercise by the State of
any power or function of a home rule unit other
than a taxing power or a power or function speci-
fied in subsection (1) of this Section.

Wi Home rule units may exercise and perform concur-
rently with the State any power or function of a home
rule unit to the extent that the General Assembly by
law does not specifically limit the concurrent exer-
cise or specifically declare the State's exercise to
be exclusive.,

(j) The General Assembly may limit by law the amount
of debt which home rule counties may incur and may
limit by law approved by three-fifths of the members

-7-

elected to each house the amount of debt, other than
debt payable from ad valorem property tax receipts,
which home rule municipalities may incur.

(k) The General Assembly may limit by law the amount
and require referendum approval of debt to be incurred
by home rule municipalities, payable from ad valorem
property tax receipts, only in excess of the following
percentages of the assessed value of its taxable prop-
erty: (1) if its population is 500,000 or more, an
aggregate of three percent; (2) if its population is
more than 25,000 and less than 500,000, an aggregate
of one percent; and (3) if its population is 25,000
or less, an aggregate of one-half percent. Indebted-
ness which is outstanding on the effective date of
this Constitution or which is thereafter approved
by referendum or assumed from another unit of local
government shall not be included in the foregoing
percentage amounts.

(1) The General Assembly may not deny or limit the
power of home rule units (1) to make local improve-
ments by special assessment and to exercise this
power jointly with other counties and municipalities,
and other classes of units of local government hav-
ing that power on the effective date of this Consti-
tution unless that power is subsequently denied by
law to any such other units of local government or
(2) to levy or impose additional taxes upon areas
within their boundaries in the manner provided by
law for the provision of special services to those
areas and for the payment of debt incurred in order
to provide those special services.

(m) Powers and functions of home rule units shall
be construed liberally.15

As one observer of the constitutional process has noted: "The Local
Government Committee . . . felt that careful draftsmanship would help
to avoid many of the problems faced by home rule in other states."16
Because the judiciary in other "home rule states" remained inextricably
tied to Dillon's Rule, the courts had become confused as to state au-
thority vis-a-vis local powers17--thus, the clear negation of Dillon's
Rule in Section 6(a); the broad explanation of the methodology of pre-
emption in Sections 6(g) through (i); and the express application of
all existing laws to home rule units until certified pursuant to the
Constitutional Transition Schedule.18

Thus, the Constitution, as enacted, Provides within the ambit of
home rule the broadest conceivable grant of substantive constitutional
powers coupled with a precise legislative methodology and responsibility
for preemption. The Local Government Committee made abundantly clear,
in proceedings before it, that the home rule grant under the Constitu-
tion created a broad area of substantive inherent power within home
rule units that were self-executing--requiring no action by the General
Assembly. 19The Section 6 powers fall into two categories:

1. A general grant of all powers and functions per-
taining to the home rle unit's government or
affairs; and

2. A specific grant of the powers of regulation,
taxation, licensing and debt.

While the general grant is obviously broad enough to obviate the need
for specificity; " . . . nonetheless, the specific grant was necessary
to indicate that.5srtain basic powers are unquestionably granted to
home rule uni.ts." Although similar grants are found in the constitu-
tions of South Dakota, Massachusetts and Arkansas, for example,"
none of these is as comprehensive as the Illinois grant." 21

The preemption sections are offered as " . . .a unique solution
to the problem of balancing estate and local power."22 Denial to the
home rule'units of the right-to exercise a power not exercised by the
state must be accomplished by a three-fifths majority vote in both
houses of the General Assembly. A three-fifths majority vote in both
houses is also required for the denial or limitation of a taxing power,
other than the taxing powers specifically limited in Section 6(e). How-
ever, when the legislature deems an area other than a taxing power, to
be of statewide concern, it may pass a general law expressing state ex-
clusivity in this area by simple majority vote of both houses. The con-
current exercise of a power by both the state and home rule units is
permitted except as limited or declared exclusive by the legislature.
Theoretically, almost any area may be preempted by the state, but the
three-fifths voting requirement will make preemption of powers aot exer-
cised by the state and of taxing powers difficult. 23 Professor David
C. Baum, counsel to the Local Government Committee at the Constitutional
Convention explained further the intent and thrust of Illinois' preemp-
tion provisions:

.The design of Section 6 places great responsibility
upon the legislature to ensure that home rule does
not degenerate into provincialism which could in-
jure the people of the state. The emphasis on leg-
islative authority to limit home rule, plus the
specification of ways in which the legislature must

act to assert its authority, makes the Illinois home
rule provision unique. Judicial limitations imposed
on home rule in other states should not be very per-
suasive in Illinois because of our unique approach
to the problem. 24

3. "Pertaining to its Government and Affairs"--
The Built-In Preemption

The major limitation of Section 6 is the restriction on a home rule
unit's e~rcise of powers to the municipal corporation's government and
affairs. The Local Government Committee recognized this restraint
stating that "[Tihe intent of this draft . . . is to give broad powers
to deal with local problems to local authorities. "26 The Committee rec-
ognized:

It is clear . . . that powers of home rule units re-
late to their own problems . . . . Their powers
should not extend to such matters as divorce, real
property law, trusts, contracts, etc., which are
generally recognized as falling within the corme-
tence of state rather than local authorities.27

As it pertains to the police power, the Committee acknowledged the grant
of power to be compatible with that ound in Ohio, stating further
that "no objections have been raised to vesting this basic 'police power'
in home-rule municipalities and counties."29

The question of what constitutes a home rule unit's "own problems"
has been addressed by the Illinois courts. Although the issue of
"[w]hether or not land use controls pertain to the government and af-
fairs of municipalities exclusively is one of the major issues still to
be settled by the courts in interpreting home rule in Illinois,"30 the
answer is slowly developing first in other home rule states and, now,
in Illinois, to the point where conclusions can begin to be drawn.

Prior to the enactment of the 1970 Constitution, Illinois counties
were forced to issue tax anticipation warrants to finance purchases
made prior to the receipt of real estate tax proceeds. These warrants
required substantial interest payments. Cook County, the sole home
rule county under 6(a) passed an ordinance providing for the payment
of county real estate taxes in four rather than the two installments
required by state statute31 in an attempt to obviate the need for in-
terest payments on the warrants by the county and the units of govern-
ment for which the county is the tax collection agent. The issues, then,
32
before the Illinois Supreme Court in Bridgman v. Korzen2 were whether

-10-

tax collection procedures pertained to the county's government and af-
fairs and, therefore, whether the home rule authority contemplated the
county's collection ordinance. The court, clearly confused by the inter-
governmental aspects involved, held that as the county was acting not
only on its own behalf but also on the behalf of other taxing bodies,
the function being performed could not and did not pertain solely to its
government or affairs:

Although obviously there are powers and functions
of county government which pertain to its govern-
ment and affairs within the contemplation of Sec-
tion 6 of Article VII, the collection of property
taxes is not one of them. In'the process of collect-
ing and distributing tax monies the county acts
both for itself and the other taxing bodies author-
ized to levy taxes on property within the county,
and the function thus performed does not pertain
to its government and affairs to any greater extent
than to the government and affairs of the other tax-
ing bodies for whose benefit it acts. We find no
provision in the constitution of 1970 or in the pro-
ceedings of the convention which leads us to believe
that the collection of property taxes is a home-rule
power or function within the contemplation of Section
6 of Article VII.33

Thus, though the court had earlier proven its willingness to hold that
a local home rule action may supercede the effects of a conflicting
state law antedating the 1970 Constitution,34 the context for such ac-
tion appeared to be delimited by a fair, if narrow, construction of the
"government and affairs" language.35 For the Coastal Zone Management
Program, however, a series of decisions impacting upon home rule units
through this construction is vital for true comprehension of the extent
of home rule power in Illinois today. Bridgman was merely a portent of
things to come.

The Local Government Committee readily recognized that certain regu-'
latory processes mandated greater than local management:

Control of air and water pollution, flood plains-and
sewage treatment are often cited as important exam-
ples of areas requiring regional or statewide stand-
ards and control.36

Even though the Committee further acknowledged that:

[At] the same time, it is quite conceivable that both
the state and various local governments can regulate

-11-

the same activities and carry on the same or related
functions without conflict or difficulty.37

It soon became clear, through court decisions, that-the State/local
relationships would come into conflict. Thus, in 1974, the City of
Chicago, as a home rule unit contended, in City of Chicago v. Pollution
Control Board:38

that its municipal disposal sites and incinerators
are not subject to the provisions of the Environmen-
tal Protection Act because (1) the City is a home-
rule unit under Article VII of the Constitution, (2)
the collection and disposal of garbage and waste is
a governmental function within its home-rule powers
and (3) the General Assembly has not acted pursuant
to Article VII to restrict the City's exercise of
these home-rule powers.39

The defense responded, contending that Section 1 of Article XI of the
Constitution vested exclusive legislative authority in the environmental
field in the state40 and, further,

that environmental and pollution matters do not per-
tain to the 'government and affairs' (see Ill. Const.
(1970), art. VII, sec. 6(a)) of home-rule units, and
that the State has preempted this area in the Environ-
mental Protection Act.41

Citing the Committee language above, the court held that the state legis-
lation was not preemptive but a concurrent exercise of power, with a
critical finding appended thereto:

The State has legislated in this field by the adop-
tion of the Environmental Protection Act, which did
not express the intent that the State should exclu-
sively occupy this field, but rather provided in
section 2(a)(iv) (Ill. Rev. Stat. 1973, ch. 111 1/2,
par. 1002(a)(iv)) that it is the obligation of the
State Government 'to encourage and assist local gov-
ernments to adopt and implement environmental pro-
tection programs consistent with this Act.' We con-
clude therefore that a local governmental unit may
legislate concurrently with the General Assembly on
environmental control. However, as expressed by
that portion of the constitutional proceedings re-
ferred to above, such legislation by a local govern-
mental unit must conform with the minimum standards
established by the legislature.i4

-12-

Thus, in clear language, the Illinois Supreme Court held not for the
first time nor the last,43 that the State may set minimum standards to
be followed by home rule units in the protection of the environment.

Although the question of defining "its government and affairs" has
arisen in both the financial44 and land use regulatory schemes of home
rule units, we may address the question strictly within the land use,
environmental and regulatory context that confronts the Program. Obser-
vers of land use nationally have noted that, typically, zoning is the
exercise of a parochial regulatory power:

Surely there are few matters which are of less state-
wide concern and which are more local in scope than
zoning ....

Among home rule states it is seemingly well-established that zoning is
a matter of local concern rather than of statewide interest47 but the
question remained open in Illinois. Professor Clyde Forrest of the
University of Illinois predicted the answer in 1973:

It would appear from the evidence of broad intent
and the lack of statutory mandate that the deci-
sions should be affirmative.48

At the end of 1974, in Johnny Bruce Co. v. City of Champaign,49 the Illi-
nois courts reached agreement with Professor Forrest. Citing hoaried
Illinois case law on " . . . the province of the municipality" to make
land use decisions,50 the court concluded that:

. . .the city of Champaign (ed., a home rule unit)
in the adoption of its general zoning ordinance or
an amendment thereto . . . is not limited in the
exercise of its power by the then existing enabling
statutes. It has plenary power in this regard. The
precise procedure for the exercise of this power
and the resolution of zoning problems must be left
to the local exercise of this new constitutional
grant of power.51

Although this decision resolved the issue as to the home rule unit's exer-
cise of zoning power within the unit's boundaries, questions still ling-
ered as to whether these powers might be exercised beyond the corporate
limits or upon matters of greater than local concern.

In a 1972 opinion, the Illinois Supreme Court had seemingly opened
the door to extra-territorial regulatory action by a home rule unit with
its decision in People ex rel. City of Salem v. McMackin.52. Herein, the
act of a non-home rule unit in acquiring property outside of its corpor-

-13-

ate limits pursuant to the Illinois Industrial Project Revenue Bond Act53
and proposing to develop and lease the same to private industry was
challenged. After finding the public purpose required of such an act,
the court held:

Where not expressly prohibited, a municipal corpora-
tion may purchase real estate outside of its corporate
limits for legitimate municipal purposes.54

The plaintiffs argued that the Act in question was unconstitutional as
special legislation in that home rule units could not under Article
VII, Section 6(a) similarly acquire land beyond its borders. The court
rejected this argument as specious:

The language of the constitution in the grant of
power to home-rule units may raise some questions
as to the extent of power to exercise sovereignty
beyond corporate limits, but the language does not
warrant the inference that a home-rule municipality
is unable to act in a proprietary capacity beyond
its corporate limits . . . . Since neither the
Act in question nor the constitution prohibits a
home-rule unit from adopting a similar enactment,
we do not find a denial of due process or equal
protection of the law, nor do we find special
legislation resulting from the Act.55

Although the court in City of Salem went to great lengths to distinguish
between proprietary acts--which may have extraterritorial impact--and
governmental acts--which may not so impact56--some home rule units saw
the decision as opening the door to extraterritorial zoning. This door
was now to be closed.

In City of Carbondale v. Van Natta,57 Carbondale, a home rule muni-
cipality, argued that Article VII Section 6(a) empowered it to regulate
under its zoning power " . . . within a 1 1/2 mile area beyond and con-
tiguous to its boundaries."58 The Illinois Supreme Court noted:

At the constitutional convention the Committee on
Local Government recommended that the grant of pow-
ers in Section 6(a) contain the specifically limit-
ing wording 'within its corporate limits' .
The intendment shown is that whatever extraterritorial
governmental powers home-rule units may exercise were
to be granted by the legislature.D~

The City-appellant argued that City of Salem supported its contention
but Justice Ward, speaking for the majority,b0 rejected this argument
outright, stating that in City of Salem:

-14-

* .we specifically distinguished extraterritorial
acts which are proprietary in character from acts
which are governmental . ...6

With Van Natta's publication it became fair to conclude that a
home rule unit's regulatory powers stopped at its boundaries and, pur-
suant to Johnny Bruce, the land use regulatory power generally rested
in home rule units as did other home rule powers. Yet, City of Chicago
v. Pollution Control Board continued to be the grey cloud in an other-
wise all blue home rule' sky--were there instances where even the most
fixed of home rule regulatory powers would be restrained by state ac-
tion or state interest? In other words, could the exercise of a home
rule power be delineated by the nature of the act or the nature of the
object of the regulation?

1'4 City of Highland Park v. County of Cook62 the Illinois Appellate
Court had the opportunity, under a complex set of facts, to test the
limits of home rule regulatory'authority. Highland'Park, a home rule
municipality, sought to enjoin the County from constructing a highway
within its corporate limits. The City contended that under the Highway
Code the County was required to obtain approval of a municipality of
over 500 persons before constructing, altering or maintaining a highway
within its corporate limits, which approval had not beenoband3
The City also contended-that under its home rule power, it had the power
to, and did enact an ordinance requiring prior approval by the City,
which approval had not been obtained. The Court reversed the injunction
relating to outlets in Red Oak Lane and Ridge Road and affirmed the de-
nial of the City's motion for an injunction as to improvements on Lake-
Cook Road. Th'e Court noted that the City did not contend that Lake-Cook
Road was a City road. The Highway Department ha., long taken the posi-
.tion that Cook County controls the entire righti-of-way and it was main-
tained solely by the County using State funds as it was designated as a
State-aid road. No County Highway funds were being expended--solely
State funds.

The court reasoned that the Illinois Highway Code reflects the care-
fully stratified system-of control over the designation, planning, con-
struction and maintenance of the highways, roads and streets throughout
the State. It specifies the respective responsibilities of the State,
acting through its Department of Transportation, and each of the three
levels 'of local government--counties, road districts and municipalities.
It also spells out the relationship between these four levels of govern-
ment, including the coordination of their action so as to assure a system-
atic approach to the task of providing a workable system of highways and
roads throughout the State. The court stated that, as these provisions
reflect, it is the role of the Counties, not the municipality, to make-
decisions and enter into agreements with the State regarding the designa-
*tion, planning, construction and repair of County highways and responsi-

bility for the County Highway System is given to the various County
Boards. "County Highway System" is defined to include all highways
designated as county highways. Municipalities are limited to dealing
with highways and roads not included in the State or County Highway
Systems. Under the Code, Counties have the power to locate and extend
county highways into and through municipalities and they may designate
existing streets as extensions of county highways.

The court held that the only part of the State Public Highway Sys-
tem. over which a municipality has any jurisdiction is "Municipal Street
Systems"--e.g., streets in municipalities which are not part of the
County or State Highway System--stating that any other result would
produce chaos. It further noted that to permit any municipality over
500 persons to prevent an improvement to an existing county highway
where it is being performed by a County with all necessary approvals
from the State would violate and jeopardize the systematic structured
approach to the designation, construction and maintenance which is the
foundation of the State Highway Code. While the plaintiffs had relied
upon Chapter 121, Section 5-408, the court held it had no application
to the facts in the case before it, since that statute only applied when
county funds were being used to construct the street.

The City's second contention was that under home rule powers it had
the power to and did enact an ordinance requiring prior approval by the
municipality before the County could construct a highway through its
corporate ~boundaries. The court noted that while the State Constitution
Article VII Section 6(a), states that, "except as limited by this sec-
tion, a home rule unit may exercise any power, perform any function per-
taining to its government and affairs including, but not limited to the
power to regulate for the protection of the public health, safety, morals
and welfare . '. this only expanded the home rule powers over strictly
local affairs, not those involving other municipalities, the County or
the State. Quoting Kurt Froelich, Illinois' most ardent observer of
the home rule process, the court adopted a narrow view of the extent of
the power:

A home rule unit may exercise any power and perform
any function 'pertaining to its government and af-
fairs.' The government and affairs language was
clearly intended as a limit on home rule powers.

***Implicit in the words 'pertaining to its gov-
ernment and affairs' was the concept that matters
of state concern or national concern are not within
the anmbit of the home rule grant * * * many matters,
even clearly of concern to home rule units, should
be left to the determination of the General Assembly.64

The Highland Park ordinances at issue, the court felt:

-16-

. . . require not only persons and corporation[s]
(sic) but 'any unit of local government' other than
itself, to obtain the approval of the City Council
before commencing any 'installation, construction,
reconstruction, repair or replacement of any road,
way, othoroughfare, easement or place open to the
use of the public for the primary purpose of vehicu-
lar traffic.'65

This, the court held, went far beyond constitutional limits:

If held valid and applied to the factual situation
present in the case at bar, they (ed., the ordinances)
are intended to and will affect the affairs of the
County, the State and other municipalities and, in
our opinion, therefore are not, as they must be,
limited to the City's own affairs.66

Critically important is the recognition by this court of analogous Ohio
precedent--demonstrating6 once again, similarities between Illinois and
Ohio home rule regimes.*'

A dissent magnified the impact 6f the Highland Park decision, ob-
serving that the majority's "pertaining to" language restricts the home
rule unit's sphere of power to "strictly local affairs" having no af-
fect upon any other governmental unit.06 Judge Seidenfeld in a well-
reasoned dissent, noted that Article VII, Section 6(c) gives priority
to a municipal ordinance within its jurisdiction when it conflicts with
a County ordinance. If Section 6-(a) is limited to subjects without
extra-jurisdictional affect, it was reasoned, the 6(c) priority section
would be unnecessary. The dissent also noted that Section 6(i) allows
home rule units to share concurrent power over a subject with the State
so long as there has been no State preemption and the subject matter
pertains to the home rule unit's government and affairs and not to the
problems particular to the state or nation. Furthermore, Section 6(m)
states that the powers and functions of home rule units shall be con-
strued liberally. As Judge Seidenfeld pointed out, the majority's
analysis that only subjects upon which a home rule unit may exercise its
powers are those strictly local problems, the regulation of which will
have no effect upon any other governmental unit is contradicted by the
structure of the entire home rule section of the constitution. The dis-
sent a o noted that the court in City of Chicago v. Pollution Control
Board, rejected an argument by the Illinois Pollution Control Board
that environmental and pollution matters did not pertain to the govern-
ment and affairs of home rule units. If pollution, with its extra-
territorial effect and its comprehensive regulation by the State, may
additionally be r egulated at the municipal level, then county roads
should likewise be subject to municipal regulation.

-17-

Although the court's language indicates that a municipality cannot
regulate matters that also affect other governmental units, this should
not be taken as a blanket statement, but should be reviewed in terms of
the facts of the case. The court placed great emphasis on the struc-
ture of the Illinois Highway Code and its comprehensive nature. At
the current time, the State has no similar system regarding the manage-
ment of the coastal resources. Yet, the impact of the decision is
clear--actions of home rule units which impact extra-territorially and,
therefore, upon other units of government will be carefully examined
by the courts and will not be given-the liberal construction otherwis e
mandated by Article VII Section 6(m). To this extent, Illinois' home
rule experience-is definitely consistent with the doctrine as applied
in other states.

4. "...Of More Than Local Interest"--
The Home Rule Experience Elsewhere

One of the keys to any coastal zone management solution is a basic
comprehension that the law requires that statewide resources require
management at a level of government higher than local. This thought is
neither new to Illinois--as is evidenced by the discussion above and
the emerging case law--nor alien in any way to lthe concept of home rule
in our State. States which have a longer history of home rule applica-
tions have reached identical conclusions.

By constitutional amendment, the powers of Ohio municipal corpora-
tions have been enumerated in the Ohio Constitution since 1912. Arti-
cle XVIII, Section 3 of the Ohio Constitution provides " . . . munici-
palities shall have authority to exercise all powers of local self-
government," 70 defined in the first court test of home rule:

As to the scope and limitations of the phrase 'all
powers of local self-government,' it is sufficient
to say here that the powers referred to are clearly
such as involved the exercise of the functions of
government, and they are local in the sense that
they relate to the municipal affairs of a particu-
lar municipality. 71

As is true in Illinois today:

This definition was characteristic- of later judi-
cial attempts to define the pertinent phrase, but
failed to provide any specific standards to facili-
tate its application either by the courts or by a
municipal government.72

However, in 1958, the Ohio Supreme Court developed a working definition
of "powers of local self-government" that were Obviously parroted with-
out attribution by the Illinois court in Highland Park some seventeen
years later:

To determine whether legislation is such as falls
within the area of local self-government, the re-
sult of such legislation or the result of ~the pro-
ceedings thereunder must be considered. If the re-
sult affects only the municipality itself, with no
extra-territorial affects, the subject is clearly
within the power of local self-government and is a
matter for the determination of the municipality.
However, if the result is not so confined it be-
comes a matter for the general assembly.73

This concept--known in Ohio as "the doctrine of state-wide concern"7 is
clearly applicable to Illinois. Under this doctrine in Ohio, if a mat-
ter traditionally placed in the ambit of local, home rule control, takes
on new significance and impacts beyond the boundaries of a given unit
of local government, the matter is7subject to general state legislation
and subject to state-wide control.

A strong tradition of home rul and local self-determination exists
in the State of California as well.'. In People ex rel Younger v. County
of El Dorado, 77 the California Supreme Court was asked by several coun-
ties to hold the Tahoe Regional Planning Compact unlawful as violative
of the state constitutional grant of home rule authority.. The Court re-
fused, noting that the California home rule authority granted"
broad powers over purely local affairs," 78 and concluding, in language
so apropos the Lake Michigan context as well as Tahoe:

The water that the Agency is to purify cannot be con-
fined within one county or state; it circulates freely
throughout Lake Tahoe. The air which the Agency must
preserve from pollution knows no political boundaries.
The wildlife which the Agency should protect ranges
freely from one local jurisdiction to another. Nor
can the population and explosive development which
threaten the-'region be contained by any of the local
authorities wh ich govern parts of the Tahoe Basin.
Only an agency transcending local boundaries can
devise? adopt and put into operation solutions for
the problems besetting the region as a whole. 79

A further contention of the-home rule units was that the regulatory pow-
ers of the Agency unlawfully conflicted with local zoning and police
power exercise. Rejecting this argument, the California court found:

-19-

It is beyond dispute . ..that the powers as to
planning and zoning which the (home rule units)
single out as violative of the Constitution are
not powers local in nature and purpose.0

In strong and poetic language this court directed the home rule units'
attentions outward in an expanded concept of regional and state-wide
concern:

Furthermore, problems which exhibit exclusively lo-
cal characteristics at certain times in the life of
a community, acquire larger dimensions and changed
characteristics at others. 'it is * * * settled
that the constitutional concept of municipal affairs
is not a fixed or static quantity. It changes with
the changing conditions upon which it is to operate.'
When the effects of change are felt beyond the point
of its immediate impact, it is fatuous to expect
that controlling such change remains a local prob-
lem to be solved 'by local methods. Old attitudes
confer no irrevocable license to continue looking
with unseeing eyes2~dl

Although, perhaps, more eloquent, concepts of "local government and
affairs" in California and Ohio are not truly different than in their
more embryonic state in Illinois. But where does this lead us?

5. Greater Than Local Resources In Illinois:
The Public Trust Applied

We have dealt extensively with the public trust doctrine in the
First Year Program. 82While there is little value in repetition, a brief
synopsis of the concept and its Illinois history will focus on statewide,
regional and local interests in the management of our most valued re-
source in Illinoi8--Lake Michigan.

The scattered evidence, taken together, suggests
that the idea of a public trusteeship rests upon
three related principals. First, that certain in-
terests--like the air and the sea--have such im-
portance to the citizenry as a whole that it would
be unwise to make them the subject of private owner-
ship. Second, that they partake so much of the
bounty of nature, rather than of individual enter-
prise, that they should be made freely available to
the entire citizenry without regard to -economomic

-20-

status. And, finally, that it is a principle pur-
pose of government to promote the interests of the
general public rather than to redistribute public
goods from broad public uses to restricted pri-
vate benefit.83

As Professor Joseph Sax has so aptly indicated, the trust doctrine, as
it developed in American law has struck a balance which is designed to
retain the largest measure of public use consistent with needful devel-
opment and industrialization, although this standard is more easily des-
cribed than defined. 84

a) The Public Trust Doctrine

Sax, now of the University of Michigan Law School, has been, his--
torically, the most avid student of the public trust doctrine. In one
of his major works on the subject, Sax has made the following critical
observation:

Of all the concepts known to American law, only the
public trust doctrine seems to have the breadth and
substantive content which might make it useful as a
tool of general application for citizens see-king to
develop a comprehensive legal approach to resource
management problems. if that doctrine is to provide
a satisfactory tool, it must meet other criteria.
It must contain some concept of a legal right in the
general public; it must be enforceable against the.
government; and it must be capable of interpretation
consistent with contemporary concerns for environ-
mental quality.8

The public trust doctrine is as old as the law itself--at least the law
as we know it. We trace the trust back to ancient Roman law. Yet, the
landmark case in the United States on the public trust is once that arose
in the context of one of Illinois' most valuable and valued assets--
Lake Michigan's shore line. No more thorough exploration of American
* ~law on the subject can be found than in Illinois Central v. Illinois. 86

* Appeals to the United States Supreme Court were taken from a decree
in a bill filed by the State of Illinois against the railroad, the City
of Chicago and-the United States to determine the rights of the parties
in and to certain submerged or reclaimed lands in Lake Michigan lying
east of the water line of the City.

In 1850, Congress had granted land to the State of Illinois to aid
in the construction of a railroad. in 1851, the Illinois Central Rail-
road was incorporated pursuant to a private law and was authorized to

appropriate to its sole use and control a 200 foot wide right-of-way in
and along Lake Michigan. in 1852, the City of Chicago, by ordinance,
consented to the railroad entering the City "along the margin of the
lake, within and adjacent to the same" and granted to the railroad a
300 foot right-of-way not less than 400 feet east of the west line of
Michigan Avenue and parallel thereto.' This ordinance allowed the rail-
road to fill out into the Lake and in 1856, the City granted the railroad
permission to enter and use in perpetuity the space between its then
present breakwater and the river (an area north and east of the present
Randolph Street). In 1869, the Illinois legislature passed the so-called
"Lake Front Act." The Act purported to do much, but most importantly,
section 3 of the Act "confirmed" title in or donveyed to the railroad
all right, title and interest of the State in and to the bed of Lake
Michigan lying east of the railroad right-of-way for a distance of one
mile and bounded by Randolph Street on the north and by Park Row (11th
Street) on the south. The title was to be held by the railroad in per-
petuity. The City balked at going along with the statute and some liti-
gation ensued. In 1873, the legislature repealed the 1869 statute.

In Illinois Central, the State sought a decree confirming its title
to the bed of Lake Michigan and its sole and exclusive right to develop
the Chicago.-Harbor as against the railroad's claim that it had absolute
title to those submerged lands described in the Act of 1869, and the
right to fill in the bed of the Lake for purposes of its business activi-
ties. The City, in a cross-bill, insisted that since 1839 it had the
control and use of what is now Grant Park. It sought a declaration
that it was the owner of the fee and of riparian rights appurtenant to
the park; that it had the exclusive right to develop the harbor of Chi-
cago and that the railroad be enjoined.

United States Supreme Court's opinion first noted that the object
of the suit was to determine the title of certain reclaimed lands and
the submerged lands which were the subject of the 1896 statute. 87

The Court first noted that:

It is the settled law of this country'that the owner-
ship of and dominion and sovereignty over lands cov-
ered by ti~de waters, within the limits of the sev- 8
eral states, belong to the respective states . .88

The Court held that the same result obtained as to the Great Lakes upon
the theory of state dominion. The Court said, it would examine how far
such dominion had been encroached upon by the railroad; how far that
company had the assent of the State to such encroachment; and the Val-
idity of the tight to further encroachment. 89

As to the railroad's 200 foot right-of-way, the Court held that
it had been constructed under lawful authority but that the railroad

-22-

never acquired by its reclamation an absolute fee title but only an ease-
ment of right-of-way for railroad purposes.90 Furthermore, the railroad
acquired by virtue of the easement of right-of-way no riparian rights to
reclaim lands from the waters of the Lake for its use or for the con-
struction of piers, wharves, docks and other facilities.91

The railroad had acquired fee title to some lands fronting on the
Lake north of Randolph Street and between 12th and 16th Streets and had
reclaimed some of the adjacent submerged lands and constructed slips,
wharves and piers. The railroad claimed ownership and the right to use
the facilities. The Court held that there was a right to "wharf out"
to the point of navigability. But in the instant case, no evidence was
ever adduced as to the point of navigability. or at least no public
authority had ever established such a point.

The railroad's claim to the submerged lands in the Chicago Harbor
was based on the Act of 1869. The primary questions to be decided were
the validity of that Act and the validity of the 1873 statute repealing
the prior Act. As to the "confirmation" of title, the Court held that
the confirmation could not be involved so as to extend the railroad's
riparian rights to the shore south of Randolph Street and north of 12th
Street. The Court first framed the question presented as:

whether the legislature was competent to thus
deprive the State of its ownership of the submerged-
lands in the harbor of Chicago, and of the conse-
quent control of its waters . . 93

To pose the question was to answer in the negative.

The Court reiterated that the State holds the title to the lands un-
der the navigable waters of Lake Michigan, within its limits, in the
same manner that the State holds title to soils under tide water by the
common law. In addition, that title necessarily carries with it control
over the waters above them whenever the-lands are subjected to use:

But it is a title different in character from that
which the State holds in lands intended for sale . ..
It is a title held in trust for the people of the
State that they may enjoy the navigation of the
waters, carry on commerce over them,'and have the
liberty of fishing therein freed from the obstruc-
tion or interference of private parties.9

The Court distinguished between the situation in which the disposi-
tion of submerged lands is made to facilitate improvement of navigation
and commerce, which is permissible, and the situation whereby the dis-
position causes the State to abdicate its general control over lands un-
der its navigable waters, which constitutes an impermissible exercise of
power:

-23-

Such abdication is not consistent with the exercise
of that trust which requires the government of the
State to preserve such waters for the use of the
public. The trust devolving upon the State for the
public, and which can only be discharged by the man-
agement and control' of property in which the public
has an interest, cannot be relinquished by a trans-
fer of the property. The control of the State for
the purposes of the trust can never be lost, except
as to such parcels as are used in promoting the in-
terests of the public therein, or can be disposed
of without any substantial impairment of the pub-
lic interest in the lands and waters remaining.95

Thus, the conveyance itself is subject to, impressed with, if you will,
the trust. As to the public trust, the Court stated:I

The State can no more abdicate its trust over prop-
erty in which the whole people are interested, like
navigable waters and soils under them, so as to
leave them entirely under the use and control of
private parties, except in the instance of parcels
mentioned for the improvement of the navigation and
use of the waters, or when parcels can be disposed
of without impairment of the public interest in
what remains, then it can abdicate its police'pow-
ers in the administration of government and the
preservation of the peace. In the administration
of government the use of such powers may for a
limited period be delegated to a municipality or
other body, but there always remains with the
State the right to revoke those powers and exercise
them in a more direct manner, and one more conform-
able to its wishes. So with trusts connected with
public property, or property of a special charac-
ter, like lands under navigable waters, they cannot
be placed entirely 9beyond the direction and con-
trol of the State.9

The Illinois Central argued that a contract existed for the rights to
the Lake by virtue of the 1869 Act. The Court scoffed at this argument
and held that any attempted cession-of the ownership and control of the
State in and over the submerged lands in Lake Michigan, by the Act of
April 16, 1869, was inoperative to affect, modify or in any respect to
control the sovereignty and dominion of the State over the lands, or
its ownership thereof. Furthermore, it found that any such attempted
operation of the act was annulled by the repealing act of April 15,
1873, which to that extent was valid and effective:

-24-

There can be no irrepealable contract in a convey-
ance of property by a grantor in disregard of a
public trust, under which he was bound to hold
and manage it.97

Sax, in reviewing Illinois Central concluded:

When a state holds a resource which is available
for the free use of the general public, a court
will look with considerable skepticism upon any
governmental conduct which is calculated either
to reallocate that resource to more restricted
uses or to subject public uses to the self-interest
of private parties.98

Yet, the Court expressed more than "skepticism:"

What a State may not do, the Court said, is to divest
itself of authority to govern the whole of an area
in which it has responsibility to exercise its po-
lice power; to grant almost the entire waterfront
of a major city to a private company is, in effect,
to abdicate legislative authority-over navigation.99

Within the decade of the 1892 Illinois Central decision,'the rail-
road had two other occasions to visit the Supreme Court in connection
with its Lake Michigan/public trust-related activities.

First in United States v. Illinois Central Railroad Co.,100 the fed-
eral government sought to enjoin the railroad's diversion of Grant Park
to non-park uses. The Court in this case held that the United States
was not a proper party to invoke the trust as the United States did
not possess jurisdiction to control or regulate, within a State, the
execution of trusts or uses created for the benefit of the public.101

Thus, it was left to the State to protect the public trust and in
1900, in Illinois Central Railroad Company v. Chicago, the United
States Supreme Court affirmed an Illinois Supreme Court decision that
asserted the public trust with greater specificity and greater direction
for us even in 1975, than did its earlier more famous opinion.

Suit had been filed by the railroad to enjoin the City from inter-
fering with the filling in of certain submerged lands by the Illinois
Central in front of property owned by the railroad between 25th and 27th
Streets. The purpose of reclamation was to erect an engine house and
locomotive stalls.

The Court took a strict (if not dim) view of the matter:

-25-

The position of the railroad company under these sec-
tions (o~f the charter), presupposing as it does a
vested, continuing and irrevocable right for all
time, to use such of the shallow waters and submerged
lands of Lake Michigan as it may now or hereafter
find to be necessary to the proper and complete op-
eration of its road, and a surrender by the city of
all power of interference is certainly a somewhat
startling one.103

The Court said that the railroad was arguing that what the State could
not do directly, the railroad may now do piecemeal:

take the whole water front of the city to the limit
of navigation for the operation of the road, and
that, too, without the consent and against the
protest of the city. If such authority be possi-
ble, it should be granted in the clearest and most
unmistakable l nug.104

Construing the charter, the Cour t did not-find any such language.
The reference in the charter to "lands and streams" or "lands and waters"
which may be entered upon by the railroad for appropriate purposes, did
not include 1~ake M~ichigan.lO The Court so held because absent local
law, custom or usage, grants of land (of which the charter was one) do
not pass- title to submerged lands below the high water mark (or, in the
case of Lake Michigan, lands under or forming the bed of the Lake) un-
less there is specific language in the grant passing title. The Court
examined Illinois law and found nothing in the State's custom or usage
to support the railroad's claim and held that the charter was simply
not precise enough on the point. The custom had been for the City to
approve entry by the railroad on to various lands, including the first
such entry which was the subject of an ordinance passed in 1852.

The term "waters," as used in the Charter, the Court held, referred
to "streams" but not"lakes." Under Illinois law, streams and lakes were
quite different things'.106

It is incredible that, if the General Assembly had
int'ended to authorize the company to take possession
of submerged lands, as it found it necessary or con-
venient so to do, it would not have employed more ex-
plicit language *to that effect.107

But even if the Charter was to be broadly construed, by, its very terms,
the railroad still needed the approval of the Chicago city council to
fill in the lands.108 The Court rejected the argument that since the
corporate boundaries of the City did not .in 1851 extend to 25th Street,

-26-

approval of the particular construction here was not required. The Court
held that the Charter did not freeze things in effect as of 1851.

The impact of the 1900 Illinois Central decision is too often over-
looked in public trust law analyses.lu' Yet, this 1900 decision is of
critical import:

1. The facts in the 1892 case were" . particu-
larly egregious"110--the grant of over 1,000
acres (one square mile of submerged lake)--
whereas in the 1900 decision only 4 to 5 acres
were involved; and

2. In the 1892 decision, the Court did not require
detailed legislation as a condition of any dis-
position--in the 1900 decision the Court so em-
phasized--a theme that has been common to "the
contemporary doctrine of the public trust."111

Both the 1892 and 1900 decisions, together, provided Illinois and
the nation with as broad a public trust doctrine as have any develop-
ments in other state courts since. Given a legislative mandate concern-
ing the Lake coupled with this case law, one would be free to conclude
that intrusions on the public trust in Illinois would not be permitted.
The growing pressures on urban land use in Illinois in the 20th century
were, however, to pressure the doctrine as well.

Of direct impact on the doctrine were a series of opinions confront-
ing the public trust more directly.

First in 1958, the Illinois Supreme Court was asked to overturn a.
trial court decision approving both the funding of the original McCormick
Place and its location--on lands reclaimed from the bed of Lake Michigan.
In Fairbank v. Stratton,112 the court dismissed the contention that the
use of the reclaimed bed for an exposition hall violated'the public trust
in a summary manner:

We recognize that submerged lands reclaimed are im-
pressed with a trust in the public interest. How-
ever, the facility here contemplated is in the pub-
lic interest and has been approved by the proper
authorities. Under circumstances such as these we
find no violation of that trust.113

In 1966, in Droste v. Kerner,114 the court was called upon to adjudi-
cate the public trust in the context of the conveyance, pursuant to state
legislation115 of 196.40 acres of submerged Lake Michigan bed to the
.United States Steel Corporation. Although the court determined that the

-27-

taxpayer plaintiffs had no standing to raise the public trust issues,
Chief Justice Klingbiel, speaking for the majority, felt it necessary to
speak to the issue of the trust at some length in rejecting the plain-
tiff's arguments that, to the casual reader, seemed so consistent with
the 1892 Illinois Central opinion. While the court found that the sub-
merged land was held by the State of Illinois in trust to protect the
rights of the public in the use of the navigable waters:

This did not mean, however, that the shoreline was
required forever to remain unchanged except by nat-
ural causes ....

The proper execution of this public trust with re-
spect to submerged lands requires that the convey-
ance of any particular parcel to a shore owner be
consistent with the public interest and not impair
the interest of the public in the lands and waters
remaining. It would not be possible for the State
to make that determination in the administration of
the trust unless it has the power to specify the
individual or corporation to whom the submerged
lands are to be conveyed.116

The court went on to properly distinguish the 1900 Illinois Central case,
ci-ting the lack of specific legislative authority which had been cured
by the General Assembly:

. ..we point out that the legislature, in section
I of the present statute,,expressly declared that
'the grant of submerged land contained in this Act
is made in aid of commerce and will create no im-
pairment of the public interest in the lands and
water remaining, but will instead result in the con-
version of otherwise useless and unproductive sub-
merged land into an important commercial development
to the benefit of the People of the State of Illi-
nois.' The act was duly approved by the Governor
and, prior to its passage and approval, the Chi-
cago City-Council had unanimously adopted a resolu-
tion urging the statute's enactment. We cannot as-
sume that the legislative finding contained in sec-
tion 1 of the act was factually incorrect or that
it was not made in the utmost good faith.117

But for an articulate and vigorous dissent by Justice Schaeffer, pro-
ponents of the public trust doctrine as a viable vehicle for shoreline
protection in Illinois might have run up the white flag upon a reading
of Droste. Was the Lake Mich igan shore now to be fair game to every pri-
vate developer or entrepreneur; to the whim of a changing legislature;

-28-

we re the pious statutory pronouncements of public trust to be observed
more in the breach? A case was soon to reach the Court--curiously in-
volving a non-lakefront Chicago park--whose dicta would raise expecta-
tions as to the trust's potential as much of Droste's dicta dashed
them.

In 1970, just four years post-Droste, the Chicago Public Building
Commission in concert with Chicago's Park District and Board of Educa-
tion, proposed to develop almost four acres in Washington Park with a
school/gymnasium facility. This conversion of park land to another
public use was challenged by a group of taxpayers in Paepcke v. Public
Building Commission.118 The trial judge, relying on Droste, held that
the plaintiffs lacked standing- to maintain the action in their posture
as taxpayers.

The Supreme Court reversed its prior position clearly and without
equivocation.

Upon serious reconsideration of this question we now
believe that portion of the opinion in Droste deal-
ing with the right and standing of the plaintiff to
sue should be overruled, as should any other former
decisions of this court holding that a citizen and
taxpayer has no right, in the absence of statute, to
bring an action to enforce the trust upon which pub-
lic property is held unless he is able to allege
and prove special damage to his property. If the
'public trust' doctrine is to have any meaning or
vitality at all, the members of the public, at
least taxpayers who are the beneficiaries of that
trust, must have the right and standing to enforce
it. To tell them that they must wait upon govern-
mental action is often an effectual denial of the
right for all time.119

Relying heavily on Professor Joseph Sax's writings on the public' trust,120
the court drove hard at a distinction between conveyances of trust.prop-
erty to private parties as opposed to the division of public uses of
trust property to other public uses and emphasized the need of govern-
ment to reallocate resources in approving the Public Building Commission/
Park District action. Even so, Justice Burt, speaking for a unanimous
court, felt impelled to point a path for the future:

In passing we think it appropriate to refer to the
approach developed by the courts of our sister state,
Wisconsin, in dealing-with diversion problems. In
at least two cases, City of Madison v. State, I Wis.
2d 252, 83 N.W. 2d 674; and State v...Public Service
Com. 275 Wis. 112, 81 N.W. 2d 71, the Supreme Court

of Wisconsin approved proposed diversions in the use
of public trust lands under conditions which demon-
strated (1) that public bodies would control use of
the area in question, (2) that the area would be de-
voted to public purposes and open to the public, (3)
the diminution of the area of original use would be
small compared with the entire area, (4) that zone
of the public uses of the original area would be
destroyed or greatly impaired and (5) that the dis-
appointment of those wanting to use the area of new
use for former purposes. was negligible when compared
to the greater convenience to be afforded those mem-
bers of the public using the new facility. We be-
lieve that the present plans for Washington Park
meet all of these tests. While not controlling
under the issues as presented in this case we be-
lieve that standards such as these might serve as
a useful guide for future administrative action.121

Although the court couched its dicta in terms of administrative action,
it is clear that the sister-state citations to Wisconsin were meant as
legislative guidelines as well.

b) The State of the Law

The Illinois Supreme Court in Paepcke was heavily reliant on the
Sax analysis of the public trust doctrine ultimately opting for the
."Wisconsin approach." in analyzing the public trust, Sax observed the
necessity, under the Wisconsi n approach, of clear guidelines and analy-
sis so vital to a proper natural resources plan.

If the Wisconsin approach is to be properly ap-
praised, it is essential to understand the disadvan-
tages under which courts have traditionally labored
when dealing with cases such as those involving pub-
lic trust lands. Those disadvantages arise because
courts are accustomed to dealing with the meaning of
statutory and constitutional language rather than
with data which help to identify and compare the
benefits and costs at stake in the cases before
them. Therefore, the courts have had to fashion
for themselves guidelines which will permit the
court either to filter out cases in which there
is a rather clear loss to the public interest or
to thrust back upon administrative agencies or
legislatures the responsibility to adduce persua-
sive evidence that the public interest is not be-
ing neglected. Sometimes courts will require that
a record be made and data collected in order to
satisfy the court directly that every important

-30-

interest is adequately considered. A court may
also . . adopt an approach which requires that
there be an open and explicit legislative decision,
so that a proposal will be tested against the wishes
of an informed public. Finally, a court may serve
notice that the public benefits from certain kinds
of projects are so inherently unclear that such
projects should not be advanced unless it can be
shown that they are in fact necessary or desirable
from the perspective of the public interest.122

Let us now turn our attention to the protection being afforded lands
of great state- or region-wide public value in one other state. As of
July 1, 1974, Connecticut's state government began to protect critical
land use areas under the Inland Wetlands and Water Courses Act. The
same environmental problems confronting Illinois caused the Connecticut
legislature to act with somewhat amazing dispatch.

c) Connecticut

"An Act Concerning Inland Wetlands and Water Courses,"123 states its
purpose to be the protection of the public interest, health, safety and
welfare of Connecticut citizens through regulation of activities on
"indispensible, irreplaceable and fragile"124 natural resources--inland
wetland and water courses. The public interest in and the environmental
value of these areas is articulated throughout, and an orderly process
created to balance protection of these valuable areas with land use and
economic growth is specified in considerable detail. There are several
particularly significant aspects of the act.

First is the regulatory nature of the act. It is not a prohibition
on activities in inland wetlands and water courses. Rather, it sets up
a process for wise use of these delicate areas. Right of use is not
taken away--proper use is allowed, and made more likely by the process.
No activities'are prohibited; several are permitted outright--farming,
farm ponds of three acres or less, boat moorings, uses incidental to
enjoyment and maintenance of residential property, construction and op-
eration by water companies of facilities necessary to impound and store
water in connection with public water supplies, and homes or subdivision
lots for which a building permit was issued or subdivision approved as
of the effective date of promulgation of municipal wetlands regulations.

Also permitted, provided they do not disturb the natural and indige-
nous character of the land, are conservation measures, and outdoor recre-
ation including play and sporting areas, golf, trails, hiking, nature
study, horseback riding, swimming, skin diving, camping, boating, water
skiing, trapping, hunting, fishing and shell fishing.

-31-

All other activities which remove material from, deposit it in, ob-
struct, construct, alter or pollute an inland wet'land must be granted a
permit before they are undertaken. Thus, the value of a particular in-
land wetland or water course and the results--or environmental impact--
of a particular action are carefully examined before the activity is un-
dertaken, and the public stake in the wetland and the role of the land
in maintaining a stable ecosystem are carefully considered.

The act explicitly encourages municipalities to designate a local
agency as the P.A. 155 decision-making body. If the municipality did
not do so by June 30, 1974, the state DEP became the permit authority--
but municipalities may choose to regulate locally any time after the
deadline, and both the law and the state DEP heartily encourage local
control. While on the face of it, this emphasis on municipal control
appears to be a natural extension of local zoning powers and traditional
home rule sentiment in the state, it also has a most significant result.
For the first time, environmental impact criteria are required to be con-
sidered by a local decision-making body, should the municipality choose
to have such. This brings, in one fell swoop, a land use program based
on environmental concerns to the local level.

-32-

6. Conclusion

a) Implications f-nr Illinois

That is the framework.

The areas of public trusteeship in Illinois are clearly areas falling
within the protection not only of the doctrine but of Article XI of the
Constitution and City of Chicago v. Pollution Control Board. Surely it
includes our lakes, but what of our forests, our wetlands, our marshes?
And what of our rivers and streams, hillsides and bluffs? What of our
State and local parks? What of our prime agricultural lands? What of
wildlife habitats and historic sites? we must take great care in identi-
fying these areas of public trust--nothing would do greater harm to the
doctrine or to the hoaried concepts of private ownership than to promis-
cuously identify a myriad of valued land uses as within the State's trus-
tee ship.

What can we learn from the Illinois public trust doctrine? From
the Connecticut Act? We know that certain physical and environmental
assets in and of our State belong to all of our citizens--the Lake, for
example, belongs not merely to the citizens of Chicago or Lake Forest,
Highland Park or Waukegan, but to all of the citizens of Illinois and,
perhaps, even beyond (as-is exemplified by the Lake Michigan water di-
version case). These State assets pay no attention to the artifici--
ality of the boundaries of local government units, as the Mount Carmel
opinion so vividly indicates and certainly not to the lot lines of an
individual property owner. Thus, to continue to regulate, to control
these assets on a community by community basis defies logic and reason
and is, in fact, nigh impossible.

The public trust doctrine cries out for the setting of standards at,
at least, a regional level or at the plateau of state government. Not to
do so defies the spirit of Illinois Central and the mandate of Paepcke.
* ~We must prepare ourselves for an input at the regional or state level
that will permit the proper use and allocation of those identified re-
sources that are in the public trust. This is controversial--it flies
* ~in the face, to some extent, of the basic home rule concept so new to
Illinois. Yet, State resources demand state treatment--local resources,
local treatment.

The public trust doctrine, as outlined here, is obviously no panacea
for the conservation, the preservation of our State's noticable and criti-
cal resources. It is, however, a viable doctrine, centuries old yet mod-
ern in application, that can form an independent basis for the exercise
of the public power to preserve our land use and environmental heritage.

The concept of a local/state partnership in the management of the
shore and coastal zone emergent is not a new one. it grows, however,

-33-

from concepts of public trust and home rule--from the legal obligations
of the State and local government. Home rule in Illinois enables this
partnership. Perhaps the Advisory Commission on intergovernmental Re-
lations has described this best:

limitations of loc-al home rule arise from the
CIOse functional interrelationships that exist in
metropolitan areas. Many problems have grown beyond
.city limits, but the city's power to cope with a
situation ends abruptly at its boundary lines. In
addition to local inability to provide many'services,
individual communities may damage their neighbors'
interests by their own policies--by excluding
moderate-cost housing or polluting rivers for ex-
ample.

The complexity of metropolitan problems and the
inability of many smaller units to cope with them de-
feats the theory of local home rule and popular con-
trol, as well as the ability of local government to
provide services. Where everybody is concerned but
no one unit has the power to act, what purpose is
served by local popular control? The Commission
shares the view expressed by Luther Gulick that
municipal home rule in the mid-2Oth century is not
the right to be left alone behind legally defined
bulwark, but rather the right to participate as an
equal partner in arriving at decisions which af-
fect community life.-25

-34-

FOOTNOTES

1. WEXLER, THE LEGAL FRAMEWORK: LAKE MICHIGAN AND ITS SHORE 111-54
et seq. (1975).

2. See, e.g., the visceral reaction to proposals of the Zoning Laws
Study Commission in 1971.

3. For a detailed, if simplistic current view of home rule in Illinois,
see, Froehlich, Home Rule, in ILLINOIS MUNICIPAL LAW, ch. 24 (1975)
(hereinafter cited as "FROEHLICH").

4. SATO and VAN ALSTYNE, STATE AND LOCAL GOVERNMENT LAW 216, 217 (1970)
(hereinafter "SATO") citing McBAIN, THE LAW AND PRACTICE OF MUNICI-
PAL HOME RULE 3-12 (1916).

5. J. Dillon, LAW OF MUNICIPAL CORPORATIONS, 237 (5th ed. 1911) first
appearing in City of Clinton v. Cedar Rapids and Missouri River RR
Co., 24 Iowa 455 (1868).

6. Id. at 448.

7. See, erg., cases as recent as Connelly v. County of Clark, 16 Ill.
App.3d 947, 307 N.E. 2d 128 (1974); to Ives v. City of Chicago, 30
Ill. 2d.582, 198 N.E. 2d 578 (1964); to City of Chicago v. Ingersoll
Steel and Disk Div., 371 Ill. 183, 20 N.E. 2d 287 (1939).

8. Ariz. Const. Art. XIII, 9�2 and 3; Calif. Const. Art. XI, 96 et seq.;
Colo. Const. Art. XX ��1-6; La. Const. Art. XIV, 93(a) (as to East
Baton Rouge Parish and the City of Baton Rouge only); Md. Const.
Art. XI A (as to Baltimore only); Mich. Const. Art. VIII, �2 et seq.;
Minn. Const. Art. IV, 336; Mo. Const. Art. VI, 3H19 and 20; Neb.
Const. Art. XI, ��2-5; Nev. Const. Art. VIII, �8; N.Y. Const. Art.
IX, ~�9, 11-13; Ohio Const. Art. SVIII; Okla. Consto Art. XVIII,
192-7; Ore. Const. Art. XI, ~�2 and 2-a; Pa. Const. Art. XV, �1, Tex.
Const. Art. XI, �5; Utah Const. Art. XI, 35; Wash. Const. Art. XI,
9910 and 11; W. Va. Const. Art. VI, �39(a)0

9. FORDHAM, LOCAL GOVERNMENT LAW 77 (1949).

10. Id.

11. ACIR, METROPOLITAN AMERICA: CHALLENGE TO FEDERALISM 123-124 (1966).

12. Ill., Sixth Const. Conv., Record of Proceedings, Committee Proposals--
Member Proposals, Committee on Local Government Proposal 1 (1972),
VII: 1605 (Emphasis omitted).

-35-

13. Shoeplein, "Home Rule and Local Government Finance" in Gove, HOME
RULE IN ILLINOIS '73 (1973).

14. As noted in Froelich, supra., note 3 at 24-20: "To simply say that
the concept of home rule reverses Dillon's Rule is to understate
the dramatic change in state-local relations introduced by the 1970
constitution."

15. ILL. CONST. ART. VII, 96.

16. Green, "Home Rule, Preemption and the Illinois General Assembly,"
in Gove, HOME RULE IN ILLINOIS 49 (1973).

17. Sixth Constitutional Convention, Committee on Local Government, mono.,
Baum, "A Preemption Primer," (1970).

18. Ill. Const. Art. VII, �9.

19. VII Record of Proceedings, Sixth Illinois Constitutional Convention
1567 (1970) (hereinafter cited as "VII"); Baum, ed., Scope of Home
Rule: The Views of the Con Con Local Government Committee, 59 Ill.
B.J. 814(1971).

20. Foss, "Illinois Home Rule: The Preemption Puzzle," mono., U. of I.
Law School (1975).

21. Cole, "Illinois Home Rule in Historical Perspective," in Gove, HOME
RULE IN ILLINOIS 19 (1973). In Massachusetts, for example, local
units may not tax or incur debt. (Hereinafter cited as "Cole").

22. Id.

23. The preemption sections have been referred to by John C. Parkhurst,
Chairman of the Local Government Committee as "the heart of the
home rule concept in Illinois." Parkhurst, "Two Years Later: The
Status of Home Rule in Illinois," in Gove, HOME RULE IN ILLINOIS 23
(1973).

24. Baum, A Tentative Survey of Illinois Home Rule, Part II: Powers
and Limitations, 1973 U. I. LAW F. 157.

25. ILL. CONST. ART. VII 96(a).

26. VII, supra. note 19 at 1622. (Emphasis added).

27. Id. at 1621.

28. OHIO CONST. ART. XVIII, �3:

-36-

Municipalities shall have authority to exercise all powers of local
self-government and to adopt and enforce within their limits such
local, police, sanitary and other similar regulations, as are not
in conflict with general laws.

This conclusion has vital impact on the Program. See discussion,
infra., at n.

29. VII, supra. note 19 at 1623.

30. Forrest, "Improved Land Use Regulation for The Home Rule Municipality"
in Gove, HOME RULE IN ILLINOIS 104 (1973).

31. Ill. Rev. Stat., ch. 120 9�675, 705 (1971).

32. 54 Ill. 2d 74, 295 N.E. 2d 9 (1973).

33. Id. at 78, 295 N.E. 2d 211.

34. Peters v. City of Springfield, 57 Ill. 2d 142, 311 N.E. 2d 107 (1974);
Clarke v. Village of Arlington Heights, 57 Ill. 2d 50, 309 N.E. 2d
576 (1974); Rozner v. Korshak, 55 Ill. 2d 430, 303 N.E. 2d 389 (1973);
People v. Beck, 54 Ill. 2d 561, 301 N.E. 2d 281 (1973); Kanellos v.
County of Cook, 53 Ill. 2d 161, 290 N.E. 2d 240 (1972).

35. As an aside, it should be noted that the Illinois General Assembly,
in an obvious reaction to the Bridgman decision, established a new
expedited procedure for tax collection. Illo Rev. Stat., ch. 120
- 705 (1973).

36. VII, supra. note 19 at 1642.

37. Id. at 1643.

38. 59 Ill. 2d 484, 322 N.E. 2d 11 (1974).

39. Id. at 486.

40. Id. at 487.

41. Id.

42. Id. 2d at 489 (emphasis added). See, also, City of Des Plaines v.
Chicago & N. Western Ry. Co., 30 Ill. App. 3d 944 at 948, 949 (1975);
wherein a private owner/industry attempted to assert state exclusivity
and was rejected on the basis of, inter alia, City of Chicago v.
Pollution Control Board by the 4th Appellate District.

-37-

43. See, e.g., O'Connor v. City of Rockford, 52 Ill. 2d 360, 288 N.E.
2d432 (1973), although therein there were no assertions of home
rule powers; and Carlsen v. Village of Worth, 25 Ill. A-p. 3d 315,
322 N.E. 2d 852 (1975).

44. See, e.g., Kanellow v. County of Cook, 53 Ill. 2d 161, 290 N.E. 2d
240 (1972). See, also, Amerpsand, Inc. v. Finley, 61 Ill. 2d 537,
543 and 338 N.E. 2d 15, 19 (1975) wherein the court stated that:

"[T]he dominant interest which the State has in the administration
of justice by virtue of Article VI of the Constitution 'precludes
this subject from being considered a matter pertaining to home-rule
government and affairs."'

45. See, e.g., City of Chicago v. Pollution Control Bd., 59 Ill. 2d 484,
322 N.E. 2d (1974).

46. ANTIEAU, MUNICIPAL CORPORATION LAW �3.35 (1968) (referring to Phila-
delphia).

47. Kratovil and Ziegweid, Illinois Municipal Home Rule and Urban Land--
A Test Run of the New Constitution, 22 DEP. L. REV. 399 (1972).

48. Forrest, supra. note 30 at 104.

49. 24 Ill. App. 3d 900 (4th Dist., (1974).

50. LaSalle National Bank v. County of Cook, 12 Ill. 2d 40, 145 N.E. 2d
65 (1958); Treadway v. City of Rockford 24 Ill. 2d 488, 182 N.E. 2d
219 (1962).

51. Johnny Bruce, 24 Ill. App. 3d at 904.

52. 53 Ill. 2d 347 (1972).

53. Ill. Rev. Stat., ch. 24 911-74-1--11-74-13, incl. (1971).

54. Salem, 53 Ill. 2d at 365.

55. Id. at 366 (citations omitted).

56. Id. at 365: "The acquisition of land by purchase or gift is not an
exercise of a governmental power; it is an act of a proprietary na-
ture."

57. 61 Ill. 2d 483 (1975).

58. Id. at 485.

-38-

59. Id.

60. A dissent was filed by Justice Goldenhersh but not on the home rule
issue or finding.

61. Van Natta, 61 Ill. 2d at 486.

62. Ill. App. 3d N.E. 2d (2d Dist. 1975); now on petition
for rehearing (Doc. No. 74-384, slip op.).

63. Ill. Rev. Stat., ch. 121 55-408.

64. FROELICH, supra. note 3 at 24-12 and 24-81; Highland Park, slip
op. at 14.

65. Highland Park, slip op. at 14-15.

66. Id. at 15.

67. See supra. note 28 and infra note 69 and accompanying test.

68. Highland Park, slip op. at 17. It should be noted that an entirely
opposite conclusion as to a federal expressway was reached by the
State's Attorney General, in A. G. OP. S-540 (August 1, 1975).

69. 59 Ill. 2d 484 (1975).

70. Ohio Const. Art. XVIII, 93 (1912).

71. Fitzgerald v. City of Cleveland, 88 Ohio St. 338, 103 N.E. 512 (1913).

72. Boukalik, et al., LAKE ERIE SHORE ZONE MANAGEMENT PROGRAM LEGAL AND
ADMINISTRATIVE ANALYSIS 13 (.1975).

73. Village of Beachwood v. Board of Elections of Cuyahoga County, 167
Ohio St. 369, 148 N.E. 2nd 921 (1958) (emphasis added).

74. City of Cincinnati v. Gamble, 138 Ohio St. 220, 34 N.E. 2d 226 (1941).

75. State ex rel. McElroy v. City of Akron, 173 Ohio St. 189, 181 N.E.
2d 26 (1962).

76. Calif. Const. Art. XI Sections 11, 12 and 13.

77. 5 Cal. 3d 480, 96 Cal. Reptr. 553, 487 P. 2d 1193 (1971).

78. 487 P. 2d at 1200 (emphasis added).

79. 487 P. 2d at 1201 (citations omitted).

-39-

80. 487 P. 2d at 1204.

81. Id. (citations omitted) (emphasis added). The California Supreme
Court noted in a footnote another aside apropos Lake Michigan:

"We do not, of course, say that planning and zoning are in all in-
stances matters of more than local concern; we merely hold that un-
der the instant facts they are of regional significance."

82. WEXLER, THE LEGAL FRAMEWORK: LAKE MICHIGAN AND ITS SHORE, FIRST.
YEAR WORK PRODUCT, VOLUME I, LEGAL ANALYSIS (1975).

83. Sax, DEFENDING THE ENVIRONMENT 162 (1970).

84. Id.

85. Sax, THE PUBLIC TRUST DOCTRINE IN NATURAL RESOURCE LAW: EFFECTIVE
JUDICIAL INTERVENTION, 68 Mich. L. Rev. 471, 474 (1970) (herein-
after cited as Sax).

86. 146 U.S. 387 (1892).

87. Id., at 433, 434.

88. id. at 435.

89. Id. at 437.

90. Id. at 444.

91. Id. at 445, 446. It should be noted that the Court assumes that
riparian rights in Illinois included the right to wharf out to the
point of navigability. The assumption was incorrect and the ques-
tion is to be decided under state law.

92. Id., the court did uphold that portion of the 1856 City Ordinance
that allowed the Illinois Central to fill in certain lands in aid
of access to the Randolph Street station. Id. at 448.

93. Id. at 452.

94. Id.

95. Id.

96. Id. at 453, 454.

97. Id. at 454.

-40-

98. Sax, supra. note 3 at 490.

99. Sax, supra. note 83 at 489.

100. 154 U. S. 225 (1894).

101. Id. at 239.

102. 176 U. S. 646 (1900).

103. Id. at 658.

104. Id. at 659.

105. Id. at 660.

106. Id. at 664. See also, Trustees of Schools v. Schroll, 120 Ill. 509
(1887).

107. 176 U. S. at 664.

108. Section 8 of the Charter provided that nothing in the act authorized
the railroad to make a location of their trade within any city,
without the consent of that city. The Court held that this proviso
included depots, engine houses and track approaches, as well as the
main track of the road. Id. at 665.

109. The opinion rates but a footnote in Sax, supra. note 85.

110. Sax, supra. note 85 at 490.

111. Sax supra. note 85 at 491, 492," . . . the Massachusetts court has
developed a rule that a change in the use of public lands is unper-
missible without a clear showing of legislative approval." Cf.,
Gould v. Greylock Preservation Commission, 350 Mass. 410, 214 N.E.
2d 114 (1966).

112. 14 Ill. 2d 307 (1958).

113. Id. at 319.

114. 34 Ill. 2d 495 (1966).

115. S.B. 782 (Ill. G.A. 1963).

116. 34 Ill. 2d at 499.

117. Id. at 501.

-41-

118. 46 Ill. 2d 330 (1970).

119. Id. at 341.

120. See supra. note 85.

121. Id. at 343, 344.

122. Sax, supra. note 85 at 514.

123. Connecticutt P. A. 73-155 (1973).

124. Id.

125. ACIR, supra. note 11 at 124.

-42-

CHAPTER III
EXISTING TECHNIQUES OF MANAGEMENT

The shoreline communities on Lake Michigan in northeastern Illi-
nois have already contemplated the use of a significant number of both
traditional and innovative regulatory and non-regulatory techniques
within their boundaries which are, therefore, applicable within the
coastal areas. We find in place a plethora of management techniques
that are certainly beyond the threshold contemplated by the manage-
ment authorities and organizations suggested by the Program's state/
local partnership.

Traditional techniques--e.g. the creation of Euclidian zoning dis-
tricts with an amendment and variance process setting maximum densities
within residential zoning areas--exist within each of the shoreline
communities. The extent of these regulations and an analysis thereof
appears in the work of the Northeastern Illinois Planning Commission
for the Program and no further analysis was undertaken in the Second
Year. Instead, we have analyzed the techniques that are available
municipality-wide both to demonstrate the existing use of important man-
agement tools in the coastal community and, at one and the same time,
to attempt to ascertain the "transferability" of techniques from one
community's experience to another's. In addition to our research into
the techniques in northeastern Illinois, the Illinois Coastal Zone Man-
agement Program has compiled certain ordinances and resolutions from
other states and coastal areas that might be applicable in the Shore
or Hazard Areas or Inland Areas as suggested as part of the partnership.

1. Planned Unit Development

Other than Wilmette, Winnetka and Kenilworth, all of the Lake Michi-
gan shoreline municipalities have in place a planned unit development
ordinance that encompasses the flexibility contemplated by the planned
development technique. The goals of a residential planned unit develop-
ment regulation have been variously stated but may be summarized as
oriented to the following seven objectives:

1. Environmental design in the development of land
that would be better than is possible through
the strict application of zoning ordinance re-
quirements on a district-by-district or lot-by-
lot basis.

2. Diversification in the uses permitted and vari-
ation in the relationship of uses, buildings,

open spaces, density and bulk in developments
that are conceived as cohesive and unified
projects.

3. Provisions for the functional, aesthetic and
beneficial use of open areas and open spaces.

4. The maximum preservation of natural site fea-
tures.

5. Provision of a safe and desirable living en-
vironment for residential areas characterized
by a unified construction and site develop-
ment programs.

6. Rational and economic development in rela-
tion to public service.

7. Creation of a variety of housing types, with a
compatible neighborhood arrangement, to pro-
vide a greater choice of types of environment
and living units.

if the above objectives ,can be accepted, arguendo, then an analysis
of the in place ordinances finds that these goals are being satisfied
within many of the coastal communities where planned unit development
ordinances are being implemented.

The Village of Glencoe, for example, uses the descriptive term
"optional privilege" to describe the traditional planned unit develop-
ment process. The extremely simple section describes the goals that
Glencoe perceives need be accomplished within the scope of a PUD:

The Zoning Commission in considering the granting
of optional privilege may take into account the
following environmental design objectives: Pres-
ervation of landscape by minimizing tree or soil
removal and grade changes; relating of proposed
buildings more harmoniously to terrain; reducing
drives, parking and circulation and increasing
pedestrian ways and bike ways; providing surface
water drainage so as not to affect neighboring
properties; installation of electric and tele-
phone lines underground and location of above-
ground installations harmoniously; and providing
special features such as grouping accessory build-
ings or locating private swimming pools, tennis
courts or other recreational uses common with

-44-

housing developments. In exchange for the optional
privilege of such development, there shall be no
increase in aggregate density as otherwise permitted
in this ordinance, there shall be provided a perim-
eter set back not less than the front yard set back
in the district in which the development takes place,
and there shall be permitted no building height to
exceed forty feet as an absolute limit .

Thus, Glencoe, ab initio, underscores the environmental concerns
of the planned unit development technique--the concerns most evident
within the proposed coastal zone boundaries. It is apparent that these
environmental concerns so evident within the fragile coastline area
were at the basis of the City of Chicago's enactment of its Lake Michi-
gan and Chicago Lakefront Protection Ordinance--an analogue to the PUD
process--as the Ordinance was enacted:

To insure that construction in the Lake or modifica-
tion of the existing shoreline shall not be permitted
if such construction or modification would cause en-
vironmental or ecological damage to the Lake or would
diminish water quality; and to insure that the life
patterns of fish, migratory birds and other fauna are
recognized and supported .

Although Chicago has its own planned development ordinance, the
Lakefront Protection Ordinance submits the coastal area--to a planned
development-like technique in overlaying the protection of the lake-
front "controls" on existing lands within Chicago's defined coastal area
and on the underlying zoning districts affected. The Lakefront Protec-
tion Ordinance, reproduced in full as Appendix A to this Report is the
clearest example in place of municipal attention to a special process
for land areas influenced by and themselves influencing the lake.

Perhaps no community's planned development regulations more clearly
articulate environmental concerns than do those of the City ofrLake
Forest:

ENVIRONMENTAL DESIGN STANDARDS. The following stand-
ards shall be utilized by the Plan Commission in re-
viewing all site and building plans. These standards
are intended to provide a frame of reference for the
applicant in the development of site and building
plans as well as a method of review for the Commis-
sion. These standards shall not be regarded as in-
flexible requirements. They are not intended to dis-
courage creativity, invention and innovation. The
specification of one or more particular architec-
tural styles is not included in these standards.

PRESERVATION OF LANDSCAPE. The landscape shall
be preserved in its natural state, insofar as

-45-

practicable, by minimizing tree and soil re-
moval, and any grade changes shall be in keep-
ing with the general appearance of neighbor-
ing developed areas.

(2) RELATION OF PROPOSED BUILDING TO ENVIRONMENT.
Proposed structures shall be related harmoni-
ously to the terrain and to existing building
in the vicinity that have a visual relationship
to the proposed building. The achievement of
such relationship may include the enclosure of
space in conjunction with other existing build-
ings or other proposed buildings and the cre-
ation of focal points with respect to avenues
of approach, terrain features or other build-
ings.

(3) DRIVES, PARKING AND CIRCULATION. With respect
to vehicular and pedestrian circulation, in-
cluding walkways, interior drives and parking,
special attention shall be given to location
and number of access points to the public
streets, width of interior drives and access
points, general interior circulation separa-
tion of pedestrian and vehicular traffic, and
arrangement of parking areas- that are safe and
convenient and, insofar as practicable, do not
detract from the design of proposed buildings
and structures and the neighboring properties.

(4) SURFACE WATER TRAINAGE. Special attention shall
be given to proper site surface drainage so that
removal of surface waters will not adversely af-
fect neighboring properties or the public storm
drainage system. Storm water shall he removed
from all roofs, canopies and paved areas and
carried away in an underground drainage system
or other approved method of surface water dis-
posal. Surface water in all paved areas shall
be collected at intervals so that it will not
obstruct the flow of vehicular or pedestrian
traffic, and will not create puddles in the
paved areas.

(5) UTILITY SERVICE. Electric and telephone lines
shall be underground. Any utility installa-
tions remaining above ground shall be located
so as to have a harmonious relation to neigh-
boring properties and the site. The proposed

-46-

method of sanitary sewage disposal from all
buildings shall be indicated.

(6) ADVERTISING FEATURES. The size, location, de-
sign, color, texture, lighting and materials
of all permanent signs and outdoor advertising
structures or features shall not detract from
the design of proposed buildings and structures
and the surrounding properties.

(7) SPECIAL FEATURES. Exposed storage areas, ex-
posed machinery installations, service areas,
truck loading areas, utility buildings and
structures, and similar accessory areas and
structures shall be subject to such setbacks,
screen plantings or other screening methods
as shall reasonably be required to prevent
their being incongruous with the existing
or contemplated environment and the surrounding
properties.

The environmental design standards and the elements of existing
shoreline ordinances already enached and currently being implemented
are techniques of land use management suggested by the Program as a
"performance standard" evaluation for any land use within the manage-
ment area. Certainly the planned development concept is one that has
broad applicability within the shoreline context and suggests a tech-
nique of importance that is already well-recognized as such by our shore-
line municipalities.

2. Setback Regulations

The power to impose setback restrictions has been delegated to mu-
nicipalities and counties by Illinois' basic zoning enabling legisla-
tion. All of the shoreline municipalities in northeastern Illinois em-
ploy this technique albeit in a roadway context. Thus, the typical set-
back regulation relates building location to the street or right-of-way
line. Winnetka is typical:

There shall be a set-back of not less than thirty
(30) feet. On streets where a set-back of more than
thirty (30) feet has hitherto been maintained by
buildings existing on lots or tracts having a front-
age of fifty percent (50%) or more of the total
frontage on one side of that portion of any street
(a) lying between two intersecting streets, or (b)
lying between one intersecting street and the cen-

-47-

ter line extended of the nearest street connecting
with but not intersecting such street, or (c) lying
between the center lines extended of the nearest
streets connecting with but not intersecting such
street, buildings shall maintain a set-back of not
less than the average set-back of the aforementioned
existing buildings; provided, however, that for the
purpose of computing the average set-back of said
existing buildings, buildings having a set-back
of less than thirty (30) feet shall be deemed to
be set back thirty (30) feet; provided further,
that the average set-back requirement shall not
necessitate a set-back on any lot in excess of
sixty (60) feet nor (although not reducing the
thirty (30) foot requirement) in excess of fifteen
(15) feet more than that maintained by an existing
main building on an immediately adjoining lot.

As is Glencoe:

Building Line Setback: The minimum horizontal dis-
tance between the building line and the street or
right-of-way line in a district, lot, tract, or par-
cel of land.

Setback regulations are a potential tool for managing the vital coastal
resources in Illinois--contemplated are regulations mandating the es-
tablishment of setbacks from bluffs, ravines and similar fragile areas.
The City of Lake Forest's Zoning Ordinance creates special setback regu-
lations that exemplify this technique:

BUILDING SETBACK LINES --- Irrespective of any less
restrictive requirements contained elsewhere in this
chapter, no permit shall be issued for the construc-
tion, relocation, enlargement, or extension of any
building, or concrete or masonry wall within the
following distances from certain highways or streets
.within the City.

(A) Within seventy (70) feet of the established cen-
ter line of the right-of-way of that portion of
Waukegan Road (Illinois State Highway Route 43)
that is located within the corporate limits of
the City.

(B) Within thirty (30) feet of the westerly line
of the existing right-of-way of that portion
of Skokie Highway extending from Buena Road
northerly to Old Elm Road.

-48-

(C) Within fifty-three (53) feet of the established
center line of the right-of-way of Everett Road,
Telegraph Road, Conway Road, Old Elm Road, and
Buena Road.

(D) Within twenty-four (24) feet and six (6) inches
of the established center line of Bank Lane be-
tween the southerly line of Illinois Road and
the northerly line of Vine Avenue.

CE) Within twenty-eight (28) feet and six (6) in-
ches of the established center line of Forest
Avenue between the southerly line of Westmin-
ster and the northerly line of Deerpath.

The concept of special setback areas is, thus, well-recognized in
the coastal zone context and can be employed as an added performance
standard-oriented set of criteria.

It is important to note that in a critical Illinois land use case
involving a shoreline municipality and turning on the validity of set-
back regulations, the Illinois Appellate Court emphasized the relation-
ship between'setbacks and public planning. In Karasik v. City of High-
land Park,1 the court not only noted that "[S]et back restrictions are
subject to rigorous application . ," but that:

The apparent design of such regulations is to pro-
vide conformity of frontage in the spirit of harmo-
nious city planning.2

Further, in Karasik, the court went on to" . reject plaintiff's ar-
gument that the city set back ordinance may not be given retroactive ef-
fect as to pre-existing buildings," holding that, "[A] valid exercise of
the police power can be made to apply and does apply to existing build-
ings. ,3

Given the existing employment of the setback regulatory technique
and its approbation by the courts in place in the northeastern Illinois
context, the technique remains one of the highest viability for applica-
tion in the coastal management area.

3. Special Uses

The special use or special permit or special exception technique is
employed by the totality of shoreline communities pursuant to the statu-
tory authority of Illinois' Zoning Enabling Act. As Robert M. Anderson
of Syracuse University succinctly points out:

-49-

Special permit procedures are a product of the. need
for flexibility in the administration of the zoning
regulations, a need which was felt at a very early
date. The provision for administrative variance
provided relief in specific instances of practical
difficulties and unnecessary hardship, but variance
procedures were incapable of converting an essen-
tially rigid system of Euclidian zoning into a
flexible tool for the accommodation of unlike and
sometimes incompatible uses of land. By th e use
of special permits, the broad division of uses in
terms of residential, commercial and industrial and
subdivisions of each, can be supplemented by re-
quiring a use which falls conveniently within a
class assigned to a particular district, but which
has singular characteristics which may be incompat-
ible with some uses of such class, to submit to ad-
ministrative scrutiny, to meet certain standards,
and to comply with conditions. In addition, uses
which cannot be confined to specific districts
can be reviewed by a board of adjustment and re-
quired to meet standards and conditions which prg-
tect their neighbors, wherever they are located.q

An Illinois decision explained the purpose of the special use technique
clearly. In Pioneer Trust & Savings Bank v. County of McHenry, the
court held:

The function of the special uses classification is
to provide for infrequent types of land use which
are necessary and desirable, but which are poten-
tially incompatable with the uses usually allowed . ...
it permits a use which otherwise might be entirely
prohibited in certain zones where the adverse ef-
fect on surrounding land is not to (sic) great . ...

In recognition of the need and validity of the flexible management
tool of special use, all of the shoreline municipalit~ies other than Win-
throp Harbor and Glencoe have opted for its use in one form or another.
Generally, the municipalities employing the technique are satisfied with
a recital of a litany of uses and conditions that would be of no illus-
trative value if reproduced here. The City of Evanston, however, des-
cribes its special uses, at the onset generically:

1. Purposes
This ordinance is based upon the division of
the city into districts, within any one of which
the use of land and buildings, and the bulk and

-50-

location of buildings or structures as related to
the land are essentially uniform. it is recognized,
however, that there are buildings and uses which,
because of their unique characteristics cannot be
properly classified in any particular district with-
out consideration, in each case, of the impact of
those buildings and uses upon neighboring property
or consideration df the public need for the particu-
lar buildings or use at the proposed location. Such
Special Uses fall-into the following categories:

a. Buildings and uses entirely private in charac-
ter but of such a nature that their construc-
tion and operation may give rise to unique
problems with respect to their impact upon
neighboring property or public facilities,

b. Uses traditionally affected with a public in-
terest or uses operated by a publicly regu-
lated utility, and

C. Planned Developments.

A similar provision appears in the Kenilworth Village Zoning ordi-
nance emphasizing, once again, the-importance of special treatment for
"[Ulses private in character . . . of such a nature that the operation
may give rise to unique problems with respect to their impact upon neigh-
boring property or public facilities." Critical to the spp-cial use tech-
nique in application is the performance standard approach underscored in
the Kenilworth and like ordinances in the shoreline communities:

(d) Standards. go special use shdll be recommended
by the Board of Appeals or authorized by the
Board of Trustees unless the special use:

(i is deemed necessary for the public conveni-
ence at the location;

(ii) is so designed, located, and proposed to
be operated that the public health, safety,
and welfare will be protected; and

(iii) will not cause appreciable injury to the
value of other property in the neighbor-
hood in which it is located.

Ce) Conditions. The Board of Appeals may recommend
and the Board of Trustees may provide such condi-

tions and restrictions up on the location and
operation of a special use, including but not
limited to provisions for off-street parking
and loading, as may be deemed necessary to
promote the general objectives of this ordi-
nance and to prevent or minimize injury to
the value of property in the neighborhood.

If one can accept as a minimal function of the special use method
that of avoiding the detrimental impact of otherwise beneficial uses
dependent upon the environment within which the use is to exist, then
the applicability of the technique to the coastal zone resource is clear
and germane. Certain uses of property within the Shore or Hazard Area
("SA") or the Inland Area ("IA") such as greenhouses, industry and resi-
dential may be allowed by local government permit subject only to condi-
tions on use and location and prior' municipal review for compatibility
with the public resource and environment. The special or conditional
use technique is adaptable and applicable in toto to the coastal zone
program's goals and objectives.

4. Aesthetic Controls

The acceptance of aesthetic criteria as a lawful land use manage-
ment regulatory technique has been an exceedingly slow and reluctant one
at best. Early on in the development of Illinois' land use law, the Illi-
nois Supreme Court seemingly etched in stone its position on aesthetics:

It is generally recognized that aesthetic considera-
tions, while not wholly without weight, do not of them-
selves afford sufficient basis for the invasion of
property rights, and this for the more or less obvi-
ous reason that while public health, safety and morals,
which make for public welfare, submit to reasonable
definition and delimitation, the realm of the aesthetic
varies with the wide variation of tastes and culture.
So, while it has been held that all uses of property
or courses of conduct which are injurious to the health,
comfort, safety, morals and welfare of societal may be
prohibited under the sovereign power of the State,
though the exercise of such power result in inconveni-
ence or loss to individuals, that power must find ba-
sis in the doctrine of overruling necessity or bear
substantial relation to the public good and may not
be based alone on aesthetic considerations. 6

A decade later, the Court observed, in Neef v. City of Springfield:
"it is no objection, however, to a zoning ordinance that it tends to pro-

-52-

mote an aesthetic purpose, if its reasonableness may be sustained on
other grounds . . . public health, safety, morals or general welfare."8
It was not until mid-1974 that the Illinois courts--almost in a parallel
course to their holdings that land use management technique validity is
dependent on comprehensive planning input--recognized, in LaSalle Nat.
Bank v. City of Evanston,9 in a judicial dictum, the validity of aesthet-
ic considerations standing alone. In the LaSalle case, the City of Evan-
ston was attempting, through its planning and land use regulations
". . to have a gradual tapering of building heights toward an open
lakefront and park area which could be used for recreational purposes."10
The court observed that:

� . prior decisions of this court, while recog-
nizing aesthetic elements, have not deemed them to
be controlling in zoning cases. The reason advanced
for declining to afford aesthetic qualities signifi-
cant import is that the subject does not lend itself
to exact definition but varies as to personal taste.
However, there would appear to be significant au-
thority that aesthetic factors may, in some instan-
ces, be utilized as the sole basis to validate a
zoning classification. We are of the opinion that
in the present case aesthetic qualities are a prop-
erly cognizable feature and that the evidence pre-
sented is supportive of defendant's position that
the R-5A use is not arbitrary or unreasonable and
is in accord with the general public welfare.

Typically, Illinois' shoreline communities were in the vanguard of
those municipalities with aesthetic regulations. The Cities of Lake
Forest and Highland Park, for example, had in place architectural or
appearance review committees or commissions to evaluate aesthetic im-
pact in the environmental sense. Evanston, as is exemplified by the
1974 LaSalle case, had expressed its aesthetic criteria in direct appli-
cation to Lake Michigan. More typically, the shore municipalities have
incorporated aesthetic controls into their planned development ordinances,
as a performance standard criterion to be applied. Thus, North Chicago's
"PUD" controls embody the vague concept of "design standards," and Win-
throp Harbor describes the necessity of "harmony." The City of Chicago,
in its 1974 amendment to its Comprehensive Zoning Ordinance planned de-
velopment section, spoke to the criterion as'follows:

Guidelines. In reviewing an application for planned
development . . . the Commissioner of Development and
Planning, the Chicago Plan Commission and the City
Council shall give consideration to the following
guidelines:

-53-

(h) Order and Harmony in structural placement and
design providing accessibility to natural light,
circulating air, and urban vistas free of visual
pollution.

In Lake Forest, aesthetic controls are within the context of spe-
cial use:.

No special use shall be recommended by the Plan Com-
mission for approval by the City Council unless the
Commission shall find that:...

(4) The exterior architectural appearance and func-
tional plan of any proposed structure will not
be incompatible with either the exterior archi-
tectural appearance and functional plan of struc-
tures already constructed or in the course of
construction in the immediate neighborhood or
the character of the applicable district so as
to cause a substantial depreciation in the prop-
erty yalues within the neighborhood.

It can be seen from the above that in place in Northeastern Illinois are
a series of ordinances that reflect upon aesthetics as *a criterion for
implementation as a land use management technique.

5. Environmental Controls--
Flood Plains, Ravines & Special Regulatory Districts

As earlier discussed in this Technique Report, environmental site
plan review is not a new concept either nationally or in the State of
Illinois. The analysis of planned development regulations in place in
our shoreline municipalities clearly indicates that some cities and
villages--notably, Glencoe, Chicago and Lake Forest--have inputted en-
vironmental-oriented performance standards into their criteria planned
development approval. other communities express their environmental
concerns through ordinances with direct and express applicability to spe-
cdific areas of particular concern.

Thus, the City of Highland Park, whose shore and inland areas are
bisected by a series of ravines, has turned its attention to this fragile
environment with a flexible ravine control. ordinance incorporating by
reference its zoning controls:

-54-

Deposit of material in or upon ravines, bluffs and
other steeply graded premises.

(A) No person shall cast, sweep, drop, place, dump,
or otherwise deposit any earth, fill, borrow, litter,
grass, leaves,lawn and garden clippings, or any solid
waste of any description in or upon any ravine or-
bluff, nor upon any tract, lot or parcel of land hav-
ing a gradient of more than 10%, except in conformity
with the provisions of Section 170.015 of this code
in connection with the construction of a building or
structure; PROVIDED, HOWEVER, that the City Council,
upon the recommendation of the Director of Public
Works and the City Engineer, may vary the provisions
of this section for the purposes of restoration and
conservation, when it is determined to be in the best
interest of the public health, safety and welfare.

See. 170.01.5 Lot Area

(A) Each lot, tract or parcel of land upon which
a structure or improvement is proposed to be erected
shall contain not less than 20 percent tableland.
(Tableland is defined as land where the cross slope
in any direction does not exceed 10 percent). if
the lot contains less than 80 percent of its total
area in tableland, these further regulations shall
he complied with: (passed 5/8/72).

(I) All surplus excavated material from any construc-
tion on any part of a lot where the gradient is greater
than 10 percent must be completely removed from that
area of the lot, excepting only the amount necessary
to backfill around construction, and then only to the
amount required to restore the area 'to natural grade.
Natural vegetation on any part of a lot which has a
slope greater than 10 percent shall remain undisturbed
except within an area-~not to exceed 20 feet around the
proposed building or construction.

(2) concurrent with an application for a building
permit, the owner of any ravine or bluff space lot
subject to these regulations shall submit to the
plan commission a topographical survey with contour
lines at one foot intervals. Such plat shall show
the proposed location and dimensions of all proposed

-55-

buildings or construction. The location of said
buildings shall be shown with reference to required
building lines and lot lines.

(3) Upon recommendation of the plan commission
of such plat and plan of construction, a building
permit, subject to all requirements of the build-
ing code and zoning ordinance may be issued. Any
change in the size and/or location of any improve-
ment on the lot shall be subject to a re-examination
by the plan commission, prior to the issuance of a
building permit or an application for variation.

The Village of Winthrop Harbor, in recognition of the environmental im-
peratives of the Lake Michigan shore, has created an overlay "Lake Plain
District" the regulations for which II . * are in addition to the use,
lot size and bu ilding bulk regulations and restrictions" of the under-
lying zoning districts:

Lake Plain Restrictions. No building or structure
shall hereafter be erected or altered in the Lake
Plain District unless the following portions of the
lot are brought to a uniform grade of not less than
5 feet above the average high water level of Lake-
Michigan: (a) the portion of the lot or premises
on which the said building or structure is located;
(b) a yard on each side of such building or struc-
ture that is at least 25 feet in depth, measured
from and at right angles to each wall of such prin-
cipal building or structure; and (c) any other part
of such lot or premises occupied by accessory build-
ings or structures, access roads, walkways, and off-
street parking and loading areas. The average high
water level of Lake Michigan shall be measured along
the shore line of said lake that is abutting on the
Village of Winthrop Harbor and shall be determined
by reference to the statistics and data made avail-
able by the Corps of Engineers of the United States
Army.

-56-

The Winthrop Harbor "Lake Plain District" exemplifies, pure and sim-
ple, the application of typical, although perhaps oversimplified, flood
plain controls to the Lake Michigan shore. The employment of flood plain
controls as a land use management technique is not new to Illinois'
shoreline cities and villages. The Northeastern Illinois Planning Com-
mission has, for over a decade, distributed a Model Flood Plain Control
Ordinance, recently updated. A signal and of land use management in
Illinois has historically been protection from flooding dating back to
this state's initial zoning enabling legislation in 1921:

To the end that adequate light, pure air, and safety
from fire and other danger may be secured, that the
taxable value of land and buildings throughout the
municipality may be conserved, that congestion in
the public streets may be lessened or avoided, that
the hazards to persons and damage to property result-
ing from the accumulation or runoff of storm or flood
waters may be lessened or avoided, and that the pub-
lic health, safety, comfort, morals, and welfare may
otherwise be promoted .* .1

This basic end, among others, was upheld in Illinois' threshold land use
management decision, City of Aurora v. _____,1 and, by implication, if
not directly, in every decision subsequent thereto. The City of Highland
Park's flood plain controls originally enacted in 1973, exemplify this
land use management technique as applied in a shoreline municipality:

(A) The flood plain shall be subject to flood plain
regulations as established by the City Council and
set forth in (1) this chapter.; (2) the subdivision
ordinance or (3) other applicable city ordinances.
(said regulations will guide development in order
to promote the public health, safety and welfare
through flood regulations.)

(B) Except as otherwise provided in this ordinance,
no new existing building or structure shall be erec-
ted or moved within a flood plain unless the lowest
floor including the basement floor is at an eleva-,
tion which is not less than 2.5 feet above the flood
base elevation for the site; provided, however, that
the basement floors may be erected below such eleva-
tion if neither the top of any basement wall or the
bottom of any opening therein is not less than 2.5
feet above such elevation and the construction of
such basement floors and walls complies with the re-
quirements of the "Highland Park Building Code of
1960", as amended. Basement walls and floors in all

-57-

structures must Be designed to withstand hydrostatic
pressures at flood base elevation water level and
all sewers shall be "hanging sewers"
(C) The elevation of the ground for a minimum dis-
tance of 15 feet in the side and rear yards and 25
feet in the front yard immediately surrounding any
building or structure erected or moved within a
flood plain shall be at an elevation which is not
less than one foot above the flood base elevation
for the site and shall extend in width not less
than 25 feet at or above said elevation to a pub-
lic street or access way. This sub-paragraph does
not apply to a building constructed on stilts.

(D) The elevation of the finished surface at the
center line of any new street constructed within a
flood plain shall not be less than the flood eleva-
tion for the area. The design of such streets or
accessways shall be such that the normal direction
or course of drainage or run-off through the area
is not interrupted.

(E) if fill or any type of construction which
would displace flood waters is placed within the
flood plan, compensatory storage in the form of a
compensatory storage basin shall be constructed
equal in volume to 115 percent of the volume of
such fill or construction deposited below the
flood base elevation. The requirement of 15%
additional compensatory storage over and above a
strict 100% matching volume for water storage is
designed to compensate for silting, delays in
maintenance, and for the fact that building roofs
permit no absorption by the ground. In determin-
ing and calculating the volume of compensatory
storage basin, that portion of such compensatory
storage basin which is below the median water
level of the adjacent water course shall not be
counted or considered as a part of the required
volume of such compensatory storage basin. Me-
dian water level shall mean that level which is
one (1) foot above the low water level of the
watercourse or such other lower level as engin-
eering datum may establish (as approved by the
City Engineer).

(F) No building or structure shall be erected or
moved within the area bounded on each side by a

.Lne parallel to and 125 feet distant from the cen-
cer line of either the Skokie River or the North
Branch of the Chicago River.

(G) Variances shall be permitted under this ordi-
nance only if an owner of property shall establish
by adequate factual data and hydrologic computa-
tions to show that:

(1) An error has been made in the establish-
ment of flood base elevations; or

(2) Conditions have substantially changed
or such that the f}god base elevations
have been lowered.

Given the experiences of these municipalities in the development of
special management tools and their existence in place, the development
of a sufficient data and planning base would seem to be the sole impedi-
ments to the development'and application of environmentally oriented
land use mechanisms on the shore.

6. Non-Conforming Uses

The abatement of non-conforming uses has been a traditional land
use management technique since the onset of the exercise of regulatory
powers in this state. With a single exception (Zion), the shore munici-
palities have included within their management techniques, provision for
the amortization of non-conforming uses consistent with Illinois law.

Generally, the Illinois courts have reflected on non-conformities
within an enforcement context only when there has been an alleged aban-
donment or discontinuance of the use.15 While the courts have sustained
the governmental power to limit the expansion or alteration of non-
conforming uses or structures,16 few decisions have dealt with the issue
of amortization without more. In Village of Gurnee v. Miller,17 the
court sustained a village ordinance setting a three year amortization
period for the termination of a junk yard use after rezoning. In Village
of Oak Park v. Gordon,18 the Illinois Supreme Court, in an amortization
context, set some rigid tests for sustaining such a municipal regulatory
activity. In addition, the court in Gordon articulated the standard rules
for adjudicating non-conformities as follows:

Plaintiff has called our attention to a number of
cases in which amortization ordinances have been
held valid. (Citations omitted). In each of those

-59-

cases, there was an express finding that the public
interest clearly justified the financial loss to the
individual property owner who was required to termi-
nate a particular non-conforming use. The record in
this case, however, contains no evidence whatsoever
that the public interest would be subserved in any
way by requiring defendant to alter his property to
accommodate two roomers instead of four. On the
other hand, it is undisputed that defendant would
suffer a financial loss if he were required to comply
with the ordinance. The right to continue an estab-
lished non-conforming uses has been recognized by
this Court as a valuable property right, (citations
omitted), and an ordinance which seeks to deprive
defendant of that right without any apparent pub-
lic need therefor, cannot be upheld.

We conclude that the municipal court of Oak Park cor-
rectly found that the Oak Park ordinance here in
question was unconstitutional and -invalid as applied
to defendant's property. In so holding, we do not
intend to express any opinion as to the validity of
this or other amortization ordinances as applied to
other properties. Each case must be judged upon the
particular facts of that case with due consideration
given to the respective interests of the public and
the individual property owners.19

Thus, it is clear that a proper use of the amortization management
technique--when supported by consistent public interest justifications--
will be sustained.

The City of Evanston's zoning ordinance embraces the gamut of regu-
lation of non-conforming uses of structures as well as uses of land:

The purpose of this Section is to provide for the
regulation of non-conforming buildings, structures,
and uses and to specify those circumstances and con-
ditions under which non-conforming buildings, struc-
tures, and uses which are incomp atible with the
character of the districts in which they are loca-
ted shall be eliminated upon reaching the age of
their normal useful life, in accordance with the
authority granted by the Illinois Revised Statutes.

The 1963 City of Evanston ordinance restricts repairs, additions,
moving and restoration of non-conforming buildings, uses and structures
and for their elimination:

-60-

Elimination of Non-Conforming Uses
In Residence and University Districts any use law-
fully existing on the effective date of this ordi-
nance which is not permatted in any district or is
permitted only in a Business, Commercial or Manu-
facturing District and which is located in a build-
ing all or substantially all of which is designed or
intended for a use permitted in a Residence or Uni-
versity District shall be eliminated within five
years from the effective date of this ordinance.
In Ri, R2, R3 and R4 Districts any use of a single
family detached dwelling or other dwelling unit,
including any accessory building, by more than two
roomers, boarders or permanent guests, or as a board-
ing house or nursing home or similar commercial use,
shall be eliminated within eight years from the ef-
fective date of this ordinance unless allowed as a
Special Use pursuant to Section VI B2.

In Rl and R2 districts any lodging room for roomers,
boarders, servants or permanent guests located in a
second dwelling unit on a lot shall be eliminated
prior to December 2, 1968.

In any district, any lodging room for roomers, board-
ers, servants or permanent guests located in a build-
ing which does not conform to the floor area require-
ments of this ordinance or located on a lot which
does not conform to the lot area requirements of this
ordinance shall be eliminated prior to December 2,
1968. In any district, any lodging room for roomers,
boarders, servants or permanent guests located in an
accessory building shall be eliminated prior to De-
cember 2, 1968.

Of major import to the program is Evanston's techniques vis-a-vis
non-conforming land uses:

NON-CONFORMING USE OF LAND
The non-conforming use of and not involving a build-
ing or a structure, or in connection with which any
building or structure thereon is incidental or acces-
sory to the principal use of the land, may be contin-
ued subject to the following provisions:

1. Expansion of Use

A non-conforming use of land shall not be ex-
panded or extended beyond the area it occupies
on the effective date of this ordinance.

2. Discontinuance of Use

If a non-conforming use of land is discontinued
for a period of 120 days, it shall not there-
after be renewed, and any subsequent use of
the land shall conform to the regulations of
the district in which the land is located.

3. Change of Use

A non-conforming use of land shall not be changed
to any other use except to a use permitted in the
district in which the land is located.

4. Elimination of Non-Conforming Uses of Land

A non-conforming use of land shall be eliminated
in accordance with the following requirements:

a. -where no building or structure is employed
in connection with such use, eliminated
within 180 days;

b. where the only building, structure or
other improvements employed have an
assessed valuation before equalization
of not more than $2,000, eliminated
within one year;

C. where the only building, structure or
other improvements employed have an as-
sessed valuation before equalization of
more than $2,000, eliminated within 3
years;

d. where a non-conforming use of land is ac-
cessory to a non-conforming use of a build-
ing or structure which is subject to elimi-
nation, it shall be eliminated on the same
date on which the non-conforming 'use of
the building or structure is eliminated.

The Village of Lake Bluff's ordinance provisions are far more simplistic
and without amortization provisions:

Any lot, or structure or any use of a lot or struc-
ture that existed and was lawful before the Lake
Bluff Zoning Ordinance was originally adopted or

-62-

thereafter amended but which no longer fully con-
forms to regulations set forth in the Zoning Ordi-
nance as amended shall be considered a non-conformity.
The continuance of any such non-conformity is sub-
ject to the following provisions:

1. Any alteration, addition or repair to a non-
conforming building or structure or any change made
to a non-conforming property must in no way increase-
the existing non-conformity.

2. A non-conforming use may not be changed to a dif-,
ferent non-conforming use.

3. Whenever a non-conforming use has for any rea-
son been discontinued for a period of one month
or more or has been changed to a conforming use,
such non-conforming use shall not thereafter be
resumed.

4. No building or structure that has been damaged
by fire or other causes to the extent of fifty per-
cent (50%) or more of its value, exclusive of the
foundation, shall be repaired or rebuilt except in
conformity with the regulations of this Ordinance.

Yet, regardless of the ordinances' sophistication, or lack of same, the
tool of managing the non-conforming use of land or buildings is in place
in the shoreline communities.

7. Performance Standards

A performance standard approach to land use management would not be
novel to Illinois' coastal communities. This Report has noted that,
without identifying them as such, many of the shoreline municipalities
have used performance standard "tests" within the context of their planned
development, special use and special district techniques. Traditionally,
however, in Illinois, the application of performance standards has been
articulated as no more than the application of tra'ditional nuisance con-
trols to regulate land use.

A bedrock legal foundation for land use regulation in the United
States has been the maxim that an individual property owner should be
allowed any use of his property that does not damage or cause injury to
his neighbor or the public health, safety, morals, or welfare--a standard
nuisance control approach.20 The City of Chicago's first Zoning Ordinance,

-63--

in 1923, used a simplistic nuisance-oriented performance standard regu-
lation of industrial use:

M-l Use--An M-l use shall include such storage, manu-
facturing or other uses of property coming within
the definition of an MA-use as do not injuriously af-
fect the occupants of adjacent uses and are so oper-
ated that they do not emit dust, gas, smoke, noise,'
fumes, odors, or vibrations of a disagreeable or an-
noying nature.

This very broad language was upheld by the court in City of Chicago v.
Reuter Iron Works, 21in clear "nuisance"' language.

A nuisance at common law is that which unlawfully
annoys or does damage to another. Further, at com-
mon law, mere noise may be of such character as to
constitute an actionable nuisance remediable by an
action on the case for damages or by injunction.
These principles are so much a part of the common
law that further citation of authority is unneces-
sary on this point. It is to be noted that the zon-
ing ordinance of 1923 provides for the fabrication
of metals by means of practices which do not 'emit
noises of a disagreeable or annoying nature.' An
examination of the authorities discloses that the
word 'annoyance' had a meaning in the common law
in defining a nuisance. In Rosehill Cemetery Co.
v. City of Chicago, 352 Ill. 11, this court used
the word 'disagreeable' in defining a nuisance.
It can be said, then, after a careful reading of
the cases on this point, that the words 'disagree-
able' and 'annoying' did have a well-established
meaning at the co mmon law in the definition of a
commo n-law nuisance. 'We, therefore, hold the zon-
ing ordinance of 1923 constitutional as setting
forth a duty in terms which have acquired an es-
tablished meaning through the common law.22

More modern applications of performance standards can readily be
found in the sections of this Report previously cited and in the exam-
ples from other states. Thus, though the City of Chicago, for example,
continues to define "performance standard" within a nuisance context:

A '.performance standard' is a criterion established
to control noise, odor, smoke, toxic or noxious mat-
ter, vibration, fire and explosive hazards, and glare
or heat generated by or inherent in uses of land or
buildings,

the examples from its Planned Development section and Lake Michigan Lake-
front Protection Ordinance exemplify the ever-expanding scope and appli-
cation of this technique in and along the Lake's shore.

8. Procedures and Process

Illinois' regulatory system enabling legislation, although archaic,
sets forth the broad parameters for a legislative/administrative process
protective of the constitutional rights of due process and equal protec-
tion of the laws. The shoreline municipalities, in toto, have various
procedural mechanisms, in place, that, when applied, can satisfy these
constitutional imperatives as well as the needs of land use management
in the Lake Michigan shoreline context.

The procedures for land use management range from and among the fol-
lowing:

1. Permits and Certificates--building, development,
occupancy, zoning, flood plain, ravine permits
and certificates.

2. Land acquisition and eminent domain: the nego-
tiated purchase or condemnation of lake frontage,
riparian rights.

3. Amendments and Variances--building codes, zon-
ing and subdivision ordinances.

The process involved in the shoreline municipalities ranges from an admin-
istrative order system23 to an administrative appellate system, to a
legislative amendments system.24

The Illinois courts have required strict adherence to the formali-
ties of notice and hearing in an effort to assure fairness in the land
use management process.25 The present Illinois Zoning Enabling Acts
dwell ambiguously upon the issue of delay in the procedural body reach-
ing a final decision in land use management matters. Witnesses before
the Zoning Laws Study Commission in 1970 and 1971 found that the time
periods for reaching decisions vary from community to Community.

Boards of appeal are only required to " . . decide the appeal
within a reasonable time."26 The amendment process has no time limita-
tion whatsoever. It should be noted, however, that counties wishing to
avail themselves of land use powers may create a "commission" to hold
hearings and report to the board "[W]ithin 30 days after the final ad-
journment of such hearings."27

-65-

Thus, existing Illinois law adopts the language of the ancient mode
Standard Zoning Enabling Act ("SZEA") almost verbatim for purposes of
hearing and decisional process.

As noted in the "Tentative Draft No. I" of A Model Land Development
Code:

. ..One of the major, perhaps unfortunate, charac-
teristics of the land development industry is that
it is under-capitalized and relies on secured loans
for land acquisition and construction.2

This is but one of the problems that delay in the decision-making pro-
cess compounds. This problem, unlike that of notice, has been consid-
ered in the laboratories that are the states and has been met at least
in one.

New York has adopted the SZEA language in toto much like Illinois.29
Kentucky requires that "[i1t shall be the duty of the board to decide
promptly, consistent with justice, all appeals or petitions.,,30

While the foregoing suggest little in the way of improvement, Massa-
chus,etts requires:

If a city council fails to take final action thereon
within ninety days after its hearing, it shall not
act thereon until after it holds a subsequent hear-
ing .. .31

Connecticutt goes one step further:

. ..the commission shall adopt or deny the changes
requested in such petition within sixty days after the 3
hearing. The petitioner may consent to extension . ...

The Joint Committee of Illinois Bar Draft recommended to the Gen-
eral Assembly that:

Within sixty (60) days after the conclusion of the
last hearing on an application, the board shall meet
and rule upon the application. Copies of the final
decision of the board shall be furnished to the clerk
of the municipality and he shall serve a copy of the
decision on each party whose appearance is of record
personally or by mail. The board shall make copies
of its decision available to all other interested
persons. If the board has failed to act on an appli-.
cation within sixty (60) days of the last hearing
thereon, then the application shall be deemed to have

-66-

been denied unless the applicant shall have consented
to an extension of time for the board to rule upon
the .1application.33

Sixty days, with the opportunity for an extension by the applicant, is
certainly " . .. a reasonable time for a hearing body to reach a deci-
sion on all petitions." Such time restraints for the process do not
appear in place in the shoreline land use ordinances.

Existing Illinois legislation has created a variable standard for
notice of hearing on proposed changes in land use regulations depending
upon the nature of the change sought; the municipal or county agency in-
volved; and the nature of the forum granting the relief.

Thus, the State acts do not require, in municipalities, other than
Chicago, or in counties, that written notice of an application for vari-
ation be given to property owners within a designated distance from the
property which is the subject of the petition/application. As to hear-
ings on amendments, the State acts affecting land use management gener-
ally require:

. . . at least 15 days notice of the time and place
of such hearings ~ublished in a newspaper of general
circulation...4

The restriction as to municipalities requires the published notice
. . . not more than 30 nor less than 15 days before the hearing."35
Published notice is the sole method provided, unless the municipality
has a population of less than 500 in which event notice is by "posting
in three prominent places."36

The notice requirements were far more stringent for Chicago than any
other municipality in the state prior to home rule. For variations or
special uses" in Chicago, a minimum thirty days' written notice by per-
sonal delivery or registered mail of the intent to appeal must go to the
record owners of all property " . . . within 250 feet in each direction
of the location for which thb variation or special use is requested."
In computing the 250 feet limit, ". .public roads, streets, alleys
and other public ways . 'are excluded. Not more than 30 nor less
than 15 days before the hearing, the Board of Appeals itself musi send
noticei to these same record owners. Although Chicago has incorporated
these notice requirements in its ordinances and rules, its home rule pow-
ers could allow expansion or reduction thereof.

Municipalities and counties throughout the state have been advised
in the interest of due process to give written notice to property owners
within 250 feet of the subject site.3' In addition, these recommenda-
tions to Illinois municipalities and counties urge that written notice

-67-

be undertaken in variation and amendment procedures throughout the state
except in rural areas or in the development of larger tracts.

The contents of "notice," whether by publication, personal delivery
or mail are stated in either a vague manner--` . . said notice to con-
tain the particular location for which the variation is requested as
well as a brief statement of what the variation consists"---or without
any identity of the nature of the proposed change--` [Nilotice shall be
given of the time and place of. the hearing .* Certainly more is
needed, and the "Joint Committee Draft" proposed a more complete Notice
section:

4(B) Contents of Notice. Every notice prepared pur-
suant to this Section 11-13-11 shall contain the date,
time, place and subject matter of the hearing. When
an amendment is sought pursuant to Section 11-13-6,
the subject matter of the notice shall include the
identity of the person or body proposing the amend-
ment, the legal and common description of the land,
or the section numbers of the text, sought to be af-
.fected; and, a statement of the relief sought. When
either a conditional use under Section 11-13-7, an
exception under Section 11-13-9, or a variation under
Section 11-13-10 is sought, the subject matter of the
notice shall include the identity of the applicant
therefor, the legal and common description of the
land sought to be affected and a statement of the
relief sought. When a proposed ordinance or an
amendment to all or substantially all of an exist-
ing zoning ordinance is involved, the place where
copies thereof will be accessible for examination
shall be stated in the notice.38

Present Illinois statutes, other than in a recent reference to school dis-
trict participation in zoning hearings, make no provision for possible
reconciliation of the interjurisdictional conflicts that may arise out
of the land use process. The Illinois courts have raised serious ques-
tions as to the ultimate "standing" of adjacent'municipalities to bring
suit or to appeal the zoning decisions of a sister city, village, town-
ship or county.

The problem of the notice requirement has been confronted by other
states with generally the same legislative pattern as Illinois.

Thus, in Connecticut and Kentucky, states wherein published notice
is generally the only requisite, a standardized notice procedure is ap-
plicable to all zoning changes, whether by amendment or variation.39

Massachusetts, like Illi~nois, provides only for publication for
hearings on amendments, but further provides for publication, and mailing

-68-

*..to the owners of all property deemed by the board to he affected
thereby . . ." 4 New York, with a plethora of differing requirements,
ranges from "due notice thereof ..* without explanation to explicit
10. day written notice.. 41

The growing tr end among the states studied has been to recognize
that certain land us& decisions have an impact far beyond the artificial
borders of the given municipality engaged in modifying its land use con-
trol procedures. In the past decade, other states have brought neighbor-
* ~ing municipalities, regional and/or state agencies into the local land
use process through "notice" procedures at the least.

The rule of thumb for notice to an adjacent municipality in New York
is a required notice for zoning change within 500 feet of the boundary. 4
New Jersey reduces this to a 200 feet unit.4

While New York has a general municipal law subjecting certain muni-
cipal zoning and planning actions to county review much as the Inter-
Agency Referral Act 44 requires review by the planning Commission in Chi-
cago, New Jersey has gone so far as to establish, by separate legisla-
tion under the land use imprimatur, notice to adjoining municipalities,
the state and counties as follows:

Whenever a hearing is required in respect to plan-
ning, zoning, approval of subdivision, granting of
variances or establishing or amending an official map
involving property situated within 200 feet of an ad-
joining municipality and notice of said hearing if re-
quired to be given, the person giving such notice shall
also, at least 10 days prior to the hearing give notice
in writing of such hearing by registered or certified
mail to the clerk of such municipality. The said no-
tice shall contain a brief description of the prop-
erty involved, its location and a concise statement
of the matters to be heard.

Article S. Notices to Adjoining Municipalities
40:55-53. Planning, zoning, etc.; notice of hear-
ing.

Wh~enever a hearing or the. governi~ng body of a muni-
cipality in respect to the granting of a variance
or establishing or amending an official municipal
map involving property adjoining a county road or
within 200 feet of an adjoining municipality, and
notice of said hearing is required to-be given, the
person giving such notice shall also, at least 10
days prior to the hearing, give notice thereof in

-69-

writing by certified mail to the county planning
board. The notice shall contain a brief descrip-
tion of the property involved, its location, a con-
cise statement of the matters to be heard and the
date, time and place of such hearing.

Article 5A. Notice to State and County 40-:55-53.1.
Planning approval of subdivision and official maps;
notice of hearing.

Whenever a hearing of'subdivisions or establishing
or amending an official map involving property abut-
ting upon or adjacent to a State highway or county
road and notice of said'hearing is required to be
given, the person giving such notice shall also,
at least 10 days prior to the hearing give notice
in writing of such hearing by registered or certi-
fied mail to the Commissioner of Transportation,
in the case of a State highway and to the county
planning board, in the case of a county road. The
-said notice of hearing shall contain a brief des-
cription of the property involved, its location 4
and a concise statement of the matters to be heard.5

.In Connecticut, thirty days' written notice t2 6the appropriate regional
planning agency is required where applicable.

These processes and procedural techniques merit consideration in
any local revamp of its administrative process for coastal zone imple-
mentation.

-70-

CHAPTER IV
TECHNIQUES OF MANAGEMENT--A PROCESS OF INNOVATION

1.New Techniques

While the shoreline communities on Lake Michigan currently utilize
certain management techniques to regulate the use of land in their com-
munities, the broad and comprehen'sive objectives contemplated under the
Illinois Coastal Zone Management Program may be difficult to obtain if
-only the more traditional methods of land use management are employed.
We have seen that, in place, the shoreline municipalities have already
begun the process of innovation so critical to the Program. The use of
the planned unit development technique by most of the shoreline communi-
ties is an excellent step toward achieving the dual objectives of secur-
ing open space and maintaining strict control over the development that
does occur in the Shore or Hazard Areas or Inland Areas. Planned unit
development is especially effective because, unlike more traditional regu-
latory techniques, it affords both the community and the property owner
certain flexibility in guiding the development of the land.

Certain other management techniques, while not in use as yet in
shoreline communities in Illinois, have been suggested by various commen-
tators and are employed in other jurisdictions. These techniques may be-
come important management tools in the coastal zone because, like the
planned unit development concept, they depart from Euclidian zoning and
offer new tools to deal with those issues, such as the environment,
which have- recently become important factors in land use management.
Some of the contemplated management tools may be implemented under the
municipality's existing police powers while others may necessitate enab-
ling legislation from the General Assembly or independent legislative
action by home rule units. Prior to reviewing the new management tech-
niques it is important to note that, like other new police power mea-
sures, they may be subject to judicial attack on due process grounds if
not undertaken reasonably with proper attention to traditional concepts
of fairness.,

Regulations allegedly promulgated as an exercise of a municipality's
police power to protedt the public health, safety and welfare are often
challenged on the ground that the regulation in fact constitutes a taking
of private property which is violative of the due process clause of the
14th Amendment of the United States Constitution and the Constitution of
the State of Illinois, Article 1, Section 2. As Justice Holmes suggested
in the landmark case of Pennsylvania Coal v. Mahon,4 no definitive line
may be drawn to distinguish between a proper exercise of the police power
and an unconstitutional taking:

-71-

One fact for consideration in determining such lim-
its [of the police power] is the extent of diminu-
tion. When it reaches a certain magnitude, in most
if not all cases there must be an exercise of emi-
nent'domain and compensation to sustain the act.
So the question depends on the particular facts.

The general rule at least is, that while property
may be regulated to a certain extent, if regula-
tionoeto far it will he recognized as a tak-
ing.

Certain of the management techniques to be reviewed may he especially
vulnerable to attack on the "taking" ground as they restrict develop-
ment of private property to a larger extent than more traditional regu-
latory measures. The success of these challenges in other jurisdictions
and the probability of successful challenges in Illinois will be dis-
cussed in relation to each particular technique.

2. Timing of Development Controls

The broad category, "Timing of Development Controls" contemplates a
number of different techniques that impose time controls on land use.
For example, Ramapo, New York, utilizes phased regulation of both the
tempo and sequence of private development in conjunction with a local
government's plan for the extension and improvement of public services.
Timing controls can also be achieved by specifically limiting the number-
of building permits that will be issued annually as was done in Petaluma,
California, and approved by the federal courts. Such regulations may in-
cldde sequence controls as well.

Such phased growth techniques-were first formulated in an attempt
to retard haphazard growth of communities. As was noted by the Douglas
Commission:

At the metropolitan scale, the present techniques of
development guidance have not effectively controlled
the timing and location of development. Under tradi-
tional zoning,-jurisdictions are theoretically called
upon to determine in advance the sites needed for
various types of development . . . In doing so, how-
ever, they have continued to rely on techniques which
were never designed as timing devices and which do
not function well in controlling timing. The at-
tempt to use large-lot zoning, for example, to. con-
trol timing has all too often resulted in scattered
development on large lots, prematurely establishing

-72-

the character of much later development the very ef-
fect sought to be avoided. New types of controls
are needed if the basic metropolitan scale problems
are to be solved.

One of the most effective methods to insure orderly community devel-
* ~~opment ap~gars to be the adoption of managed growth programs by munici-
palities.

As Robert Freilich, a well known proponent of phased growth controls,
noted:

The nexus between planning and incorporation of plan-
ning into legal implementing measures lies in the use
of little known legal tools--interim development con-
trols. Stated simply these controls can be used to
prevent land development, during the formulation of
planning policies, which would conflict in any way
with permanent legal controls implementing the ba-
sic planning policies. With planning so protected,
there is no longer the need for hasty adoption of
permanent controls in order to avoid the establish-
ment of nonconforming uses and structures. - Of even
far greater importa nce are the corollary effects of
such protection. Firstly, the planning process can
be brought out into the open for full democratic
debate and citizen participation; thus, assuring a
greater relationship to the real goals and needs 'of
the people. Secondly, continuous amendment and re-
vision of the planning policies of the community can
be, for the first time, successfully accomplished...
With the use of interim development controls a
flexible system of planning, continuously updated
and current, can be utilized to provide the tying
rod for an effective and complete system o~f total
environmental protection. 50

A timed development control program should be distinguished from the
earlier, more common "interim" ordinances. This type of ordinance was
-'not a true interim control designed' to protect the planning process un-
til the adoption of permanent controls, but was rather a "qluickly pre-
pared ordinance, without a map, designed to preserve the status quo un-
til complete regulations could be established."5 In contrast, a true
interim control is designed to protect and enhance the planning process
and may be utilized as an extremely temporary measure, during which a
new land use plan may be created--for the coastal managemen t area, for
example. Such a plan may call for permanent rezoning or a time control
plan to be carried out over a number of years. The interim development

-73-

control technique is an excellent threshold for either of these goals
as it temporarily stops development which would otherwise interfere with
the ultimate regulatory techniques to be enacted. The application of
the technique in Illinois must follow the procedures set forth in the
Illinois Zoning Enabling Act.52

The popularity of a timed development control ordinance is signifi-
cantly increasing. Some commentators believe that timing and sequen-
tial controls' two major aspects--their ability to direct the rate of
urban development, and encouragement of development only in areas with
in place essential services--are the most effective means to control
the shape and destiny of community development. Time controls emphasize
controlling both population and community growth until the municipality
is able to provide adequate services and facilities while growth is en-
couraged adjacent to built up areas before more remote areas are opened
for development in order to assure efficient land use. In contrast to
present planning techniques, which are rarely implemented, by incorpora-
ting planning into legal implementation measures they have a greater
relationship to the needs of the community and its citizens.53 It is
contended that the use of interim development controls assure a greater
relationship of land use to the needs of the people, as they allow a com-
munity to revise its planning policies as is warranted by changing condi-
tions. Proponents of growth control techniques contend that their de-
sirability lies in their ability to maximize growth in the community by
establishing a method to ensure that essential services and facilities
which an increase in population demands are provided.

Hand in hand with such a program is the design of a meaningful land
development policy to encompass many regulatory areas other than zoning,
since the planning of the environment is concerned with the totality of
physical, social and economic policies and envisions a continuing plan-
ning process. For example, the town of Ramapo, New York, instituted
a managed growth program in 1969 after experiencing a growth rate of
78.5% over the prior six years. The town adopted a master plan that
enunciated the town's key development policies: to provide for a mod-
erate population increase and sufficient public facilities to meet the
anticipated needs of their projected population increase. Using the mas-
ter plan and budget process as the basic framework, the town created a
timing device to effectively halt development for eighteen years. De-
velopment is permitted only if the proposed development area possesses a
sufficient infrastructure, constructed-publicly, or by private funding.55

The authority for instituting the "Ramapo Plan" was derived from
New York State's enabling legislation which contains the standard lan-
guage regarding the permissible purposes of land use regulation.56 Al-
though not verbatim, the Illinois zoning enabling act is substantially
similar to the design of the Standard Zoning Enabling Act.57 The pur-
poses of phased regulation seem within the limits set by the New York

-74-

enabling act language, since controlling the tempo and sequence of growth
can be justified by the issue to "facilitate provision of adequate pub-
lic facilities of all kinds.",5 The Illinois enabling statute varies
from the Standard language regarding public facilities, as it states
"that the corporate authorities shall exercise their powers in part to
facilitate the preservation of sites, areas, and structures of histori-
cal, architectural and aesthetic importance," yet this provision appears
to be broad enough to condone the implementation of timing of developing
controls in the coastal zone as preservation of the area has both his-
torical and aesthetic importance. 59 Sufficient statutory authority spe-
cifying the purposes for which the police power may be employed does not
end the question. The methods designed to achieve the purpose must also
be authorized by the state subject to the now inherent home rule author-
ity of eligible units. This state enabling legislation requirement
does not appear to apply to home rule units in Illinois, as the Illinois
Constitution, Article VII, Sec. 6 states that:

Except as limited by this Section, a home rule unit
may exercise any power and perform any function per-
taining to its government and affairs including, but
not limited to, the power to regulate for the protec-
tion of thg1public health, safety, morals and wel-
fare...
62
The Zoning Enabling Statute, now expressly provides that it is
inapplicable to municipalities that are home rule units. Thus, home rule
units' power to zone for the public health, safety, morals, and welfare
derive from the Illinois constitution.63 Since timing of development
control ordinances are so inextricably tied to zoning legislation, it
appears that as to home rule units, no further state enabling legisla-
tion will be necessary.

As to non-home rule units, Illinois Revised Statutes, Chapter 24,
Section 11-13-1 sets out various methods a municipality may employ under
its zoning power. As the Golden court noted, "The powerito restrict and
regulate conferred under Section 261 [the New York zoning enabling sta-
tutel includes within its grant, by way of necessary implication, the
* ~~authority to direct the growth of population . *..64 In Illinois, the
use-of the special permit device has been upheld65 and this device is
the basis of Ramapo's phased zoning ordinance. Furthermore, the Illi-
* ~~nois court has consistently held that a municipality may reasonably re-
strict increase of population density as necessary for its health, safety
and welfare albeit by using traditional zoning measures.66 The Illinois
courts have also recogniz ed the propriety of zoning with a view to orderly
future development-and have condoned the zoning of land for a heavier use
than is presently needed, 65or a more restrictive use.8

Although the enabling statutes may be held to be sufficiently broad
to allow the'imposition of timed development controls, regardless of

-75-

whether timing controls are enacted under the authority conferred by
state enabling legislation or the constitution as to home rule units,
a court must still consider the constitutional issues that bear on the
validity of the purpose and means of an ordinance. Basically, the power
to zone is broad and a zoning ordinance will be declared unconstitutional
only if its provisions must be found to have, "no substantial relation to
the public health, safety, morals, or general welfare."69 Clearly, this
limitation results in a broad and flexible grant of power.70 Timed con-
trolled regulation appears to be consistent with traditionally permissi-
ble goals as the problems caused by unregulated and overly rapid devel-
opment are identical to those originally sought to be cured by the ini-
tial enactment of zoning regulations. Management techniques that at-
tempt to rationalize the development'process to avoid unnecessary des-
truction of natural amenities seems well within the power of a local gov-
ernment to advance the general welfare of the community.71

Even if the purpose for which timed development controls-are found
to be constitutionally valid, constitutional limitations on regulatory
means still exist. In general, the constitutional guarantees of equal
protection and due process impose limits on the zoning power in order to
protect the interests of individuals who are affected by a regulation.
The equal protection clause of the 14th amendment of the United States
Constitution and Article I Secption,2 of the Illinois Constitution require
'that zoning restrictions not unfairly discriminate against parcels of
land that are "similarly situated.", While courts require that the law
treat people differently only if there is a rational basis for so doing,
considerable weight is given to legislative judgment in determining the
rationality of a statutory distinction. 73

Timed development zoning has primarily two aspects which raise equal
protection issues. First, the operative effect of a phased-growth regu-
lation is to'treat in dissimilar fashion property which has the same un-
derlying use designation. In Ramapo, for example, all the land affected
by the ordinance was zoned for residential use. Although the growth con-
trol ordinance did not change this designation, it imposed te mporal use
restrictions of up to eighteen years. Arguably, contiguous parcels of
land may be treated differently because phased growth controls make time,
as well as space, a consideration; suitability for residential use thus
becomes a function not only of the location of the land but also of the
timing of development. Under the Ramapo approach, timing is determined
by the availability of adequate facilities. Since this criterion justi-
fies the restriction of development'in the first place, it should-also
be sufficient reason for treating land which is inadequately serviced dif-
ferently from land which is adequately serviced.

The second characteristic of phased zoning that raises an equal pro-
tection issue concerns the amount of discreti on the special permit device
may give the local government. A permit device unaccompanied by well-
defined objective standards by which local administrators are guided

-76-

raises concern for the possibility of unequal administration. However,
this concern may be overcome by conditioning permits solely on objective
criteri.' Although this approach may prove to be too inflexible to
serve all the stated purposes of a phased growth ordinance, it avoids
the problem of vesting excessive discretion in an administrative body .75

Another traditional limitation on a local government's exercise of
regulatory powers is the protection afforded private property rights by
the due process clauses of state and federal constitutions.7b The due
process clause is construed in Illinois to require a rational relation-
ship between the regulation as applied and the objective posited. The
Illinois courts generally attempt to assess a land use management regu-
latory ordinance's degree of 75easonableness by balancing the costs and
benefits of the restriction. Conformity to a comprehensive plan is
now local government's chief defense against claims of a regulatory ordi-
78
nance's arbitrariness. If a phased ordinance is adopted in the context
of an overall planning scheme, as was Ramapo's ordinance, a court may be
further assured that the local government's efforts are reasonable and
are rationally related to their conceived purpose.

Timed development control ordinances may also be subject to attack
on the ground that they are simply another guise of exclusionary zoning.
At best, such ordinances retard the influx of persons into a community
as development must await implementation of a public capital improvement
program. 79At worst, it is a sophisticated method to insulate a commu-
nity from the problems inherent in natural growth, including the entrance
of lower income groups.8 However, timing and sequential controls are
basically interim devices and if coupled at the outset with a plan which
provides for varied housing, a more heterogenous community may ultimately.
be achieved.81 Even the Pennsylvania Supreme Court, which traditionally
has taken a strong stance against exclusionary zoning pronounced in
dicta:

This is not to say that the village may not, pursu-
ant to-its other and general police powers, impose
*other restrictions on conditions on the granting of
a building permit to the plaintiff, such as.
granting of permits . . . in stages, or perhaps even
a moratorium on the issuance of any building permits,
. reasonably limited as to time . ...82

Thus, the court apparently condoned growth control devices which were'
bona fide attempts to prepare a community to deal with the problems of
population growth. This is not to say that the New York or Pennsylvania
courts prefer development control measures, rather, they may be permissi-
ble so long as they attempt to deal with the problems of an expanding
population.

_77-

The final due process limitation on a local government's power to
impose uncompensated restrictions on land use derives from the fifth
amendment of the United State's Constitution,83 which prohibits the tak-
ing of "private property . . .for public use, without just compensation." 84
Although "taking" is not susceptible of easy definition, it may be stated
broadly as, "...constitutional law's expression for any part of pub-
licly inflicted injury for which the Constitution requires payment of com-
pensation."8 Its central inquiry with regard to zoning is whether the
regulation is a valid exercise of the police power or whether the power
of eminent domain must be used to accomplish the objective. The line be-
tween the police power and the power of eminent is extremely difficult to
locate. Thus, courts tend-to draw the line "in response to an infinite
number of factors within the factual context of each case."86

A local government employing any phased form of management regula-
tion would probably be able to avoid the confiscatory attack at the out-
set by leaving some reasonable uses indiginous to the specific property
available to the landowner. There is no inherent requirement that tim-
ing controls be totally restrictive.87 For example, in addition to being
able to build a single residential dwelling other uses are immediately
available to a landowner in Ramapo whose land is otherwise subject to the
timing controls. 88

Thus, it appears that proper planning and drafting of a development
control ordinance may obviate the possible constitutional objections to
its enactment at'the outset.89

The use of timed development controls should not be viewed as a pana-
cea for the development problems within the coastal management area. The
objective of such ordinances is to coordinate the tempo and sequence of
development with the construction of necessary municipal facilities. Such
a technique, if used arbitrarily or unreasonably, could, in fact, tend to
be employed to exclude uses of the regional benefit and, thereby, per se
violate intent and a key purpose of the Coastal Zone Management Act of
1972 itself. The mere failure to construct these facilities to service
the coastal management'area will not be a sufficient reason to continue
to forestall development within .the--Icoastftl zone once the period for the
timed development control ordinance elapses. Therefore, -other means, such
as the creation of a special zone which places limitations on the permissi-
ble construction based on a performance standard approach within the coas-
tal zone must necessarily be enacted in conjunction with any timed control
ordinance.

3. Judicial Response to Timed Development Controls

Although the Illinois courts have not been confronted with the issue
of the validity of timed development control, they have had occasion to

-78-

review interim ordinances under other circumstances. In Phillips Petro-
leum Co. V. City of Park Ridge, 90the court defined an interim ordinance
as "one.passed with the intention of preserving the status quo until a
subsequent zoning ordinance can be ence.9 While the court held
that a city council cannot by resolution suspend the operation of a zon-
ing ordinance then in effect, in dicta the court continued, stating that
a suspension by ordinance would still be ineffective as there is no zon-
ing enabling legislation'authorizing the suspension of effective zoning
ordinances. This rule was also enunciated in Westerherde v. Obernuefer-
man,92 however, the court stated that an exception to the rule is found
when proposals for change, alteration or modification are pending prior
to the time a property owner applies for a building permit and the prop-
erty owner has notice, actual or implied, of the pendency of such action.

This exception to the so-called "vested rights" rule was somewhat
limited, in A~merican National Bank and Trust Co. v. City of Chicago,93
wherein the court held that for the exception to apply the municipality
must demonstrate that the property owner has actual knowledge of the
proposed ordinance. Thus, it appears that while a municipality cannot
suspend the operation of its zoning laws, it may withhold action on the
application of building permits after notice is given to property owners
of the proposed zoning change. This creates significant time pressures
on municipalities, as zoning cannot be suspended until such time as a
concrete plan is prepared for presentation at a public hearing. However,
as the courts did not raise constitutional objections to interim zoning,
legislation authorizing such measures passed by the General Assembly
could alleviate the restriction. Furthermore, home rule units are not
bound by this specific limitation as the state zoning enabling legisla-
tion is inapplicable to these units.

If it is ultimately determined that suspension of zoning regulations
cannot be effectuated in Illinois, the door is still open to enactment of
timed development controls, provided the traditional mechanism for enact-
ing zoning amendments is followed.94 Illinois courts have yet to rule on
the validity of timed development controls; however, thie enabling legis-
lation which authorizes municipalities to regulate and limit the intensity
of the use of lot areas, and to fix standards to which buildings or struc-
tures shall conform may be deemed sufficient to validate the use of such
controls. A review of other jurisdiction's decision on'this question may
indicate the course the Illinois courts will follow.

The seminal case upholding the use of timed development controls is
Golden v. PlanningBoard.9 'in which the Court of Appeals of New York
upheld'the "Ramapo Plan"96 The court held that the ordinance was a legit-
imate exercise of the zoning power for the purposes of avoiding undue con-
centrations of population and facilitating adequate provision for trans-
portation, water, sewage, schools, parks and other municipal facilities.
The court further found that sequential development and timed growth were
not exclusionary per se, but were attempts to provide a balanced and cohe-

-79-

sive community dedicated to the efficient utilization of land--an ideal
of the land use management process. The restrictions conformed to the
community's considered land use policies as expressed in its comprehen-
sive plan and represented a bona fide effort to maximize population den-
sity consistent with orderly growth.97 Nor did the court find that the
ordinance constituted an impermissible taking as the restrictions were
only temporary (if eighteen years as a maximum can be so considered) in
nature.

In Construction Industrial Association of Sonoma County v. City of
Petaluma,' the District Court for the Northern District of California
took a different view of the timed control program developed by the City
of Petaluma. In 1971, the city enacted an official growth policy--the
"Petaluma Plan"--in order to limit the city's demographic and market
growth rate in housing and in the migration of new residents. As part
of the "plan," the- city created an "urban extension line" marking the
outer limits of the city's expansion for at least twenty years, set an
annual five hundred unit building limitation and limited its available
public facilities.100 By creating an "urban extension line" the city in
effect reduced its projected population in 1985 from an estimated 77,000
to 55,000.101

In contrast to the "Ramapo Plan," the "Petaluma Plan" fixed an ab-
solute limit on the number of units to be built annually, had no over-
riding standard other than the mere passage of time and had no fixed
deadline after which development timing devices were prohibited. Local
builders challenged the plan and the district court found that the ex-
press purpose and intended and actual effects of the express purpose and
intended and actual effects of the "Petaluma Plan" were to "exclude sub-
stantial numbers of people who would otherwise have elected to immigrate
into the city," which violated the right to travel. The court cited the
Supreme Court's decision in Memorial Hospital v. Maricopa County:102

a classification which 'operates to penalize those
persons . . . who have exercised their constitu-
tional right of interstate immigration' must be
justified by a compelling state interest.103

The court then noted that:

Inasmuch as there is no meaningful distinction be-
tween a law which 'penalizes' the exercise of a
right and one which denies it altogether, it is
clear that the growth limitation under attack may
be defended only insofar as it furthers a compel-
ling state interest.104

Finding that no compelling state interest (the constitutional standard)
was served by the plan, the court held that the ordinance was unconstitu-

-80-

tional. On appeal, the Tenth Circuit reversed, finding that plaintiffs
did not have standing to raise the right to travel question as their
freedom to travel was not being impaired and that the "Petaluma Plan" was
otherwise a constitutionally sound and proper exercise of the municipal-
ity's police power.105

Conclusion

It appears that timed development control ordinances may be an ef-
fective means to protect both the coastal zone and the entire munici-
pality from unstructured and unplanned development. of course, these
controls may also be implemented only within the coastal zone as op-
posed to the municipality as a whole. Special treatment of the shore
management area may be judicially sanctioned under Article 11 of the
Illinois Constitution which specifically mandates that it is the public
policy of the State to provide and maintain a healthful environment for
the benefit of this and future generations in Illinois. Although not an
end in itself, such management ordinances will, if properly implemented,
help to bring the planning element into the position it deserves in the
municipal land management process in the coastal area. In addition,
*timing controls can be an effective local management tool to assume
that, e.g., erosion management structures are in place prior to devel-
opment activity within the coastal zone.

CHAPTER V
GOVERNMENTAL INTERESTS IN LAND:
EASEMENTS AND BUILDING RESTRICTIONS

One of the major points made in the First Year Work Product106 was
that the confluence of the police power and the public trust, aided by
a careful and considered planning process might provide the basis for a
broader and more expansive view of both the-public'trust and the police
power itself, than perhaps could be said to be the current view of the
Illinois courts.107 But nothing is without limit. We also noted that
for a variety of reasons the administration of the Illinois Coastal Zone
Program could involve a plan to acquire interests in real property,
rather than a complete reliance on the police power, as one means of ac-
complishing the objectives of the Program.108

We shall now focus on the nature and character of interests in prop-
erty that could be acquired as a part of the Program. This subject could
be treated in a general way, and undertake a review of the entirety of
the law of real property with its myriad of complexities and ambiguities.109
Instead, the problem will be approached from a functional perspective.
Acquisition of interests in real property for its own sake is not, so
it seems, an objective of the Program. Rather, the implementation of
the Program, the control of the use and development of land lying within
the Illinois Coastal Zone, is the objective. The relevant issue, there-
fore, is one of control through such acquisitions in aid of or comple-
mentary to a comprehensive system of police power regulations.

It is obvious that if all of the land lying within the Coastal Zone
were in public ownership, then the question of control would simply in-
volve the making of appropriate arrangements and adjustments by and be-
tween the various public authorities having an interest in the Illinois
Shore. Such is not now the case and the probable cost of obtaining such
a result would be enormous. Even if it were feasible for public agencies
to acquire title to all lands lying within the Coastal Zone, the desira-
bility of doing so would be subject to considerable debate. As a general
matter, therefore, our emphasis is on interests in land that do not dis-
turb private ownership. Such interests are usually' called less-than-
fee interests.111 Of particular concern, however, is essentially with
that class of interests known as easements or interests in the nature of
easements. The concept of conservation and preservation easements has
become an increasingly popular tool of local governments to acquire a
less-than-fee interest in property which may be an appropriate method
to serve certain Program objectives.

-82-

1. A Brief Look at the Life and Times of the Easement

Under Illinois law, an easement is a privilege upon or in the land
of another.~1 An easement may be either positive--giving the public
certain rights to use the land--or negative--limiting the uses to which
a landowner may put his land. The classic use of the easement device
is to create a right-of-way for the benefit of A across the land of B.113
The right does n ot interfere with B's ownership but B's land is never-
the less burdened by the right.11 An easement to acquire a right-of-way
across a beach held in pri vate ownership would clearly fall within the,
recognized definition of an easement. However, such a right may be far
too limited. For example, what about the right to bathe, to sun, to dock
or to play volleyball? What about the right to put up tents or cabanas?
If such rights may be thought of as involving easements, the matter must
be explored further.

In Willoughby v. Lawrence, 115 a question arose as to the nature of a
right granted to use fences and buildings for advertising signs. The
court held that the rights granted included a right of entry to reach
the same and the entirety of the rights created appear to have been char-
acterized as, if not an easement, at least a "servitude in the nature of
an easement." 116 The right to lay railroad tracks 117 and to install and
maintain sewers 118 are all recognized as involving easements. More gen-
erally, the notion that an easement involves the use of the land of an-
other for a special purpose 19clearly supports the notion that the right
to bathe, to sun and so forth, involves or could involve an easement.
Decisions in other jurisdictions make it clear that the full panoply of
beach uses can be thought of as involving easements. 120

The *rights above and beyond mere passage across another's land may
present practical problems. The cost to the public and the resistance
of private landowners to easements of the nature under consideration here
may both be reduced if limitations are placed on the rights granted. For
example, the party acquiring the easement may agree that use of the beach
be limited t~o certain hours of the day, certain months of the year or to
certain numbers of people at any given time.121 Similarly, the party ac-
quiring the easement could agree to provide certain improvements such as
fencin Yo0r to provide certain services such as lifeguards and trash re-
moval. But these are all matters that could properly be the subject
of negotiation between the public authority and the beach owner. Ease-
ment acquisition may prove to be desirable from both the public and pri-
vate view. It is relatively economical from the public perspective when
compared to acquisition in fee. if the easement is donated to the muni-
cipality the price of the interest will probably he deducted from the
landowner's taxable i{Some equal to the fair market value of the prop-
erty rights donated.' To make the disposition more palatable the prop-
erty owner should also receive a decrease in the assessed valuation of
the property for local tax purposes.

-83-

In addition to the tax advantages, a landowner interested only in
development may find that if he encumbers a scenic part of his land
with an easement, the value of his remaining land may rise because of
the guarantee of a scenic view. This increment, coupled with the tax
deductibility of the gift, at least encourages some grant of easements
within developed areas.124

Having concluded that the easement may be something worth thinking
about-as far as the Coastal Zone Management Program is concerned, the
mechanics of this device should be considered. For these purposes, the
questions to be examined involve the creation, construction, assignabil-
ity, enforcement, and valuation of easements. Absent a statute specifi-
cally addressing the kinds of easements that might be acquired under the
program, a rather murky and complex area of the law must be reviewed.125

2. Creation

*126
Easements may be created in one of three ways: a writing,16 by im-
plication127 or by prescription.128 As a practical matter, the only way
to proceed under the Coastal Zone Management Program would be by a writ-
ing.129 This requirement does not seem very onerous. But it is suffic-
iently fraught with problems to warrant emphasis.

In order to benefit both the local government unit and the property
owner, the easement terms must be explicit in order to give the landowner
sufficient notice of what rights he has relinquished which will avoid the
expense of litigation that might be caused by the owner's misunderstand-
ing of, or disputing the easement terms. Precise definition is also im-
perative to determine the sale price of the easement.130

Because individual parcels of land vary and because the public ob-
jectives may also vary with the variety of lands encumbered, each ease-
ment must be individually tailored. The instrument creating an easement
should contain two elements: it should state both the positive rights
that the owner conveys to the government body and the uses and rights
that the owner himself relinquishes. The easement grant instrument should
also specify the term of the grant--for perpetuity or a certain term, and
should not permit any restrictions of use in the landowner which will im-
pairthe public purpose to be obtained by the easement. General restric-
tions may also be placed upon the municipality's ability to accept a grant
of easement, tying the grant to the adopted plan of the municipality. An
interesting question is whether benefitted property may include real es-
tate acquired subsequent to the grant of easement. It seems clear that
it may not at least in the absence of specific language in the grant of
easement reciting that the easement is for the benefit of, inter alis,
subsequently acquired real property.131 Whether an express reference in

-84-

a grant of easement to after-acquired property beiag benefitted thereby
would be upheld or given effect does not appear to have been decided in
our state.

3. Construction

Needless to say a great deal of care should be given to drafting
the grant of easement and counsel for the public authorities involved
must carefully supervise the preparation of the documents. It is at
this point that court-made rules of construction become critical. As
set M in the important case of Goodwillie Co. v. Commonwealth Electric
Co., the rules of construction are as follows:

1. Agreements imposing burdens upon one estate
for the benefit of another must be strictly
construed; 133

2. Such agreements, however, creating easements,
must be so construed as to carry out the
plain intent of the parties;134 and

3. Moreover, if there is any ambiguity as to the
meaning of this contract, the practical con-
struction placed thereon-by the acts of the
parties can be resorted to to determine the
meaning of the grant.1

The Goodwillie case involved, inter alia, the construction of a grant
of way to lay, maintain and use railroad tracks. As previously noted,
rights-of-way are the classic form or purpose of easements. But this
factor was not enough to avoid the need to undertake complex and diffi-
cult litigation. The operative language of the grants13F in the Good-
willie case was more or less as follows:

Now, therefore, in consideration thereof and of the
agreement hereinafter made by the said party of the
first part, the said party of the second part do
covenant and agree to and with the party of the
first part that they will, within sixty days after
they shall take possession of the lots so conveyed
to them, as aforesaid, build a railroad track from
the track now laid down by the Chicago, Burlington
& Quincy Railroad Company immediately south of the
south line of Twenty-Second Street, on a curve not
greater than six hundred feet radius, to the center
of Fisk Street, in Greene's South Branch addition,

-85-

and thence down the center of Fisk Straet as far as
the south line of lot 86 extended to the center of
Fisk Street, so as that the same may be extended
south of Fisk Street, anid that said track, when so
built, may be forever after used, in cor~mion with
the said party of the second part, by any and all
of the owners of other lots fronting on Lumber
Street, between Mason's canal and Allen's canal,
and of lots fronting on Fisk Street, in caid ad-
dition: Provided, however, that the owner of each
lot using said railroad track shall, before he
shall be entitled to use the same, pay to said
party of the second part such proportion of the
cost of constructing said railroad track from the
Chicago, Burlington & Quincy railroad to the north
line of the south fifty feet of lot 82 as the width
of such lot shall bear to the combined width of all
the lots using said railroad, and shall thereafter
pay the same proportion of the expense of keeping
in repair said railroad track from the Chicago,
Burlington & Quincy railroad as far as the same
may be extended; and the said party of the first
part on its part doth covenant and agree that the
said party of the second part may, upon the faith-
ful performance and observance by them of their
agreement as herein contained, lay a second rail-
road track for the accomodation of said lots so
conveyed to them, as aforesaid over the south
twenty-five feet of the north fifty feet of lot
82, and that they may use and operate said rail-
road track upon and over said south twenty-five
feet so long as they shall well and faithfully
observe the stipulations herein contained and on
their part to be performed. In testimony whereof
the said party of the first part has signed these
presents by its president and affixed its seal
hereto, and said party of the second part have
signed these presents and affixed their seals
hereto, the day and year first above written. 137

and

It is understood that Cutler, Witbeck & Co. are not
bound to allow parties owning lots 101, 102, 103 to
use the track whi ch they construct from the C., B. &
Q. R.R. track south of South Street to the south
line of lot No. 86 unless they pay their proportion
of the cost of the same.

The foregoing language is quite detailed and the purpose of the easement
would seem reasonably clear. However, among the problems arising under
this grant were:

1. how many tracks coulId be constructed south of
the south line of lot 86;139

2. whether the owners of lots 82 through 86, in-
clusive, were entitled to use switches and
track south of the south line of lot 86;140

3. whether the easement could be used at any
time of the day or night; 141

4. whether the easement could be used for the
benefit of land not covered or contemplated
by the original agreement;14

it should he noted that the grant provides that the right involved
shall be "forever". in the absence of such language,143 the question of
duration of the easement could also become the subject of litigation.

A grant of easement for "perpetual public beach recreational uses
and purposes" might pose serious problems. The first is how "public
beach recreational uses and purposes" are to be defined. Do they in-
clude volleyball?, Sunbathing? Docking boats? Swimming? Constructing
tents and cabanas? What about activities not yet known? Suppose use is
made of.the beach only from May to September. May it ever be used in,
say, February? Suppose the particular beach is used by no more than 50
people at one time. when, if ever may 200 people, for example, use it
simultaneously? Suppose the beach, pursuant to local government regula-
tions, has not been used past 10:30 P.M. for some number of years? if
that regulation were amended to allow use until 12:00 midnight, can the
owner of the beach block the use of the extra ninety minutes?

obviously many of these matters can be adequately dealt with by care-
ful drafting of the documents. However, the risk of an unexpected judi-
cial interpretation cannot be eliminated. The rule under Illinois law
that grants of easements should be strictly construed is the source of
the problem. 14It must be remembered that even where an easement is ac-
quired by gift or devise or by a friendly negotiated sale, the successors
in interest of the particular Iand e hav e the right to challenge the
scope and extent of the easement.- Thus even friendly relations can
turn sour over time, especially when the cast of characters changes.

-87-

4. Assignability

There is an ancient distinction in the law between easements appur-
tenant and easements in gross. The distinction lies in the fact that in
the former case the holder of the easement is the owner of land bene-
fitted by the easement whereas in the latter case, no land can be found
or identified as being benefitted. Easements appurtenant can be assigned.
Easements in gross cannot.146 The distinction is of vital importance for
any natural person or to any entity with a life of finite duration. Upon
death, an easement in gross terminates. Where the easement holder is a
public authority, the distinction may be of little practical importance.
However, if that authority should cease to exist then there is a problem
as to whether any easements in gross held by the public authority would
also terminate.

The distinction may be of relatively little significance for another
reason: to the extent that the holder of the easement is also the owner
of the land used for recreational purposes, it may be agreed that any
easements held by that public authority for such purposes are easements
appurtenant since the benefitted land and the burdened land need not be
adjacent, but need only be clearly defined.147 But where the authority
acquiring the easement does not hold lands benefitted by the grant of
easement, the easement will be deemed to be in gross only.148 The prob-
lem of termination of the easement upon the demise of the easement holder
may also be solved by the General Assembly as it is empowered to abrogate
these judicially imposed rM�s and expressly authorize governmental enti-
ties to acquire easements.

5. Enforcement

As previously explored, enforcement of an easement is subject to
strict rules of construction. But this is hardly the full extent of the
difficulties. Even if one might agree as to the nature, character and
scope of an easement, the question may arise as to whether the holder of
the easement may, in certain circumstances, be barred or estopped from
enforcing the grant.

The holder of an easement may15conceivably, abandon his rights un-
der the grant in whole or in part. What constitutes abandonment in
any case is a question of fact.151 But it is obvious that serious dan-
ger is presented if, for the appropriate number of years152 the easement
were not used, or were used only for limited purposes. The third rule
of construction enunciated in Goodwillie153 would, where the terms of the
grant were ambiguous, point to a comparable or similar set of difficul-
ties.

-88-

Great care should be taken to ensure that in instances where the
public authority has agreed to make improvements or provide services
that a violation or breach of those obligations does not operate to for-
feit the easement. To the extent th any such forfeiture would be con-
strued as a possibility of reverter the enforceability of that forfei-
ture has been severely restricted by statute.155 However, this much re-
mains of the possibility of reverter: the maker or creator of the in-
terest or his heirs156 (but not any assignee or devisee of the maker) may
enforce the possibility for a period of 40 years.157 Interestingly
enough, to the extent that any such forfeiture would be construed as a
reversion,158 the forfeiture would appear to be fully enforceable. Whe-
ther one could say that there can be a reversion expectant upon an ease-
ment is a question that can be considered perhaps in light of the broad
pervasive policy in the law not to enforce forfeitures.159 Yet, where
the forfeiture is clearly expressed, it will be enforced.160 The law is
less than satisfactory on the point, but careful drafting of grants spe-
cifically excluding any forfeitures, of whatever kind, would alleviate
the problem.

There is another aspect of enforcement that must be considered. If
a landowner grants an easement across his land to his neighbor, then the
rights of both parties can be understood. Suppose, however, that the
landowner conveys his property to a third party; may the easement holder
enforce his rights against the new owner of the burdened land? Or sup-
pose the easement holder conveys his land. May the new owner enforce
his rights against the owner of the burdened land? Or against the new
owner of the burdened land?

The answer clearly ought to be yes in each instance.161 However, to
assure these results, the following should be done:

1. The grants should specifically state that they
are for the benefit of the easement holder, his
heirs, successors, and assigns and that they
bind the owner of the burdened land, his heirs,
successors and assigns; and

2. The grants should be recorded immediately.

With respect to the first point, the cases seem to hold that an easement
appurtenant "runs with the land" and pass by deed or conveyance.162 Pre-
sumably this result is obtained whether or not specific reference is made
to heirs, successors and assigns. Indeed, in the Goodwillie case163 the
operative language did not specifically use such phraseology.164 However,
one finds reference to `owners" and the easement being "forever", in that
language. To insure the continuity and enforceability of an easement a
conservative view of the question is called for and appropriate terms
should be used.

-89-

With respect to the second point. If the purchaser of the burdened
land purchases the property without actual or constructive notice of the
easement, he could conceivably take free of the burden of easement. 165
Recording the easement will provide constructive notice and protect the
rights of the easement holder and those who succeed to his interest .166

6. Valuation and Acquisition methods

Aside from the initial outlay needed to purchase an easement, it
must be pointed out that the municipality will be subjected to other ex-
penses. In addition to a possible reduction in property tax revenues if
the assessed valuation of the property is reduced, there is also a loss
of potential revenue in that intensive land development would increase
the future tax base of the community. Also, the administrative expenses
of acquiring and enforcing the easement may be considerable but would be
an eligible 306 cost reimbursible expense. Such expenses include the
cost of surveying, title examination, valuation fees and negotiation. If
the easement is to be acquired by eminent domain there may also be'liti-
gation expenses.167 Policing the restrictions once the easement is effec-
tuated will present additional expenses.

Of course, the initial outlay for the purchase of the easement will
undoubtedly be the greatest expense borne by the local government.

It would seem that the cost of an easement would be measured by the
difference between the value of the land unburdened by the easement and
the value of the land burdened by it. 168 For example, the value of sce-
nic easements in California are measured in large part by the benefit
that the owner would have received from development or from sale for de-
velopment. Therefore, it is important for the governmental unit to ef-
fectively anticipate development pressure because once that pressure ex-
ists the landowner may be unwilling to encumber his land. If in that
case the eminent domain power must be employed, the easement may be too
for local ~169
expensive f rlclgovernment. However, developers may be willing
to grant an easement for a reduced price as to a portion of their Pr op-
erty in order to increase the value of their surrounding property. Regu-
latory measures already in effect, such as large-lot zoning may help to
inhibit development potential, and thus keep down the cos ts of easements.
The interesting question is whether the value of the land as determined
should reflect these zoning, other land use controls and limitations.170
To the extent that it can, the cost of acquisition in any given case
could be reduced if fairly restrictive zoning regulations are imposed.
Yet this creates an element of unfairness for if land is downzoned dras-
tically so that the land or interests therein might thereafter be ac-
quired more cheaply the courts may disregard the downzoning entirely.
In any event skilled real estate appraisers will be needed to aid in de-
termining the cost of any particular easement.

-90-

Uncertainty over the. valuation of the rights the owner relinquishes
may be an obstacle to the purchase of easements, as the government's valu-
ation is subject to negotiation with the landowner. The basic valuation
formula that has been suggested by appraisers and commentators equates
the consideration paid the landowner with the difference between the
value of the land given its highest and best use before the imposition
of restrictions (the "before-value") and the value of the land given
its highest and best use after the easement restrictions are in effect
(the "after-value"). The two crucial variables are the present or poten-
tial uses of the land and the severity of the restrictions imposed upon
the land. There is a compensable loss in property value whenever re-
strictions impinge upon present or potential uses. However, only those
potential uses which are reasonably foreseeable should be relevant in
determining the "before-value." Market date is helpful in making the
distinction between reasonably foreseeable and speculative uses--poten-
tial value not already reflected in the present fair market value of the17
land should not be included in determining the before-value of the land.17

If an easement program is to be undertaken by units of local govern-
ment, it will be necessary to devise financing techniques for the pro-
ject. Economic benefits may accrue to the public as a result of open
space preservation for various reasons--less intensely developed land
requires fewer public services and property values of nearby land may
rise due to the open space which will be reflected in the property tax
assessment rolls--yet the local government unit must expend substantial
amounts to acquire the easements prior to such times as these benefits
may accrue.

Funds to acquire easements may come from the local level. However,
these units may find it difficult to expend moneys on environmental proj-
.ects when other public services and utilities are lacking. 'Yet, this
'view appears rather shortsighted, as the benefits of perpetual easements
will accrue to this and future generations. Furthermore, units of local
government may also look to the state and federal governments as the
benefits of open land are not strictly local.

At the state level, the acquisition of easements may be considered
a significant objective of the Program's state/local partnership and
benefit from the Program's funding. The California Legislature's Joint
committee on Open Space Land con cluded that much of the financial burden
of open space protection must be assumed by the state since the benefits
of an open space program will be shared by all residents of the state;
the Illinois General Assembly may adopt the same view.,172

. The federal government offers a third financing alternative under
the Open Space Land Program of the Department of Housing and Urban De-
velopment. 13Since its inception in 1961, the Program has provided
matching grants to state and local governments for the acquisition of

-91-

land for conservation, recreation and historic preservation purposes.
Open'space easements may-be acquired with the use of HUD funds, provided,
the easements acquired are in perpetuity. HUD also requires the unit of
local government to show comprehensive land use planning for the area in
which the proposed open space project is to be located. HUD must approve
the open space easement proposal in advance of the acquisition, including
the easement restrictions and the fair market value of the interest. The
proposed project's ability to meet open space needs is also assessed,
taking into consideration the following factors: the effect in the en-
vironment, including the preservation of ecologically significant areas
such as wet lands and sand dunes; the population served; the patterns of
urban growth; and the danger of losing the site.174 Thus, HUD's Open
Space Land Program may have potential as a source of financing easement
acquisition programs within the Program Management Area.

7. A Brief Look At The Life And Times
Of Things In The Nature'of Easements

The classic kind of interest under consideration is the building re-
striction.. Unlike an easement which confers upon the holder thereof the
right to enter the land of-another for specified purposes, a building re-
striction confers upon the holder thereof the right to prevent the owner
of the burdened land from performing certain acts. Any right to "enter"
the burdened land is, in nearly all cases, mere legal fiction. But it is
clear under Illinois law that the right to prohibit, as outlined above,
is "something in the nature of an easement."i175

Building restrictions can be thought of as private zoning as the re-
strictions may be concerned with land use176 and set-backs.17 Subject
to the general rule that building restrictions must be reasonable,178 they
may also establish minimum construction costs179 and specify building
materials,180 matters traditionally not addressed under zoning regulations.181

With the advent of zoning, the use of the privately created building
restriction has lost some of its importance as a basic tool for the regu-
lation of the use of land.182 However, in recent years, partially in re-
sponse to perceived limitations of the police power with respect to scen-
ic, open space and historic conservation and preservation, the use of
building restrictions to accomplish the foregoing objectives has steadily
increased.183

What is usually sought to be accomplished by the acquisition of so-
called scenic, conservation or preservation easements are some or all of
the following precise objectives:

1. Absolute prohibition against development on
the burdened land (or some-portion thereof);184

-92-

2. Prohibition against development uns approved
by the holder of the restriction;I

3. Prohibition against all but very limited kinds
of specified development; 16and

* ~~~~4. Prohibition against any change or alteration of
existing development, absolutely, subject to
the ap proval of the holder of the restriction,,
or subject to certain specified standards.187

it is precisely because limitations on development are severe under such
restrictions that it has been believed that rights must be acquired in
land rather than simply relying on the police power. Whether this con-
clusion is necessarily true in all cases is subject to some dispute. 188
But there is no doubt that the restrictions are substantial.

The possible applicability of such restrictions to the Illinois
Coastal Zone Management Program is obvious. Open space, scenic, conser-
vation and historic values can be found in and around the Illinois lake
shore and there is no doubt that they are worth preserving and enhancing.
Indeed, the Coastal Zone Management 1ct89 makes reference to these and
other vwalues.190 The only question, one which turns on a variety of le-
gal, policy and practical considerations, is whether these values can be
preserved under the police power or whe ther, to some extent or degree,
interests in real property must be acquired. Assuming, arguendo, that
such interests must be acquired, at least in certain cases, the inquiry
then shifts to the nature or character of those interests. As noted
earlier, the interests are "something in the nature of an easement." Not
surprisingly, the law with respect to building restrictions is at least
as complicated as that with respect to easements.

8. Creation

Building restrictions must be created by a writing, or in the case
of subdivision. development, by appropriate notation or delineation on the
plat of subdivision. 111For present purposes, the restrictions to be ac-
quired would not, in general, be a part of a subdivision development pro-
cess. Accordingly, the quality of the writing takes on major importance
for the same reasons as in the case of easements.

9. Construction

It should not be surprising tlhat building restrictions are subject to
rule of construction that resolves all doubts in favor of the free use and

-93-

enjoyment of the burdened property. Such is, indeed, the law.192 Some
rather interesting, if not troublesome, results have been reached in
cases decided under this rule.

For example, a restriction against the construction of a stable was
held not to bar a garage,193 a restriction to a "one dwelling house" was
held not to restrict a two-flat,I9 and a restriction against business
buildings was held not to prohibit the construction of an apartment
building.195 However, a restriction to a "private dwelling house" was
held to prohibit an apartment hotel.196

In those instances where the restriction prohibits all development
absolutely, the rule of construction would not appear to present any
great difficulty. The same would be true in those cases where develop-
ment would be allowed only if approved by the holder of the restriction.
It is only in those cases where certain specified development is allowed
that the rule could wreak havoc unless the restrictions are carefully
and precisely drafted.197 But the problem is that for a variety of prac-
tical reasons, including cost to the public for acquiring a restriction
and ease of negotiation, some effort at listing permitted land uses might
be made.

10. Assignability

There is no reason to think that the distinction between easements
appurtenant and easements in gross would not apply equally to building re-
strictions. It is well established that building restrictions may "run
with the land."198 Without going into great detail, this doctrine sug-,
gests that the common law predicates for finding that a restriction runs
with the land or binds the successors in interest to the burdened land,
also apply in the case of building restrictions.199 The absence, there-
fore, of a dominant or benefitted estate could be said to give rise to
building restrictions in gross.

In the case of subdivision development the question almost never
arises. This is because restrictions imposed on various lots in a sub-
division are for the benefit of other lots in that subdivision. Indeed,
the classic situation involves restrictions on all of the lots for the
benefit of all of the lots: each lot is both burdened and benefitted
by the restrictions imposed by the subdivider. As far as the Illinois
Coastal Zone is concerned, however, it is doubtful that the subdivision
approach will be used.200 Therefore all of the problems of assignability
noted in connection with easements201 may be said to exist here as well.

-94-

11. Enforcement

Problems of enforcement of building restrictions are very serious
ones. The rule of construction202 is only one aspect of the difficulty.
Even if there were no dispute as to the sense or meaning of a particular
restriction, considerations of waiver and change of circumstances may
operate to bar enforcement of the restriction.

A restriction may be waived, in the subdivision context, by acqui-
escence in or to repeated violations of the restriction.203 For example,
if a subdivision containing 100 lots contains a building-line restric-
tion, it may -be impossible to enforce the limitation if 40 lot owners
were allowed to violate the restriction without appropriate challenge.
But frequently there is more than one restriction involved. For example,
in O'Neill v. Wolf,204 acquiescence to repeated violation of a set-back
restriction was held not to constitute acquiescence to a violation of a
land use restriction preventing commercial uses. The question in any
given case is whether the substance of the general plan (i.e., a series
or set of restrictions) has been compromised. If the "plan" has been
compromised, then the restrictions may be unenforceable.205 The thorny
question is whether the notion of a "general plan" would include the
Coastal Zone Management Program--although no subdivision is involved, if
the public authorities administering the Program acquire a series of in-
terests in various parcels of land restricting their use and development,
is the "plan" compromised if the authorities acquiesce in violations by
a significant number of the owners of burdened land so that the restric-
tions may not be enforced as against any of the other property? The
answer appears to be that the "plan" is compromised by such acquiescence
and the restrictions are unenforceable.

Support for this conclusion is found in the doctrine of changed cir-
cumstances. It is well-settled in Illinois that if a change in condition
makes the restriction impossible of Accomplishment,206 makes it unfit or
unprofitable to enforce the restriction,207 or makes it harsh or inequit-
20
able to enforce the restriction,208 then the restriction will not be en-
forced. Changes due to factors beyond the control of the holder of the
restriction can destroy the restriction. But changes can be due to the
action--or non-action--of the holder. Acquiescence in repeated violations
may have the effect of creating a change in circumstances that would make
enforcement inequitable, to say the least.

The holders of building restrictions in the Coastal Zone could be
the same governmental units charged generally with administering a Manage-
ment Program. Consequently, since management connotes control, in some
degree, changes in circumstances can be controlled. But once again, only
to some degree. Actions of other levels of government could result in
changes that could jeopardize the enforcement of particular building re-
strictions. Although as Section 6 of the Coastal Zone Management Act

-95-

indicates that governmental action at other levels should not affect
the Program but the Act does not, indeed, cannot, guarantee that such
would never happen.

More importantly, the actual management of the Illinois coastal
zone will necessarily involve change over time. Thus it is likely that
building restrictions may become unenforceable because of the nature of
changing management to reflect the changing circumstances within the
coastal zone. This may mean nothing more than the notion--if not the
belief--that the Management Progra m itself will change over time and
that new solutions to new problems will have to be found.

Finally, the problem of who is bound by the-restrictions in a tech-
nical sense must be considered. As is the case with easements,210 the
language of the restriction should clearly bind or benefit successors
in interest and the restrictions should be recorded immediately.211

12. Valuation

The problems of the valuation of building restrictions are identi-
cal to those considered in connection wiheasements.21 It should be
noted that the more severe the building limitation, the more expensive
the restriction becomes. The same point can be 'made about easements--
the greater the-*scope of piiblic use, the higher the cost of the right
to make such use.

13., Summary

We have looked at two types of less-than-fee interests the acquisi-
tion of which in selected cases might be useful in the execution of a
Coastal Zone Management Program for Illinois. Out of the full panoply
of such interests, which include life estates, leasehold interests, fu-
ture interests, licenses, liens and encumbrances, two were closely re-
viewed: easements and building restrictions as they lend themselves to
public control necessarily vital to any successful Management Program,
but do not oust the landowner from his ownership or possession, which,
hopefully, will minimize the costs of acquisition.

While there are serious problems involving, in particular, the con-
struction or interpretation of easements and building restrictions and
their enforcement, careful drafting can solve many of these problems.
Indeed, we would recommend that consideration be given to the preparation
of model easements and building restrictions responsive to the unique
circumstances of the Coastal Zone and its appropriate management.

-96-

Serious consideration should also be given to curative legislation
that would eliminate some of the problems under existing law that even
careful drafting may not be able satisfactorily to resolve. Such en-
abling legislation is typified by the Preservation of Historic and Other
Special Areas Ac23which sets forth the type of less than fee interest
a municipality may acquire and the case law formalities that it discards:

A preservation restriction is a right, whether or
not stated in the form of a restriction, easement,
covenant or condition, in any deed, will or other
instrument executed by or on behalf of the owner
of the land or in any order of taking, appropriate
to the preservation of areas, places, buildings or
structures to forbid or limit acts of demolition,
alteration, use or other acts detrimental to the
preservation of the areas, places, buildings or
structures in accordance with the purposes of the
(Act). Preservation restrictions shall not be un-
enforceable on account of lack of privity of estate
or contract, or of lack of benefit to particular
land or on account of the benefit being assignable
or being assigned.214

The statute may be useful, as it now stands, for municipalities in many
situations that might arise in connection with Coastal Zone Management.
However, it is a part of an act concerning historic preservation, so
that questions may arise as to the applicability of the provision to
preservation of natural scenic or open space vaus25Accordingly, a
statute of somewhat broader scope applicable to the coastal zone generally
might be more appropriate. Should such a statute be proposed, we would
strongly urge the inclusion therein of language expressly reversing the
rules of construction.

The Illinois Preservation of Historic Areas and Other Special Areas
Act expressly provides that it is not applicable to home rule units,216
thus, it appears that enabling legislation from the state will not he
necessary for home-rule units which may enact a similar ordinance under
their home rule powers. The above-cited section of the Historic Preser-
vation Act has not been judicially construed, however, Professor John
Costonis, the draftsman of the Act emphatically stated that, "[t]he val-21
idity of the preservation restriction is assured by the Illinois statute."21
'While this statement may appear overly confident, it is significant to
note that easement acquisition programs authorizing acquisitions by pur-
chase or condemnation in other states have received judicial approval.
_________ State of218
Kamrowski v. S tt fWisconsin is the leading case upholding the
constitutionality of using the eminent domain power for scenic easements.
The Wisconsin Supreme Court upheld the State Highway Commission's power

-97-

to use the power to compel scenic easements in perpetuity. Plaintiff
contended that public enjoyment of scenic-beauty of certain land was not
a public use of such land. The court rejected this contention, holding
that the public enjoyment of the scenic area was a public use of the
land, although the scenic easement was not physically utilized by the
public. Therefore, the case condones the use of both positive and nega-
tive easements. Similar conclusions were reached by the courts of Ohio,21
Maryland, 20and Maine.221 The Illinois courts also employ a public pur-
pose test whenever a unit of government seeks to acquire property by pur-
chase or eminent domain. As the court stated in Krause v. Peoria Housing
Authority:222

The power of the State to expend public monies for
public purposes is not to be limited, alone, to the
narrow lines of necessity, but the principles of
wise statesmanship demand that those things which
subserve the general well being of society and the
happiness and prosperity of the people shall meet
the consideration of the legislative body of the
State, though they often times call for the expen-
diture of public money. If it can be seen that
the purpose sought to be obtained is a public one
and contains the elements of public benefit, the
question how much benefit is thereby derived by
the public is one for the legislatures and not
the courts.223

There seems to be little justification in contending that the acqui-
sition of easements for use by the public and/or to preserve open space
land does not come within this flexible definition. While non-home rule
governmental units currently are not empowered to acquire such easements,
the General Assembly may be willing to enact enabling legislation similar
to the Historic Preservation Act, in order to preserve open space within
the Program management area.

As a coda to this Section, the problems of administration of less-
than-fee interest must be reiterated. In the case of easements, the
right to use the land of another, it will be necessary to ensure that
the use actually made conforms with the spirit, if not the letter, of
the grant of easement. In the case of building restrictions, activities
of the owners of the burdened land will have to be monitored to ensure
that they comply with the letter and spirit of the restrictions. All of
this involves time, manpower, and therefore, money. in situations where
viable alternatives exist, cost of administration under the various al-
ternatives would need to be given serious attention. The cost of an in-
terest in land is not the only expens-e that must be borne. But while
these matters are impossible to judge in the abstract, it can be said
that the more complicated the restriction, the greater is the probable
cost of administration. Simplicity does have a certain-virtue after all.

-98-

CHAPTER VI
PERFORMANCE STANDARDS

As notLed in a previous chapter of this Report, the performance
standard approach to land use management has been utilized by shoreline
municipalities within the context of their planned development, special
use and special district techniques. The performance standard approach
is grounded in the premise that each use of land produces or creates cer-
tain by-products that may adversely affect the use of other land. There-
fore, in order to protect the safety and well-being of individuals, as
well as to prevent one user of land from being denied the most benefi-
cial use of his land by another, neighboring user of land, communities
are increasingly seeking. to protect uses of land from the undesirable
qualities or by-products of other uses of land.

The performance standard approach is applied in varying degrees by
municipalities in Illinois, however, its use has been articulated as an
application of traditional nuisance controls to regulate land use and
thus, is incorporated as an element of broader regulatory techniques.
Illinois municipalities have yet to attempt to discard other regulatory
techniques in favor of a system b)ased solely on performance standards.

Generally, performance standards are utilized in three different
ways. First, they may be employed as a regulatory technique in tandem
with a land use pattern scheme that is less restrictive than the more
traditional Euclidian district pattern commonly employed. in this fashion
each parcel is judged by applicable performance standards. The second
technique is to impose performance standards throughout an entire munici-
pality, as an overlay to the limitations imposed by traditional district-
ing. Finally, performance standards may be employed only in particular
districts whose uses lend themselves to objective measurements. A com-
mon example is the us4 of performance standards in industrial districts
and environmentally sensitive areas such as the shore and inland areas
are also well suited for the employment of these objective standards.
This method is utilized in many of the coastal communities under their
planned development ordinances. Depending on the objectives to be served,
the performance standards imposed will vary as is indicated in the fol-
lowing discussion of each of the above-enumerated performance standard
techniques.

1. Performance Standards in Lieu of Use Districts

The most far-reaching use of the performance standard technique is
its implementation as a land use management tool, independent of the more

-99-

traditional forms of land use regulation. This constitutes a departure
from the more traditional approaches in that performance standards are
designed to focus on how the land functions rather than on what is placed
on the land.

Performance standards afford an approach that varies from the tradi-
tional Euclidian principle of establishing a hierarchy of land uses in
terms of broad categories and thereafter protecting the higher uses from
the lower uses-~by segregation into use-districts. In contrast, this per-
formance standard approach affords protection from undesirable by-products
by imposing various performance standards on each use of land. These
performance standards would specify a maximum level of by-product produc-
tion, to which each use of land must conform. For example, sounds emanat-
ing from any use could not exceed a maximum permissible sound level, mea-
sured at the use's property line. This type of ordinance could provide
for an even lower nighttime level of performance, and for specified de-.
viations not to exceed so many minutes.224 Other specific by-products a
shoreline municipality could regulate include smoke, noxious gases, fire
hazards, wastes, dust and dirt, glare, heat, odor, traffic, electromag-
netic emissions, radioactive emissions, aesthetics, psychological effects
and present particular problems as they are not capable of precise mea-
surement or specific' standards, aesthetics could be controlled indirectly
by intensity of use requirement's and buffer requirements, such as walls,
trees and shrubs. Municipalities could establish review boards to de-
termine whether a particular use may have psychological effects and upon
such determination require the effects to be alleviated at least in part
by imposing requirements on the permissible location of these uses. in
addition, other regulations ma.y be imposed upon these uses, such as large
buffer strips to further minimize any adverse impact. Shoreline munici-
palities may also control height and intensit~ of land use as is author-
ized under state zoning enabling legislation. 2

These regulations may be expressed in broad nuisance terms to exclude
certain undesirable uses of land, however, the preferable method is to
specify the acceptable levels of performnance in terms of available scien-
tific data, whenever possible. Regulations based on objective data rather
than nuisance terms held to reduce the problems caused by overly broad
definitions which fail to properly inform an individual planning new or
expanded uses of land of precisely what performance is expected of his
use. Furthermore, overly broad standards, by their very nature, are
susceptible to all of the improprieties possible in completely ad hoc
administrative determinations.226

To date, an increasing number of municipalities have enacted stand-
ards based on scientific data for use within their industrial zones. Cer-
tain modifications of these standards must be made to enable efficient
utilization on a community-wide basis. For example, requirements varying
in terms of use-district boundary lines would not be applicable. Instead,
the property lines of each use would be the sole point of measurement.

-100-

Some commentators contend that the application of performance stand-
ards to uses other than industrial uses. is largely meaningless because
the other uses do not produce substantially similar objectionable by-
products. 27The non-production of most of these by-products by many
uses is certainly accurate. But residential use occasionally produces
undesirable by-products, such as excessive noise from air conditioning
units. Small commercial enterprises often produce such by-products as
traffic, solid wastes, and odor. Therefore, although the actual appli-
cation of performance standards to uses other than industrial or large
commercial uses may be infrequent, the protection afforded by their ap-
plication when needed makes community-wide application useful. in addi-
tion, the contention that favored uses do not produce objectionable by-
products appears to incorporate the assumption that uses should continue
to be separated even though the reasons for their incompatibility cannot
always be identified, described or made to appear in harmony with cur-
rent values. The application of these reasons for segregation of uses
has been the basis for use-district proliferation under current land use
systems, however, they are not necessarily valid reasons for rejecting
an alternative system.

A~nother point raised presents a more difficult problem. Since tech-
nology, to date, has not developed sufficiently to provide adequate equip-
ment or processes to control the emission of some by-products by certain
uses below the required levels of performance, there will be some uses
of land that will not be able to comply with the performance standards.
In coping with this problem, one alternative is for communities to sim-
ply exclude all such uses. However, the potential adverse consequences
on other communities in the region make it an undesirable alternative.
There are some objectionable uses of land which are necessary in any re-
gion. If one community excludes them, necessarily another will have to
accomodate them. From a regional perspective, exclusion of many or all
of such uses by various communities ma~ eventually result in necessary
uses being excluded from the region.2

Yet another alternative would be to grant variances to these noncom-
plying uses, conditioned upon subsequent performance if and when new de-
vices or methods are developed that can lower their production of adverse
* ~~by-products to a permissible level. The requirement of additional per-
formance upon the development of new techniques is to prevent any possi-
ble claim concerning a vested right to continue noncompliance.22 Fur-
* ~~thermore, if there were no use district zones, the possible adverse im-
pacts that the granting of variances could have on many uses in the com-
munity should be considered. The 'granti ng of variances coupled with
regulations concerning their location, however, may be an acceptable al-
ternative. By establishing certain areas with topographical features
that will aid in alleviating the Adverse impact of these by-products, a
community may be able to reduce those by-products to the permissible
level before they reach other land uses. If topographical features are

not available, or are not adequate, protection could be provided in the
form of open space or other buffers that would perform the same function.

By employing performance standards in the manner described, a com-
munity may be able to afford greater protection for individuals and
other uses of land than is presently being provided by current regulatory
techniques. In addition, and of almost equal importance, by employing
performance standards rather than traditional techniques, a community
may mix uses of land much more freely. The major significance of mixed
uses is the flexibility possible in the planning of use location, as is
demonstrated by the favorable response given to planned developments.

If performance standards were enacted without any controls on the
location of uses, then any use, with the exception of the noncomplying
uses discussed above, could locate anywhere in the community. The prob-
able result would be a chaotic community land-use pattern. Land-use
planning is grounded on the premise that a community should be more than
a scattering of various land uses, even if each is protected from the ad-
verse by-products of the other uses. Communities should be designed to
accomodate people's activities in the most efficient and livable manner--
by so designing a community, there will be a reduction in the amount of
physical and mental strain imposed on individuals and a reduction in the
expenditure of public funds brought about by the elimination of duplici-
tous public facilities made necessary by irrational land-use patterns,
as well as providing a greater opportunity for individual participation
in the various amenities offered by municipalities. Regulatory techniques
should be designed in a manner that will permit a community to create a
rational relation in terms of peoples' activities among the various uses
of land within a community.230

There are several possible techniques for locational planning of
uses that could be employed in connection with performance standards with-
out relying upon traditional districting schemes. One is the promulga-
tion of a detailed plan of community development specifying exactly how
each tract of land can be used. Yet, such a plan may prove to be so in-
flexible that changing conditions may not adequately be taken into con-
sideration. Or, shoreline municipalities may employ an ad hoc adminis-
trative approval system. However, this alternative appears to be the
antithesis of planning and is therefore unacceptable. Planning is the
rational application of.'means to achieve predetermined ends. There would
be no predetermined ends in an ad hoc administrative system, but rather
case by case decision that may possibly be based on considerations other
than the production of a rational land use pattern.

Between these extremes lies an acceptable alternative--locational
policy plans. Planning experts have recommended that the use of techni-
cal and specific master or general plans be abandoned in favor of policy
development plans.231 The locational plan would be one part of this

-102-

overall policies plan. A policy locational plan would describe the de-
sirable relationship of uses in terms of each other and the availability
of community facilities, however, it would not identify specific sites
on a map of the city for each type of use. Two provisions of the King
County, Washington Comprehensive Plan exemplify the types of provisions
that could be contained in a policy locational plan:

The high densities of multiple residential use should
be located adjoining either major shopping areas, cul-
tural centers (at urban or multi-community level), or
locations having special amenities of view, water ac-
cess, or permanent open space.

The lower densities of multiple residential use
shall be located adjoining or convenient to major
or secondary arterial streets.232

A locational plan devised in terms of policy considerations of lo-
cation would contain the needed flexibility for coping with changed de-
mands. By focusing on a policy that has implications community wide,
shoreline communities should be equipped to better clarify both the
present and long-range impacts of a particular proposed change. The
locational policy plan, unlike completely ad hoc determinations, would
contain goals and guidelines for.administrative decisions concerning
the location of uses. These guidelines, coupled with adequate adminis-
trative procedures, should make this alternative legally permissible.

Many coastal zone communities already have general plans that con-
tain policies concerning the location of land-uses. In these communities
a locational policy plan may require little more than making the policy
more detailed. In those communities already having a policy plan, such
as King County, Washington, for the only change necessary would be the
adoption of performance standards community-wide. Thus, this particular
performance standard approach would contain two primary regulatory tech-
niques--performance standards to provide protection from undesirable by-
products of land uses, and a locational policy plan to shape the urban de-
sign in terms of peoples' activities.

2. Performance Standards to be Utilized in Combination
With Existing TechniqueS:Community Wide Implementation

Although the preceding discussion presupposes that a performance
standard approach to land use management will be adopted throughout a
shoreline municipality, this technique may be implemented more narrowly,
as is demonstrated by the utilization of performance standards in indus-
trial districts by the City of Chicago. Moreover, performance standards

-103-

may be incorporated as part of a broader based regulatory technique.
Thus, performance standards may be imposed as an "overlay" on an entire
municipality. The development of environmental performance standards--
specific, measurable levels at which the key functions of areas must op-
erate--may be preferable to a comprehensive performance standard program
which abandons the use of existing regulatory techniques.

The use of the performance standard technique as an overlay for an
entire community is utilized by the Township and the Burough of Prince-
ton, New Jersey.23 The Township and Burough recently enacted identi-
cal ordinances authorizing their joint Regional Planning Board to grant
or withhold approval of site plans for proposed developments, bas ed on
ecological and environmental standards. The impact of the ordinance is
quite broad in that no building permit will be issued unless it has first
been approved pursuant to the ordinance. The only exceptions to cover-
age provided are for single- or two-family dwellings, and only afte-r a
determination is made that the proposed construction contains no indicia
of a major residential subdivision. A special Environmental Design Re-
view Committee was established by the ordinances to assist the Regional
Planning Board and to initially review the proposed site plans. The
unique feature of the ordinances are their "Criteria and Standards," the
binding guidelines the Planning Board must follow in making their deter-
mination on development approval and on imposition of site improvements
in certain instances. The traditional criteria for site plan review are
provided for, however, ecological considerations are also set forth in
the "Criteria and Standards". The provisions call for no increase in
storm water runoff, a minimum impact upon aquifer recharge and minimum
degradation of "unique and irreplaceable land t~pes" an d "critical areas. ,234
The ordinances also require that applications2 be documented with infor-
mation on a great variety of environmental factors, such as soils and
surface geology, potential air pollution and proposed changes in natural
drainage and submitted with plans for control of stream sedimentation
and soil erosion both before and after construction.

Commentators are wary that the new ordinance will not withstand ju-
dicial attack on the ground that it exceeds New Jersey's enabling leg-is-
laton.36 Although site plan review-ordinances are valid in New J esy 237
the Princeton ordinance exceeds those areas of control and review formerly
condoned by the courts. Furthermore, the ordinance provides specifically
that, prior to granting approval, an applicant must agree to the installa-
tion and maintenance of improvements, or to limiting development, where
it is deemed "necessary" as determined under the environmental criteria.
Moreover, if the applicant fails to install or maintain such mandated
improvements, the municipality may do so itself at the developer's ex-
pense. The developer is further required to grant such rights and ease-
ments as are also "necessary." Although the validity of the Princeton
ordinance is-yet to be determined, its provisions may serve as a guide
as to the types of environmental factors which should be considered under

a performance standard approach which may be utilized at the permit
stage of development.

3. Special District Implementation

Alternatively, environmental performance standards may be imple-
mented only in specific areas, such as the Program management area,
which consists of environmentally sensitive land. Such a system is es-
pecially apropos for this area, as:

The necessity for governmental involvement in en-
vironmentally sensitive land comes from the essen-
tially public character of these land resources.
When we talk about the destruction of environmen-
tally sensitive areas we do not mean just the possi-
ble loss of some "intrinsic" environmental values or
benefits, but also loss to the social and economic
welfare of a community. Environmentally sensitive
areas are land areas whose destruction or disturb-
ance will immediately effect the life of a commun-
ity by either (1) creating hazards such as flood-
ing and landslides, or (2) destroying important pub-
lic resources such as water supplies and the water
quality of lakes and rivers, or (3) wasting impor-
tant productive lands and renewable resources. Each
of these threatens the general welfare of a community
and results in economic loss. The direct costs of
not protecting these areas can be high. in the pri-
vate sector, costs may include the reduction of
property value or the actual destruction of prop-
erty; in the public sector, they include finding
alternative sources of water or installing expen-
sive storm sewers and water purification systems.23

Both the objectives of a regulatory program for the management area
and the regulatory procedures to be utilized are well-known. The public
objectives of this type of performance standard program include the pro-
tection of public safety by reducing the risks of flooding and drought;
the prevention of nuisance-like uses of land by controlling erosion, run
off and water pollution; and the reduction of future governmental costs
by preserving public water supplies. The regulatory program may be im-
plemented by the imposition of an overlay district. in addition to the
segregation of uses, which is accomplished by existing regulatory tech-
niques, performance standards- set a specific measurable level at which
the key functions of the management area must operate. Environmental per-

-105-

formance standards simplify the administrative process because a land-
owner, in order to comply with the standards must simply have his de-
velopment certified by a licensed engineer or hydrologist as meeting
the public standards. Subjective determinations are largely eliminated.
In addition, if, after development, the project does not meet the stand-
ards, the developer may be subjected to penalties and corrective mea-
sures.

The goal of environmentally oriented land-use regulations is to
maintain natural processes as land undergoes change for man's use. In
contract to Euclidian districting techniques that attempt to implement
this goal by prohibiting uses which are likely to have a heavy impact
on natural processes, performance standards are better equipped to im-
plement this goal by identifying and protecting the functions which pro-
vide important public benefits. Thus environmental performance stand-
ards are similar to industrial performance standards in that they set a
level at which land use may function without harming other land uses, or
more specifically, the environment.

A performance standard program for the management area should begin
with a determination of certain policy considerations. First, the func-
tions of the land should be defined. Second, the boundaries must be set,
which is a critical determination. While a more stringent program may be
imposed in the shore and hazard area, the effect that the inland area
has on these lands must be considered as it is well known that inland
areas have a tremendous influence upon the more sensitive lands. There-
fore, a set of performance standards although less stringent than those
placed on the shore and hazard areas, may be necessary for inland areas
to assure that the more environmentally sensitive areas are not harmed
by the use of surrounding property. Third, the importance of runoff to
the shore and hazard areas should be recognized and accomodated as the
rate of runoff along with the amount of sediment and chemical pollutants
it carries is crucial to the well being of all of these areas.239

The use of performance standards in the management area may prove
to be especially effective in that rather than maintaining the predomi-
nantly negative function of restricting use, the shoreline communities
can identify the positive features of the land it needs to preserve,
thereby granting the landowner greater flexibility in his use decisions.
Another significant factor.weighing in favor of the use of this perform-
ance standards program is that special state enabling legislation is not
required for non-home rule units.240 In"Dube v. Chicago,241 plaintiff
challenged a portion of the Chicago zoning ordinance that not only pre-
scribed the uses permitted in an industrial district, but also required
that such uses be conducted within certain noise levels. Although pro-
ceeding on a nuisance theory, the Illinois Supreme Court stated that, as
to provisions of zoning laws-prescribing conditions of business or manu-
facturing:

-106-

The cases hold that so long as such ordinances have
as their object the protection of the public health,
safety, comfort, morals and general welfare, are
reasonably calculated to effect that purpose and
are not arbitrary or unreasonable, they are to be
upheld as a proper exercise of the police power.
The tests applied are the same as those applied
to zoning ordinances generally which must be
justified, if at all, by the paramount interest
of the public welfare and the realization that
private interests must sometimes be subordinated
to the public good. The constitutional declara-
tions that private property shall not be taken
for public use without just compensation or
without due process of law are always subordi-
nated to the interest of the public welfare as
expressed through the exercise of the police
power of the State.242

In a subsequent case, the Illinois Appellate Court upheld the-au-
thority of the City of Chicago to require an applicant for a special use
permit to show that the proposed special use would conform to the per-
formance standards set forth in the ordinance for the district in which
the special use was to be located.243 Thus, it appears that performance
standards imposing environmental conditions upon the use of land which
must be complied with prior to commencing development will also meet the
test set forth in Dube.

The American Society of Planning Officials in its Advisory Report244
suggests that there are inherent advantages in moving away from specifi-
cation standards normally imposed under land use management ordinances
toward performance standards. As it points out, specification standards
tend to stifle technological progress while performance standards tend
to encourage it. Furthermore, a performance standard ordinance reduces
the need for drafters of the ordinance to know about and test all avail-
able materials and processes. Instead, the proponents of the new mater-
ial or process must prove that it does perform as required. As is suc-
cinctly pointed out in the report, "performance standards are concerned
with results and not with the type of material used."245

An environment performance standard program must identify the natural
processes that are closely associated with the public health, safety and
welfare. Specifically, these are processes such as runoff, erosion, and
groundwater infiltration which are closely linked to maintaining public
water supplies, preventing hazards from floods and droughts, and preserv-
ing water quality in lakes and rivers. Thereafter, the community estab-
lishes a specific (preferably numerical) level at which the natural pro-
cess should operate, and any development of the land must be done in such
a way that the natural process continues to function at this level. With

-107-

this direct environmental performance regulation, all uses must meet the
same standards for preserving or maintaining natural processes. The dis-
tinction between permitted uses and special uses is thus removed.246 En-
vironmental performance standards do not replace standard land use manage-
ment techniques; instead they parallel or supplement them by providing
regulations maintaining environmental systems. Their primary advantage
lies in the fact that they remove one traditional element of the segrega-
tion of uses so that those decisions can be made in terms of other policy
considerations independent of the uses' effect on natural-processes.

The critical factor in determining the feasibility of performance
standards for natural processes is the technological feasibility of set-
ting precise numerical measurements on the pro cess. To date, there has
been comparatively little effort directed toward extending the research
acquired on behavioral relationships of natural systems into the area of
land use management. Therefore, research models must be developed to de-
vise a system to regulate natural processes. At the initial stages, it
may be difficult to determine if the data acquired will be accurate enough
to evaluate the precise nature of development decisions, if the use of
the method would require specialized training on the part of the adminis-
trators of the regulations; or if the necessary monitoring and follow-up
procedures would be too costly for the community.24 However, despite
these risks, it may be worthwhile to begin the development of a perform-
ance standard approach, as this approach will both increase the potential
for 'the multiple use of land while at the same time preserving the natural
processes and functions of the land.

FOOTNOTES

1. 130 Ill. App. 2d 566, 264 N.E. 2d 215 (1970).

2. Id. at 571.

3. Id.

4. Anderson, 3 American Law of Zoning �15.01 (1968).

5. 89 Ill. App. 2d. 257, 264, 232 N.E. 2d 816 (1968).

6. Forbes v. Hubbard, 348 Ill. 166, 181, 180 N.E. 774 (1932).

7. 380 Ill. 275, 43 N.E. 2d 947 (1942).

8. Id. at 280.

9. 57 Ill. 2d 415, 312 N.E. 2d 625 (1974).

10. Id. at 424.

11. Id. at 432, 433.

12. Ill.Rev.Stat. ch. 24 sec. 11-13-1 (1975).

13. 319 Ill. 84, 149 N.E. 2d 784 (1925).

14. (Emphasis added).

15. See, e.g., Brown v. Gerhardt, 5 Ill. 2d 106, 125 N.E. 2d 53 (1955).

16. 122 Ill.App. 2d 117, 257 N.E. 2d 798 (1970).

17. 69 Ill.App. 2d 248, 215 N.E. 2d 829 (1966).

18. 32 Ill. 2d 295, 205 N.E. 2d 464 (1965).

19. Id. at 298.

20. See, e.g.

21. 398 Ill. 202, 75 N.E. 2d 355 (1947).

22. Id. at 206, 207 (citations omitted).

-109-

23. Used for example in the issuance of building permits.

24. For example, uses of an administrative appellate system, the zon-
ing board of appeals final order powers vis-a-vis variances in
Chicago, Highland Park, Evanston and the Chicago Plan Commission
final order powers under the Chicago Lakefront Protection Ordinance.
Zoning amendments, variances in Winnetka and subdivision amendments
are examples of legislative amendment systems.

25. Cosmopolitan National Bank v. City of Chicago, 27 Ill. 2d 578, 190
N.E. 2d 352 (1963); B3erek v. Village of Montgomery, 67 Ill.App.
2d 403, 214 N.E. 2d 149 (1966).

26. Ill.Rev.Stat. ch. 24 sec. 11-13-12 (1975).

27. Ill.Rev.Stat. ch. 34 sec. 3152 (1975).

28. American Law Institute, A Model Land Development Code, Tentative
Draft No. 1 (1968).

29. N.Y. Gen. City Law �20 (McKimney 1975).

30. Ky.Rev.Stat. sec. 100.261 (1975).

31. Ann. Law Mass. ch. 40A sec. 6 (1975).

32. Conn.Gen.Stat. ch. 124 sec. 8-3 (1975).

33. Joint Committee of the Illinois Bar, on Local Government Affairs (1974).

34. See, e.g., Ill.Rev.Stat. ch. 24 sec. 11-13-16 (1975).

35. See, e.g., Ill.Rev.Stat. ch. 24 sec. 11-13-14 (1975).

36. Ill.Rev.Stat. ch. 24 sec. 11-13-16 (1975).

37. Bureau of Community Planning, A Guide for County Zoning Administra-
tion in Illinois, 39 (1965), Bureau of Community Planning, A Guide
for Municipal Zoning Administration in Illinois 34 (1963).

38. See note 33 supra.

39. Conn.Gen.Stat.Snn. ch. 124 sec. 8-7 (1975) Ky.Rev.Stat. secs.
100.207, 100.211 (1975).

40. Mass.Ann.Laws ch. 40A sec. 17 (1975).

41. N.Y. Town Law �264 (McKinney 1975).

-110-

42. N.Y. Gen. City Law 937 (McKinney 1975).

43. N.J.Rev.Stat. Sec. 40:55-34 (1975).

44. N.Y. Gen. Munc. Law Sec. 239-m(McKinney 1975).

45. N.J.Rev.Stat. secs. 40:55-53 and 40:55-53.1 (1975).

46. Conn.Gen.Stat.Ann. ch. 124 sec. 8-3b (1975).

47. 260 U.S. 393 (1922).

48. Id. at 413.

49. Clark & Grable, Growth Control in California: Prospects for Local
Government Implementation of Timing and Sequential Control of Resi-
dential Development, 5 Pac. L.J. 570 (1974); Cutler, Legal and Il-
legal Methods for Controlling Community Growth on the Urban Fringe,
1961 Wis. L. Rev. 370; Freilich, Interim Development Controls: Es-
sential Tools for Implementing Flexible Planning and Zoning, 49 J.
Urban L. 65 (1971).

50. Interim Development Controls: Essential Tools for Implementing
Flexible Planning and Zoning, in Land Use Controls: Present Prob-
lems and Future Reform 213, 214, 215 (1974).

51. Cf. Sgro v. Howorth, 54 Ill.App. 2d 1, 203 N.E.2d 173 (1964) with
Freilich, supra note 50 at 228.

52. Ill.Rev.Stat. ch. 24 sec. 11-13-1 et seq. (1975).

53. Note, Time Controls on Land Use: Prophylactic Law for Planners, 57
Cornell L. Rev. 827 (1972).

54. Freilich, supra note 50 at 216.

55. The ordinance requires a subdivision developer to obtain a special
"residential development use permit" prior to receiving any build-
ing permit, special permit from the Board of Appeals, subdivision
approval or site plan approval from the Planning Board. The stand-
ards for issuance of the special permit are based on the availability
of or proximity to (1) public sanitary sewers or an approved sub-
stituLe, (2) drainage facilities, (3) improved public parks or rec-
reation facilities including public school sites, (4) state, county
or town roads, and (5) firehouses. The relationship of each public
facility to the proposed development is rated on a sliding point
scale: the more immediate the availability or proximity of the
facility to the subdivision the greater the number of points allo-
cated, to a maximum of five per facility.

Development is permitted only when a subdivision accumulates fif-
teen points under this system. The capital improvements program
projects sufficient public facilities to provide the needed fifteen
points for all land in the town at some point during the eighteen-
year life of the program. Therefore, if the capital improvements
program is followed, the town will never need to deny an applica-
tion for a development permit, but can merely delay the effective
date of the permit until such time as the needed facilities are to
be constructed.

56. See Bosselman, Can the Town of Ramapo Pass a Law to Bend the Rights
of the Entire World? 1 Fla. St. L. Rev. 234 (1973).

57. N.Y. Town Law 0263 (McKinney 1965).

58. Ill.Rev.Stat. ch. 24 11-13-1 (1975).

59. Id.

60. See, e.g. Kotrich v. County of DuPage, 19 Ill. 2d 181, 166 N.E. 2d
601, appeal dismissed, 364 U.S. 475 (1960).

61. Ill. Const. Art. VII, sec. 6.

62. Ill.Rev.Stat. ch. 24 sec. 11-13-1 (1975).

63. Cain v. American National Bank and Trust Company, 26 Ill.App. 3d
574, 325 N.E. 2d 799 (1975).

64. Golden v. Planning Board, 30 N.Y. 2d at 371, 285 N.E. 2d at 297,
334 N.Y.S. 2d at 146.

65. See note 4 et seq.-- and accompanying text supra.

66. LaSalle National Bank v. City of Evanston, 57 Ill. 2d 415, 312 N.E.
2d 625 (1974); Lapkus Builders, Inc. v. City of Chicago, 30 Ill.
2d 304, 196 N.E. 2d 682 (1964).

67. Camboni's, Inc. v. DuPage County, 26 Ill. 2d 427, 187 N.E. 2d 212
(1962).

68. County of DuPage v. Henderson, 402 Ill. 179, 83 N.E. 2d 720 (1949).

69. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926).

70~~.
70. See, e.g., Mercer Lumber Co. v. Village of Glencoe, 390 Ill. 138,
60 N.E. 2d 913 (1945).

-112-

71. Note, Phased Zoning: Regulation of the Tempo and Sequence of Land
Development, 26 Stan.L.Rev. 585 (1974).

72. High Meadows Park, Inc. v. City of Aurora, 112 Ill.App. 2d 220, 250
N.E. 2d 517 (1969).

73. Moeller v. City of Moline, 50 Ill.App. 2d 379, 200 N.E. 2d 93 (1964).

74. This was done under the Ramapo Ordinance.

75. See Note, supra note 71 at 585, 598, 599.

76. U.S. Const. 14th Amendment; Illinois Constitution Art. 1, sec. 2
(1970).

77. Harting v. Village of Skokie, 22 Ill. 2d 485, 177 N.E. 2d 328 (1961).

78. See, e.g., Forestview Homeowners Association v. County of Cook, 18
Ill.App. 3d 230, 309 N.E. 2d 763 (1974).

79. Lamm & Davison, The Legal Control of Population Growth and Distri-
bution in a Quality Environment, 49 Denver L.J. 413 (1972).

80. See Note, supra note 71 at 859, -

81. See Note, supra note 79 at 423.

82. Concord Township Appeal, 439 Pa. 466, 473, 268 A. 2d 765, 768 (1970).

83. U.S. Constitution, 5th Amendment.

84. Chicago, B & 0 R.R. v. Chicago, 166 U.S. 276 (1897).

85. Michelman, Property, Utility and Furness: Comments on the Ethics
of Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165 (1967).

86. Bauden, Article XXVIII--Opening the Door to Open Space Control, 1
Pac. L.J. 461, 490 (1970).

87. Note, supra note 71 at 603.

88. These uses include: (1) broad agricultural uses including orchards,
truck gardens, keeping, breeding and raising of fowl, raising, keep-
ing and breeding of farm animals excluding hogs; (2) keeping, breed-
ing and raising of rabbits, foxes, minks, rodents, primates and
other small fur-bearing animals for any commercial or laboratory
purposes; (3) churches and similar places of worship, Sunday school
buildings, parish houses and rectories; (4) libraries, museums and

-113-

public art galleries; (5) public parks and playgrounds; (6) public
utility rights-of-way and lines; (7) railroads and public utility
rights-of-way and lines; (8) schools of general instruction; (9)
commercial forestry; and (10) nursery schools. In addition to
these, the following uses remain by special permit (special or con-
ditional use): (1) cemeteries; (2) airports and heliports; (3)
recreational facilities, such as golf courses, tennis, swimming clubs,
community theaters; (4) reservoirs, water towers and water tanks
owned by a public utility, located above ground; (5) telephone ex-
changes; (6) public and private hospitals and sanatoriums for gen-
eral medical care; (7) nursing homes and homes for the aged; (8)
sand pits, gravel pits, removal of topsoil and removal.of other
natural minerals; (9) camp or summer colonies; and (10) day camps.

89. A final constitution objection is the assertion that timed develop-
ment control ordinances violate the "right to travel." See discus-
sion infra.

90. 16. Ill.App. 2d 555, 149 N.E. 2d 344 (1958).

91. Id. at 559.

92. 3 Ill.App. 3d 996, 279 N.E. 2d 402 (1972).

93. 19 Ill.App. 3d 30, 311 N.E. 2d 325 (1974).

94. See, e.g., Ill.Rev.Stat. ch. 24 sec. 11-13-14 (1975).

95. 285 N.E. 2d 291, 334 NYS 2d 138 (1972).

96. See note 55 and accompanying text supra.

97. 285 N.E. 2d at 302, 334 NYS 2d at 152.

98. The court also pointed out that the landowner's alleged loss is
mitigated by the ordinances provision for a reduction in tax assess-
ment and for voluntary construction of necessary facilitiies by the
developer. Id at 303-305, 334 N.Y.S. 2d at 154-156.

99. 375 F.Supp. 574 (N.D. Cal. 1974) reversed 522 F. 2d 897 (10th Cir.
1975).

100. The "growth policy" was enacted in response to Petaluma's drastic
population increase between 1960 and 1970, during which time the
city's population nearly doubled.

101. 375 F. Supp. at 577.

102. 415 U.S. 250 (1974).

103. 375 F. Supp. at 581.

104. Id. at 582.

105. 522 F. 2d 897 (10th Cir. 1975).

106. 1st Year Report, The Legal Framework: Lake Michigan and Its Shore
(1975).

107. Id. at V-i et seq.

108. Id. at 111-65 et seq.

109. See, e.g., Moynihan, Introduction to the Law of Real Property (1963).

110. There may be situations in which the acquisition of the ownership of
particular parcels of property lying in the Coastal Zone may be de-
sirable and feasible. But our concern here is with problems and is-
sues of general applicability to the Coastal Zone.

111. The term is hopelessly imprecise. Technically speaking, a fee in-
terest is that interest in real property none greater than which
will be recognized or allowed by the law. In simpler language, it
is "ownership" or "full ownership." A less-than-fee interest is,
therefore, something less than "full ownership." But that term
hides important distinctions. There are several ways in which an
interest in real property can be "less-than-fee":

1. An interest may be "full ownership" but not be of indefinite
duration, such as a life estate or a term of years. Life es-
tate and leasehold interests come to an end at some point in
time.

2. An interest may be "full ownership" but not be one entitling
the holder to exercise ownership--exclusive possession--until
some time in the future; or

3. An interest may be non-possessory (and may never become posses-
sory) but merely involve a right to use or control the use of
the land of another. These interest include easements, licenses,
profits-a-prendre, negative easements, restrictive covenants,
liens and encumbrances.

112. St. Louis Bridge Co. v. Curtis, 103 Ill. 410 (1882).

-115-

113. In St. Louis Bridge Co. v. Curtis, the court made specific refer-
ence to rights-of-way. Our survey of the law indicated that the
great majority of easement cases involve rights-of-way.

114. See, e.g., Transcontinental Co. v. Emmerson, 298 Ill. 394 131 N.E.
645 (1921).

115. 116 Ill. 11, 4 N.E. 356 (1886).

116. 116 Ill. at 19.

117. Goodwillie Co. v. Commonwealth Electrict Co., 241 Ill. 42, 89 N.E.
272 (1909).

118. City of Berwyn v. Berglund, 255 Ill. 498 99 N.E. 705 (1912).

119. Transcontinental Co. v. Emmerson, 298 Ill. 394, 131 N.E. 645 (1924).

120. See Seaway Company v. Attorney General, 375 SW2d 923 (Tex. App. 1964);
and Gion v. City of Santa Cruz, Dietz v. King. 2 Cal. 3d 29, 84 Cal.
Rptr. 162, 465 P2d 50 (1970). State ex rel Thornton v. Hay, 462
P2d 671 (Ore. 1969) rejects the easement analysis but not because
an easement could not be said to have existed. Rather the Court
was there concerned with what it felt was a better basis for hold-
ing that beaches in Oregon were held subject to a right in the pub-
lic for recreational purposes.

121. Cf. In Re Opinion of the Justices, 313 NE 2d 561 (Mass., 1974).

122. Such services might reduce the "cash" cost of an easement.

123. See, comment to Preserve Open Space Land, 1 Pac. L. J. 730 (1974).

124. Id. at 736.

125. A cogent argument for a legislative bailout of the problem of the
application of doctrines of law that are centures old was made by
Professor Costonis in Space Adrift.

126. For these purposes a writing may include a grant or instrument ex-
pressly creating an easement, Forbes v. Balenseifer, 74 Ill. 183
(1874); a deed containing a reservation of an easement, Messenger
v. Ritz, 345 Ill. 433 178 N.E. 28 (1931); a deed setting forth a
covenant, The Fair v. Evergreen Park Shopping Plaza, 4 Ill.App. 2d
454 124 N.E. 2d 649 (1955); or by a general plan for the benefit
of several lots, usually, but not necessarily, involving a subdivi-
sion, Taubert v. Fluegal, 122 Ill.App. 2d, 298 258 N.E. 2d 586 (1970).

-116-

127. The doctrine of implication means, in effect, that based on the
facts, it can be strongly presumed that an easement was intended
to be created. Partee v. Pietrobon, 10 Ill. 2d 248, 139 N.E. 2d
750 (1957).

128. See Mueller v. Keller, 18 Ill. 2d 334 164 N.E. 2d 28 (1960). Pre-
scription means the process by which, through continued exercise of
the rights for twenty years notwithstanding or adverse to the inten-
tion of the landowner, the easement becomes established upon the
lapse of twenty years. Ill.Rev.Stat. ch. 83 �1.

129. The question here is the acquisition of easements in a programmatic
way. The vagaries of implication and prescription would be incon-
sistent with a systematic approach to the acquisition of easements.

130. Comment, supra note 123 at 736.

131. Goodwillie Co. v. Commonwealth Electric Co., 241 Ill. 42, 89 N.E.
272 (1909).

132. Id.

133. Id.

134. Id.

135. Id.

136. The form of the grant was a contract which operated as a reservation
of an easement in a series of deeds.

137. 241 Ill. at 50-51.

138. Id.

139. The court held that the acts of the parties established that more
than one track could be laid. The evidence showed that more than
one track had even laid and used for nearly 40 years.

140. The court held that whether or not such a right existed, it had been
abandoned.

141. The evidence was less than clear on the point, but the court held
that nighttime-only usage was not clearly established and therefore
held that use could be made at any hour. The practical implications
of all of this are enormous of course. If use of the track could
have been restricted to nighttime usage, then the use of the burdened
land during daylight hours would have been significantly enhanced or
improved.

-117-

142. The court held that the easement could not be so used, with disas-
trous consequences for the Electric Co. The company had built an
electric generating plant on property only some of which was bene-
fitted by the easement. The court further held that the plant was
an integrated, single facility, and consequently, in effect enjoined
the Electric Co. from using the easement (i.e. the railroad track)
for the benefit of the plant until such time as the plant could be
"rearranged." The practical effect of all of this was that the
Electric Co. would be forced to make a deal--pay off the plaintiff,
Goodwillie, in other words, and an expensive piece of business, no
doubt for Electric and profitable for Goodwillie.

143. A phrase such as "in perpetuity" ought to suffice.

144. A statute, declaring that grants of easement for public beach recre-
ational purposes should be liberally construed so that the public
interest in the Illinois Coastal Zone shall be preserved and enhanced,
would do wonders. More generally, as pointed out in the First Year
Report, the rather obvious, but frequently overlooked fact that the
actions--or non-actions--of the legislature have a profound impact
on-the way Illinois courts look at things. The reverse proposition
is equally true, but given the character of Illinois jurisprudence,
we suspect that, more often than not, it is for the legislature to
take the first step.

145. See, e.g., Goodwillie Co. v. Commonwealth Electric Co., 241 Ill.
42, 89 N.E. 272 (1909).

146. Garrison v. Rudd, 19 Ill. 448 (1858); Waller v. Hildebrecht, 295 Ill.
116, 128 N.E. 807 (1920).

147. Allendorf v. Daily, 6 Ill. 2d 577, 129 N.E. 2d 673 (1955).

148. An interesting question is posed if two public authorities join to-
gether to acquire an easement, one of the authorities holding bene-
fitted land, the other not. It would seem that as to the authority
holding benefitted land that the easement is appurtenant, and be-
came of the constructional preference for easements appurtenant,
Allendorf v. Daily, 6 Ill. 2d 577, 129 N.E. 2d 673 (1955), then that
characterization ought to control. Of course if the easement is con-
veyed without conveying the land benefitted at the same time, then
one supposes that the easement, in the hands of the grantee, is only
in gross.

149. See note and accompanying text infra, at 151.

150. See Goodwillie Co. v. Commonwealth, Electric Co., 241 Ill. 42, 89
N.E. 272 (1909).

-118-

151. See, e.g. Chicago Title & Trust Co. v. Wabash-Randolph Corp. 384
Ill. 78, 51 N.E. 2d 132 (1943).

152. The requisite number of years is twenty. Iil.Rev.Stat. ch. 83 1.
Cf. Nelson v. Randolph, 222 Ill. 531 78 N.E. 914 (1906).

153. See note 135 supra.

154. A possibility of reverter is a right in the grantor of an interest
in land, which is the subject to the happening of a specific event
at some point in time (a condition subsequent) after the grant of
the interest, to reenter the land and terminate the interest cre-
ated upon the happening of the specified event.

155. Ill.Rev.Stat. ch. 30 S�37b et seq.

156. Deverick v. Bline, 404 Ill. 302 89 N.E. 2d 43 (1950).

157. Ill.Rev.Stat. ch. 30 �37e.

158. A reversion is an automatic revesting of the title in the maker of
an interest in land, also subject to some condition subsequent, but
upon the happening of the condition the interest, as noted, auto-
matically terminates. In the case of reverters, the holder of that
right must take some action. It is that right of action only that
has been severely limited by the statute. S.H.A. c. 30 ��376 et seq.

159. See, e.g. Horween v. Dubner, 68 Ill.App. 2d 309 216 N.E. 2d 288
(1965).

160. Kingsley v. Roeder, 2 Ill. 2d 131, 117 N.E. 2d 82 (1954).

161. Unless the easement created in each case is an easement in gross
only in which event B-1 could enforce the easement against no one.

162. See, e.g. Kuecken v. Voltz, 110 Ill. 264 (1884).

163. 241 Ill. 42, 89 N.E. 272 (1909).

164. See notes 137 and 138 and accompanying text supra.

165. See, e.g. Baldwin v.- Sager, 70 Ill. 503 (1873); Belusko v. Phillips
Petroleum Co., 198 F. Supp. 140 (S. D. Ill. 1961), affirmed, 308 F
2d 832 (7th Cir. 1962).

166. See, e.g., Wiegman v. KuSel, 270 Ill. 520, 110 N.E. 884 (1916).

-119-

167. Ill.Rev.Stat. ch. 47 sec. 1 (1975).

168. Comment, supra note at 741.

169. Id.

170. Id. at 745.

171. Id.

172. See California Legislature, Joint Comm. on Open Space Land, Final
Report 33 (1970).

173. 42 U.S.C. �l500-1500d-1 (Supp. 1975).

174. 24 C.F.R. 9541.1-541.20 (1975).

175. Punzak v. DeLano, 11 Ill. 2d 117, 142 N.E. 2d 64 (1957).

176. See, e.g., VanSant v. Rose, 260 Ill. 401 103 N.E. 194 (1913).

177. Eckhart v. Irons, 128 Ill. 568, 20 N.E. 687 (1889).

178. Crest Commercial, Inc. v. Union Hall, Inc., 104 Ill.App. 2d 110,
243 N.E. 2d 652 (1968).

179. Dolan v. Brown, 328 Ill. 413, 159 N.E. 794 (1930).

180. A. S. & W. Club of Waukegan v. Drobnick, 26 Ill. 2d 521, 187 N.E.
2d 247 (1963).

181. Subdivision regulations will establish construction costs and spe-
cify building materials, but only in the case of streets, sidewalks,
curbs, gutters, sewers and the like. These matters can.be consid-
ered under PUD regulations. The essence of the PUD device is that
developers and planners make a deal, the developer not being co-
erced since he could develop conventionally rather than under the
PUD regulations. In theory, therefore, any questions is fair game
for negotiation.

182. The notable exception, of course, is Houston, Texas, a city with
no zoning.

183. See Chicago Sun-Times, Wednesday, June 18, 1975 at p. 46, as cited
in "Lake Michigan" at p. III-65, n. 222. Under Illinois law, such
restrictions may be acquired for any reasonable purposes. Crest
Commercial, Inc. v. Union Hall, Inc., 104 Ill.App. 2d 110, 243 N.E.
2d 652 (1968).

-120-

184. The owner of the burdened land could conceivably be allowed to en-
gage in "natural" uses of his land, such as farming or other agri-
cultural operations. Cf. Just v. Marionette Co., 56 Wis. 2d 7, 201
NW 2d, 761, (1972). But the owner would not be allowed to erect
structures on the burdened land whether in aid of farming or not,
and would not be allowed radically to alter the natural terrain by
strip mining, quarrying or other similar operations.

185. There may be situations where an absolute prohibition-against de-
velopment is not necessary. For example, the protection of scenic
or open space values can be satisfactorily provided for where unob-
strusive, low-density development is allowed. However, it may be
impossible to identify specifically what development ought to be al-
lowed in any given case so the holder of the restriction acquires
the right, in effect, to approve or disapprove proposed development
as the holder, in its discretion, shall determine.

186. There may be situations where some specific types of allowable de-
velopment can be predetermined.

187. This kind of restriction would relate primarily to the preservation
of structures of historic or architectural significance. Cf. S.H.A.
c. 24 11-48.2-1A. It should be noted that this kind of restriction
breaks down into the three classificiations immediately preceeding.

188. See, e.g., Bosselman, Callies and Banta, The Taking Issue, Costonis,
The Chicago Plan: Incentive Zoning and the Preservation of Urban
Landmarks, 85 Harv.R.Rev. 574 (1972).

189. 16 U.S.C.A. 11451-64 (1975 Supp.).

190. 16 U.S.C.A. �1451. (1975 Supp.).

191. See, e.g. Wiegman v. Kusel, 270 Ill. 520, 110 N.E. 884 (1915).

192. Eckhart v. Irons, 128 Ill. 568, 20 N.E. 687 (1889).

193. Labadie v. Morris, 303 Ill. 321, 135 N.E. 733 (1922).

194. Leverich v. Roy, 338 Ill.App. 248, 87 N.E. 2d 266 (1949).

195. Brandenburg v. Country Club Bldg. Corp., 332 Ill. 136, 163 N.E. 440
(1928).

196. Gordon v. Caldwell, 235 Ill.App. 170 (1924).

197. A similar dilemma confronts the draftsmen of zoning ordinances that
specify detailed or precise permitted land uses in a particular zon-

ing district. The courts have been known to "read in" or "read out"
permitted land uses. See, e.g., Western Theological Seminary v.
City of Evanston, 325 Ill. 511, 156 N.E. 778 (1927).

198. Metcoff v. Dahlquist, 252 Ill.App. 222 (1929).

199. Which predicates identifying a dominant or benefitted estate.

200. This is not to say that it could not be used. For example, the ap-
propriate authority could acquire all of the necessary shore land,
in fee, record an appropriate plat or declaration of restrictions
and then convey all of the land retaining perhaps, one small parcel
so that it could enforce the restrictions, as an owner of benefitted
land. Cash flow and other considerations do not suggest that this
approach would be allowed.

201. See note 146 and accompanying text supra.

202. See note 150 and accompanying text supra.

203. Hurt v. Hejhal, 259 Ill.App. 221 (1930).

204. 338 Ill. 508, 170 N.E. 669 (1930).

205. Watts v. Fritz, 29 Ill. 2d 517, 194 N.E. 2d 276 (1963).

206. Exchange National Bank of Chicago v. City of Des Plaines 127 Ill.App.
2d 122, 272 N.E. 2d 48 (1970).

207. Housing Authority of Gallatin County v. Church of God, 401 Ill.
100, 81 N.E. 2d 500 (1948).

208. Paschen v. Pashkow, 63 Ill.App. 2d 56, 211 N.E. 2d 576 (1965).

209. 16 U.S.C.A. 21456 (1975 Supp.).

210. See note 132 and accompanying text supra.

211. See note 127 and accompanying text supra.

212. See note 167 and accompanying text supra.

213. Ill.Rev.Stat. ch. 24 sec. 11-48.2-1A(2) (1975).

214. Id.

215. The definition of "preservation restriction" is also part of the
Municipal Code and as such may be unavailable to non-municipalities.

-122-

But through the use of intergovernmental cooperation, the avail-
ability can conceivably be extended.

216. Ill.Rev.Stat. ch. 24 sec. 11-48.1-2 (1975).

217. Costonis, Space Adrift: Saving Urban Landmarks Through the Chicago
Plan 156 (1974).

218. 31 Wis. 2d 256, 142 N.W. 2d 793 (1966).

219. Richley v. Craw, 43 Ohio Misc. 94, 334 N.E. 2d 542 (1975).

220. Hardesky v. State Roads Commission, 276 Md. 25, 343 A2d 884 (1975).

221. Finks v. Maine State Highway Commission, 328 A2d 791 (Sup.Ct.Me.
1974).

222. 370 Ill. 356, 19 N.E. 2d 193 (1939).

223. Id. at 368.

224. Comment, A Model Ordinance to Control Urban Noise Through Zoning
Performance Standards, * Harv. J. Legis. 608 (1971).

225. Ill.Rev.Stat. ch. 24 sec. 11-13-1 (1975).

226. McDougal, Performance Standards: A Viable Alternative to Euclidean
Zoning? 47 Tulane L. Rev. 255, 261 (1973).

227. See, Comment, supra note 224 at 614.

228. McDougal, supra note 226 at 265.

229. See, e.g., Chicago Title and Trust Co. v. City of Chicago, 130 Ill.
App. 2d 45, 264 N.E. 2d 730 (1970).

230. McDougal, Supra note 226 at 264.

231. Id. at 266.

232. Mandelker, The Zoning Dilemma, 121-122 (1971).

233. Id, at 436.

235. This refers to applications for other than "minor" development, e.g.,
construction of a single family home.

236. Singer, supra note 233 at 437.

-123-

237. Kozesnik v. Montgomery Township, 24 N.J. 154, 134 A. 2d 260 (1957).

238. Planning Advisory Service Report Nos. 307, 308, Performance Controls
for Sensitive Lands, 3, 4 (1975) (hereinafter cited as ASPO).

239. Id. at 5.

240. Ill.Rev.Stat. ch. 24 sec. 11-13-1 (1975).

241. 7 Ill. 2d 313 (1955).

242. Id. at 324.

243. International Harvestor Co. v. Zoning Bd., 43 Ill.App. 2d 440, 193
N.E. 2d 597 (1963).

244. See note 238 supra.

245. ASPO at 4.

246. ASPO at 96.

247. ASPO at 102.

-124-

CHAPTER VII
ZONING OF LAKE MICHIGAN--TIME SHARING AND CONTROL OF WATER USE

While the foregoing sections focused on the various techniques that
are, or may be employed by coastal zone municipalities to protect their
critical land use area, these techniques do not regulate the use of Lake
Michigan directly. Rather, they ignore- the very real problems that face
the Coastal Zone Management Program in attempting to make the Lake avail-
able for all potential users. This section is primarily concerned with
focusing upon the various recreational uses of Lake Michigan and in re-
solving the conflicts which undoubtedly will arise when various groups of
potential users are unable to share the use of the Lake.1 This is of par-
ticular concern for recreational conflicts have arisen in recent years as
the increasing popularity of water-based recreation, especially boating,
threatens to outgrow the available resources of Lake Michigan. The sup-
ply of water surface in the Lake, although vast, is fairly limited when
near shore line activities are contemplated and ultimately may be unable
to keep pace with an ever increasing demand by the public.

At has been pointed out previously, Lake Michigan is held in trust
for the people of the State of I lni.Therefore, it is incumbent
upon the State, and of particular concern to the Coastal Zone Management
Program to plan and provide for the compatible use of Lake Michigan. A
possible method to control conflicts that arise between lake users is
zoning. Like traditional zoning,3 this would involve a determination of
the best uses for individual portions of the lakefront and their adjoin-
ing water, and regulating such zones accordingly.

1. Existing Illinois Law

The public has the right to engage in water recreation activities if
there is no unreasonable interference with the rights of others. In order
to assure that such activities do not impose upon the activities of other
water users, limited legislation has been enacted in Illinois.

The power to regulate recreational activities on the waters of the
State rests with the General Assembly. They have delegated this power,
in part, to water authorities which may be created'as a municipal corpora-
tion pursuant to a referendum.4 Once incorporated, water authorities are
authorized "to regulate or prohibit fishing, boating, swimming or other
sporting activities,"5 within their jurisdiction.

Particular activities, particularly boating have been subject to
regulation by the Department of Conservation.6 Most interestingly, for

-125-

our purposes, is the power given the Department and municipalities to
designate areas for bathing, fishing, swimming or for other activities
and to prohibit the use of motor boats within these areas.7 The use of
such restricted areas are the crux of lake zoning.

2. The Use and Implementation of'Lake Zoning

As noted above, the increasing use of that limited supply of sur-;
face water inevitably causes conflicts due to crowding conditions. The
traditional uses (e.g., fishing and swimming) are in competition for
space with the "newer" uses (e..g., waterskiing and speed boating).

Conflicts can also exist although many offshore areas of Lake Michi-
gan are not considered to be crowded. Many water recreation activities
are unable to use the same area regardless of the numbers involved. Thus,
obviously, boating and swimming conflict. There is also the frequent com-
plaint of fishermen who claim skiers cut their lines, disturb the boat
by excessive waves, and even spray them with water. The fisherman and
the speed boat enthusiast cannot coexist within the same proximate area.
These activities are incompatible and can conflict with one another, even
without crowded conditions.

in addition to the perhaps minor irritation that conflicts cause on
lake surfaces, there is the more serious issue of increasing accidents
and even death. With more and more users present on lakes, there is ob-
viously a greater chance for more accidents 'to occur. But whether this
is directly due to the crowded conditions, incompatibility, or is just a
matter of more negligence is hard to determine.

In the past it was fishing and swimming that were the obvious uses
of the Lake, but now, in addition, there coexist sailboats, skin divers,
scuba divers, house boats, speed boats, pontoon boats and skiing. Wi th
greater leisure time, the use and more numerous recreation vehicles must
also be considered as a factor in the growth of water recreation conflicts
along with better road systems which-make areas more accessible to the
general public putting even more pressure on the limited supply of near
shore lake surface.

The synthesis of these leisure time phenomena yields the conclusion
that ultimately near shore Lake Michigan will not meet the demand for
its use. Predictions for the future demonstrate that water recreation
demand will continue to grow and, therefore, the need for water use con-
trols will be maximized. The function of lake zoning is to minimize the
inevitable conflicts and* it has as its two-fold objectives maximizing the
recreation potential of a lake and minimizing its hazards. These objec-
tives are accomplished by various applications of traditional land use
control powers to the water use milieu.

-126-

When controlling a lake surface by traditional zoning techniques,
there are several methods that can be applied with the same objectives.
In order to determine which method would be best, various factors must
be considered. The first step in this determination is to make a judg-
ment about the relative desirability of the various recreation activities
found on the near shore Lake--to prioritize water use. There are numer-
ous factors involved that must be considered in order to properly make
this decision, including: physical and ecological aspects of the Lake;
space requirements'for the different uses; effects of each activity on
the Lake, past patterns of use, shoreline development, and aesthetic con-
siderations. Thus, we turn our attention from land use impacts on the
water to water use impacts themselves.

One such technique that has been evaluated is "area zoning." On
the premise that activities cannot conflict if physically separated from
one another--a typical "euclidian zoning" technique--individual activi-
ties have a specified area or zone designated for that use only. This
type of regulation is employed by the Department of Conservation. A sim-
plistic example of area zoning would be for the shallow shorelines where
firm bottoms exist to be designated as swimming areas only. The next
zone--just outside of the swimming area--would be reserved for fishing.
The-center of the lake would be the third zone, used exclusively for high
speed boating and water-skiing.

much more involved variations of area zoning are also possible. The
Wisconsin Department of Natural Resources recommended a variation of area
zoning utilizing a shorelin~e activity zone 200 feet wide. This is the
zone receiving the most intensive use including swimming, anchoring of
boats, shorb and shallow water fishing, wildlife observation, and duck
hunting. It is also the nesting, feeding, and nursery area for fish and
waterfowl. Boats are typically not allowed in this area but to enter or
leave it for docking, and then only at a dead slow or no-wake speed.
Faster activities are restricted to areas outside of this shoreline ac-
tivity zone.

Area zoning works very well on some lakes but it is not the complete
answer to water recreation problems, especially on Lake Michigan where
the shoreline is so vast that it may be inequitable to prohibit all boat-
ing activity in this area.

The use of time zoning has been a second method utilized to aid in
the reduction of lake conflicts. It is obvious that conflicting users
cannot disturb one another if their activities occur at different times.
Time zoning uses this basic idea and allocates specified hours of the
day for one activity, and a different portion of the day for a conflict-
ing use.

The most prevalent use of time zoning involves fishing and water-
skiing. These two activities frequently conflict for the use of a lake's

-127-

surface, but they can be accomodated by assigning to each that period
of the day best suited for that particular use. For example, water-
skiing as a fair weather sport most enjoyed during the warm sunny hours
of the day--is assigned those hours. Thus, many lakes have established
the hours of 9:00 a.m. to 6:00 p.m. as the sole designated times for
water-skiing on the lake.

Though fisherman are not lawfully limited to specific hours of the
day as skiers, they are encourage to utilize the early morning and eve-
ning hours of the day. In addition, during days of bad weather, fisher-
men are not limited to specific areas, as with area zoning, but rather
are free to fish anywhere and anytime without conflict with the fair.
weather users.

Time zoning is not without its drawbacks. First is the question
of inadequate resource use. Because of the strict adherence to time,
there may often not be another waiting to recreate at the end of the pre-
vious user's time period. This could allow a lake resource to go unused
and its full recreation potential would not be realized. The inflexi-
bility of time zoning is also criticized by some users. Skiers particu-
larly complain because it does not conforn to leisure time availability.
For example, a person working a normal business day would find it very
difficult~to be able to ski from Monday tQ Friday, limiting his skiing
hours to two days per week. Thus, a further method must be considered.

A-third type of control that will be used more intensively in the
future is density or impact zoning'. This method involves determining
the carrying capacity of the Lake and limiting the number of users ac-
cordingly. This type of control is used in other recreation activities
(such as issuing a limited number of deer hunting licenses or limiting
the number of canoes on popular rivers) and could be able to be utilized
for zoning and control of Lake Michigan.

A working definition of carrying capacity states:

. ..carrying capacity is the number of user-unit
use periods that the recreation site can provide ...
without permanent biological or physical deteriora-
tion of the site's ability to support recreation
or appreciable impairment of the recreational ex-
perience.

Carrying capacity is a very complex concept that involves more than try-
ing to indicate an area requirement for water based recreation activities.
As one critic ;4rites: "it consists of five elements interacting with
each other. These elements are:* 1) administration, 2) biological, 3)
physical, 4) social and 5) temporal."

-128-

To discuss the concept of carryi ng capacity in detail is beyond the
scope of this Chapter. It should be noted that the basic concept is com-
plex. The usefulness of this concept for the management of Lake Michi-
gan use has not been realized yet, but it is becoming more popular and
widely recognized as a key to solving future conflicts.

Speed zones are often used in connection with other zoning methods.
Areas that have been reserved for fishing or swimming for example, also
incorporate a 5 mile per hour or no-wake limitation. The no-wake desig-
nation is used to aid in enforcement of the regulation due to the diffi-
culty in measuring or estimating the speed of a boat. The definition
of no-wake simply means that watercraft are limited to moving at a speed
that will produce no visible wake.

Speed. zoning is used for reasons other than reducing conflicts, such
as to protect shorelines from erosion problems; to protect docked boats
from damage; and to protect fish spawning areas and wildlife nesting areas.

3.' Protective Space Zoning

A further type of zoning that involves the speed of the watercraft
is termed "protective space zoning." This control technique is primarily
designed to minimize conflict between fast moving and slow moving vehicles,
without unduly restricting either one. It attempts to do this by provid-
ing a protective barrier of space around the slow boat in much the same
way that aircraft control provides safety space around aircraft.

The presence of this protective zone keeps inconsiderate power
boaters away from others that cannot move out of their way safely and
quickly. This would include anchored fishermen, swimmers, divers, sail-
boats, docks, and rafts. Regulations commonly recommend that a distance
such as 100 or 200 feet should be maintained. Any boat approaching clos-
er than the prescribed distance is required to slow to 5 miles per hour
or a no-wake speed until it has cleared the protective space area.

Other forms of regulating Lake Michigan and other lakes have been
suggested but as yet have not been seriously attempted. Some examples
of these untested ideas'are changing the current pattern of weekend use,
variations on the time zoning method, and a reservation type system.

It is reported that 75% of the use of water resources for recrea-
tion occurs on weekends and holidays. This concentration of use creates
overcrowding and a much greater risk of conflicts. Suggestions such as
staggering the work week so everyone does not have the same two days off
every week seem extreme but in the near future it may become a necessity.
Another idea has been to allow water-skiing only every other' weekend.

-129-

This would hopefully reduce conflicts in the same manner that time zon-
ing on a day to day basis does.

A similar idea using the time zoning concept proposes that activi-
ties have specified days of the week; for example, water-skii ng might be
limited to a Monday-Wednesday-Friday schedule. This would replace the
,hourly system.

*A reservation system has been suggested as another alternative to
be used in conjunction with area zoning. This idea has been tried Ion
other recreation activities with a good degree of success and could be
easily adapted to water recreation. Camping particularly has found it
a necessity to create a reservation system and reports have been favor-
able. Lake activities such as fishing, swimming, or water-skiing, could
have permits issued for specific days of the week or even hours of a day
for certain portions of the lake. In this manner, the Lake will be sure
to use it's full recreation potential. With this system, the crowded
weekends experienced so frequently would no longer have to be tolerated.
Lake users could be spaced for a more even distribution of weekend and
weekday use resulting in a more enjoyable and less conflicting recrea-
tional experience.

4. Conclusion

Although these approaches may be met with skepticism due to the size
of Lake Michigan, the implementation of zoning schemes is important for
the future. Even the Tennessee Valley Autho rity, which has jurisdiction
over vast water areas, establishes boundaries or harbor limits for water
based developments which deal in the servicing, docking and mooring of
water craft. Further, they realize the necessity of ultimately -imple-
menting water surface zoning.

While immediate utilization of a water zoning system may not he
beneficial to the people of Illinois, subsequent studies undertaken un-
der the auspices of the Coastal Zone Management Program should review
the utility of such a program. For as the population of the State
steadily increases, the waters of Lake Michigan do not increase concom-
itantly and provision for various users must be made before a crisis
reaches the lakefront.

-130-

FOOTNOTES

1. This section is basically derived from Meyer, Lake Zoning: A Method
of Controlling User Conflicts on Michigan's Inland Lakes (unpublished
master's thesis 1974). It should further be noted that the United
States Coast Guard has, under its statutory authority, significant
potential powers of implementation of in-water zoning controls.

2. Ill.Rev.Stat. ch. 19 sec. 71 (1975). The Department of Transporta-
tion is given-the duty to implement this public trust. Ill.Rev.Stat.
ch. 19 sec. 54 (1975).

3. See, e.g., Gable v. Village of Hinsdale, 87 Ill.App. 2d 123, 230
N.E. 2d 706 (1967).

4. Ill.Rev.Stat. ch. 111 2/3 �223 (1975).

5. Ill.Rev.Stat. ch. 111 2/3 9241 (1975).

6. Ill.Rev.Stat. ch. 95 1/2 sec. 311-1 et seq. (1975).

7. I1l.Rev.Stat. ch. 95 1/2 secs. 315-7-315-7.5 (1975).

-131-

.CHAPTER VIII
FINANCING TECHNIQUES:
STATE AND LOCAL ALTERNLATIVES--A STUDY IN COMPLEXITY

This Chapter is intended as a broad survey of the framework for fi-
nancing the Coastal Zone Management Program at the state and local lev-
els of government. Any primer or survey of the various financing tech-
niques that may be employed to finance aspects of the Illinois Coastal
Zone Management Program must begin with a caveat: most of the financing
methods that will be discussed will require enabling legislation at ei-
ther the state or local level. Thus, while some proposals may seem
preferable because they combine revenue features with indirect regula-
tory control, they may be so far-reaching, and might entail such a change
in state or local taxation patterns that they may not be realistic in a
practical or political sense at the present time. Therefore, a number
of techniques, some less controversial than others will also be reviewed
in this Chapter and that following dealing with special assessments for
shore protection measures.

1. The Illinois Constitutional Framework--Revenue Techniques

As any financing legislation recommended by the Coastal Zone Manage-
ment Program must necessarily avoid state constitutional prohibitions,
the limitations embodied in 'the state's 1970 Constitution must first be
reviewed. Although the state does not derive its basic taxing power from
the Illinois Constitution (since states have the inherent power to levy
taxes as an integral part of their sovereignty), it must abide by the
restrictions placed on the taxing power by the Illinois and federal Con-

The United States Constitution does not present a formidable barrier
to the Illinois' taxing power. Challenges to revenue measures based on
the Federal Constitution generally allege either a violation of the due
process or equal protection clauses of the Fourteenth Amendment2_-that
is, that a specific taxing measure is unreasonable and arbitrary because
it arbitrarily singles out one class of persons or property to be taxed.
However, and surp risingly, the courts have generally upheld such legis-
lation despite this charge, finding that, while the State must proceed
upon a rational basis and may not resort to a classification that is pal-
pably arbitrary, the equal protection and due process clauses impose no
iron rule of equality, but rather, allow the flexibility and variety that
is appropriate to all reasonable schemes of taxation.3

At the state level, however, more specific limitations exist. In
Illinois, the power of taxation is vested in the legislative department,

-132-

the General Assembly, which possesses plenary power over the subject of
taxation subject to constitutional restrictions.4

The Illinois Constitution of 1970 places a number of limitations
upon the state's taxing power. The Constitution differentiates between
property and non-property taxes. As to non-property taxes, if any law
classifies the subjects or objects of taxes or fees, these classes must
be reasonable and the subjects and objects within each class shall be
taxed uniformly.5 The "'reasonable classification and uniformity" clauses,
have given rise to a considerable amount of litigation under the Consti-
tutions of 1870 and 1970.6 Yet, the Illinois courts have been consistent
in finding that the legislature created a reasonable classification--a
liberal construction generally in favor of the classification.

In Titus v. The Texas Co.,7 the Supreme Court of Illinois articula-
ted the test used to determine whether a classification for the purpose
of taxation is reasonable. The court stated that "[a] classification
must be upheld if any state of facts reasonably can be conceived that
would sustain it."8 This test can fairly easily be met for, in effect,
the court is accepting the judgment of the legislature and only a clas-
sification that is totally arbitrary will be struck down. Once a clas-
sification is upheld, the uniformity clause merely requires uniformity
of taxation within the class--the burden of taxation must achieve a
reasonable degree of uniformity rather than any absolute mathematical
equality.) Thus, the constitutional burden is satisfied if it is evi-
dent that the intent of the taxing body was to adjust the tax burden
with such "a reasonable degree of uniformity."10

Taxation on real property is also authorized by the Constitution
with the similar requirement that such taxes must be levied uniformly
by valuation.11 There is an exception to, this rule that allows classi-
fications of real property for purposes of taxation by counties with a
population of more than 200,00012--once again, such classifications are
mandated to be reasonable and uniform within each class.13

A state income tax is authorized under Article IX, Section 3 of the
1970 Constitution; however, the State is prohibited from taxing income
at a graduated rate. Therefore, proposed tax measures that would tax
the profits made from excessive land speculation, for example, may be
unconstitutional.14

State debt is limited by constitutional Article IX, Section 9.
State debt is defined as that indebtedness secured by the full faith
and credit of the state; required to be repaid from tax revenue and in-
curred by the state, any department, authority, public corporation or
quasi-public corporation of the state, any state college or university,
or any other public agency created by the state; but not indebtedness
of units of local government, or school districts.15 For Program pur-

-133-

poses, it is critical to note that the authorization of a taxing district
by the General Assembly does not necessarily make the governing body of
such district a state agency if that district's actual existence is de-
pendent upon referendum--a vote of the district's electorate.16 Article
IX, Section 9 does not set a debt limitation in numerical terms; instead,
it provides that state debt for any specific purpose may be incurred in
such amount as is provided by a law passed by a vote of three-fifths of
the General Assembly or approved by a majority of the electors.

Finally, although not relevant to the Program, the General Assembly
is enabled to classify personal property for purposes of taxation by valu-
ation.17 The General Assembly is required to abolish all ad valorem per-
sonal property taxes by January 1, 1979, and is forbidden from recaptur-
ing the lost revenue by imposing a statewide ad valorem tax on real es-
tate.18

2. Local Units-of Government--Revenue

The 1970 Constitution also places limitations upon the revenue pow-
ers of local governments. As noted above, debts incurred by units of lo-
cal government are not included in any determination of the state debt.
If the unit of local government is a home rule unit,19 it is expressly
authorized to tax and incur debt.20 Even this power is limited under
two distinct circumstances: (1) a home rule unit may not incur debt
payable from ad valorem property tax receipts maturing more than forty
years from the time it is incurred;21 nor (2) may it impose taxes upon
or mieasured by income or earnings or upon occupations except as the Gen-
eral Assembly allows.22 Furthermore, the General Assembly by a law passed
by a vote of three-fifths of each house may deny or limit a home rule
unit's power to tax23 except in regard to making improvements by special
assessment or in special service areas.24

The taxing powers given non-home rule units of local government are,
at least on the surface, far more limited than those of home rule units.
They are given the power to make local improvements; to incur debt ex-
cept as limited by law, provided that debts payable from ad valorem prop-
erty tax receipts must mature within forty years from the time incurred;
and to impose additional taxes in special service areas.25 Otherwise,
they may only exercise such powers as are granted them by law.26 Tradi-
tionally, Illinois courts strictly construe local powers27 and non-home
rule municipalities have no inherent power to tax. Like other powers,
the power of non-home rule units to tax remains subject to the severe re-
straints of Dillon's rule,28 and may be exercised only as delegated by
the General Assembly. Statutes granting municipalities the power to tax,
like other taxing statutes, are strictly9construed with any doubt as to
the power construed against the grant.

-134-

As we follow the abrupt decline in powers from home rule through
non-home rule units, even greater restrictions can, be found placed upon
the revenue powers of special purpose units of local government--all
units other than municipalities. Article VYI, Section 8 provides that
they shall have only the powers granted by law. Furthermore, the General
Assembly is forbidden to give such units the power to incur debt payable
from ad valorem property tax receipts maturing more than forty years
from the time it is incurred. More importantly, no law may empower these
units to make improvements by special assessments if' they did not have
such power on the effective date of the Constitution,30 as discussed in
the next Chapter.

Finally, neither the state nor any unit of local government may use
public funds for other than public purposes. This public purpose require-
ment has been liberally construed in Illinois being "one within the pur-
poses for which governments are established."31 'Revenue from taxation
cannot be used to aid enterprises that are strictly private, even if the
public benefits from the enterprise in a collateral way; 32 however, the
rule of judicial construction favors the finding of a public purpose--
especially when the public purpose is recited in the enabling legisla-
tion. If by any reasonable construction a use designated by the legisla-
ture may be regarded as public, the judgment of the legislature must pre-
vail.3 If the tax is for an expenditure which tends to promote the gen-
eral welfare, the tax levy is proper.34

It is important to note that revenue measures that may be enacted
to finance or assist in the implementation of the Coastal Zone Manage-
ment Program should not encounter opposition as being violative of the
public purpose requirement. Clearly, funds expended for the preserva-
tion and restoration of Lake Michigan, its shore and its environs--one
of the state's most important natural resources--satisfies the public
purpose requirement and would, in fact, be in furtherance of the public
trusteeship that is the state's. Furthermore, the Illinois Constitution
expressly states that:

[t]he public policy of the state and the duty of
each person is to provide and maintain a healthful
environment for the benefit of this and future gen-
erations. The General Assembly shall provide by
law for the implementation and enforcement of this
* ~~~~public policy.

Thus, it is clear that the General Assembly is empowered to enact reve-
nue measures to implement the Coastal Zone Management Program. In an
analogous situation wherein a revenue measure to provide water recre-
ational facilities was challenged, the court held that the measure was
constitutional because it served a public purpose.3 it is axiomatic
that the protection of water, without which water recreational facili-
ties could not exist, must be a proper public purpose.

-135-

With this basic and simplistic outline of the constitutional limi-
tations applicable to revenue measures, various financing techniques will
now be surveyed. The discussion will begin with the possibility of im-
plementing existing types of revenue measures to finance the Coastal
Zone Management Program. Thereafter, alternative measures will be dis-
cussed, including both new techniques and the use of intergovernmental
cooperation to enact and enforce new measures...

3. Statewide Taxation

As a simple proposition, there are no restrictions placed upon the
General Assembly's authority to allocate funds being collected under ex-
isting revenue programs to finance the Coastal Zone Management Program.
Such funds may be distributed to the Department of Transportation's Di-
vision of Water Resources and thereby to the Program or to another state
instrumentality for Program purposes.37

Although there is no constitutional proscription against the imposi-
tion of ad valorem real pro~erty taxes by the state, this method of taxa-
tion was abandoned in 1932, aand since has been left to local govern-
mental units. Instead, revenue from sales, use and income taxes consti-
tute the bulk of state revenues today.

One logical piece of existing legislation could be amended in part
so as to allow a portion of the monies generated at the state level to
be allocated to the Coastal Zone Management Program. Section Two of
the "Motor Fuel Tax Act" imposes a tax upon the privilege of operating
recreational-type watercraft upon the waters of the state at a statu-
tory rate of 7 1/2~ per gallon for all motor fuel used.39 The taxes
generated are then deposited in the State Boating Fund to be used by
the Department of Conservation to carry out the provisions of the Boat
Registration and Safety Act. 40 The fund is now principally used for
the construction and improvement of water recreational -facilities. This
legislation is clearly adaptable to the purposes of the Coastal Zone Man-
agement Program. Furthermore, a similar tax could be levied upon water
vehicles that are powered by means other than gasoline; currently, for
example, taxation on diesel fuel for water craft does not exist.

Along similar lines, other private enterprises that are within the
coastal zone could be taxed to implement the Coastal Zone Management Pro-
gram. Even if such entities are already subject to taxation, an addi-
tional tax may be imposed upon them for the purpose of financing the Pro-
gram. Differential treatment for purposes of taxation can withstand con-
stitutional attack so long as the classifications are reasonable.41 Here,
the classification would be per se reasonable because the entities sub-
ject to taxation are deriving a b~enefit by reason of the protection of

-136-

the coastal zone. Furthermore, such a tax would not constitute the con-
stitutionally prohibited double taxation as. that proscribed activity en-
tails taxing twice, for the same purpose, in the same year, some but not
all of the property in the territory in which the tax-is imposed.42 In
this instance, the tax would be for a different purpose--one which con-
stitutes a valid governmental purpose--therefore, constitutional objec-
tions on the basis of double taxation should not exist. This type of
taxation could take the form of use or occupational taxes.43 Actually,
the types of taxes that may be authorized by the General Assembly upon
entities existing in or affecting the coastal zone are not limited. Cer-
tainly coastal dependent uses now receive favored tax treatment by not,
as a group, bearing their special burden of shoreline and-lake water
maintenances. if these taxes are to be levied on property, it should be
noted that there is no specific limitation in the Illinois constitution
upon the legislative authority to define real property and personal prop-
erty for the purposes of the general property tax. Under universal prop-
erty tax systems, such as our state's, it is well established that the
legislature has broad power to define what shall be assessed as real
property and what shall be assessed as personal property.44 Innovative
taxing techniques not currently employed in Illinois, and the types of
bonds that may be issued at the state level will be discussed in subse-
quent sections of this Chapter.

4. Local Taxation

The Coastal Zone Management Act of 1972 contemplates the interac-
tion of the state with its political subdivisions--thus, the shoreline
municipalities could constitute important sources of revenue to finance
the overall Program or relevant portions thereof. While the General
Assembly cannot force local units to levy taxes for Program purposes',
local units may wish to bear a share of the cost of the program. To ob-
tain a measure of "sharing", for example, the state could condition the
allocation of state and federal funds to finance local aspects of the
Program upon the locality's willingness to 'generate a percentage of the
cost of certain development, protection or enhancement projects, among
other things.

As was previously discussed, non-home rule municipalities have no
inherent power to tax--this power may be exercised only as delegated by
the General Assembly. Today, real property taxation constitutes the ma-.
jor taxation power delegated by the legislature to local government.
More than thirty-two separate types of taxing districts have been author-
ized by the General Assembly, and-consequen'tly thousands of taxing dis-
tricts exist throughout the state.

The General Assembly empowered municipalities to levy a general mu-
nicipal corporate purpose tax,45 and also althorized these governments

-137-

to levy property taxes for some forty different purposes46--ranging from
levies for airport purposes to levies for tuberculosis sanitariums.
Some tax measures may only be employed by municipalities of a certain
population;47 some require a referendum;48 and some of the taxes may
only be levied for a maximum number of years.49 All of the existing leg-
islation places a limit upon the percentage of the equalized assessed
value of the property in the municipality that may be taxed for such
purposes.50 Certain of these taxing measures have purposes that are
very closely akin to the Coastal Zone-Management Program. Thus, for
example, municipalities may levy a property tax for the construction and
maintenance of parks and boulevards,51 playgrounds and recreational fa-
cilities,52 community buildings,53 cultural centers,54 sewerage purposes,55
forestry programs,56 harbor construction,57 and levee purposes.58

The General Assembly could authorize a tax to be levied on real
property by those municipalities located within the coastal zone for the
purpose of financing certain aspects of the program. Legislation of this
type may well be appropriate under the circumstances since a major goal
of the Program is for the state to work in conjunction with units of lo-
59
cal government. The legislature-might authorize such shoreline munici-
palities to levy the tax for either a finite number of years or may ex-
tend this power of taxation indefinitely.60 The legislation may require
a referendum for the levy of the tax, but this requirement is not man-
dated by the-stateConstitution.

The only difficulty involved with the enactment of coastal zone spe-
cific legislation is that it may not be constitutionally permissible to
limit the taxing power to coastal zone municipalities. While legisla-
tion is often limited to municipalities within a specific population
limit,61 if this taxing power is only given to municipalities within the
coastal zone, the law may constitute impermissible special legislation--
though given the special context of the coastal zone and the public trust
imposed on the Lake, a basis for distinction may well exist. Special
legislation are those types of laws which contain a grant of a special of
exclusive privilege.62 The test to determine if any certain legislation
constitutes a special law is whether the law operates uniformly through-
out the state upon all persons and localities under like circumstances.63
If the statute operates upon a certain class, it is not void-as special
legislation if there is a substantial difference between the objects
classified and those not so classified, as shown when that difference is
evaluated with reference to the statute's objective which justifies the
conferring of the specific right.64 Thus, as there is a substantial dif-
ference between those municipalities, this type of legislation should
withstand judicial attack. This is especially true since the persons re-
siding within coastal zone areas have a greater opportunity to use the
facilities and amenities offered by Lake Michigan. Furthermore, a legis-
lative finding may be made that property values within the coastal zone
are enhanced by their proximity to Lake Michigan.

-138-

Another alternative may be to draft the legislation to empower any
municipality to levy a property tax for the purpose of financing those
aspects of the Coastal Zone Management Program in common with similar
programs throughout the state. -Some of the objectives of the program,
including the planning and regulation objectives, could be articulated
as the purposes for which the levy of taxes is imposed. Therefore, a
municipality not in the coastal area could levy the tax for general plan-
ning purposes, while the coastal zone municipalities could apply the
funds to implement the program. Also, such legislation is permissive,
not mandatory upon the municipality, so only those municipalities within
the coastal zone need levy the tax and then only if a tax were necessary.
Finally, this.-type of legislative program need not be limited to munici-
palities, counties may also be included.65

Home rule counties and municipalities have far greater leeway in
creating revenue measures to finance certain aspects of the Coastal Zone
Management program. As discussed above, the Illinois Constitution grants
home rule units broad powers of self-government, and expressly provides
that such powers are to be construed liberally. The power of taxation
was placed specifically within the realm of home rule, except that the
units are prohibited from imposing income, earnings and occupational
taxes in the absence of legislative authorization.66 While the Consti-
tution provides that the General Assembly may vote by a three-fifths ma-
jority to deny or limit a home rule unit's power to tax,67 to date it
has not exercised this power. Therefore, home rule units may impose a
property tax upon the property within their boundaries without specific
state authorization.

Non-property taxes may also be enacted to-finance the Coastal Zone
Management Program. The state may authorize local units of government
to levy excise taxes and other transfer taxes.68 In fact, home rule
units may adopt such measures without the approval of the General Assem-
bly, unless the three-fifths vote to limit this power is mustered by the
legislatg e. The City of Chicago enacted this type of tax on cigarettes
in 1971,H and Cook County imposed a tax upon the sale of cars.7 Such
taxes could also be imposed upon the sale of beverages, gasoline, park-
ing, stock transfers anid commodity transfers.71 Revenue generated by
these types of tax measures could be allocated to the Coastal Zone Man-
agement program. A real estate transfer tax on those properties within
the defined coastal zone is a specific means both appropriate and per-
missible.

5. Special Service Areas

Another technique tied closely to the concept of special assessment
(explored in the next Chapter) that may be employed to finance certain

-139-

aspects of the Coastal Zone Management Program would be the creation of
special revenue service areas. Special service areas are those differ-
ential taxing areas created within a municipality or county. The Illi-
nois constitution now-authorizes the levy of additional real estate, per-
sonal property, and other taxes in an area for the purpose of providing
special and intensive services to the specific area that might not other-
wise be available to the entire county or municipality.72

The Illinois Supreme Court held that this power is not self-executing.
In Oak Park Federal Savings and Loan v. Village of Oak Park,73 the vil-
lage, a home rule municipality, adopted ordinances establishing a spe-
cial service area and the issuance of bonds to be retired by the taxes
levied against the property. The services to be provided in the service
area included the creation of a shopping mall and the acquisition of
property for parking. Plaintiffs contended that the village could not,
absent enabling legislation adopted by the General Assembly, create a
special service area or impose taxes or issue bonds to provide special
services--the court agreed. The court relied on the language of Article
VII Section 6(1) of the Constitution in arriving at its decision. That
Section states that the General Assembly cannot deny or limit the power
of home rule units, "to levy or impose additional taxes upon areas within
their boundaries in the manner provided by law for the provision of spe-
cial services . . ."/4 The court held that if the provision was self-
executing, then the underlined words would.have no meaning. Since con-
stitutional construction requires that each word be given meaning,75 the
court determined that enabling legislation is a prerequisite to the cre-
ation of special service areas.76

In response, the General Assembly created the "Special Service Areas
Act."77 It provides that both home rule and non-home rule municipalities
and counties may create a special service area. The definition given to
special services is purposefully broad, and includes "all forms of ser-
vice pertaining to the government and affairs of the county or municipal-
ity."'8 The Act also sets out the procedures that must be followed to
create a special service area. Although a public hearing must be held
on the issue, no prior referendum is required to create a district. How-
ever, if a petition is signed by at least 51% of the electors residing
within the special service area and by at least 51% of the owners of rec-
ord of the land included within the special service area and filed with
the municipal or county clerk, the municipality or county is prohibited
from creating the special service area.79 Aside from this "backdoor
veto" power, the municipality or county may issue general obligation
bonds to finance the services to be provided within the defined area.
These bonds are to be retired by the levy of taxes within the special
service area.80 Obviously, the Act provides a ready-made vehicle for
the adoption of ordinances to help finance the Coastal Zone Management
Program projects. The constitutional provision and the Act are a depar-
ture from the requirement of uniformity in the 1870 constitution and its

-140-

purpose is to authorize differential taxation.81 The method of spread-
ing costs is more simplified than under the special assessment procedure,
for the property is assessed on the basis of assessed value.82 A deter-
mination of the benefit conferred upon each parcel is not required. Spe-
cial service areas may be more equitable and less likely to be challenged
than special assessments in the present situation because, under the spe-
cial assessment tests, a specific benefit to a specific parcel may be
difficult to show--under the Special Service Areas Act no such showing
is required.83 This is not to say that the Act may be abused and allow
improvements to be financed that do not confer any special benefit; ra-
ther, the constitutional provision for special service areas and the
Act seem to contemplate the same type of improvements that are contem-
plated under the Program. That is, improvements of Lake Michigan and
the coastal zone will certainly be a benefit to the adjacent land but
will also be a general benefit to the state as a whole. To date, the
court has not held that a special service must only be of value to the
area being taxed, but a proper nexus between the service and that area
taxed should be demonstrated.

6. General Obligation and Revenue Bonds

Capital improvements in Illinois have historically been financed
by local or state bond issues the most common types of which are general
obligation and revenue bonds. The former are those bonds which obligate
the issuing authority to pay the principal and interest when due from
whatever revenue source may be available.84 The "full faith and credit"
of the issuing authority is pledged, usually in terms providing that suf-
ficient taxes will be levied and collected so as to meet the amortiza-
tion requirements on time. Certain bonds that exclude specified tax
revenue sources from their repayment fund may still be general obliga-
tion bonds so long as the full faith and credit of the issuing authority
is pledged.85 These bonds may call for an even principal amortization,
or for an uneven schedule generally related to money market factors such
as lower interest rates which spur investor demand for long term govern-
mental obligations with their tax exempt features.

If revenue bonds are issued, the only security for the bondholders
is the capital asset constructed with the bond proceeds. Obviously, such
bonds may only be utilized for revenue-producing capital assets. The
full faith and credit of the issuing authority is not pledged; there-
fore, the marketability of such bonds is related to the capital asset
and its revenue earning potential. Consequently, higher interest rates
are generally demanded for revenue as opposed to general obligation bonds.86

No level of government in Illinois is constitutionally prohibited
from issuing bonds, although enabling legislation from the General Assem-

-141-

bly is required--with one exception. The Illinois Supreme Court held
in one of its threshold home rule decisions, Kanellas v. County of Cook,87
that the power given to home rule counties under the Constitution to is-
sue general obligation bonds is self-executing. Thus, legislation en-
acted prior to the 1970 Constitution which required a prior referendum
as a condition precedent to the issuance of all general obligation bonds
by counties is null and void as applied to home rule counties.88 How-
ever, the court noted that the General Assembly by a three-fifths vote
may impose such a referendum restriction upon home rule counties.89

At the state level, the General Assembly has authorized the use of
the state's bonding power to finance various projects. For example, the
Transportation Bond Act was enacted in 1971 to authorize the state to
issue, sell and provide for the retirement of bonds for the purpose of
promoting rapid, efficient and safe transportation.90 These bonds are
general obligation bonds of the State of Illinois and therefore become
part of the state debt.91 Revenue raised by the sale of bonds is used
to construct transportation related facilities. A more controversial
bond act is the Industrial Pollution Control Financing Act.92 In order
to protect the citizens of Illinois against environmental damage, the
Act authorizes the state to "acquire, construct, reconstruct, repair,
alter, improve, own, lease, sell and otherwise dispose of pollution con-
trol facilities."93 In effect, the pollution control facilities contem-
plated under the Act are to assist private business, in that the bonds
provide a low cost method of acquiring the facilities.94 The bonds are
revenue bonds and are payable solely from the revenue derived from the
sale or lease of the facilities.95

These examples suggest the types of bonds that may be issued to fi-
nance the Coastal Zone Program. General obligation bonds are a component
of state debt and, consequently, passage by the General Assembly may be
more difficult. On the other hand, the revenue bond route as typified
by the Industrial Pollution Control Financing Act is feasible only if
the improvements financed are revenue-producing. As with that Act, the
issuance of revenue bonds to help finance controls to be utilized by
'the private sector is an important boost to both business and the Program
purpose sought to be achieved because the construction of shore facili-
ties by industry is made palatable by the low cost of financing.96 There
is considerable leeway as to which governmental body will administer par-
ticular bond issuance and the funds derived from their sale. The Depart-
ment of Transportation might be designated as the controlling agency
since it is so intimately tied to the Coastal Zone Management program.97
If the funds are to be disbursed to other governmental entities, the ul-
timate decision-making power may best reside with the Department. On
the other hand, if the Program draftsmen decide to control the program
through purely state administrative review, the creation of a new adminis-
trative authority to disburse the revenues may be preferable, for the

-142-

mechanism could thereby be created to make the determination of what f a-
cilities are needed and what private parties can best make use of them.

7. Shoreline Erosion Protection Districts

Certainly the General Assembly may also authorize other governmen-
tal units to issue bonds to finance the various ICZM projects. A new
special district could be created for this purpose--there being no con-
stitutional limitation on a special district's power to issue bonds if
the legislature so provides. in this vein port districts have been cre-
ated by the legislature to construct and maintain port facilities. The
districts are authorized to issue general obligation bonds after appro-
val is given by the electorate in the district in a referendum--or the
district may issue revenue bonds without referendum approval.98 If gen-
eral obligation bonds are issued, the districts are empowered to levy a
tax in the amount that will be required to amortize such bonds on all
the taxable property within the district. Due to the fact that much of
the construction contemplated under the Program will not be revenue pro-
ducing, the creation of a special shoreline erosion protection district
with the power to issue general obligation bonds appears to be an effi-
cient way of financing erosion protection aspects of the program. H~ow-
ever, the creation of a new special district will add to the already frag-
mented political structure of the state--a factor possibly objectionable
from both the Department's and General Assembly's view. The General As-
sembly must create the special district if one is to exist, the political
feasibility of this route must be seriously considered.

The definitional scope of the extent erosion of the shore is delimi-
ted by the concept of the "erosion reach"99--the extent to which erosion
of any section of the Lake Michigan shoreline is influenced by identical
patterns of Lake behavior and drift. This empirical delimitation--capa-
ble of accurate plotting by the Illinois Geological Survey 10-- would be
sufficient to establish political boundaries for one or a series of Shore-'
oine Erosion Protection Districts by the General Assembly.

Because of the limitations on the use of Sp .al assessments under
the Illinois Constitution to existing districts, THthe Shoreline Erosion
Protection District would rely on other financing techniques. The don-
cept, however, would, on an interjurisdictional basis, follow closely the
lines of other governmental redevelopment activities in place in Illinois---
and, particularly, the "Neighborhood Redevelopment Corporation Law.10
The provisions for shoreline erosion protection might be implemented
through legislation as follows:

1. Those municipalities within a defined "erosion
reach" would be enabled to form a Shoreline

-143-

Erosion Protection Commission,103 "to operate
within the boundaries of such ."erosion
reach.

2. Groups of property owners within areas in which
Shoreline Erosion Protection Commissions had
hence been formed could then organize Shoreline
Protection Corporations " . . . when authorized
by and subject to the supervision of the
Commission."!04

3. Those Corporations thereby created would then
plan for and implement the erosion protection
scheme when certified by the Commission.

8. Bonding--Local Units

An alternative is to vest the bond issuing power in an already exist-
ing unit of local government. If general obligation bonds are to be is-
sued, it must be remembered that the principal amount of all outstanding
general obligation bonds is an indebtedness of the issuing body.105 How-
ever, the interest on such bonds is not an indebtedness until actually
due and payable.106 As noted above, at the present time home rule muni-
cipalities and countries are authorized to incur debt and issue bonds in
evidence thereof for proper corporate purposes without referendum.107
Non-home rule units must first hold a referendum, subject to certain sta-
tutory exceptions.108 The most notable exception for Program purposes is
that if the bonds are issued to finance special services in a special ser-
vice area,109 no referendum is required. General obligation notes may
be issued by a municipality for any public corporate or related purpose. 110
The legislature may also authorize the issuance of bonds by a corporate
body for specific purposes. This was done for example, to finance muni-
cipal housing and redevelopment programs.111 As an alternative, the leg--
islature may authorize the municipality to create special districts with-
in its boundaries, with the special districts being similarly empowered
to issue the general obligation bonds.112 Generally, the funds to sat-
isfy the repayment of the bonds come from general taxes to be levied on
the property situated in the district.113 If this type of legislation
is contemplated, it should be noted that the General Assembly often con-
ditions the creation of the district upon the prior approval of the elec-
tors residing in the district.114 However, this requirement is not con-
stitutionally mandated. Legislation in this form, the Urban Transporta-
tion District Act, was challenged as being unconstitutional in People
ex rel Hanrahan v. Caliendo.11b That Act authorized the creation of ur-
ban transportation districts within a municipality. Actual operation
was statutorily contingent upon a majority of the voters within its pro-

-144-

posed boundaries approving of its creation. The district was author-
ized to issue general obligation bonds with the debt to be paid by the
levy of taxes within the district. If this type of legislation is deemed
desirable for the Coastal Zone Management program it is especially in-
teresting to note the Supreme Court of Illinois' opinion of the Urban
Transportation District legislation. Most importantly, the court held
that the residents within the district are still obligated to pay taxes
although the taxing authority does not have the concommitant burden of
showing a special benefit to the property taxed.116 Thus, the court
stated that although in the past it had held that transportation improve-
ments created general rather than special benefits, the fact that all
persons who might benefit from an improvement are not assessed does not
make the assessment unconstitutional.i Thus, this type of legislation
may be preferable to the levy of a special assessment for program improve-
ments if a special benefit to the properties assessed may be difficult
to show.118

Revenue bonds may also be issued at the local level. Generally,
revenue bonds are those obligations payable from the revenues derived
from the operation of the financed service facility and, as indicated
earlier, are secured by the facility itself. Rates or charges are im-
posed upon the user of the service or facility in order to recover the
costs of financing the enterprise and the facility so financed must gen-
erate its own revenues, without recourse to municipal tax resources.
Thus, the borrowing evidenced by the issuance of revenue bonds does not
create debt of the municipality within constitutional or statutory limi-
tations.119 Once again, it must be emphasized that such bonds may be
used only for revenue producing facilities. Of course, a specific struc-
ture is not required. For example, if part of the program's funds are
to be used to rehabilitate beaches, revenue bonds could finance the pro-
ject if user fees for the affected beach could be collected in an amount
sufficient to retire the bonds. At the present time, park districts may
charge fees for the use of various park facilities, including beaches
and boat houses.120 Though park districts are prohibited from charging
fees to generate income generally, they may charge such amounts to the
extent reasonably necessary to retire such revenue bonds as are sold to
finance the construction of the particular facility involved and the cost
of maintenance.121 The Program may want to integrate this power of the
park districts into its management program to finance this aspect. This
should be considered as part of the general plan to coordinate state and
local action to implement the program.

The General Assembly has already.declared certain public facilities
to be suitable for financing by a municipality through the issuance of
revenue bonds. The authority to issue revenue bonds is expressly set
forth by the legislature and this power must be exercised-in the manner
specified by the legislative enactment.

-145-

The court has been generous in finding that home rule units have
the authority to issue revenue bonds.. in City of Salem v. McMackin,122
the court approved the constitutionality of the industrial Project
Revenue Bond Act, by which non-home rule units were authorized to issue
industrial revenue bonds to attract new industrial projects and create
jobs. The enabling statute authorized municipalities to issue such bonds
for projects located up to ten miles from their boundaries. 12 The court
also held that although they were not covered by the statute, home rule
units could also issue the new-type of revenue bonds, even as to the
extra-territorial ten miles, under their proprietary home rule powers.124
Thus, home rule units may issue revenue bonds to construct Coastal Zone
Management Program facilities without the necessity of enabling legisla-
tion from the Generdl Assembly and these property projects may extend be-
yond the territorial boundaries of the unit. The court in McMackin held
that as the Constitution states that "a home rule unit may exercise any
power and perform any function pertaining to its government and affairs,"125
it may act in a proprietary capacity beyond its corporate limits.126

Therefore, if the situation calls for the issuance of revenue bonds,
the legislature may specifically enable the issuance at either the state
or local level. Furthermore, home rule units may exercise this power
without obtaining approval from the General Assembly.

9. Intergovernmental Cooperation and Financing Techniques

The Illinois Coastal Zone Management Program is based on the prem-
ise of state/local cooperation. W hile various techniques cannot be im-
plemented without enabling legislation from the General Assembly, we have
seen that other potential revenue programs may be instituted at the lo-
cal level, especially if home rule units are involved. While state and
local cooperation is a cornerstone of the entire program, it is especi-
ally important in the realm of revenue as much of the impetus for the
various programs rests with local government. While this is already be-
ing considered b7the formulators of the Program, the Intergovernmental
Cooperation Act Mtmay provide additional assistance. The Illinois Con-
stitution expressly provides that:

Units of local government and school districts may
contract or otherwise associate among themselves,
with the State, with other states and their units
of local government and school districts, and with
the Unit ed States to obtain or share services and
to exercise, combine, or transfer any power or
function, in any manner not prohibited by law or
by ordinance. Units of local government and school
districts may contract and otherwise associate with

-146-

individuals, associations, and corporations in any
manner not prohibited by law or by ordinance. Par-
ticipating units of government may use their credit,
revenues and other resources to pay costs and to
service debt related to intergovernmental activi-
ties.128

Members of the Constitutional Convention believed that this provision was
necessary to provide "flexibility with respect to financing intergovern-
mental undertakings, ,129 and to eliminate the restraining affect of Dil-
lon's Rule130 thereby removing the Dillon's Rule inhibitions from non-
home rule units when in contract with home rule units.

Thereafter, although the Constitutional provision was self-executing,
the General Assembly passed the Intergovernmental Cooperation Act, "adding
a statutory gloss to the constitutional provision."131 The Act allows
public agencies132 to enter into agreements to exercise "any power or
powers, privileges or authority exercised or which may be exercised by a
public agency of this state."133 Thus, a "public agency" can apparently
perform any function that any agency it contracts with can perform.134
While intergovernmental arrangements have been widely used in Illinois135
and other states to perform a variety of functions such as fire depart-
136
ment services and subdivision regulation services, they are not so
limited. Rather, intergovernmental cooperation is an appropriate and
proper vehicle to coordinate Coastal Zone Management Program activities.
This is especially important when certain revenue raising measures may
not, without intergovernmental agreement or legislation, be employed by
certain participating units of local government--given the mix of home
rule and non-home rule, general and special purpose units of government
lining the Lake Michigan shore.

The Act authorizes the use of the two basic forms of intergovern-
mental cooperation, joint agreements and contracts.137 Any public agency
that is a party to an agreement is allowed to appropriate funds to the
"administrative joint board or other legal or administrative entity cre-
ated to operate the joint or cooperative undertaking."138 Therefore, the
Act may serve as the umbrella under which the financing techniques con-
templated under the program are administered. This method has special
significance in that the Program's goals do not end at corporate bounda-
ries, but have great regional impact. Service contracts and joint exer-
cise of power agreements are authorized by the Act and both may serve a
function in the program. In a service contract one party furnishes ser-
vices to other parties, which may be useful when certain machinery is
necessary to perform the service. The use of a service contract could
avoid duplication of expenses and relieve the acquiring unit of the to-
tal expense of the necessary equipment. On the other hand, joint agree-
ments are especially effective for implementing programs in which policy
decisions play an important role.139 Joint efforts may be made in areas
over which any of the parties have jurisdiction.

-147-

10. New Legislative Schemes

The previous discussion has been an attempt to demonstrate the types
of financing techniques that may be employed at the State and local lev-
els to implement the Coastal Zone Management Act. Existing pieces of
legislation were also reviewed to demonstrate how proposed legislation
may be modelled to fit the needs of the Program. Since all of these
techniques have been employed in Illinois for various purposes, it may
be presumed that similar legislation may be introduced with some degree
of success as the basic revenue-s-tructure of the State has not been tam-
pered with. However, other techniques have been employed in other lo-
calities that, while raising revenue, are fairly foreign to the Illinois
structure. Some of these programs will be reviewed and their viability
assessed. Certain of these programs combine regulatory controls with
revenue raising aspects. Since efficient land utilization and preserva-
tion are important goals of the program, certain combined techniques seem
appropriate to the situation. Their major problem, as will be seen, is
that certain of these proposals would drastically change the basic reve-
nue system of local government--the property tax.

11. Vermont

An especially interesting proposal is based upon Vermont legisla-
tion. In 1973, Vermont enacted a tax applying specifically to gains rea-
lized from the sale of land. 140 The tax is confined to gains realized on
short term141 land holdings and is designed to control'short term land
speculation by limiting the profits and hence discouraging rapid turn-
over of land. Thus, land speculation is reduced while at the same time,
revenue is raised which may be used to finance a Coastal Zone Management
Program. Vermont uses the proceeds. to prepare property tax maps and to
support a property tax relief program for landowners with limited in-
com~e.1 Under the Vermont-statute, all sales or exchanges of land are
taxable except the first acre or less necessary for the use of the sel-
ler's principal residence. Furthermore, only the gains on land are
taxed,- therefore, the purchase price must be apportioned between the
143
realty and improvements. Gains are taxed on a sliding-rate scale, the
rate increasing directly with the percentage of profit and inversely with
the length.of the holding period. The maximum tax rate of 60% is applied
to a gain of 200% or more or land held less than one year. 14The con-
stitutionality of the Act was challenged in Vermont in Andrews v. Lathrop. 145
The court there upheld the statute and dismissed the allegations that the
measure violated the equal protection clause. The Vermont court found
that the promotion of a state policy of deterring land speculation is a
permissible legislative purpose and .that the statutory classification
used to determine those land sales to be taxed is rationally related to
that purpose.14 The court further held that although the tax is super-

-148-

imposed upon existing state and federal capital gains taxes, it does not
result in unconstitutional double taxation.147 As noted above, Illinois
courts have also held that differential treatment for purposes of taxa-
tion are constitutional if the classificiations are reasonable.148 Most
importantly, the Illinois Supreme Court has also held that the exercise
of both the police and revenue powers of this state may be combined in
one act, provided they relate to the same subject.149

However, a formidable barrier stands in the way of passage of simi-
lar legislation in Illinois. As earlier noted, the Illinois Constitu-
tion requires that any tax on or measured by income must be at a non-
graduated rate.150 Also, at any one time there may be no more than one
1~ ~ ~ ~~~~~5
such tax imposed by the state on individuals and corporations. 151 Thus,
if the tax is deemed to be a tax on income it would be unconstitutional
under Illinois law for two reasons: first, in effect the tax is a penalty
on land speculation as the tax increases if the land is held a short time
and a great profit is received on the sale. The amount of tax is depen-
dent upon these two variables, so that it becomes a prohibited graduated
tax. Secondly, it may be deemed to be a second income tax which is also
constitutionally prohibited.152 However, this type of taxing system may
be valid in Illinois if the form can be changed so that it is no longer
viewed as an income tax. For example, it may be viewed as a tax on the
153
transfer of property. The Real Estate Transfer Tax Act, which is a
tax imposed on the privilege of transferring title to real estate, is
based upon the value of the real estate and a tax is imposed at the rate
of 50� for each $500.00 of value. This tax could be restructured to in-
clude the holding period as a factor in determining the rate of taxation;
however, there may be a problem in limiting the tax to only the value of
the land alone.154 Also, the tax would not take into account the profit
made on the sale, rather it would be based on the actual consideration
paid for the property. Another alternative would be to determine the
amount of tax on the basis the seller has in the property.155 If the
tax were computed on the basis in the property times a percentage deter-
mined by the holding period156 the tax would not be a tax on income.
Once again, such a tax would fail to recapture the profit made on the
sale, which is an integral part of the Vermont statute. Thus, short
term speculation would not be penalized and the de~~rent effect on the
legislation would be eliminated for the most part.

12. Other Tax Alternatives

Alternative taxation s-chemes devised by legislatures and commenta-
tors attempt to depart from the concept of ad valorem real property taxes.
Critics are discontented with the property tax for a variety of reasons.
It is a regressive tax, that is, one which falls most heavily on those
with the least ability to pay and the greatest need for tax services.158

-149-

This is because the property tax taxes ownership of capital resources
rather than liquid assets or spendable income, and therefore, is often
not geared to ability to pay. Furthermore, since an assessor must
value each improvement to the property according to his determination of
its effect on the fair cash value of the property as a whole, minor im-
provements may have an extraordinary impact on the amount of the total
assessment and the owner may be reluctant to undertake them.160 The
property tax also encourages urban and suburban sprawl because of the al-
most cyclic pattern of the rising costs of services occurring in part
because of the deterioration of the area due to the property tax's ef-
fect on basic maintenance and development and in part because many major
taxpayers are drawn out of the area by both rising taxes and deteriorat-
ing conditions and services.161 Furthermore, it fails to penalize hold-
ing large parcels of land in an undeveloped state for speculation as to
their future development value, which tends to tie up the prime unde-
veloped land in or near populated areas.162

Therefore, some suggest that the property tax should be eliminated
and replaced with a "site value tax." Such a tax is set at a high rate
but only taxes the worth of the underlying land, regardless of the value
16
of improvements.163 In this way, the holding of land in an undeveloped
condition would be discouraged, and at the same time, no tax penalty
would attach to the installation of expensive improvements in order to
make the land realize its full income potential. The site value tax
should permit accurate capitalization of property taxes proportional to
the potential development utility of a parcel, in its purchase price and
should also fix costs at a predictable level for landowners.164 However,
the rates would probably have to be quite high in relation to the value
of the land in order to meet the present revenue levels yielded by the
ad valorem property tax. Site value taxation may also be difficult to
administer because of the coTMexity of assessing the worth of land inde-
pendent of its improvements.

This system of taxation may have both beneficial and adverse effects
on the coastal zone. It would not change the basic financing techniques
discussed earlier, except to the extent that the underlying system of
property that is taxed is changed. While it is an effective system of
taxation for urban areas, it may be detrimental in the nonurbanized areas
of the coastal zone since it will likely cause increased development.
However, a more equitable system of taxation may result in increased reve-
nues for local government and consequently for the Coastal Zone Management
Program. Implementation of a site value taxation program would necessi-
tate a complete overhaul of the existing statutory framework with its
built-in legislative opposition,166 and is unnecessary to the accomplish-
ment of Program goals.

Another possible system somewhat related to special service areas
currently enabled in Illinois is the differential taxation approach.167

-150-

Each taxing-district would be given the authority to classify areas
within its jurisdiction "based upon each area's ability to6 eceive muni-
cipal-type services"168 and then taxing them accordingly. This sys-
tem is similar in concept to special service areas, special districts
and special assessments as it is grounded in a cost-benefit approach for
taxation.170 Differential taxation would be easier to administer than
the site value taxation program since the value ot the land and the
buildings need not'be apportioned. While it is arguable that such a sys-
tem would violate the uniformity clause of the Illinois Constitution,
counties with a population of more than 200,000 may classify real prop-
erty for the purpose of taxation.171 Therefore, this type of classifi-
cation system may overcome constitutional objections at least in counties
with a population of more than 200,000--certainly applicable in the Lake/
Cook context of the Lake Michigan shore.

Differential taxation may also be characterized as a land service
charge tax which is also a cost-benefit system of taxation. Since the
cost of providing various municipal services varies substantially within
an area, land service charge taxes defray the cost of these services in
the most equitable way.172 Those areas receiving the greatest benefit
from the program's projects would also be responsible for the burden of
paying the costs. The cost of such public service should be prorated on
the basis of area and distance rather than assessed values.173 However,
the land service charge concept is more readily adaptable to paying the
cost of services such as water, as the taxed land is directly benefited
and the cost, such as for running pipes to the property can be readily
ascertained.174 It will be far more difficult to compute the marginal
cost of the program's benefits to each parcel of taxable property.175

To avoid this problem, "betterment levies" may be assessed against
taxable property. In contrast to user charges which are directly related
to the cost of services, "betterment" is characterized as:

any increase in the value of land (including build-
. ings) arising from control or local government ac-
tion . . . (and) enhancement in the value of prop-
erty arising from general community influences, such
as the growth of urban populations.176

One commentator suggests that the definition should include actions of
private households and firms on other parcels.177 Such a levy may better
reflect the benefit conferred upon land by the Coastal Zone Management
Program for rehabilitation of the Lake and its environs will benefit
property in the Coastal Zone but the specific dollar amount will be im-
possible to compute.178

Finally, the development tax is another possible revenue raising
measure that could be utilized to finance the program. This- tax is an

alternative to the dedication procedure currently required by subdivi-
sion control ordinances.179 A development tax is the levy of taxes upon
all new development, proportionate to the burden on the community asso-
ciated with the influx of population which the development causes.180
A system of incentives could be incorporated into this tax to complement
present subdivision controls and building codes.

-152-

Conclusion

All of these techniques have a great impact on the entire system of
local taxation and while they may be a means of providing additional reve-
nue for the Coastal Zone Management Program this is basically a side ef-
fect. Although certain of these measures may be needed in Illinois to
provide a more equitable system of taxation, the possibility of achieving
the passage of such enactments will require great efforts in terms of
time and energies. So, while the more traditional means of financing the
program may appear less glamorous, enabling legislation may be more easi-
ly obtainable.

Given the in place-revenue system in Illinois, tied to the enable-
ment of intergovernmental cooperation, this State seems assured of an
adequate system to backstop federal financing under the Coastal Zone Man-
agement Act of 1972.

-153-

FOOTNOTES

1. Reif v. Barrett, 355 Ill. 104 (1934).

2. S. Bloom, Inc. v. Korshak, 52 Ill. 2d 56 (1972).

3. Allied Stores v. Bowers, 358 U. S. 522 (19 ); People ex rel Kubner
v; Cullerton, 58 Ill. 2d266 (1974).

4. Diana Shoe Stores v. Department of Revenue, 5 Ill. 2d 112 (1955).

5. Ill. Const. Art. IX sec. 4.

6. See e.g., People ex rel Kubner v. Cullerton, 58 Ill. 2d 266 (1974);
People ex rel Hornefenger v. Burris, 408 Ill. 68 (1951).

7. 55 Ill. 2d 437 (1973).

8. Id. at 442.

9. People ex rel Skidmore v. Anderson, 56 Ill. 2d 334 (1974).

10. Fiorito v. Jones, 48 Ill. 2d 566 (1971).

11. Ill. Const. Art. IX sec. 4(a).

12. Ill. Const. Art. IX sec. 4(b).

13. Id.

14. See note 182 and accompanying text infra.

15. Ill. Const. Art. IX sec. 9(a).

16. Hanrahan v. Calienda, 50 Ill. 2d 72 (1971).

17. Ill.' Const. Art. IX sec. 5(a).

18. Ill. Const. Art. IX sec. 5(c).

19. A home rule unit is defined in the Ill. Const. Art. VII sec. 6(a)
as "[a] county which has a chief executive officer elected by the
electors of the county and any municipality which has a population
of more than 25,000." Other municipalities may elect by referencum
to become home rule units.

-154-

20. Id.

21. Ill. Const. Art. VII sec. 6(d).

22. Ill. Const. Art. Vii sec. 6(e).

23. Ill. Const. Art. VII sec. 6(g).

24. Ill. Const. Art. VII sec. 6(1); see discussion at note , infra.

25. Ill. Const. Art. VII sec. 7.

26. Id.

27. Baum, Illinois Home Rule, 1972 Law Forum 559,560.

28. Dillon's rule is best expressed in his treatise. A Treatise on the
Law of Municipal Corporations:

It is a general and undisputed proposition of law that a municipal
corporation possesses and can exercise the following powers, and
no others: First, those granted in express words; second, those
necessarily or fairly implied in or incident to the powers expressly
granted; third, those essential to the accomplishment of the de-
clared objects and purposes of the corporation . . . not simply
convenient but indispensable.

Cited in Assembly on Home Rule in Illinois, Home Rule in Illinois,
13 (1973); Appeal Bd. of Environmental Control v. U. S. Steel Corp.,
48 Ill. 2d 575 (1971).

29. People ex rel. Gish v. Lake Erie and W. R. Co., 248 Ill. 32 (1910).

30. Ill. Const. Art. VII sec. 8.

31. Robbins v. Kadyk, 312 Ill. 290 (1924).

32. Id. at 293.

33. People ex rel. City of Salem v. McMackin, 53 Ill. 2d 347, (1972).

34. Id. at 293.

35. Ill. Const. Art. XI sec. 1 (1970).

36. Titus v. The Texas Co., 55 Ill. 2d 437 (1973).

37. See e.g., Ill. Rev. Stat. ch. 127 secs. 701-710 (1973).

-155-

38. Assembly on Home Rule in Illinois, Home Rule in Illinois, supra.,
note 28 at 13.

39. Ill. Rev. Stat. ch. 120 sec. 418 (1973).

40. Ill. Rev. Stat. ch. 120 sec. 424 (1973).

41. Titus v. The Texas Co., 55 Ill. 2d 437, 442 (1973).

42. People ex rel. Hanrahan v. Caliendo, 50 Ill. 2d 72, 83 (1971).

43. There are no constitutional restrictions on these measures.

44. Young, The Revenue Article of the Illinois Constitution of 1970,
1972 Law Forum 312, 331.

45. Ill. Rev. Stat. ch. 24 sec. 8-2-1 (1974).

46. Illinois Institute for Continuing Legal Education, 1 Illinois
Municipal Law 13.10 (1974).

47. See e.g. Ill. Rev. Stat. ch. 24 sec. 11-19-4 (1974).

48. See e.g. Ill. Rev. Stat. ch. 24 sec. 11-45.1-4 (1974).

49. See e.g. Ill. Rev. Stat. ch. 24 sec. 11-123-11 (1974).

50. This is due to the debt limitation placed upon municipalities by
the General Assembly. See e.g., ch. 24 sec. 8-5-1 (1974).

51. Ill. Rev. Stat, oh. 24 secs. 11-99-1, 11-99-3 (1974).

52. Ill. Rev. Stat. ch. 24 secs. 11-95-7, 11-95-i (1974).

53. Ill. Rev. Stat. oh. 24 sec. 11-63-1 (1974).

54. Ill. Rev. Stat, ch. 24 sec. 11-45.1-4 (1974).

55. Ill. Rev. Stat. ch. 24 sec. .11-143-1 (1974).

56. Ill. Rev. Stat. ch. 24 secs. 11-73-1, 11-73-2 (1974).

57. Ill. Rev. Stat. ch. 24 sec. 11-123-11 (1974).

58. Ill. Rev. Stat. ch. 24 secs. 11-112-1, 11-112-2 (1974).

59. 33 U. S. C. sec. 1451 et. seq. (1973); Mandelker and Sherry, The
National Coastal Zone Management Act of 1972, 7 Urban L. Ann. 119
(1974).

-156-

60. "Apart from statutory prohibitions, the authority to levy taxes is
purely statutory." People ex rel. Bailey v. Illinois Central R. R.
Co., 407 Ill. 426 (1970).

61. See e.g., Ill. Rev. Stat. ch. 24 sec. 11-67-4 (1974).

62. People ex rel. Honefenger v. Burris, 408 Ill. 68 (1951).

63. Id. at 72.

64. People ex rel. Kubner v. Cullerton, 58 Ill. 2d 266 (1974).

65. Ill. Const. Art. VII sec. 6(m).

66. Ill. Const. Art. VII sec. 6(e).

67. Ill. Const. Art. VII sec. 6(g).

68. Young, The Revenue Article of the Illinois Constitution, supra,
note 44 at 333.

69. This ordinance was sustained in S. Bloom Inc. v. Korshak, 52 Ill.
2d 56 (1972).

70. The constitutionality of this ordinance was upheld in City 'of Evan-
ston v. County of Cook, 53 Ill. 2d 312 (1972).

71. Assembly on Home Rule in Illinois, Home Rule in Illinois, supra
note 28 at 85.

72. Ill. Const. Art. VII secs. 6(e), 7.

73. 54 Ill. 2d 200 (1973).

74. Id. at 203.

75. Tuttle v. National Bank of the Republic, 161 Ill. 497 (1896).

76. The court may have come to this conclusion since the tax contemplated
amounted to differential taxation which was a departure from the
prior state constitutional law. Id. at 204.

77. Ill. Rev. Stat. ch. 120 sec. 1301 et seq. (1975).

78. Ill. Rev. Stat. ch. 120 sec. 1302 (1975). The Program's legal con-
sultant participated in the drafting of this legislation.

79. The petition must be filed within 30 days following the final ad-
journment of the public hearing. After a petition is filed, the

-157-

subject matter of the petition may not be proposed in the same area
for two years. Ill. Rev. Stat. ch. 120 sec. 1309 (1975).

80. Ill. Rev. Stat. ch. 120 sec. 1310 (1975).

81. See Note 761 supra.

82. Ill. Rev. Stat. ch. 120 sec. 1310 (1975).

83. The only statutory requirement is that the area be provided with
special governmental services which are in addition to those ser-
vices provided generally throughout the governmental unit. Ill.
Rev. Stat. ch. 120 sec. 1302 (1975).

84. Kenkel, Legal Aspects of Financing Certain Public Improvements, 6
Urban Law 381, 382 (1974).

85. Id.

86. Id.

87. 53 Ill. 2d 161 (1972).

88. The home rule unit's ordinance prevails over a conflicting state
statute adopted prior to the enactment of the 1970 constitution.
Id. at 166.

89. Id. at 165. See Ill. Const. Art. VII sec. 6(g).

90. Ill. Rev. Stat. ch. 127 sec. 701 et. seq. (1975).

91. Ill. Const. Art. IX sec. 9(a).

92. Ill. Rev. Stat. ch. 127 sec. 721 et. seq. (1975).

93. Ill. Rev. Stat. ch. 127 sec. 727 (1975).

94. See Early, Financing Pollution Control Facilities Through Indus-
trial Development Bonds, 27 Tax Law 85 (1973).

95. Ill. Rev. Stat. ch. 127 sec. 729 (1975).

96. See People ex rel City of Salem v. McMackin, 53 Ill. 2d. 347 (1972);
Note, The Clean Air Financing Act, 11 Houston L. Rev. 1194, 1200
(1974).

97. For example, The Anti-Pollution Bond Act, Ill. Rev. Stat. ch. 127
sec. 451 et. seq. (1975) is appropriately administered by the Illi-
nois Environmental Protection Agency.

98. See e.g., Ill. Rev. Stat. ch. 19 sec. 186 (1975).

99. Report, U.S. Army Corps. of Engineers, Illinois Coastal Zone Manage-
ment Program, March, 1976.

100. IGS Report to Illinois Coastal Zone Management Program. See, also,
IGS, Map Appendix, ICZMP, October, 1975.

101. See, note 38, supra., et seq.

102. Ill. Rev. Stat., ch. 67 1/2 secs. 251-294, incl. (1975).

103. See, e.g., Ill. Rev. Stat., ch. 67 1/2 sec. 254 (1975).

104. See, e.s., 11. Rev. Stat., ch. 67 1/2 sec. 256 (1975).

105. See, e.g., People v. Hamilton, 373 Ill. 124 (1940).

106. Id.

107. See note 88 and accompanying text, supra.

108. Ill. Rev. Stat. ch. 24 sec. 8-4-1 (1975).

109. Id.

110. I11. Rev. Stat. ch. 24 sec. 8-4-25 (1975).

111. Ill. Rev. Stat. ch. 67 1/2 sec. 91.124 (1975).

112. See, e.g., Ill. Rev. Stat. ch. 111 2/3 sec. 501 et sec. (1975).

113. See, e.g. Ill. Rev. Stat. ch. 111 2/3 sec. 512 (1975).

114. See note 115 and accompanying text, infra., but note also the "back
door" method for Special Service Areas.

115. 50 I1. 2d 72 (1971).

116. Id. at 79.

117. Id.

118. See ch. and its accompanying text, infra.

119. Hairgrove v. City of Jacksonville, 336 Ill. 163 (1937).

120. Ill. Rev. Stat. ch. 105 sec. 8-10 (1975).

-159-

121. See, e.g., Ill. Rev. Stat. ch. 105 sec. 9-1d (1975).

122. 53 Ill. 2d 347 (1973).

123. 53 Ill. 2d at 365.

125. Ill. Const. Art. VII sec. 6(a).

126. 53 Ill. 2d at 365.

127. Ill. Rev. Stat. ch. 127 sec. 741 et seq. (1975).

128. Ill. Const. Art. VII sec. 10.

129. Comment, The Illinois Intergovernmental Cooperation Act. 1974 U.
Ill. L. Forum 498, 499.

130. See, note 28 supra.

131. Comment, The Illinois Intergovernmental Cooperation Act, supra.,
note 128 at 500.

132. Public agencies are defined as "a unit of local government as de-
fined in the Illinois Constitution of 1970." Ill. Rev. Stat. ch.
127 sec. 742 (1973). In turn the Constitution includes as units
of local government counties, municipalities, townships, special
districts, and units "designated as units of local government by
law, which exercise limited governmental power or powers in re-
spect to limited governmental subjects," but specifically excludes
school districts. Ill. Const. Art. VII sec. 1.

133. Ill. Rev. Stat. ch. 127 sec. 743 (1975).

134. Comment, The Illinois Intergovernmental Cooperation Act, supra.
note 128 at 500.

135. See, DLGA/NIPC INTERGOVERNMENTAL COOPERATION IN ILLINOIS (1976).

136. Comment, The Illinois Intergovernmental Cooperation Act, supra.,
note 128 at 500.

137. Ill. Rev. Stat. ch. 127 secs. 743, 745 (1975).

138. Ill. Rev. Stat. ch. 127 sec. 744 (1975).

139. Comment, The Illinois Intergovernmental COoperation Act, supra.,
note 161 at 500.

-160-

140. Vt. Stat. Ann. title 32 secs. 10001-10 (1973).

141. "Short term" is defined as less than six years. Vt. Stat. Ann.
title 32 sec. 10003 (1973).

142. Comment, State Taxation, 49 Wash. U. L. Rev. 1159 (1974).

143. Id. at 1161.

144. The minimum rate of 5% applies to gains of 0-99% on land held be-
tween five and six years.

145. 132 Vt. 256, 315 A. 2d 860 (1974).

146. Id.

147. Id.

148. See note 8 and accompanying text supra.

149. National Drag Racing Enterprises, Inc. v. Kendall Co., 54 Ill. 2d
79 (1972).

150. Ill. Const. Art. IX sec. 3(a).

151. Id.

152. Id.

153. Ill. Rev. Stat. ch. 120 sec. 1001 et seq. (1975).

154. Currently property is valued for the assessment purposes on the ba-
sis of both the land and structures thereon. Ill. Rev. Stat. ch.
120 sec. 501 (1975).

155. This would -be computed under the provisions of the Federal Inter-
nal Revenue Code. This procedure is authorized by the Illinois
Constitution, Art. IX sec. 3(b).

156. See note 154 and accompanying text supra.

157. In effect, such legislation would lose its regulatory function and
would become simply another taxation measure.

158. See, e.g., Bab, Taxation and Land Use Planning, 10 Willamette L. J.
439, 441 (1974).

159. Zimmerman, Tax Planning for Land Use Control, 5 Urban Law 639, 647
(1973).

-161-

160. Id. at 650.

161. Id. at 651.

162. Note, Site Value Taxation: Economic Incentives and Land Use Plan-
ning, 9 Harv. J. Legis. 115 (1971).

163. Id. at 125.

164. Zimmerman, supra. note 159 at 655.

165. Note, Site Value Taxation: Economic Incentives and Land Use Plan-
ning, supra. note 162 at 139.

166. Not only must assessment methods be changed, but a site value taxa-
tion system may run afoul of the debt limitation placed on munici-
palities. This is due to the fact that the amount of permissible
indebtedness is expressed as a percentage of the assessed value of
the location's tax base, and the tax base will be decreased if only
land values as opposed to improvements are assessed. Id.

167. This method is similar to Illinois' special service area legisla-
tion; and bills are pending in the Illinois General Assembly that
would so implement.

168. Herman, Ad Valorem Financing of Law Enforcement Services: An Equit-
able Solution to an Inequitable Condition, 19 U.C.L.A. L. Rev. 59,
90 (1971).

169. Zimmerman, supra. note 159 at 668.

170. Ill. Const. Art. IX sec. 4(b).

171. Bab, supra. note 190 at 445.

172. Id.

173. Id. at 446.

174. See, e.g., Downing, User Charges and the Development of Urban Land,
26 Nat'l. Tax J. 631, 633 (1973).

175. Grimes, Urban Land Taxes and Land Planning, 12 Finance and Rev. 16,
17 (1975).

176. Id.

177. User charges are most often used to finance construction of a muni-
cipal infrastructure. Grimes, supra. note 175 at 20.

-162-

178. Zimmerman, supra. note 159 at 675.

179. Id.

180. Id. at 676.

-163-

CHAPTER IX

PROPERTY OWNERS AND THE SHORELINE:
PAYING THE COSTS OF BENEFITS CONFERRED

The question to be considered in this Chapter is whether the appro-
priate public authorities may require in-kind consideration from shore-
line landowners in return for benefits conferred upon them via public
shoreline erosion control projects. Analytically, the question is:
can riparian owners be-compelled to pay for some or all of the cost of
an erosion control program that benefits their property. If they can,
the question then becomes whether in-kind consideration, in lieu of
cash, may be demanded. The in-kind consideration in mind here is, of
course, an interest in the benefitted land, an easement or a building
restriction for the Program purposes.

The doctrine upon which one might conclude that riparian owners
can be compelled, as aforesaid, is that of "local improvements."1 Suf-
fice it to say that, if a shoreline erosion control project is a local
improvement, then some or all of the costs thereof may be charged against
that land specially benefitted by the project by levying a special
assessment or imposing a special tax.

This Chapter further proposes the establishment or, at least, the
enablement of Shoreline Erosion Protection Districts by legislation.

1. Herein of Local Improvements

We must now consider, therefore, what is a "local improvement.",2
Interestingly enough, the term is defined neither in the Illinois Con-
stitution3 nor in the statutes.4 It is therefore to the decisional law
that one must turn for definition. Unfortunately, the law is not as
clear as one might wish and, therefore, perhaps the question can be
broken down into its constituent parts for ease of understanding. First,
what. is an "improvement"? Second, what is a "local improvement"? Third,
what units of government have the authority to finance local improvements
by special assessments? Fourth, how must or can a local improvement be
financed? And fifth, how may the costs of local improvements be allo-
cated as between the public generally and the particular lands speci-
ally benefitted? We will not, in this Chaptert consider the question
of how a local improvement may be carried out.

a) What is an Improvement?

One is reminded of'Gertrude Stein's remark that "a rose is a rose
is a rose" for the law seems to state that an "improvement" is whatever

-164-

a municipality may lawfully make, construct or provide for. To deter-
mine what that may be, on~e is directed to a reading of the Illinois Mu-
nicipal Code6 from cover'to cover. However, one critical aspect of what
constitutes an improvement can be identified: There must be permanency
about it. In City of Chicago v. Blair, 7 the city sought to confirm a
special assessment -for an alleged local improvement of a street. The
"improvement" in question consisted of sprinkling the street with water
four times a day between April 15, 1893 and November 15,'1893. Whether
the activities were local or not was not decided in the case because the
court held that sprinkling did not constitute an improvement: it was
not permanent. Therefore the special assessment failed.

Examples of public improvements, of course, are legion: sewer
lnsSparks;9 drainage facilities;10 electric generating facilities,
poles, conductors, lamps and necessary a pI'nes11 waterworks, reser-
voirs and mains; 1stet;3idutl street paving;1 and ee h
wideingof he hicgo ive.16Thus, certainly a shoreline erosion
control project constitutes a public improvement. There are several
problems remaining.

b) What is a "Local Improvement"?

Now the difficulties can be focused upon.. Illinois case law seems
to have developed at least two answers to the question. It remains to
be seen whether they are consistent. First, there is what can be char-
acterized as the narrow rule:

A local improvement is a public improvement which,
by reason of its being confined to a locality, en-
hances the value of adjacent property, as distin-
guished from benefits diffused by it throughout the
municipality; and the test as to whether such an
improvement is local is whether it specially bene-
fits the property assessed. 17

Under this rule the question to be asked, arguably, is only whether the
particular improvement specially benefits the property assessed. If the
4 ~~fact of such benefit can be found, then, presumably, a special assess-
ment may be properly levied.

There is also what may be considered the broad rule:

If its purpose and effect are to improve a locality,
it is a local improvement although there is inci-
dental benefit to the public, but if the primary
purpose and effect are to benefit the public it is
not a local improvement although it may incidentally
benefit property in a particular locality.18

Under this test, the question is not whether particular property is spe-
cially benefitted but rather what the overall, primary or principal pur-
pose and effect of the particular improvement might be. In other-words,
the critical factor is the improvement itself. Under the narrow test,
the critical factor is the enhancement of the value of that land spe-
cially assessed. Finally, there is a line of cases which seems to adopt
both tests.19 The "weight of authority" seems to uphold the broad rule
resulting in a number of interpretative problems.

Let us hypothecate a particular improvement that will confer 40%
special benefit and 60% public benefit. Arguably, under the narrow rule,
the improvement can be treated, in part, as a local improvement--under
the broad rule, it could not. To go even further, a rigorous application
of the narrow rule would allow imposing an assessment in cases where the
special or private benefit was only, say, 10% of the total benefit. One
reaches the same result under both rules as to the characterization of
the public improvement as local or not only in those situations where
the special benefit exceeds 50% of the total benefit.

To examine the matter further: the development of the two rules
follows very clearly from the fact that any improvement is, in some
sense, local20--but any improvement is also, in some sense, public. So
there we have it.- The question is, therefore, at what point do we say
that an improvement is "local enough" -to justify the levying of a spe-
cial assessment or special tax. The two rules are merely different ap-
proaches to the problem.21

One reason why the issue has not been clearly resolved in Illinois
is the practice of dividing or cutting up public works programs into
"local" and "general" parts. Thus, in City of Elmhurst v. Rohmeyer,22
the court made a distinction between sewage treatment plants (general)
and sewer mains (local). In Ewart v. Village of Western Springs,23 the
court distinguished between electric generating stations (general) and
poles, wires, lamps and conductors (local).24

The obvious question i-s whether a shoreline erosion control project
can be bifurcated in a similar fashion. There is Precedent which sug-
gests that it cannot. In City of Chicago v. Law,25 the city sought to
confirm special assessments in connection with the widening of the south
branch of the Chicago River at around West 18th Street. In rejecting
the City's position, the court said:

The Chicago River is a navigable stream of the
United States. The improvement in question was in-
stituted for the purpose of improving commerce . .
The object: to benefit the public at large, to per-
mit boats and vessels to pass up and down the river
with greater facility.26

The court found the improvement, if anything, to be a national improve-
ment. Nor, apparently, did it help matters any when the evidence showed
that the city had not obtained the approval of the Secretary of the
Army.27 The last thing the court seemed concerned about in that case
was whether the project could be separated into general and local parts.
While the case casts a shadow, there are other factors inherent in the
Lake Michigan shoreline context that may yet save the day.

First, the mere fact that public waters are involved is not disposi-
tive of the matter. Consider, for example, the saga of Lake Shore
Drive. 28 The fact that the Drive is located on what used to be the bed
of the Lake does not appear to affect the character or nature of the
road.29 Consider, also the related epic of Lincoln Park's growth and
development.30 Lincoln Park is a park--a public ground--and improvements
thereto may be financed in the usual manner, including, with statutory
authority, special assessments.31

Secondly, the purpose of an erosion control project may have nothing
to do with navigation--a tenuous connection, in fact, at best--but rather,
as its very name suggests, to prevent the shoreline from being consumed.
In such a situation there is absolutely no doubt that riparian landown-
ers are benefitted by such a project. Lake shore property must be worth
more with the assurance that it will not erode into the Lake, in whole
or in part, than it would be worth absent such assurance. Furthermore,
it is hard to make out a case that non-riparian lands are benefitted by
such a project. One supposes that there is some indirect or diffuse
benefit to all land located even remotely near the Lake, but the differ-
ence in the degree or extent of the benefit is almost one of kind. The
analogy would be that the owners of property on block "A" are "benefitted"
by the paving of the alley in block "B" located across the street from
block "A". But one would hardly say that the landowners on block "A"
may be specially assessed for the benefits created or that the landowners
on block "B" may not be specially assessed. No, the problem lies with
the judicial views of what constitutes a local improvement. Assuming
that the broad rule prevails,32 it may prove difficult to define or de-
lineate a shoreline erosion control project the benefits of which are at
least 50%--i.e., primarily--special or local in nature. In this connec-
tion, the fact that some of the lands specially benefitted are owned by
public agencies does not affect the character of the improvement. Put
another way, special benefit to publicly owned lands does not constitute
"public benefit" for purposes of applying the rules on the character of
an improvement.33 Therefore the task, while difficult, may not be impos-
sible. But the Law decision34 at the very least requires that great care
be given to defining a project that confers sufficient private benefit-
so as to permit the levy of special assessments. Also, it is absolutely
necessary that any project receive the approval of the Army Corps of En-
gineers--in advance.35 Finally, it may be possible, in an appropriate
case, to convince the courts to discard or at the very least modify the

-167-

so-called broad rule. We cannot help but note that, once again, a little
help from the legislature through creative law-making will go a long way
towards accomplishing that objective.

c) Authority to Finance Local Improvements by Special Assessments?

It is clear that existing local units of government have requisite
special assessment authority.

In Illinois, counties, municipalities and special districts may fi-
nance improvements by means of special assessments. This power is ex-
pressly given to counties and municipalities by the Constitution.38 How-
ever, Article VII, Section 8, provides that the General Assembly cannot
authorize local units to make improvements by special assessment if they
did not have that power on the effective date of the Constitution.39
Thus, while a unit of government may be created by the General Assembly
to administer shore erosion under the mandate of the Coastal Zone Manage-
ment Program,40 if any of the improvements contemplated under the program
are to be financed by means of a special assessment, such assessment may
only be levied by counties, municipalities or special districts created
prior to 1970. Once again, the necessity for cooperation and intergovern-
ment contract between levels of government to implement the program is
demonstrable.

Special districts are municipal corporations created by the legisla-
ture for the purpose of wielding such governmental powers of the State
and only those powers as the legislature by law has confided to it.41 It
is within the power of the legislature to settle the characteristics of
those functions; to prescribe the extent and duration of the powers dele-
gated to such agencies; and the means whereby it shall be determined
what, and how much, territory the delegated power shall cover.42 While
the legislature may create new special districts to carry out the func-
tions of the program, they would not have the power to levy special as-
sessments. Only those special districts, such as sanitary districts,43
or general purpose units of government having the power to make "local
improvements" which are already authorized to levy special assessments
may be a proper vehicle to construct certain coastal zone shoreline im-
provements to be financed through the assessment technique. Sanitary
district enabling legislation empowers such districts to construct com-
pensating or controlling works in the Great Lakes when it is proper for
the purposes of complying with the Drainage Code.44

Of course, the General Assembly may still authorize a special dis-
trict to finance improvements by ad valorem property tax receipts,45
user fees,46 or bonds. These measures are discussed in other sections
of the Report. The power to derive revenue by means of ad valorem prop-
erty taxes may be granted by the legislature outright, or be conditioned
upon approval of the electors in the district by referendum.47

-168-

Financing aspects of the program by means of -special assessments
is still feasible if done by counties, municipalities or special dis-
tricts with this power. This route is to be distinguished from general
taxation. The Illinois Supreme Court distinguished the two methods in
People v. B & 0 Railroad Co.48 The Court stated that:

The general levy of taxes is understood to exact
contributions in return for the general benefits
of government and it promises nothing to the per-
sons taxed, beyond what may be anticipated from an
administration of the laws for individual protection
and general public good. Special assessments, on
the other hand, are made upon the assumption that
a portion of the community is to be specially and
particularly benefited, in the enhancement of the
value of property peculiarly situated as regards
a contemplated expenditure of public funds; and,
in addition, to the general levy, they demand
that special contributions, in consideration of
the special benefit, shall be made by the persons
receiving it.49

The issue of when a special assessment may properly be levied has also
been addressed by the Illinois courts. The prerequisite for levying a
special assessment is that the property being assessed must derive a
benefit from the improvement being constructed by the funds derived from
the special assessment, to a greater extent than other property. In
general, the benefit is the increase in fair market value of the prop-
erty that will be brought about by the assessment.51

Accordingly, a wide range of possibilities exist for the exercise
of the authority in the Illinois Coastal Zone. One would have to consid-
er, however, whether statutory action is needed, notwithstanding home
rule powers. Certainly the Illinois Department of Transportation, as
guardian of the public trust in Lake Michigan,52 would have to grant its
approval. But, more importantly, since the public trust is directly in-
volved, specific state legislative action is probably necessary.53

d) How Must or Can a Local Improvement be Financed?

The fact that a particular improvement is local does not mean that
it must be financed by a special assessment or special taxation but only
that the public agency has the choice or option of financing the improve-
ment,5,n whole or in part, specially, as noted, or through general taxa-
tion. Usually the question is whether the special assessment or spe-
cial taxation device may be used at all.55 There is reason to believe,
however, that once a series of improvements has been financed by special
assessment, it would be unfair to let further improvements in that series
or of that same general character be financed except by special assess-
ments.56

e) How May The Costs of Local Improvements be Allocated as Between
the Public Generally and the Particular Lands Specially Benefitted?

The great danger is that particular landowners may be forced to pay
for general public benefits. As pointed out by Thorpe and Lucansky,57
the statutory and case law provide that no land shall be assessed a-
greater amount than it is actually benefitted.58 They also point out
that as a rule of thumb at least 10% of the cost of any improvement should
be treated as public benefit.59 If it can be fairly said that the public-
benefit exceeds 10% then perhaps a like percentage of the cost should be
treated as public benefit but whether this result is legally compelled
remains a question.60 As to a particular piece of land receiving a spe-
cial benefit, the rule is clear: the assessment against that particular
parcel may not exceed the benefit determined to have been received or
conferred.

Assuming that said benefit can be calculated,61 then it is evident
that the test for determining whether a particular improvement is a local
improvement ought to be the so-called "narrow" test focusing on whether
a particular parcel has received a special benefit62 rather than the rule
that focuses on the purpose or intent of the improvement in question.63
It is the fact of special benefit and only that fact which justifies the
imposition of a special assessment or special tax. Since, under well-
settled Illinois law the amount of that assessment or tax cannot exceed
the value of the actual benefit, then it should not matter what the pur-
pose and intent of the improvement may happen to be. If we allow the
imposition of the assessment or tax in some cases, why not, simply put,
allow it in all cases? It should be noted that under this approach it
is conceivable that the special assessment device might-be used more
often--but that factor is irrelevant. The difficulty comes in deciding
at what point the benefit actually received becomes de minimis so that
the amount of an assessment approaches zero--a problem that is always
present when an assessment is spread.

It is time to return to basic policy considerations. Recapture of
socially-created value is increasingly recognized as a socially desirable
course of action.64 The special assessment device is one means of effect-
ing such a recapture and its use in Illinois is well-established. There
may be difficulties with its use, as noted,65 but if a special benefit
can be identified, and proven, then the public should be allowed to re-
capture it, regardless of the purpose of the public improvement giving
rise to the special benefit in the first place. The artificiality of
the so-called "broad" rule becomes self-evident and it should be discarded.

A different set of questions is raised with respect to the alloca-
tion or spread of an assessment against those properties specially bene-
fitted. We suppose that it is sufficient that the spread be "fair".66
The traditional approach has been the "frontage" basis,67 but it has

-170-

been subject to much criticism.68 As Thorne and Lucansky indicate, re-
cent Illinois decisions have strongly approved the use of other factors
(such as zoning and highest and best use), creating the possibility for
truly equitable apportionment of a special assessment.

2. Herein of in-kind Consideration

if a shoreline erosion control project is a local improvement, and
if a special assessment is levied against riparian property, the result
is an obligation on the land to pay that assessment, usually over some
number of years.6 The question now is whether the public agency making
the improvement may demand in-kind consideration--an easement or a build-
ing restriction--in lieu of cash.

Several problems are presented here. The first, and the most obvi-
ous one is that the value of the special benefit may bear no relation to
the value of the easement or building restriction sought. Second, what-
ever the value of the special benefit, it will more likely than not be
payable in installments. However, those installments do have a present,
even if discounted, value.

The real issue is whether the process may be short-circuited or con-
solidated from the following approach:

1. Public authority makes improvement

2. Publicl-authority levies special assessment

3. Public authority condemns easement

4. Public authority pays for easement

S. Landowners pays for special assessment

into a synthesized:

1. Public authority makes improvement

2. Public authority levies special assessment

3. Public authority condemns easement

4. Public authority pays difference between the
value of the easement and the present value
of the special assessment (or if the present
value of the special assessment exceeds the

-171-

value of the easement, the special assessment
is modified and reduced accordingly).

The problem is clear: may the special assessment procedure and the
eminent domain procedure be consolidated. There is a great reluctance
to do this. 70Each procedure is set out in its own carefully detailed
statute or statutes and each has become encrusted with the effect of
literally hundreds of decisions. But it is not impossible. Where the
construction of an improvement requires a taking or damnaging of land,
the statutes provide for a joint or combination proceeding.7 Further-
more, offsets are clearly allowed, at the landowner's option, between
condemnation awards and special assessments./`

This procedure is not useful for present purposes. The execution
of an erosion control project does not require the taking of an ease-
ment for public beach use or a restriction against any development so
as to protect scenic or open space values. But certainly the foregoing
illustrates that a consolidation could be provided for by appropriate
legislation. The question, in short, is one of offsets with respect
to which the public authority, not the landowner, would have the option
as to how to proceed. Certainly, it could simplify matters.

-172-

Summrary

The underlying policy issue in this Chapter is the right of the pub-
lic to recapture socially-created value. To the extent that the Illinois
courts will recognize the fundamental importance and significance of that
right, then the question asked at the outset of this Chapter will be (with
appropriate legislation) in the affirmative. We must note again how the
Coastal Zone Management concept requires us to rethink and reformulate
and ultimately to champion and defend, broader and more inclusive notions
of public rights. We saw this in connection with the police power and
the public trust73 and, now, once again in connection with the right to
recapture public value. That all of these issues should converge is not
surprising--the commonalities are clear. The real task is how we choose
to go forward.

-173-

FOOTNOTES

1. The subdivision exaction theory would not appear to be useful be-
cause an exaction, land or fees in lieu thereof, may be had only
when the landowner seeks permission to subdivide. For our purposes;
therefore, one cannot wait until a landowner should decide to
avail himself of the benefit of recording a subdivision plat pur-
suant to a plan of development. The same argument can be made with
respect to planned unit development or other types of incentive zon-
ing: exactions may not be had unless and until the landowner de-
cides to do something. See, generally, "Lake Michigan" Part III.
Local improvements, on the other hand, may be decided upon in most
instances regardless of whether the affected landowners concur or
approve of the particular projects.

2. A comprehensive analysis of local improvement law and procedure can
be found in Thorpe and Lucansky, Special Assessment and Special
Service Areas, (1972). There will be no attempt here to duplicate
their rigorous treatment of the question, and the reader is encour-
aged to review their work. Our concern here will be with the par-
ticular question posed--can a shoreline erosion control project be
deemed to be a local improvement. We will touch upon some of the
matters considered by Thorpe and Lucansky but from a different per-
spective, one shaped by the question at hand here.

3. Ill. Const. (1970) Art. VII H6(1) and (7).

4. Ill. Rev. Stat., ch. 24 99-2-1 et seq. (1975).

5. See Thorpe and Lucansky, supra. n. 2 for an excellent discussion of
this matter. We note at this point that the impact of home rule is
not totally resolved as to whether the procedure set out in the Mu-
nicipal Code, S.H.A. c. 24 �9-2-l et seq. must be followed. See
Thorpe and Lucansky, supra. n. 2 at pp. 21-9 et seq.

6. Ill. Rev. Stat., ch. 24 (1975).

7. 149 Ill. 310 (1894).

8. Loeffler v. City of Chicago, 246 Ill. 43 (1910); City of Belleville
v. Miller, 339 Ill. 360 (1930).

9. Hundley v. Lincoln Park Commissioners, G7 Ill. 559 (1873).

10. Wilson v. Board of Trustees of the Sanitary District of Chicago, 133
Ill. 443 (1890).

-174-

11. Ewart v. Village of Western Springs, 180 Ill. 318 (1899); City of
springfield v. Spring Ry. Co., 296 Ill. 17 (1921).

12. Hughes v. City of Momence, 163, Ill. 352 (1896); O'Neil v. People,
166 Ill. 561 (1897); Village of Downers Grove v. Bailey, 325 Ill.
186 (1927).

13. Village of Glencoe v. Hurford, 317 Ill. 203 (1925).

14. City of Waukegan v. DeWolf, 258 Ill. 374 (1913); Louisville and
Nashville R. Co. v. City of East St. Louis, 134 Ill. 656 (1890).

15. I.C.R.R. Co. v. City of Decatur, 154 Ill. 173 (1894); Enos v. City
of Springfield, 113 Ill. 65 (1885).

16. City of Chicago v. Law, 114 Ill. 569 (1893). A note of caution must
be injected here. To find that a public activity constitutes the
making of an improvement is only the first of several hurdles that
must be overcome.

17. In re Petition of Village of Long Grove, 104 Ill. App. 2d 421, 423
(1969). See, also, City of Elmhurst v. Rohmeyer, 297 Ill. 430 (1921);
Northwestern University v. Village of Wilmette 230 Ill. 80 (1907.).

18. Village of Downers Grove v. Bailey, 325 Ill. 186, 191 (1927). See,
also City of Waukegan v. DeWolf, 258 Ill. 374 (1913); City of Belle-
ville v. Miller, 339 Ill. 360 (1930); City of Springfield v. Spring
Ry. Co., 296 Ill. 17 (1921).

19. Loeffler v. City of Chicago, 246 Ill. 43 (1910); Village of Glencoe
v. Hurford, 317 Ill. 203 (1925).

20. Loeffler v. City of Chicago, 246 Ill. 43, 52 (1910).

21. The narrow rule is clearly the preferable one, in our opinion. Possi-
ble abuses arising from overbearing or overreaching governments can
be adequately protected against.

22. 297 Ill. 430 (1921). Cf. Fisher v. City of Chicago, 213 Ill. 268
(1904).

23. 180 Ill. 318 (1899).

24. In a similar vein, but as to water works, see, e.g., Hughes v. City
of Momence, 163 Ill. 535 (1896).

25. 144 Ill. 569 (1893).

26. 144 Ill. at 576-7.

-175-

27. Shades of the Lake Michigan diversion cases! See "Lake Michigan"
at pp. VII-23 et seq.

28. See "Lake Michigan" at pp. VII-16 et seq.

29. The fact that the Commissioners of Lincoln Park got into trouble
with outdated contracts may be due to the peculiarities of the situ-
ation. But those difficulties do not affect the legal character of
the road once the Legislature passed the necessary legislation.
See "Lake Michigan", supra. n. 28.

30. See "Lake Michigan" at pp. VII-30 et seq.

31. Cf., Hundley v. Lincoln Park Commissioners, supra. n. 9.

32. We must do so, even though the soundness of the rule is subject to
question.

33. Thorpe and Lucansky, supra. n. 2 at p. 21-28.

34. City of Chicago v. Law, 144 Ill. 569 (1893).

35. Illinois has had a tradition of doing things in or to Lake Michigan
without getting the requisite federal approvals. Fortunately, we
believe that unfortunate history has written its final chapter.

36. Thorpe and Lucansky, supra. n. 2 at p. 21-9.

37. Thorpe and Lucansky, ibid., do not appear to consider the precise
question of the joint exercise of the authority. Our conclusion is
based on an interpretation of Art. VII ��6(1) and (7) of the Illi-
nois constitution. It may also be noted that if our reading is cor-
rect then the 1970 Constitution effectively overrules Loeffler v.
City of Chicago, 246 Ill. 43 (1910) to the extent that opinion held
that joint exercise of the authority is violative of the 1870 Con-
stitution.

38. Ill. Const. (1970) Art. VII �6(i), 7.

39. Ill. Const. (1970) Art. VII 98.

40. See discussion of Shore Erosion Protection Districts, infra.

41. People ex rel. Honefenger v. Burris, 408 Ill. 68 (1951).

42. Id. at 76.

43. See e.g., Ill. Rev. Stat. ch. 32 �284.1 (1973).

-176-

44. See, Ill. Rev. Stat. ch. 42 9346 (1973).

45. See e.g., Ill. Rev. Stat. ch. 42 �398 (1973).

46. See e.g., Ill. Rev. Stat. ch. 105 �9-ld (1973).

47. Compare, Ill. Rev. Stat. ch. 42 �228 (1973) with Ill. Rev. Stat.
ch. 111 2/3 9�505, 512 (1973).

48. 390 Ill. 389 (1945).

49. Id., at 391-392.

50. People v. Hollis, 35 Ill. 2d 489 (1966).

51. In re Assessment by Village of Chicago Ridge, 27 Ill. App. 3d 1027
(1975).

52. See, e.g., Ill. Rev. Stat., ch. 10, 965 (1975).

53. See "Lake Michigan", Part IV; and see the statutes discussed therein
at pp. VII-29 et seq. In order to preserve the possibility that
shoreline erosion control project provide4 special benefit any stat-
ute would have to be carefully drafted or worded on this point.

54. Wilson v. Board of Trustees of the Sanitary District of Chicago, 133
Ill. 443 (1890). See, also, Thorpe and Lucansky, supra. n. 2 at
pp. 21-7 to 21-8; and See e.g. S.H.A. ch. 24 99-2-5.

55. Most of the lawsuits arise on challenges, filed by landowners as to
the amount of the special assessment, see, e.g., Ewart v. Village
of Western Springs, 180 Ill. 318 (1899) or, more commonly, to any
assessment at all on the ground that the improvement is not local,
see, e.g., Village of Downers Grove v. Bailey, 325 Ill. 186 (1927).

56. Village of Downers Grove v. Bailey, 325 Ill. 186 (1927). Thorpe
and Lucansky go so far as to suggest that failure to so proceed
might raise an equal protection argument. Ibid. n. 2 at p. 21-8.
Query if the same unfairness exists where a series of improvements
is made by general taxation and it is decided to finance further
improvements by special assessment. If this argument seems familiar,
it ought to. It is frequently raised by developers challenging sub-
division exactions. Since developers frequently lose this argu-
ment (at least outside of Illinois, see "Lake Michigan" at pp. III-32
et seq.), perhaps the unfairness is not as great, at least in those
cases where those now obligated to pay special assessments or spe-
cial taxes are "newcomers" who have not been subject to previous
general taxes to pay for the earlier improvements.

-177-

57. Ibid. n. 2 at p. 21-25.

58. One of the problems in the law of special assessments is the mea-
surement and qualifications of special benefit. The special bene-
fit must be determined at a specific point in time yet when the
landowner sells the benefitted land some time subsequently, the
"benefit" may have completely disappeared, or, on the-other hand,
been found to have been vastly underestimated. Cf. Walker, Taxa-
tion of Law Value Increases, Tax Policy (1971) quoted in Hagman,
Urban and Land Development (1973) at pp. 805-6. But it is neces-
sary to make such calculations in other areas as well as such cases
involving the partial taking or damage to land. The dilemna, one
supposes, is simple enough; how to measure the market value (usually
thought of as involving the sales price) of something to be deter-
mined before it is sold or at least offered for sale. See, also,
n. 50, supra.

59. Ibid. n. 2 at p. 21-28.

60. Ibid. n. 2 at p. 21-28.

61. See, n. 48, supra.

62. See, p.165 supra.

63. See, p.166 supra.

64. See, e.g., Hagman, n. 45, at pp. 774-810.

65. See, e.g., n. 45.

66. See, Ewart v. Village of Western Springs, 180 Ill. 318 (1899).

67. Thorne and Lucansky, n. 2 at pp. 21-25 and 21-26. This approach
simply means that the portion of the cost of an improvement to be
paid for by special assessment is divided by the total number of
frontage feet. That dividend is then multiplied by the number of
frontage feet of a particular parcel in order to calculate that par-
cel's special assessment. We suppose that such an approach could
be used with the Lake Michigan shoreline.

68. Ibid. n. 54.

69. Thorne and Lucansky, n. 2 at p. 21-24.

70. Cf., City of Baldwin Park v. Stoskus, 503 p. 2d 1333 (Cal. 1972).

71. Thorne and Lucansky, n. 2 at p. 21-64.

72. Ibid., at p. 21-68.

73. See, generally, "Lake Michigan."

CHAPTER X--CONCLUSION
MANAGEMENT IN THE ILLINOIS COASTAL AREA:
AN OPPORTUNITY FOR PARTNERSHIP

1. Toward A Management Program

The Illinois Coastal Zone Management Program's purposes, pursuant
to the Coastal Zone Management Act of 1972,1 are to preserve, protect,
develop, and where possible, restore and enhance the resources of Lake
Michigan and the Illinois shorelands of Lake Michigan for this and suc-
ceeding generations. In order to best accomplish these broad purposes,
the concept of "management" embodied in the Act's title is a key ele-
ment encompassing not only traditional regulatory applications to land
and water resources but the application of all of the management tools
available to state and local government, including, but not limited to:

a. Planning;
b. Property acquisition and disposition;
C. Facilities development and maintenance;
d. Financing;
e. Administrative programs providing ongoing ser-
vices;
f. Technical and monetary assistance to others
for their programs;
g. Research and monitoring; and
h. Regulation and enforcement.2

The development of a viable and implemental program--one acceptable
to the federal Office of Coastal Zone Management and the Secretary of
Commerce, to the Governor3 and to the local units of government on the
Lake Michigan shore4--requires a true partnership between the State on
the one hand and the shoreline municipalities on the other. Certainly
the legal analysis suggests nothing less.

A state/local partnership will, at the least:

encourage and assist local governments in the devel-
opment and implementation of local land and water
use management programs to ensure wise use of Lake
Michigan and the Illinois shorelands;5

restate the responsibilities of the State of Illi-
nois regarding issues of greater than local concern
in the management of the Illinois jurisdiction of
Lake Michigan (i.e. the public trust resources) and
those shorelands the uses of which have direct and
significant impact on coastal waters; and

-180-

establish procedures and techniques to facilitate
intergovernmental cooperation among and between
State and local entities.7

The proposed partnership offers a unique opportunity for State and
local governments to share and coordinate with minimal interference by
the state government in the traditional municipal affairs.

2. The Framework

a) The Federal Level

Some perspective on the Program's position vis-a-vis means of man-
agement is critical. The Coastal Zone Management Act of 1972 is speci-
fic in requiring a State wishing to be eligible for program implementa-
tion funds to establish programs at the State level for matters of
greater than local significance.8 These programs include:

a. Special procedures for evaluating land use dir-
ections, such as the siting of regional energy
facilities, which may have a substantial impact
on the environment.9

b. A method for assuring that local land and water
use controls in the coastal zone do not unrea-
sonably or arbitrarily restrict or exclude
those uses of regional benefit.10

In the words of the Office of Coastal Zone Management:

The Coastal Zone Management Program is mandated
to . . . the establishment of a coherent state
structure and process for managing coastal re-
sources.11

One of the earliest analysts of the problems of this country's
coastal shorelines noted the failure of existing institutional arrange-
ments to deal with shoreline problems adequately.12 This failure was a
critical finding of the Act itself. The Act provides the conclusion and,
perhaps, the model for development of an institutional framework in which
proper management is possible:

In light of the competing demands and the urgent
need to protect and give high priority to natural
systems in the coastal zone, present State and lo-
cal institutional arrangements for planning and

-181-

regulating land and water uses in such areas are in-
adequate; and the key to more effective protection
and use of the land and water resources of the coas-
tal zone to encourage the states to exercise their
full authority over the lands and waters in the
coastal zone by assisting the states, in coopera-
tion with Federal and local governments with-Fdd-
eral and local governments and other vitally ef-
fected interests and developing land and water use
programs for the coastal zone, including unified
policies, criteria, standards, methods, and pro-
cesses for dealing with land and water use deci-
sions of more than local significance.13

What are these "models" for management? The Act suggests a minimum
of three broadly stated forms. All three which follow mandate state
government to assume a more vital role in the management process. Thus,
prior to funding approval for state programs under Section 306 of the
Act, the Secretary of Commerce is required to find that the state pro-
gram provides for one or a combination of three very basic management
models:

1. State establishment of standards and cri-
teria for local implementation, subject to
administrative review and enforcement;

2. Direct state land use and water use planning
and regulation; or

3. A program for state administrative review to
determine consistency with the management
program of all local and regional development
plans, projects or land and water use regu-
lation proposed by any state, regional or lo-
cal management authority or private developer,
with the State retaining power to approve or
disapprove.14

In its own analysis, the Washington Office of Coastal Zone Manage-
ment has concluded:

Under Section 306.. a state may use 'any one
or a combination of' the three control techniques
there prescribed. The state must select its
method or methods, support it or them with speci-
fic and adequate legislative authority, and set
forth the means for control and review in the coas-
tal zone management program. This review process

-182-

is intended to ensure the integrity of the coastal
zone program and to assure that state goals for mat-
ters of regional or national concern are not thwarted
by local action either intentionally or simply by
inability to deal with complex land and water use
problems. Under the Act, the state's responsibility
in local affairs need go no further.l�

The Illinois Program in selecting as a means of management alterna-
tives a "state/local partnership" has attempted to recognize the real
limitations on both the role of the State and that of local government
in management process within the context of northeastern Illinois. Those
matters of particularly local concern, those matters which pertain
solely and exclusively to the government and affairs of municipalities,16
should and must remain under local control.17 Those matters of greater
than local concern require treatment and management at a greater than
local level.18 Thus, a determination of which needs are to be given
priority in the emerging coastal zone is an analysis that cannot be made
institutionally at all by a single unit of local government--it is an
analysis that requires a true partnership.

Thus, in opting for a "hybrid" of the management formats--a part-
nership heavily weighted to local government responsibility--the Illi-
nois Program has rejected as untenable any invasions of matters of only
local concern. The basis of the partnership will be in the emerging
statutory or regulatory definition of "matters of local concern"--a defi-
nition that is embryonic in Illinois today.l9

b) The Illinois Context

It has become almost a cliche to report that the State of Illinois
has more governmental authorities at the local level--both general pur-
pose and special purpose--than any other state in the United States.20
Given this vast multiplication -of jurisdictions, it follows'that along
the Lake Michigan shore--the Illinois jurisdiction of which extends but
59 miles and is one of the shortest shorelines in the nation--there ex-
ist a diversity of governments exercising or having the potential to
exercise control of the Lake, its waters and its shore. With the exist-
ing array of management authorities created by the legislature and Con-
stitution and now in competition on this most valuable local, State and
national resource, potential for debacle will exist until the management
authority is coordinated through a partnership arrangement.

The Program's research activities highlight the complexity of the
intergovernmental arrangements and competing governmental jurisdictions
in the Illinois Lake Michigan shoreline area. 1 A few examples should
suffice:

-183-

1. There are fourteen municipalities authorized
to exercise some twenty-three separate, dis-
tinct management functions;22

2. There are a myriad of local, special purpose
units of government--such as local sanitary
districts, park districts and port districts--
exercising no less than twelve distinct manage-
ment functions;

3. There are region-wide23 special purpose govern-
ment authorities and agencies--including the
Northeastern Illinois Planning Commission, the
Metropolitan Sanitary District of Greater Chi-
cago, counties, soil and water conservation
districts and the like--exercising a minimum
of fourteen management functions 'by statute;

4. We have laws qua laws such as the Intergov-
ernmental Cooperation Act,24 the Open Lands
Acquisition Act25 and similar statutes in
the State26 which could, will and do impact
upon the shoreline; and

5. Illinois has no less than fifteen state agen-
cies and commissions ranging from the Depart-
ment of General Services to the Department of
Registration and Education imposing by statu-
tory authority no less than twenty-seven dis-
tinct and separate functions impacting on the
Lake and its shore.

On top of this are superimposed the management functions of federal
agencies and statutes which, in many instances, merely reinforce the du-
plication found at state level.

This multiplicity of governmental structures responsible for vari-
ous types and levels of control in the coastal zone presents significant
obstacles to effective resource management. This dispersal of management
authority and the redundancy of management effort may hinder prompt solu-
tions to critical problems. Conflicts of jurisdiction and authority fur-
ther complicate the situation. Also, there are some problems that, des-
pite the institutional overlapping, are simply not recognized or may be
inadequately addressed. The matrix (Chart 1) which follows illustrates
both the overlap and gap areas by management function and agency in
Illinois.

-184-

CHART il SLUMARY CHTRT OF EXISTING MANAGCEM NT ACTIVITIES IN THE COASTAL AREA

a Ya

PRINIPA7 a-6
C 0 6. 0 0 W rj a48
C 1. owa A
- ~UNT 88 8 U U U CO U ; ~ C
coveRN~~~nn 48 0 88 8 8~P
I- a - v
IN %4 48 %8 8 a4

U P U A a a t
v ~ ~ ~ ~ ~ ~ ~ ~ a a 0. 0
RESOURCE~~~~~. 03 88 M WA a3 Qa a -'M U)a

A. COMM E ~ ~ ~RICIPAL 88 088io 467 0 678 74 0467 .
POR~~~~~~~~NTSO A ND 16. 17 8 8U U .
SP3 48 aae s upply- a n d de-i of

Water quality and uquid'veste 7 1 4 5 456 145
A. COSMERCY\L ~mnagement 57~8 156 678 1 2 3 I

RESOUCES 8 67
D. ENERGY 7. Energy research and development

RESOURCES 7mnt ll56 8 67 79234 15 6 2 396 71 dlI
8.~~~~~~~~ ~ Perv a to of historic an .11238 Ii 8 123 2,1 4
0. U .5 88 .~ .~ 48 88 88 4

Cultural~~~~~~~4 site * 48 4670 47 78 1~48

9. Copeenieland usfc utrreore p l a n n i n g ;3r?3
mAnd rewdedvement program 17 6677l 1145 145 14559 5
E. LATAND 56 456 4eie ic~so67 17 17 1 7 J6 157 67 67 67 14

10. La atrsupl nd use reulatio 5 6 6767 1 46

3. Water gualfty slid iiauid~~~~~~~~~~~~~~~~~~piistaa 6 7 111 kll 147
.1evelopment I 48 6 Al l28 157 All 6 4 l 43 s a 1 28 4

F. LANDNATER 12 . Con strution Activities Alongl 13 4 5 1345 3a

INTZKFACE cat nldn roincnrlAI5 78 67 37 4 7 4 7581 5 AJA l l
13 E7. Fneri4es8 88 and willif a 8aa 3ment i s
RESOURCES .Ire ~~78 67 7 8 U 1A 17 78 67 C 1561 5

I. Maanagement 3o om riaL A Al l 1458 Il
A. COMMERuiAL navigation 47 8 5 67 7 2 4 17 1

R 2. Commretioal por devel opment1342
and management 6Il 56 8 67 24 7 147 63 7 678 16 71A 135

30. Iland surfaeg 5attea s ervice pr o grams
mangeen Al 867 6 67 67 Al 156 1 5355 5
1~ ~ ~~1 3.a WATERttinfciiie 2

UP 2 . Paoery auppl and div-erhicl a n d m6o 234 ssa4nc
ANDFAC voaste fromdn Lae Michgn 67trl l 67 7 6 7 1615917 67 58 15 17 I

5. REREATITOOLS. er Fuaiyaciit d evelmad maite n 7R 1s5 456h sd m n i
_______________d management 78 1 56 578 7l 143 5 7 673147 7F 67. 56 167 a nd enforceme
_ _ _ _ _ _ I I il * 1
D.~ ~ ENRG . Energyreseoarc hand development I3 3 2
REORE 36d 78aemn 678 78 23 156 j 23

8. Presrvatio of historic and ilt~o 123 123oito 234ehialadmntryassa

9. Cmprhenivelan u~ planningi 143lpmn 145aneace 7IRsac admntrn

10.4~inc Lan use regulation 146�frcml

-iss-~~~~~~~~~~~L l

What is the sum and substance of this ever-increasing multiplication
of functional, jurisdictional authority? The institutional framework
within which Lake Michigan exists inside the Illinois boundary consists
of no less, than forty governments exercising no less than one hundred
management activities. The examples of jurisdictional overlap and con-
flict abound. The examples of duplication in jurisdictional authority,
in permit authority, in regulatory authority, in land acquisition and
facilities development authority bespeak the need for not less than the
coordination that a partnership will produce.

Although examples of the breakdown in regulatory enforcement by rea-
son of jurisdictional redundancy abound, several citations to particular
problems are apt to point to the need for coordination.

1. In 1967, the Illinois General Assembly pro-
vided that, in addition to municipal approval,
prior to county recording th~eState must ap-
prove all subdivision plats for land on the
Lake Michigan shore.

No person shall offer or present for record-
ing or record any subdivision plat of any lands
bordering on or including any public waters of
the State in which the State of Illinois has
any property rights or property interests, un-
less such subdivision plat is under the seal
of a registered Illinois Land Surveyor and is
approved by the . . . (Division of Water Re-
sources).2

Recent plat activities of at least one shore-
line'community 28indicates a lack of attention
to the statutory mandate by both municipali-
ties and counties and, for that matter, the
State.

2. 'Within a single section of the Lake, as illus-
trated on Chart 2, not less than seven (7)
governmental units and agencies within the
State alone exercise some form of police pow-
er, regulatory control over navigation and
water use-related activities--the General
Assembly having granted coextensive juris-
dictions to each of the units cited--even
though, in every conceivable instance in
which the lake would be used, the State re-
tains final authority.

CH-ART 2

F?~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~IT 1M53 "1--.'

r. M3-3 *~~~13-

S ~ ~ SG
~~~~~~~~~~~~~~~~ElPA
,ll ~~~~~~~~~~~~~~Cout

3. Present statutory and home rule authority for
the management of construction activities
along the shore (including erosion hazard con-
trol) could involve at least the following
agencies and units of government in an advisory,
review or regulatory capacity:

a. The affected municipality (with possible
input from other "downshore" municipali-
ties);29

b. United States Army Corps of Engineers;30

c. United States Department of Commerce;31

d. U.S. E.P.A.;32

e. U.S. Department of Interior;33

f. U.S. Department of Transportation;34

g. Illinois Department of Conservation;35

h. IEPA;36

i. Division of Water Resources (IDOT);37

j. Illinois DLGA;38

k. Great Lakes Basin Commission;39

1. NIPC;40

m. County with jurisdiction;41

n. Park District with jurisdiction;42

o. Sanitary District with jurisdiction;43 and

p. Port District with jurisdiction.44

Some of these governments merely review and comment--others have
permit authority--but the impact for a developer (be it private or pub-
lic) can be untoward through unintended delay in approval or rejection
with consequent impacts upon financing of public as well as private im-
provements.

-188-

The proposed partnership will coordinate not only at the State and
local levels but at the federal level as well, thus providing a criti-
cal expedition of the shoreline permit processes.

c) The Public Trust45

The sole areas of exclusive State jurisdiction today and as pro-
posed in the Illinois state/local partnership are the public trust re-
sources--the waters of Lake Michigan and the bed of the Lake. The pub-
lic trust in the Lake and its bed is not a matter that can be delegated
by the State,46 but the input of local government into the trust adminis-
tration can be made a reality through partnership.

As Chart 2 indicates, the State, through the General Assembly, has
subdivided procedural jurisdiction over the public resource while re-
taining in the State the substantive control. Neither home rule nor the
charter governments of Winnetka, Glencoe and Lake Forest47 affect this
ultimate trusteeship in the State. The trust, simply stated, is the ob-
ligation of the State to hold certain public resources for the use of
all of the people of the State. Perhaps, the United States Supreme Court
articulated the doctrine's meaning most succinctly in its landmark de-
cis~ion affecting the Illinois shore:

The State can no more abdicate its trust over prop-
erty in which the whole people are interested, like
navigable waters and soils under them, so as to
leave them entirely under the use and control of
private parties, except in the instance of parcels
mentioned for the improvement of the navigation and
use of the waters, or when parcels can be disposed
of without impairment of the public interest in
what remains, then it can abdicate its police pow-
ers in the administration of government and the
preservation of the peace. In the administration
of government the use of such powers may for a
limited period be delegated to a municipality or
other body, but there always rema'ins with the
State the right to revoke those powers and exer-
cise them in a more direct manner, and one more
comformable to its wishes. So with trusts con-
nected with public property, or property of a spe-
cial character, like lands under navigable waters,
they cannot be placed entirely beyond the direc-
tion and control of the State. 48

Presently, the State administers the trust through the permit, flood
plain and platting responsibilities of the Division of Water Resources.49

The State itself has not always in the past exercised its trusteeship
with maximum diligence, but the proposed partnership will clearly focus
the trusteeship, input local government perspectives into the enforce-
ment and restate and underscore the statutory mandate that:

[Tlitle to the bed of Lake Michigan . . .is held
in trust for the benefit of the Peoples of...
Illinois and . . . the State [shall] jealously
guard the same in order that the true and natural
conditions thereof may not be wrongfully and im-
properly changed to the detriment and injury of
the State of Illinois.50

d) Home Rule

without equivocation, home rule offers to the Program a unique oppor-
tunity to innovate and expand upon the role of local government in the
local/state partnership. The powers of home rule governments no longer
rest, in Illinois, on state legislation but are enabled by a broad con-
stitutional mandate:

a home rule unit may exercise any power and
perform any function pertaining to its government
and affairs including, but not limited to, the
power to regulate for the protection of the pub-
lic health, safety, morals and welfare, to license,
to tax; and to incur debt.51

Thus, as this Report concludes,5 even home rule units were limited
in the exercise of their powers to matters pertaining to their local gov-
ernment and affairs--just as are non-home rule units and chartered towns
and villages. Further, the Illinois Constitution of 1970 specifically
mandated that environmental matters were of State concern--an area where
the Illinois Supreme Court has held that legislation of even a home rule
unit " . . . must conform with the minimum standards established by the
legislature."53

It can be concluded from the history of home rule in Illinois to
date that a determination of whether local action falls within the prov-
ince of its "government and affairs," the impact of the local action must
be considered. If the result affects only the municipality itself, with
no extra-territorial impacts or affects, the subject is clearly within
the power of local self-government and is a matter for the determination
of the municipality alone. However, if the result is not so confined in
impact or affect, it becomes a matter for the legislature.

The partnership concept flows from these built-in restraints on lo-
cal government action. The public trust resources, those matters of
greater than local concern, those actions of local government which ex-

clude regional interests, uses which have a direct and significant im-
pact on the public trust resource--all are presently beyond any single
local unit's management authority. Yet, tnrough partnership effectively
created and executed, local government enters into the management frame-
work not only of matters purely local but in the regional sense as well.

3. Rules Applied--The Emerging Partnership

a) The Lake Area

As indicated on Chart 3, the Lake Area--a "Public Trust Zone" as
proposed would be defined in the traditional essence of the doctrine--
the waters and bed of Lake Michigan. Within this district, the State,
as is the case today, would, through a streamlined permit process, man-
age all activities. The partnership would, however, contemplate a local
government and regional agency clearinghouse process for all permit ap-
plications with a strict timetable.5 in addition to referral to affected
units of local government and the Northeastern Illinois Planning Conmmis-
sion, the State's Division of Water Resources would also refer matters
within its jurisdiction to affected agencies at the State level.

Thus, notwithstanding the final permit-issuing or finding agency
at the State level, all applications for permits or financial assistance
requiring State action would be made through the Division whose obliga-
tion it will be to coordinate and see the process through to conclusion.

The existing permit process is both cumbersome and confusing. in
addition, it is without a time restraint on the issuing body, thus open-
ended. 55 The Program will attempt, through the State Coastal Zone Inter-
Agency Task Force,5 to obtain agreements with State level agencies on rea-
sonable time limits for permit decisions within an administrative pro-
cess that is consistent agency-by-agency.

In addition to a coordinated permit process for the Public Trust
Zone within the State hierarchy of governments, the Division will attempt
to coordinate permit and funding applications through the Federal level
as well. Thus, a single application, through the Lake Michigan Manage-
ment Section of the Division of Water Resources, will be processed with
the requisite State and Federal agencies whose review, comment and ap-
proval is required under law. For an example of how the process might
operate in practice, see Chart 4 following.

The legislation or regulations, as the case may be, implementing
the management of the Lake Area would clearly articulate and codify the
mandate of the Illinois Supreme Court that proposed uses of public trust

-191-

KSl a3 a .., ..5

Winth~op Hatrbo ~ S;O.

ala~~~~~~~~~~~3 561

RUAST~~~~~~~~~~~~~~~J. I I
2a 3 a ,
a~~~~~~~~~~~aII

L . I t.t
an~~~~~ a

'& ~ ~~~~~~~~~~~~~~~~~~~~ . .514

14~~~~~~~42

Hi~~~~h~~and Park ~~~~~~~~ ~~ . RF 'is 1

~~~~~~~~~~~~~~Is

$,tall~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ao~.:

16 Ia~~~~~~~~~~~~~~~~~~

Vaalrneue~~~~~~ M ~AST
M a S

* ~~~~sat e cudr
2$92 on B o u n d 'ar

CHART3~~~~ a ~ ' ~-

CHART 4

PERMIT PROCESS: LAKE FILL

q Applicant
City

i3 |Local Permit Requirements

i i
i [ City . Port
- i Council g District

State
Division
of
Water Resources

.ini . INN, I Mg MI a IX WN a mn M U 2a -1 a R a w* "M - a i F
:,,, -, -,-,-,_-,-.,-X,-~-.-,-_,__,
' Review]& Comment Permit Aprovals

US Army
C i ty City NIPC *'a I PA Corps USEPA

Conservation i:= USDOT

'I'.

30-90 days

ulvision , .!, rml. (if required by law) I
Water Resources.

-193-
PERMIT

lands would be approved only pursuant to conditions clearly demonstrat-
ing: (1) that public bodies would control use of the area in question,
(2) that the area would be devoted to public purposes and open to the
public, (3) the diminution of the area of original use would be small
compared with the entire area; (4) that none of the public uses of the
original area would he destroyed or greatly impaired; and (5) that the
disappointment of those wanting to use the area of new use for former
purposes was negligible when compared to the greater convenience to be
afforded those members of the public using the new facility.57

In summary, though the State's exercise of management powers in the
Lake Area would be exclusive, the state/local partnership would, at the
least:

(a) Provide for coordination at local, state and
federal levels of government;

(b) Provide a single focus for permit applications
rather than the confusing "door to door" process
of today;

(d) Establish an administrative process for local
government and regional input so that all
local and regional facts are considered; and

(e) Codify the conditions of the public trust.

b) The Shore Area (SA)

As illustrated within the hypothetical boundaries on Chart 5, in-
land of the Lake Area would be critical environment zone identified as
the Shore Area--a land area adjacent to and impacting upon the Lake. Area
and requiring the application of both state and local management tools.
The criteria for the hypothecated boundary would be that the land within
the SA be:

(a) Shoreline adjacent; and 1

(b) Within the still water line of the 100 year
flood in the coastal area flood plain; or

-194-

CHART 5
A CRITICAL ENVIRONMENT ZONE

@ ~~~~AREA

KEY

Public Trust Zone

Shoreline
Floodplain Boundary
Critical Environment Zone

-195-

That shoreline area subjected to a Shore Area designation by local gov-
ernment would be the critical example of the "partnership."

The State presently has, pursuant to its authority to coordinate
and plan for the protection of flood prone areas58 in addition to its
permit issuance authority,59 adequate power to regulate flood plains.
The Department of Transportation, Division of Water Resources, is charged
with the authority, at the present time, to issue permits for any con-
struction within the flood plain.60 Pursuant to other statutory author-
ity, the Division is empowered to undertake construction, reconstruction,
maintenance and other similar land development work to protect flood
prone areas.61 Thus, not only can the State take measures to construct
flood control operations, it presently has the right through regulation
to limit other construction--the two strongest tools in the regulatory,
management process. The Department's flood plain regulatory and manage-
ment powers62 bespeak a partnership arrangement in that the existing
statutory authority directs the Department to take into consideration
the management requirements of other units of government.63 Buttressing
the State role in the management of flood plains is the public trust
doctrine itself. The waters in the coastal flood plain are, ipso facto,
coastal waters. The pollutants that enter Lake Michigan from the reces-
sion of flood waters are within the ambit of the public trusteeship im-
posed on the State by the doctrine. Erosion hazard areas fall within
the flood prone area definition. Chart 6, prepared by the Illinoi-s..
Geological Survey, exemplifies the relationship between lake level and
erosion--with erosion reaching an undeniable peak with the peaking of
lake levels this year. In many areas-, the causes of flooding and ero-
sion are identical: the wave action of the Lake on the land, thus the
management can be consistently applied. There can be no doubt under
the court decisions interpreting the public trust doctrine in Illinois64
and elsewhere65 that land standing adjacent to or near navigable waters
exists in a special relationship to the State and therefore may be re-
quired to undergo state regulation and management.

How then can a partnership serve both the interests of local and
state government in the Shore Area? It is proposed that by legislation
the General Assembly establish minimum standards for the SA with imple-
mentation by local government. Municipalities would then be given both
a time frame in which to develop management techniques for this area and
the funds, pursuant to Section 306 of the Coastal Zone Management Act of
1972, with which to apply the technical expertise necessary to implement
the management program. A municipality--a general purpose unit of gov-
ernment6 --developing a CZM Program would submit that program to the
Division of Water Resources, Lake Michigan Management Section, for cer-
tification that the minimum Program standards have been met. Once cer-
tified, local government--not the State as is now the case--would be re-
sponsible for issuing permits for construction, development and use

-196- -

1947 46 49 50 5! 52 53 54 55 56 51 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76

Z I5 LAKIE LEVEL
o ~~~~~~~~~~~~~~~IGLD I

UA~~~~~~~~~~i (0-579

* 45- - 578 I.

40 I-- 577-

_ 1 ~~~~~~~~~~~~~~~~~576

PERCENT

within the Shore Area. The State, rather than issue permits in these
areas, would analyze the permit process on an annual basis to determine
that the actions taken under the certified program are in conformity
therewith. Any amendments to the comprehensive Program regulations would
similarly require certification by the Division. Because of the fragile
nature of the land within the proposed Shore Area, should a municipality
fail to take such action to develop minimum standards and a regulatory
process within the time frame mandated by legislation, the State would
be required to adopt and enforce the same. To do less would deprive
the comprehensive program of its vitality and would violate the spirit
as well as the intent of the Coastal Zone Management Act of 1972 and,
thereby, deprive the overall Program of funding. Many affected units of
government already have comprehensive flood plain regulations (e.g.,
Highland Park67) and others have already determined that the lake front
is a critical resource deserving of different and special attention be-
yond that of other areas (e.g., the City of Chicago ba). Thus, under the
partnership process the following would sequentially occur:

(a) The State would mandate the establishment of
Shore Areas and would establish minimum
standards for the management of the critical
environmental resources herein;

(b) within an established time frame municipali-
ties would create an SA setting standards
meeting the minimum mandated by the state
legislation or going beyond,

Cc) The Division of Water Resources would then
certify the local government action as meet-
ing the State minimum standards (or, in the
alternative, in the event that a municipality
elected not to participate, the Division
would establish said standards);

(d) The unit of local government (or the Division
in the event that a unit of local government
did not establish minimum standards) would en-
force its management techniques with periodic
reports to the Division.

Thus, in the truest sense, a partnership could be achieved whereby the
state interests would be protected through minimum standards and local
administration would be the focus. This would create along the Lake
Michigan shore an atmosphere of local action that does not now exist in
the area of flood plain regulation and, through local action, the regional
and state and national interests could be assured.

-198-

c) The inland Area (IA)

Through the recommended Coastal Zone Program process, the manage-
ment of resources beyond the still water flood plain line and the 100
year recession line of hazard prone areas is also feasible and desirable.
Thus, the management program would require that local governments, in
their local management programs presented for certification, adequately
manage those uses with a direct and significant impact on the Lake, its
shore, waters and bed. The uses within this Inland Area which would be
required to be managed would include, but not be limited to the ~follow-
ing:

(a) Uses which deposit storm water in coastal waters;

(b) Uses which encroach upon the Shore Area; -

Cc) Uses which cause sediment to enter coastal
waters;

Cd) Uses which impact upon access to coastal waters
or uses which have direct access to coastal wa-
ters;

(e) Uses which utilize the surface of coastal wa-
ters; and

(f Uses which affect currents or littoral drift.

As indicated on Chart 7, these uses may or may not be directly adjacent
to the LA or SA but would be included within the Program-for purposes of
management. Through the concept of the Program management process--so
integral to the local/state partnership proposal--the State may be as-
sured that uses of greater than local concern are being managed on a
coordinated basis through the establishment of minimum state standards
for the treatment thereof while at the same time, local government will
continue to implement the management program on a day-to-day basis.

4. conclusion

The development of a viable State program of Coastal Zone Manage-
ment grows from a series of perceptions: perceptions of need, percep-
tions of power, perceptions of space. The "opportunities for partner-
ship" to which this Chapter is addressed grows out of the legal percep-
tion of where legal power resides and where that power should, in fact,
be vested. Given the legal restraints on the exercise of home rule au-
thority,, given the doctrine of the public trust, given the panoply of4

-199-

CHART 7

LA
.. ..

.Coast
Proposed
Development

KEY

Coast
SA W

-200-

police power regulatory techniques in place in northeastern Illinois and
the interplay of governments within the coastal communities--a partner-
ship is possible and desirable. This Report bespeaks its need.

-201-

FOOTNOTES

1. 16 U.S.C.A. 991451-1464; 15 C.F.R. Pts. 920-26.

2. Zile, A Legislative--Political History of the CZMA, 1 CZM Journal
236 (1974) (hereinafter "Zile").

3. See, Hershman, Achieving Federal--State Coordination in Coastal Re-
sources Management, 16 Wm. &.Mary L. Rev. 747 (1975); see, also,
16 U.S.C.A. �1455.

4. This recognizes the political realities of an urbanized shoreline.
See, also, Zile, supra., n. 2.

5. 16 U.S.C.A. 91454(b); 15 C.F.R. Pt. 923.13-923.16.

6. See, eg., First Year Work Product, ICZMP, Vol. I, ch. IV; and 16
U.S.C.A. 11453(a); and Robbins and Hershman, Boundaries of the Coas-
tal Zone: A Survey of State Laws, 1 CZM Journal 305 (1974).

7. 16 U.S.C.A. �1452-1453, See, Hershman and Folkenroth, Coastal Zone
Management and Intergovernmental Coordination, 54 Ore.L.Rev. 13
(1975).

8. 16 U.S.C.A. �1454(b).

9. 16 U.S.C.A. 01455(c).

10. 16 U.S.C.A. 91454.

11. OCZM, Draft Threshold Paper #6 "ORGANIZATION" p. 1 (1976).

12. Ducsik, SHORELINE FOR THE PUBLIC (1974).

13. 16 U.S.C.A. '1451.

14. 16 U.S.C.A. 91455(e).

15. OCZM, Draft Threshold Paper #7: "AUTHORITIES," p. 3 (1976).

16. See, e.g., CH. II, supra.

17. Ibid.

18. Id.

-202-

19. Id.

20. See, e.g., Report to Governor, Commission on Urban Area Government
(1972).

21. The authors have prepared a research document for the ICZMP--PRES-
ENT MANAGEMENT AND PLANNING ACTIVITIES--LAKE MICHIGAN AND ITS SHORE:
A WORKING COMPENDIUM that highlights the jurisdictional morass (here-
inafter "Compendium").

22. Compendium, supra, n. 21, V.I.

23. The "region" is the Chicago SMSA as defined by the U.S. Bureau of
Census.

24. Ill.Rev.Stat., ch. 127 9741, et seq. (1975).

25. I11.Rev.Stat., ch. 85 H�2101-2111 (1975).

26. See, Compendium, supra., n. 21, V.I., Index I.

27. Ill.Rev.Stat., ch. 115 �13 (1975).

28. The Village of Glencoe in conjunction with the "Bronner Subdivision"
in 1975.

29. I11.Rev.Stat., ch. 24 �11-123-9 (1975).

30. See, e.g., 33 U.S.C.A. �1344; NRDC, Callaway, 7 E.R.;C. 1784 (1975).

31. 16 U.S.C.A. ��1451-1464.

32. 33 U.S.C.A. �1344; and 33 U.S.C.A. ~�1341.

33. 33 U.S.C.A. �1165.

34. 14 U.S.C. �2, 963a5 (1975).

35. Ill.Rev.Stat., ch. 105 9468 (1975); ch. 127.

36. Ill.Rev.Stat., ch. 19 �61a (1975).

37. Ill.Rev.Stat., ch. 19, ��65-65e incl. (1975).

38. Ill.Rev.Stat., ch. 127 163b14.14 (1975).

39. Ill.Rev.Stat., ch. 127 ��192.1--192.4, incl. (1975).

-203-

40. Ill.Rev.Stat., ch. 85 l1101 et seq. (1975).

41. Il.Rev.Stat., ch.. 34 �3103 (1975).

42. Ill.Rev.Stat., ch. 105 ��11.1-2 & 11.1-3 (1975).

43. E.g., Ill.Rev.Stat., ch. 42 ��326 et seq. (1975); ch. 42 �299 (1975).

44. E.g., Ill.Rev.Stat., ch. 19, ��179-192, incl. (1975).

45. See, n. 6, supra.

46. Ibid_

47. Chartered prior to the 1870 Illinois Constitution.

48. Illinois Central Railroad Company v. Illinois, 146 U.S.. 387 at 453,
454 (1892).

49. See, e.g., Ill.Rev.Stat., ch. 19 s�65-65f, incl. (1975).

50. Ill.Rev.Stat., ch. 19 971 (1975), and, also, Ill.Rev.Stat., ch. 19
354 (1975) reading:

"It shall be the duty of the Department of Transportation to have
general supervision of every body of water within the State of
Illinois wherein the State or the people of the State have any rights
or interests whether the same be lakes or rivers, and at all times
to exercise a vigilant care to see that none of said bodies of wa-
ter are encroached upon or wrongfully seized or used by any private
interest in any way, except as may be provided by law and then only
after permission shall be given by said department, and from time to
time for that purpose, to make accurate surveys of the shores of
said lakes and rivers, and to jealously guard the same in order that
the true and natural conditions thereof may not be wrongfully and im-
properly changed to the detriment and injury of the State of Illi-
nois."

51. Ill. Const. Art. VII �6.

52. See, Chapter II, supra.

53. City of Chicago v. Pollution Control Board, 59 Ill. 2d 484 at 489
(1974).

54. The Illinois Environmental Protection Agency is presently the only
factor in the permit process with a time restraint.

-204-

55. This has been a major complaint of public bodies.

56. Established by informal agreement.

57. As found in Paepcke v. Public Building Commission, 46 Ill. 2d 330,
at 343, 344 (1970).

58. Ill.Rev.Stat., ch. 19 965f (1975).

59. Ill.Rev.Stat., ch. 19 965 (1975).

60. Ill.Rev.Stat., ch. 19 �65f (1975).

61. Ill.Rev.Stat., ch. 19 9126a--128.3, incl. (1975); ch. 42 9�481 &
482 (1975).

62. Ibid.

63. Ill.Rev.Stat., ch. 19 �65f (1975).

64. Supra, n. 6,

65. Ibid.

66. See, Ill. Const. Art. VII �1.

67. See, ch. , supra.

68. Ibid.

-205-

LAKE MICHIGAN AND CHICAGO LAKEFRONT

PROTECTION ORDINANCE.

Passed By
The City Council of the City of Chicago
October 24, 1973.

j~~ ~ ~~~~~ ,

APPENDIX
-206-

CITY COUNCIL--CHICAGO

WHEREAS, The waters and environs of Lake Michi- (c) To maintain and improve the purity and
gan are one of the greatest natural assets of the quality of the waters of Lake Michigan;
City of Chicago; and (d) To insure that construction in the Lake
WHEREAS, Over the years the city administrations or modification of the existing shoreline shall
have made such great efforts to insure a pure and not be permitted if such construction or modi-
plentiful water supply as digging a 28 mile channel fication would cause environmental or ecological
to reverse the flow of the Chicago River and cre- damage to the Lake or would diminish water
ating the world-famous Metropolitan Sanitary Dis- quality; and to insure that the life patterns of
trict; and fish, migratory birds and other fauna are recog-
WHEREAS, The City has developed by land-fill the nized and supported;
20 mile long stretches of beach and shoreline en- (e) To insure that the Lakefront Parks and
joyed to this day by millions of persons-residents the Lake itself are devoted only to public pur-
and visitors; and poses and to insure the integrity of and expand
WHEREAS, Traditionally Chicagoans have used the quantity and quality of the Lakefront Parks;
their Lakefront for such myriad recreational pur-
suits as swimming, boating, water sports, pic- (f) To promote and provide for continuous
nicking, bicycling, horseback riding, scenic walks pedestrian movement along the shoreline;
and rest areas; and (g) To promote and provide for pedestrian ac-
WHEREAS, NO other Great Lake city has shown cess to the Lake and Lakefront Parks from and
the same kind of concern or initiative to achieve, through areas adjacent thereto at regular in-
preserve, and develop its Lakefront potential for tervals of one-fourth mile and additional places
aesthetic and recreational purposes; and wherever possible, and to protect and enhance
WHEREAS, The foregoing has been accomplished vistas at these locations and wherever else
at the same time that the city's port facilities have possible;
been expanded to make it the world's largest in- (h) To promote and provide for improved pub-
land port; and lic transportation access to the Lakefront;
WHEREAS, Fourteen Basic Policies for the preser- (i) To insure that no roadway of expressway
vation and improvement of this priceless heritage, standards, as hereinafter defined, shall be per-
exemplified in The Lakefront Plan of Chicago, mitted in the Lakefront Parks;
have been approved by the Chicago Plan Commis-
sion, and the Commissioners of the Chicago Park (j) To insure that development of properties
District, and adopted by the City Council; and adjacent to the Lake or the Lakefront Parks is
WHEREAS, The people of the City of Chicago have so designed as to implement the above-stated
a personal interest in preserving this incomparable purposes, provided, however, that with respect
asset and this concern has been demonstrated by to-property located within the Private Use
every generation of its citizens; now, therefore, Zone as established by Articles V, VI, and IX
of this Ordinance, the permitted use, special
Be It Ordained by the City Council of the City of use, lot area per dwelling unit, and floor area
Chicago: ratio provisions of The Chicago Zoning Ordi-
SECTION 1. Pursuant to the provisions of the nance, Chapter 194A of the Municipal Code of
Constitution of the State of Illinois of 1970, the Chicago, shall govern except where such pro-
Municipal Code of Chicago is hereby amended by visions are in substantial conflict with the pur-
adding a new chapter thereto, to be numbered poses of this Ordinance or the Fourteen Basic
194B and known as the Lake Michigan and Chi- Policies of the Lakefront Plan of Chicago;
cago Lakefront Protection Ordinance, as follows: (k) To achieve the above-stated purposes, the
Article I-Declaration of Intent. appropriate public agency should acquire such
194B-1. Lake Michigan and the Lakefront of properties or rights as may be necessary and
194B-1. Lake Michigan and the Lakefront of d .
the City of Chicago are hereby designated a dis-esrable;
trict having special environmental, recreational, (1) To define and limit the powers and duties
cultural, historical, community, and aesthetic in- of the administrative body and officers as pro-
terests and values. It is the express legislative vided herein;
intention of this Ordinance to insure the preserva- (m) Nothing contained in the Lake Michigan
tion and protection of that district and of every and Chicago Lakefront Protection Ordinance
aspect of its interest and value. shall be deemed to be a waiver or consent,
Article II-Title. license or permit to use any property or to
194B-2. This chapter 194B, Sections 194B-1 locate, construct or maintain any building, struc-
through 194B-9.2, shall be entitled and referred ture or facility or to carry on any trade, indus-
to as "The Lake Michigan and Chicago Lakefront try, occupation or activity which may be other-
Protection Ordinance". wise required by law.
Article mn-Purposes. Article TV-Rules and Definitions.
194B-3. This Ordinance is adopted for the fol- 194B-4.1. RuZes. In construing this Ordinance,
owing purposes: the rules and definitions contained in this Article
(a) To promote and protect the health, safety, shall be observed and applied, except when the
comfort, convenience, and the general welfare context clearly indicates otherwise;
of the people, and to conserve our natural re- (a) Words used in the present tense shall in-
sources; ldude the future; the words used in the singular
(b) To identify and establish the Lake Michi- number shall include the plural number, and the
gan and Chicago Lakefront Protection District plural the singular.
and to divide that District into several zones
wherein any and all development or construc- (b) The word "shall" is mandatory and not
tion, as specified in Article V hereinafter, shall discretionary.
be specifically restricted and regulated; (c) The word "may" is permissive.

CITY COUNCIL-CHICAGO
(d) Where the regulations imposed by any pro- Article V-Lake Michigan and Chicago Lakefront
vision of this Ordinance are either more restric- Protection District.
tive or less restrictive than comparable regula-
tions imposed by any other provision of this 194B-5.1. Prohibitions. It shall be unlawful for
Ordinance or of any other law, ordinance, reso- any physical change, whether temporary or per-
lution, rule or regulation of any kind, the regu- manent, public or private, to be undertaken, in-
lations which are more restrictive (or which eluding, but not limited to, landfill, excavation,
impose higher standards or requirements) shall impoundment, mining, drilling, roadway building
govern, or construction of any kind, within the Lake
Michigan and Chicago Lakefront Protection Dis-
(e) In their interpretation and application, the trict, as hereinafter set forth in sub-paragraphs
provisions of this Ordinance shall be held to be 194B-5.2 and 194B-5.3, or for any acquisition or
the minimum requirements for the promotion of disposition of real property by a public agency,
the public health, safety and welfare. whether by sale or lease, or other means, to be
(f) This Ordinance is not intended to abrogate consummated within the Lake Michigan and Chi-
(f) This Ordinance is not intended to abrogate c
any easement, covenant, or any other private ago Lakefront Protection District, as hereinafter
agreement, provided that, where the regulations set forth in subparagraphs 194B-5.2 and 194B-5.3,
agreement, provided that, where the regulations Without first having secured th4 and t94B-5 3
of this Ordinance are more restrictive (or ba- without first having secured the approval therefor
of this Ordinance are more restrictive (or im-
pose higher standards or requirements) than from the Chicago Plan Conmission as provided
such easements, covenants, or other private in Article VI of this chapter; provided, however,
agreements, the requirements of this Ordinance that the following shall be exempt from the pro-
~~~~~shall govern, ~hibition aforestated: improvements on any property
subject to a Planned Development Ordinance
(g) "Him", "he", or "his" means and includes adopted prior to the effective date of this Ordi-
both the male and female gender. nance; accessory buildings; repairs and rehabilita-
tion which do not exceed fifty (50) percent of the
194B-4.2. Definitions. total cost of replacement of the existing structure;
(a) Accessory Building-An accessory build- additions which do not increase the site coverage
ing is one which is subordinate to and serves or the height of the structure; and residential
in principal building; and which is subordinate structures containing not more than three dwelling
in area, extent, or purpose to the principal
building; and which contributes to the comfort, 194B-5.2. District. The Lake Michigan and Chi-
convenience or necessity of occupants of the cago Lakefront Protection District shall be com-
principal building; and which is located on prised of all of that part of Lake Michigan that lies
the same zoning lot as the principal building. within the State of Illinois south of the northern
(b) Applicant -An applicant is the owner of limits of the City of Chicago as extended eastward;
the subject property or a duly authorized repre- all the shoreline of the City of Chicago including
sentative. all harbors, piers, breakwaters, and the locks of
the Chicago River; all the system of public open
(c) Expressway-An expressway is any pri- space and public ways which comprises the Lake-
mary highway constructed as a freeway which front Parks; and all lands contained within the
has complete control of access and is designed Private Use Zone set forth in the District maps
for speeds in excess of 45 miles per hour. illustrated in Article IX of this Ordinance, attached
hereto and made a part hereof.
(d) Public Agency-A public agency is any
agency of the United States Government, State 194B-5.3. Zones. The Lake Michigan and Chi-
of Illinois, any county, township, district, school, cago Lakefront Protection District shall be divided
authority, municipality, or any official, board, into three zones:
commission, or other body politic or corporate (a) The Off-Shore Zone shall include all surface,
or subdivision of the State of Illinois, now or subsurface and air-rights areas of Lake Michigan
hereafter created, whether herein specifically to a distance eastward to the east line of the
mentioned or not.
State of Illinois lying in Lake Michigan.
(e) Public Open Space-A public open space is
any publicly owned open area including, but (b) The Publ c Use Zone shall include all pub-
not limited to, parks, playgrounds, beaches, lic open space and public ways irrespective of
waterways, parkways, and streets. configuration which are adjacent to the Shore-
line of Lake Michigan as set forth in the District
(f) Public Way-A public way is any sidewalk, maps illustrated in Article IX of this Ordinance.
street, alley, highway, or other public thorough-
fare. (c) The Private Use Zone shall include all
zoning lots contained within the Private Use
(g) Use-The use of property is the purpose Zone set forth in the District maps illustrated
or activity for which the land, or building there- in Article IX of this Ordinance, attached hereto
on, is designed, arranged, or intended, or for and made a part hereof.
which it is occupied or maintained, and shall
include any manner or performance of any ac- [District Maps attached to this ordinance printed
tivity which is regulated by any other provision on pages 6492 to 6525 of this Journal]
of the Municipal Code of Chicago.
(h) Zoning Lot-A zoning lot is a single tract
of land located within a single block, which (at 194B-6.1. The Chicago Plan Commission shall be
the time of filing for a building permit) is desig- the agency responsible for the administration of
nated by its owner or developer as a tract to the Lake Michigan and Chicago Lakefront Protec-
be used, developed, or built upon as a unit, tion Ordinance and shall have the following powers
under single ownership or control. Therefore, a and duties in addition to those powers and duties
zoning lot may or may not coincide with a lot presently contained within the Municipal Code of
of record. Chicago:

CITY COUNCIL--CHICAGO

(a) To receive from any applicant or public (d) The Commission shall conduct the public
agency an application, on such forms as the hearing as provided by subparagraph (b) hereof
Commission may provide, to undertake any land- and shall provide a reasonable opportunity for
fill, excavation, impoundment, mining, drilling, all interested parties to express their opinions
roadway building or construction regulated by under such rules and regulations as the Com-
this Ordinance and receive from any public mission shall adopt for the purpose of governing
agency an application, on such forms as the the applications and proceedings of the Com-
Commission may provide, to acquire or dispose mission. Each speaker at any hearing shall be
of property regulated by this Ordinance; to fully identified as to name, address and interests
review, approve or disapprove said application, which he represents. Said public hearings shall
provided that (1) a public hearing is noticed be concluded within thirty (30) days after com-
and held in accordance with the provisions of mencement thereof; provided, however, that the
subparagraphs (b), (c), (d) and (e) hereof, Commission may grant such extensions of time
and (2) a written report is prepared and filed as the applicant may request, said extensions of
with the Commission by the Commissioner of the time to be deemed a waiver of the thirty (30)
Department of Development and Planning in ac- day period herein provided to the extent of the
cordance with the provisions of paragraph continuance granted.
194B-6.2 hereof. The forms provided by the (e) The Commission shall make a determination
Commission shall not require detailed working with respect to the proposed application, plan,
drawings or plans. design or proposal in writing within thirty (30)
(b) Within seven (7) days from the date of days after the hearings are concluded and shall
receipt of said application, the Commission shall notify the forwarding public agency and the
schedule a public hearing on the question of applicant of the Commission's approval or dis-
same setting forth a date within sixty (60) days approval thereof, setting forth findings of fact
thereof, time and place and causing written constituting the basis for its decision. The de-
notice to be given the transmitting public agency cision of the Chicago Plan Commission shall be
and the applicant. The Commission shall cause made in conformity with the purposes for which
a legal notice to be published in a newspaper this Ordinance is adopted as set forth in Article
of general circulation in the City of Chicago m hereof, as well as the Fourteen Basic Policies
setting forth the nature of the hearing, the contained in the Lakefront Plan of Chicago
property involved and the date, time and place adopted by the City Council on October 24, 1973.
of the scheduled public hearing. Said public The decision of the Chicago Plan Commission
hearing shall be scheduled on a date not less shall be deemed a final order and binding upon
than fifteen (15) days nor more than thirty all parties. Failure of the Commission to make
(30) days from the date of publication of notice. a determination within the time hereinabove
(c) In addition to the notice requirements here-, prescribed shall be deemed a disapproval.
inabove provided, each applicant subject to the (f) Whenever possible and practicable any hear-
provisions hereof shall, not more than thirty ings required by law to be held by the Commis-
(30) days before filing said application, serve sion affecting the same property shall be held
written notice, either in person or by certified concurrently.
or registered mail, return receipt requested, on
the owners of all property within 250 feet in 194B-6.2. The Commissioner of the Department
each direction of the lot line of the subject of Development and Planning shall have the follow-
property, said owners being such persons or ing duties and responsibilities:
entities which appear from the authentic tax (a) To forward every proposal or application
records of Cook County; provided, that the submitted to the Chicago Plan Commission under
number of feet occupied by all public roads, the provisions of this Ordinance to the Depart-
streets, alleys and other public ways shall be ment of Environmental Control and to any other
excluded in computing the 250 feet require- public agency he shall deem appropriate.
ment; provided, further, that in no event shall
this requirement exceed 400 feet. Said notice (b) To receive from the Commissioner of En-
shall contain the address of the subject prop- vironmental Control, and any other public agency,
erty, a brief statement of the nature of the ap- a report of comments or recommendations.
plication, the name and address of the applicant (c) To make such investigation relative to each
and the statement that the applicant intends to application or proposal as he deems necessary.
file said application on an approximate date. (d) To prepare and forward to the Chicago Plan
If, after a bonafide effort to determine such ad- Commission a written report which shall include
dress by the applicant, the owner of the property his findings and recommendations on each appli-
on which the notice is served cannot be found at cation or proposal no less than five (5) days
his or its last known address, or the mailed prior to the scheduled hearing.
notice is returned because the owner cannot be
found at the last known address, the notice re- (e) To forward within five (5) days to the Chi-
quirements of this provision shall be deemed cago Plan Commission certain applications for
satisfied. In addition to serving the notice herein a permit, as specified in Section 194B-5.1 of this
required, at the time of filing application, the Ordinance, in any Planned Development located
applicant shall furnish to the Commission a within the Lake Michigan and Chicago Lake-
complete list containing the names and last front Protection District.
known addresses of the owners of the property (f) To forward within five (5) days to the Chi-
required to be served, the method of service cago Plan Commission such applications for
employed and the names and addresses of the permit not exempted in Section 194B-5.1 of this
persons so served and said applicant shall also Ordinance and not in any Planned Development
furnish a written statement to the Commission located within the Lake Michigan and Chicago
certifying that the requirements hereof have Lakefront Protection District, and to return to
been complied with. The Commission shall hear the Commissioner of Buildings such applications
no application unless the applicant furnishes the as are exempted by Section 194B-5.1 of this
list and certificate herein required. Ordinance.

CITY COUNCIL--CHICAGO

(g) To receive the decision of the Chicago Plan garded as committed each day upon which each
Commission prior to the issuance of any permit person shall continue any such violation, or per-
and to consider that decision binding. mit any such violation to exist after notification
(h) To approve all applications for permits as thereof.
specified in Section 194B-5.1 of this Ordinance 194B-7.2. Notwithstanding the provisions of sub-
when said permits conform to the decision of paragraph 7.1 hereof, in the event any structure or
the Chicago Plan Commission. building, landfill, excavation, impoundment, mining
1943-6.3. The Commissioner of Buildings shall or drilling has been undertaken in violation of this
have the following duties and responsibilitieschapter, the City of Chicago may institute appro-
priate legal or equitable proceedings to prevent the
(a) To forward within five (5) days to the Chi- completion or maintenance of said unlawful under-
cago Plan Commission and the Commissioner of taking.
Development and Planning any application for Article VIM-Severability.
a permit in the Lake Michigan and Chicago
Lakefront Protection District, together with a 194B-8. If any provision, clause, sentence, pam-
statement of zoning considerations by the Zon- graph, section, or part of this chapter, or application
ing Administrator, at any location within the thereof to any person, firm, corporation, public
Lake Michigan and Chicago Lakefront Protec- agency or circumstance, shall, for any reason,
tioln District. be adjudged by a court of competent jurisdiction
to be unconstitutional or invalid, said judgment
(b) To receive the decision of the Chicago Plan shall not affect, impair or invalidate the remainder
Commission, and the approval of the Commis- of this chapter and the application of such provi-
sioner of Development and Planning, prior to sion to other persons, firms, corporations, public
the issuance of any permit and to consider that agencies, or circumstances, but shall be confined in
decision binding. its operation to the provision, clause, sentence,
194B3-6.4. The Commissioner of Environmental paragraph, section, or part thereof directly in-
Control shall, upon receipt of any proposal or ap- volved in the controversy in which such judgment
plication as hereinabove provided, conduct an in- shall have been rendered and to the person, fm,
vestigation of the ecological and environmentl corporation, public agency, or circumstances in-
impact of said proposal and fvolved.i It is hereby declared to be the legislative
to the Commissioner of Development and Eli intent of the City Council that this chapter would
in writing within the earliest feasible planing have been adopted had such unconstitutional or in-
time after receipt thereof. valid provision, clause, sentence, paragraph, sec-
me aferrcephetion, or part thereof not been included.
194B-6.5. Any public agency that proposes to
acquire or dispose of any real property whether by Article IX-District Maps.
sale or lease, or other means, or proposes a physi- "
cal change including but not limited to landfill, - -.1 . The location and boundaries of the
excavation, impoundment, mining, drilling, roadway Ds t and its three zone established by tis
building or construction of any kind, whether Lake Michigan and Chicago Lakefront Protection
permanent or temporary, within the Lake Michigan Ordinance are shown upon the following District
and Chicago Lakefront Protection District, shall maps which are hereby incorporated into this Lake
forward that proposal to the Chicago Plan Commis- Michigan and Chicago Lakefront Protection Or-
sion not less than ninety (90) days, nor more than dinance. The said District maps, together with
365 days prior to the initiation of the action pro- everything shown thereon and all amendments
posed. thereto, shall be as much a part of this Lake Mich-
igan and Chicago Lakefront Protection Ordinance
Article VU-Penalties and Remedies. as is fully set forth and described herein.
194B-9.2. (1) Where District boundary lines
194B-7.1. Any person found guilty of violating, are indicated as following streets or alleys or ex-
disobeying, omitting, neglecting, or refusing to tensions thereof, such boundary lines shall be con-
comply with, or resisting or opposing the enforce- strued to be the center lines of said streets or
ment of any of the provisions of this chapter, ex- alleys or extensions thereof.
cept when otherwise specifically provided, 'upon
conviction thereof shall be punished by a fine of (2) Where District boundary lines are indicated
not less than Fifty Dollars ($50.00) nor more as adjoining railroads, such boundary lines shall
than Three Hundred Dollars ($300.00) for the first be construed to be the boundary lines of the rail-
offense and not less than Two Hundred Dollars road rights of way, unless otherwise dimensioned.
($200.00) nor more than Five Hundred Dollars (3) Where District boundary lines are indicated
($500.00) for the second and each subsequent of- as adjoining expressways such boundary lines-shall
fense in any 180-day period; provided, however, be construed to be the boundary -lines of the ex-
that all actions seeking the imposition of fines only pressway rights of way, unless otherwise dimen-
shall be filed as quasi-criminal actions subject to sioned.
the provisions of the Illinois Civil Practice Act
(IIl. Rev. Stat. 1971, ch. 110, pars. 1 et seq.). Re- (4) Dimensoned Dstrict boundary lines shown
peated offenses in excess of three (3) within any on the maps are intended usually to coincide with
180-day period may also be punishable as a mis- lot lines. Where a dimensioned boundary line co-
demeanor by incarceration in the county jail for incides approximately but not exactly with a lot
a term not to exceed six (6) months under the line which existed on the effective date of incorpo-
procedure set forth in Section 1-2-1.1 of the Ilinoisuch boundary line into the map(s), the
Municipal Code (. Rev. Stat. 1971, ch 24, par. aid boundary line shahll be construed to include the
1-2-1.1) and under the provisions of the Illinois ai
Code of Criminal Procedure (Ill. Rev. Stat. 1971, SEC0ON 2. This ordinance'shall take effect on
oh. 38, pars. 100-1, et seq.), in a separate proceed- and after ten days from the date of its due passage
ing. A separate and distinct offense shall be re- and publication.