Title: American Bar Foundation Research Journal, Vollume 1978 Spring, No. 2 - Coastal Land Management: An Introduction
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Title: American Bar Foundation Research Journal, Vollume 1978 Spring, No. 2 - Coastal Land Management: An Introduction
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THE AMERICAN BAR FOUNDATION is engaged in research
to enlarge the understanding and improve the functioning of law and
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Coastal Land Management:

An Introduction

Gilbert L. Finnell, Jr.



During the 1970s, the "coastal zone"-that ecologically unique area
where sea and land meet and strongly influence each other'-has become a
principal laboratory for experiments in new land management tech-
niques.2 These coastal experiments are producing institutional arrange-
ments that involve every level of government, and the implementation of
the programs may well affect every citizen of the United States.

Gilbert L. Finnell, Jr., is Professor of Law, University of Houston, and Affiliated Scholar,
American Bar Foundation. B.B.A., 1959, J.D., 1963, Southern Methodist University; LL.M., 1967,
Harvard University. The author began research for this series of articles on coastal land management
while a Visiting Scholar at the American Bar Foundation in 1975. The articles are being submitted in
partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the Faculty of
Law, Columbia University.
The author acknowledges his gratitude to those who made this study possible. Chief among them
are his Columbia doctoral committee, consisting of Professors Frank P. Grad (chairman), Curtis J.
Berger, and Albert J. Rosenthal, and those who supplied the financial and other essential support, in-
cluding the deans and faculties of the University of Houston and Florida State University colleges of
law, and Professor Spencer L. Kimball and the American Bar Foundation.
Special gratitude is expressed to the Honorable Reubin O'D. Askew, Governor of Florida, whose
appointments of the author to the Governor's Task Force on Resource Management (1971-72),
Florida Environmental Land Management Study Committee (1972-74), and Florida Law Revision
Council (1974-76) contributed greatly to the author's understanding of the functioning and interrela-
tionships of the legal and political processes that underlie the management of coastal resources.
1. The subject of this study is the landward portion of the "coastal zone," defined generally in the
Federal Coastal Zone Management Act of 1972, 16 U.S.C. 1453(1) (1976) [hereinafter cited as
FCZMA] as
the coastal waters (including the lands therein and thereunder) and the adjacent shorelands
(including the waters therein and thereunder), strongly influenced by each other and in prox-
imity to the shorelines of the several coastal states, and includes islands, transitional and inter-
tidal areas, salt marshes, wetlands, and beaches.... The zone extends inland from the shore-
lines only to the extent necessary to control shorelands, the uses of which have a direct and
significant impact on the coastal waters.
These areas are more specifically defined by participating states. For example, the California Coastal
Act of 1976, Cal. Pub. Res. Code 30103 (West 1977), establishes a general zone 1,000 yards land-
ward, with larger zones in certain environmentally sensitive areas and smaller ones in urban areas.
The "coastal zone," it should be emphasized, is composed of unique natural resources that may re-
quire different land management techniques than urban land areas. The administrative decision-
making systems analyzed in this study may have value in resolving some urban disputes, but the reader
should recognize that these coastal programs mainly regulate exurban areas.
2. For a history of coastal zone management, see, e.g., the "Stratton Commission Report," Our
Nation and the Sea-a Plan for Action, Report of the Commission on Marine Science, Engineering


1978 American Bar Foundation










154 AMERICAN BAR FOUNDATION RESEARCH JOURNAL


The water's edge is the site of many disputes. Some of them involve the
inevitable clash between private and public interests: a private landowner's
wish to develop his land, for instance, may conflict with the public's
interest in beach access. The competition of environmental, economic,
and social values is the source of other disagreements: a decision to build
an energy support system may result in neglect of environmental protec-
tion needs; or an effort to protect a coastal marsh-an area critical to one
region's fishing industry-may require a reduction in the construction of
housing and recreational accommodations.
Disputes over use of coastal lands raise important questions about how
the individual citizen will interact with government, and how local, state,
and national governments will relate to one another. The outcome of these
disputes is important not only because of immediate concerns, such as
energy use and recreational needs, but also because the resulting institu-
tional arrangements could have significant effects on the degree of per-
sonal liberty in American society.3
This issue of the Research Journal includes the first of a series of my
articles on some evolving institutional arrangements for planning and
regulating the use of coastal lands. "The Federal Regulatory Role in
Coastal Land Management,"4 which follows, examines the existing and
potential direct and indirect federal role in coastal land management. The
succeeding articles will examine the state and local roles, primarily in
California and Florida.
Although the study focuses mainly on intergovernmental relationships
in coastal land management, the coastal experiments were chosen for
analysis because I believe they are in the vanguard of current, rapid
changes that will have lasting effects on the evolution of American land
planning law. The principal investigation is of selected legislative changes
during the period from 1972 through 1977. During these years, environ-
mental and energy "crises" provided the political impetus for substantial


and Resources (Jan. 1969); 2 Frank P. Grad, Treatise on Environmental Law 10.04 [2], at 10-205
(New York: Matthew Bender, 1977); Daniel R. Mandelker, Environmental and Land Controls
Legislation 225 (Indianapolis: Bobbs-Merrill Co., 1976); Zile, A Legislative-Political History of the
Coastal Zone Management Act of 1972, 1 Coastal Zone Management J. 235 (1974).
3. See, e.g., Lon L. Fuller, Freedom-a Suggested Analysis, 68 Harv. L. Rev. 1305 (1955), for an
analysis of how individual freedom can suffer as a system evolves from an "organization by
reciprocity" to an "organization by common ends." Id. at 1316. Fuller, although not generally decry-
ing such organizational changes, nevertheless warns that, if freedom is to be realized in an organiza-
tion by common ends, attention must be given to setting forth the aims of the organization, to the
methods used in realizing the aims of the organization, and to assuring maximum participation by all
parties in decisions affecting the organization. Id. at 1318-19. He also warned of "the inevitable
tendency of effective control over the organization and its members to drift into the hands of those
who actually manage it." Id. at 1319.
4. See p. 169 infra.


1978:153











No. 2 COASTAL LAND MANAGEMENT 155


institutional reform. The programs of the "sun belt" states of California5
and Florida6 were chosen for evaluation because, although the two states
are similar-each being a major, diverse growth state-they experimented
with different approaches to institutional reform. In many respects,
though, there has been a convergence of their approaches. Each continues
to assign major planning and regulatory roles to local governments but
within a framework for monitoring the extraterritorial effects of local
governments' decisions. Indeed, it is tempting to predict that, by 1981 or
so, California's and Florida's programs will appear remarkably similar.
Passage of California's "Proposition 13"7 and recent developments in
Florida,8 however, suggest that this conclusion might be premature. Both
states' programs are still in a period of ferment.
A particularly significant aspect of the coastal experiments is the chang-
ing role of national government. Although the federal government has
always had a major role in regulation of coastal activities, this role, until
recently, was restricted mainly to regulation of activities affecting
"navigable" water bodies. Landward of such jurisdictional boundaries as
"mean high tide line," regulatory authority was generally left to the states
or their delegates. The increase in the federal presence has resulted from
numerous regulatory programs, such as those administered by the Army

5. The California article, scheduled to appear in a forthcoming issue of the Research Journal,
primarily analyzes the implementation of the California Coastal Zone Conservation Act of 1972
(repealed on Jan. 1, 1977) ("Proposition 20") and the succeeding California Coastal Act of 1976, Cal.
Pub. Res. Code 30000-30900 (West 1977 & Cum. Cupp. 1978).
6. The Florida article, to follow the California article, will analyze several of Florida's relevant
acts, with principal emphasis on the implementation of the Environmental Land and Water Manage-
ment Act of 1972, Fla. Stat. Ann 380.012-380.10 (West 1974 & Cum. Supp. 1978), which was bas-
ed upon the ALI's Model Land Development Code art. 7 (1976).
7. The widely publicized tax limitation, approved by the people, June 6, 1978, adding art. 13A,
1-6 to the California constitution. See West's Cal. Legis. Serv. 1978, no. 4, at xxv-xxvi.
8. The Florida article will show how several of Florida's recent land-planning and regulatory acts,
e.g., the Environmental Land and Water Management Act of 1972, Fla. Stat. Ann. ch. 380 (West
1974 & Cum. Supp. 1978); State Comprehensive Planning Act of 1972, Fla. Stat. Ann.
23.011-.0191 (West Cum. Supp. 1978); and the Local Government Comprehensive Planning Act of
1975, Fla. Stat. Ann. 163.3161-.3211 (West Cum. Supp. 1978), could easily be combined with the
state's environmental regulatory programs to produce a coastal management program similar to
California's. During 1977-78, however, Florida's Department of Environmental Regulation (DER)
recommended a program to the 1978 Florida legislature that would have provided for a stronger direct
state regulatory role, based primarily on the state's environmental regulatory programs. See the
Department of Environmental Regulation's Florida Coastal Management Program (Legislative
Draft, Mar. 1, 1978). The DER's coastal management program was expressly rejected in the Florida
Coastal Management Act of 1978, S.B. 2-D, 5-10. Thus, the Florida legislature seems to be
resisting moves toward a stronger state role in coastal zone management than the state-local
cooperative programs the legislature enacted in 1972 and 1975.
Another recent development relates to Florida's ALI-derived "Areas of Critical State Concern"
process, Fla. Stat. Ann 380.05 et seq. (West. 1974 & Cum. Supp. 1978), which could have been the
core of a coastal regulatory process designed to give local governments a maximum planning and
regulatory role. The critical areas process, which has been used sparingly in Florida, was "tainted," at
least temporarily, by the decision in Cross Key Waterways v. Askew, 351 So. 2d 1062 (Fla. 1st Dist.
Ct. App. 1977), which held the act's standards for guiding the governor and cabinet in designation of











156 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:153


Corps of Engineers9 and the Environmental Protection Agency.10 To date,
the trend in coastal land management is not toward federal preemption of
state and local authority but rather toward "cooperative federalism."
Indeed, the Clean Water Act of 1977," for example, indicates that Con-
gress intends to allow states, if they wish, to have a major voice in
wetlands regulation as long as states can provide assurance that state im-
plementation is consistent with federal standards.

I. CHANGING CONCEPTS OF PROPERTY

A. "Property as Process""12

The coastal experiments highlight some significant changes in our
juridical concepts of "property."' First, more attention is being given to
how property questions are decided, and second, efforts are being made to
differentiate among the various objects of property.
The judiciary has never developed a consistent theory of property.'1
Too often, a court leaves the impression that a claimed right was "prop-
erty" only because the court decided to enforce a particular "right-duty"
or other Hohfeldian relationship." The underlying policy reasons for en-
forcing one claim and denying enforcement to another are often obscure.
There have been some notable judicial efforts to explain why certain prop-
erty relationships may be enforced in one context and not in another. The
New Jersey Supreme Court, in State v. Shack, for example, clearly ex-

certain kinds of areas of critical state concern inadequate and unconstitutional under the separation of
powers section of the Florida constitution. Arguments in Cross Key occurred before the Florida
Supreme Court in Jan. 1978; the Florida article will analyze the supreme court decision, if handed
down by that time.
9. See my article, The Federal Regulatory Role in Coastal Land Management [hereinafter cited as
The Federal Role], 1978 A.B.F. Res. J. 169, at notes 1-272 and text at same.
10. Id. at notes 488-557 and text at same.
11. 404, 33 U.S.C.A. 1344 (West Pamph. 4 Feb. 1978).
12. See generally Charles M. Haar & Lance Liebman, Property and Law 1027-46 (Boston: Little,
Brown & Co., 1977).
13. Lawyers are trained to distinguish between those legal relationships called "property" and the
"object" of those relationships, such as land. "Property," when used in this study, means those
rights, privileges, powers, and immunities and the correlative duties, no-rights, liabilities, and
disabilities that form the basis of legally enforceable expectations. See, e.g., Curtis J. Berger, Land
Ownership and Use 3-18 (2d ed. Boston: Little, Brown & Co., 1975); John E. Cribbet & Corwin W.
Johnson, Cases and Materials on Property 1-29 (4th ed. Mineola, N.Y.: Foundation Press, 1978);
Restatement of Property 1-4 (1936); Wesley Newcomb Hohfeld, Some Fundamental Legal Con-
ceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).
14. This criticism has often been noted. See, e.g., the remarks by Donald Hagman and Julian
Juergensmeyer at the seminar presented at the Florida House of Representatives by the Committee on
Natural Resources, The Constitutional and Legal Limits to the Regulation of Private Land 140-41
(Tallahassee, Jan. 23-24, 1975).
15. See, e.g., Berger, supra note 13, at 4-11; Hohfeld, supra note 13.
16. 58 N.J. 297, 277 A.2d 369 (1971).


I










COASTAL LAND MANAGEMENT


plained why a migrant farm worker's interest in access to certain govern-
mentally supplied legal services outweighed a landowner's right to ex-
clude, under the provisions of a trespass statute, those who would supply
the services. Equally noteworthy, the Wisconsin Supreme Court, in Just v.
Marinette County,"1 looked to the object of the claimed property right, a
coastal marsh, and enunciated a theory that sharply differentiates a
coastal marsh from other land objects. The judiciary's difficulty in
establishing a theory of property may simply reflect a judicial belief that
the "relativization" of property and its objects is best left to legislative
bodies and their delegates-bodies better equipped to study and under-
stand the competing issues and better designed, because of their political
responsiveness, to declare what constitutes "the public interest" or
"welfare."
The California Coastal Act of 197618 is an excellent example of a state
legislature's efforts to articulate the meaning of "property." Local,
regional, state, and national public welfare are considered under the
California program. Policies, principles, and standards are provided at the
state level as a framework within which local governments continue to
develop increasingly precise standards and rules. 9 Florida's planning and
regulatory legislation offers similar potential.
Property litigation raising constitutional issues often refers to the
"public interest" or "general welfare," ambiguous terms that, more often
than not, gain meaning only when an adjudicating body gives them ad hoc
definition. These terms not only imply complex environmental, economic,
and social relationships but also call for definition of the "public" whose
welfare is at stake.
Courts, in zoning litigation, have long intoned the "substantial relation

17. 56 Wis. 2d 7, 201 N.W.2d 761 (1972).
18. Cal. Pub. Res. Code 30000-30900 (West 1977 & Cum. Supp. 1978).
19. Throughout this series of articles, I shall use these terms with the following meanings, unless
the context indicates otherwise.
1. Rule. "The most precise form of authoritative general direction.... [A] rule may be de-
fined as a legal direction which requires for its application nothing more than a determina-
tion of the happening or non-happening of physical or mental events-that is, determina-
tions of fact." Henry M. Hart, Jr., & Albert M. Sacks, The Legal Process: Basic Problems
in the Making and Application of Law 155 (tentative ed., Cambridge, 1958) (authors'
italics omitted).
2. Standard. "A standard may be defined broadly as a legal direction which can be applied
only by making, in addition to a finding of what happened or is happening in the particular
situation, a qualitative appraisal of those happenings in terms of their probable conse-
quences, moral justification, or other aspect of general human experience." Id. at 157.
3. Principles and Policies. "Notably to be contrasted with rules and standards are principles
and policies .... A policy is simply a statement of objective.... [A] principle also describes
a result to be achieved. But it differs in that it asserts that the result ought to be achieved
and includes, either expressly or by reference to well understood bodies of thought, a state-
ment of the reasons why it should be achieved .... Primarily, principles and policies are
used and useful as guides to the exercise of a trained and responsible discretion. Usually,
this means official discretion." Id. at 159-60.


No. 2










158 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:153


to the public health, safety, morals, or general welfare" rubric.20 But how
is this "public" defined? The exclusionary zoning problem has encour-
aged the New Jersey Supreme Court, in the 1975 Mount Laurel case,21 to
refer to a "regional general welfare." This and other such commendable
judicial efforts22 discourage parochial local governments from ignoring
the extraterritorial effects of their actions.
Ultimately, though, mechanisms for determining local, regional, state,
or national welfare ought to be established legislatively. Courts should
encourage legislative efforts to establish mechanisms that assure that all
affected citizens will be represented in significant land use decisions. The
extraterritorial impact issue is as important in resource management
controversies as it is in housing disputes.
The American Law Institute's Model Land Development Code2
represents an admirable effort to respond to many of these problems; yet,
as I shall later explain, the complexities of coastal decision making-or
decision making concerning the use of any critical natural resource-re-
quire more flexible decision-making systems than the ALI code envisions
and require more attention to officially adopted standards by which these
flexible decisions can be measured. Both California and Florida are giving
increased attention to how property decisions are made and to the for-
mulation of the guiding standards. The federal environmental programs
are undergoing similar scrutiny.
Bruce Ackerman suggests2" that property compensation law is in serious
disarray, in part because of a conflict between what he calls "Ordinary
Observing" and "Scientific Policymaking."25 He draws attention to the
obvious discrepancy that often exists between the Scientific Policymaker's
juridical concepts of property and the prevailing cultural values as seen by
the Ordinary Observer. "[T]he judge," Ackerman notes, "may seek to
resolve his initial legal perplexity either by moving far more deeply into a
specialized legal culture or moving away from self-consciously legal norms
into the more general culture."26 Ackerman's "new world" of property

20. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926).
21. Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d
713, appeal dismissed, 423 U.S. 808 (1975).
22. See, e.g., Berenson v. Town of New Castle, 38 N.Y.2d 102, 341 N.E.2d 236 (1975); Township
of Willistown v. Chesterdale Farm, Inc., 462 Pa. 445, 341 A.2d 466 (1975).
23. ALl Model Land Development Code (1976).
24. Bruce A. Ackerman, Private Property and the Constitution (New Haven: Yale University
Press, 1977).
25. "[A] Scientific Policymaker is an analyst who (a) manipulates technical legal concepts so as to
illuminate (b) the relationship between disputed legal rules and the Comprehensive View he
understands to govern the legal system. In contrast, an Ordinary Observer is an analyst who (a)
elaborates the concepts of nonlegal conversation so as to illuminate (b) the relationship between
disputed legal rules and the structure of social expectations he understands to prevail in dominant in-
stitutional practice." Id. at 15.
26. Id. at 21.










COASTAL LAND MANAGEMENT


would achieve "a coherent legal stance-be it Ordinary Observing or
Scientific Policymaking or some sensible eclectic combination."27
The emerging systems of California and Florida, although undoubtedly
more akin to Ackerman's "Scientific Policymaking" model, potentially
could become a "sensible eclectic combination," not only for coastal land
management purposes but also for purposes of compensation law.
Prevailing social norms necessarily will, and should, affect judicial atti-
tudes toward compensation questions, and representative legislative
bodies are more institutionally competent to understand and reflect these
norms than are the courts. Using the California coast as an example, the
local coastal programs that are scheduled to be in effect by the early
1980s28 ought to be invaluable aids in reflecting and reconciling the diverse
cultural values of most Californians. Whether the California program at-
tains this goal will depend largely, of course, on whether the preparation
of local coastal programs includes enough effective public participation to
prevent the system from being dominated by a professional administrative
class influenced mostly by well-financed development interests loyally op-
posed by an elite corps of coast watchers.

B. Trends in American Planning Law

The coastal experiments are part of some significant legislative trends in
American planning law. At least four trends are apparent. First, levels of
government "higher" than local governments are doing more planning
and regulating,29 especially with regard to land development that, because
of its nature or magnitude or because it occurs in certain sensitive areas,
could have regional, statewide, or national impact. Second, "plans" are
being given legal significance, that is, policies, standards, and other
guidelines are being adopted by which subsequent development decisions
will be judged." Third, a closer legal relationship is being established be-
tween the "plan" and the implementing regulatory mechanisms. This


27. Id. at 188.
28. California Coastal Act of 1976, Cal. Pub. Res. Code 30501 ("shall be completed not later
than July 1, 1980, and certified not later than December 1, 1980") and 30108.6 (" 'Local coastal
program' means a local government's land use plans, zoning ordinances, zoning district maps, and
implementing actions which, when taken together, meet the requirements of, and implement the pro-
visions and policies of, this division at the local level").
29. See, e.g., in addition to the programs analyzed in this study, Minn. Stat. Ann. 473.851-.872
(West 1977). See generally 2 Grad, supra note 2, 10.03 et seq.; Mandelker, supra note 2; Fred
Bosselman & David Callies, The Quiet Revolution in Land Use Control (Washington, D.C.: Govern-
ment Printing Office, 1972); Robert H. Freilich & John W. Ragsdale, Jr., Timing and Sequential
Controls-the Essential Basis for Effective Regional Planning: An Analysis of the New Directions for
Land Use Control in the Minneapolis-St. Paul Metropolitan Region, 58 Minn. L. Rev. 1009 (1974).
30. See generally Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use
Regulation, 74 Mich. L. Rev. 900 (1976).


No. 2











AMERICAN BAR FOUNDATION RESEARCH JOURNAL


nexus is often established by requiring that development decisions be
"consistent with" or be "in conformity with" the adopted plan." Fourth,
these "authoritative general directive arrangements,""2 whether prin-
ciples, policies, standards, or rules, tend to range from general policies at
the federal and state level to more precise standards and rules at the local
level; and they increasingly include mechanisms for vertical coordination.
Norman Williams, in his comprehensive treatise on American planning
law," relates four judicial periods to the famous 1926 Supreme Court case
of Village of Euclid v. Ambler Realty Co.:34 (1) "prezoning," a period
characterized by efforts directed toward nuisance abatement; (2) "accep-
tance of the zoning principle," the period following Euclid, characterized
by acceptance of the principles that "privately owned land could be made
subject to broad restrictions on its use, without compensation, and the
uses of land could be arranged into districts"; (3) "faith in local
autonomy," a period in which "the courts have given great respect to
decisions on zoning by various local agencies.., and not many distinctions
have been made between different types of zoning regulations and zoning
policies"; and (4) "sophisticated judicial review," the emerging period
characterized by "a wise, more skeptical, and more realistic view of local
government and of the various parties' interest, and so a shift towards
more sophisticated and creative judicial review."35 Williams sees "a major
turning point" occurring during the late 1970s and suggests that the courts
will play the leading role "by the choice of the rationale made in the anti-
exclusionary zoning cases.""3
Williams defines the four periods mainly in terms of judicial changes,
but current legislative changes are probably at least as significant.7 The

31. See, e.g., Florida Local Government Comprehensive Planning Act of 1975, Fla. Stat. Ann.
163.3194 (West Cum. Supp. 1978); California Coastal Act of 1976, Cal. Pub. Res. Code 30604
(West 1977).
32. See Hart & Sacks, supra note 19, at 124-25, for a discussion of the elements of general directive
arrangements. "The prime fact about these general arrangements or understandings is that they are
directive. They speak from one point of time to another." Id. at 124. "If they are to serve their pur-
pose, these arrangements or understandings, besides being directive, must be authoritative, claiming
to be entitled to observance and acceptance by all members of the society." Id. at 125. "The basic ar-
rangements under which people live together must in the first instance be general, since it is, of course,
impossible to make particular provision for every potential action of every member of the society."
Id. at 125. "A proposition which is at once general, directive, and authoritative fulfills one common
meaning of the term law, in the sense of a law." Id. at 125.
33. 1 Norman Williams, Jr., American Land Planning Law: Land Use and the Police Power
5.02-.05, at 103-11 (Chicago: Callaghan & Co., 1974).
34. 272 U.S. 365 (1926).
35. 1 Williams, supra note 33, at 107.
36. Id. 5.06, at 111. Mount Laurel, 67 N.J. 151, 336 A.2d 713, appeal dismissed, 423 U.S. 808
(1975), was subsequently decided.
37. Housing and the environment seem, currently, to be the major causes of judicial and legislative
change. As plainly put by Richard Babcock: "The current and popular ecological kick will have a ma-
jor impact on the location of power to regulate housing. Not that the Cry Environment types dwell


I


m


1978:153










COASTAL LAND MANAGEMENT


California and Florida experiments in coastal land management are likely
to have significant effects on the evolution of land use planning and
regulatory programs, not only in other coastal states but also in any state
where land use choices have significant economic, environmental, and
social impacts on citizens in differing geographic sections. The "state
laboratories" are functioning, and these legislative experiments deserve
careful scrutiny.
John Reps's 1964 paper, "Requiem for Zoning,"38 is useful in
understanding the legislative trends exemplified by the Florida and
California programs. Reps noted that "[z]oning is seriously ill and its
physicians-the planners-are mainly to blame." He called for "legal
euthanasia, a respectful requiem, and a search for a new legislative
substitute sturdy enough to survive in the modern urban world."
The California and Florida legislative experiments embody many of
Reps's recommendations. First, he called for combining "such zoning-
type restrictions with other related public controls into a set of what might
be called Development Regulations." Most types of proposed develop-
ment should be administered by a local agency "through discretionary
review, an ordinance combining at least zoning-type and subdivision
regulations." Second, he called for "a plan for community development
and a comprehensive set of development objectives and standards." This
plan, he suggested, should be made mandatory, should be adopted by the
legislative body, and should have procedures for ongoing review and
regular readoption. Third, he ultimately envisioned a decision-making
body "with a geographical jurisdiction more extensive than the present
city, town or borough boundaries." Fourth, he drew attention to the
limitations of zoning, and suggested that the "comprehensive plan, ex-
pressed in graphic form and in statements of development objectives,
would be one guide to the discretionary administrative body,... [and that
although] ultimately the plan itself might be regarded as a sufficient stan-
dard or rule of conduct to guide discretionary action, probably we shall
need in addition rather detailed standards enacted by legislative bodies."
Fifth, he concluded that "this type of discretionary review and control
would be most appropriate at the urban fringe or applied to in-lying
undeveloped areas." After outlining his recommendations, he noted the

much on housing. Why should they? The environment thing is predominantly a middle-class
phenomenon led by persons who have satisfied the threshold need for shelter and accessibility to jobs.
Air and water and solid waste disposal are important only if one can afford new tennis shoes, whether
one happens to be a little old lady or not." Richard Babcock, The Courts Enter the Land Develop-
ment Marketplace, reprinted in Billboards, Glass Houses, and the Law 49, 52 (Colorado Springs,
Colo.: McGraw-Hill Book Co. [Shephard's], 1977).
38. John Reps, Pomeroy Memorial Lecture: Requiem for Zoning, presented at the 1964 ASPO Na-
tional Planning Conference, reprinted in Berger, supra note 13, at 867.


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AMERICAN BAR FOUNDATION RESEARCH JOURNAL


1978:153


"similarity to the land control process operating in Britain since 1947"
and prophesied that "if I read the trends correctly, it seems to be a direc-
tion in which we are already heading."39
Reps obviously read the trends correctly. Without belaboring here the
similarities of the emerging California and Florida land use programs, it is
nevertheless useful to highlight his concerns with the potential dangers of
such a land development process. Heading his list of disadvantages was
recognition that this approach "violates the cherished principles of cer-
tainty and predictability that are supposed to be the virtues of our present
system." He observed, however, that the theoretical advantages of the
present system have been undercut in actual implementation: "What re-
mains is the structure of certainty without the substance-a mere facade
of respectable predictability masking the practice of unguided ad-
ministrative and legislative discretion." Reps concluded that his proposals
would not fundamentally reduce the degree of certainty that now prevails
and that "it would be more honest to present the meat of reality rendered
of its semantic fat."40 His major reservations were whether planners
would be able to exercise such discretionary authority, whether they could
withstand the inevitable political pressures, and whether it would even be
possible to find personnel of the quality and in the quantity that would be
required to administer such programs.4'
In some respects the ALI code resembles the Reps proposals:
(a) It requires that zoning and subdivision regulations be combined into a
single "development ordinance." 2-101(1).
(b) Any "development" activity would be subject to the development
ordinance. This brings together a variety of activities often separately
regulated, including demolition, mining, exterior alteration, outdoor adver-
tising, etc. 1-202.
(c) Where communities adopt a local land development plan, it shall be a
statement (in words, maps, illustrations, or other media of communication)
setting forth its objectives, policies, and standards. 3-101. The code would
not mandate local plans, but it creates strong incentives-in the nature of
expanding the types of regulation permissible when plans exist-for the
adoption of local plans.
(d) Although the code would retain local planning autonomy to a con-
siderable degree, it would provide for modest state and regional planning
and review activities. Articles 7 and 8.
(e) The code does not require the creation of use districts, with uniform-
ity throughout, as does the Standard State Zoning Enabling Act.42
In at least two important respects, however, the ALI code differs from

39. Id. at 870.
40. Id. at 871.
41. Id.
42. Summarized in Berger, supra note 13, at 873.


II











COASTAL LAND MANAGEMENT


Reps's proposals and from the California and Florida programs. First, the
ALI code does not mandate planning by all local governments, while
California and Florida do.43 Second, the ALI code, although dispensing
with separate categories of zoning, subdivision control, variances, and
special exceptions, nevertheless perpetuates the notion that some kinds of
land development decisions do not involve discretion: the code
distinguishes between development "as of right," which it calls "general
development" permission, and development involving administrative
discretion, which it calls "special development" permission."4 The
California Coastal Act of 1976,'5 in contrast, treats all "coastal develop-
ment permits" as discretionary decisions to be measured by the applicable
coastal policies and standards; similarly, Florida's emerging land
regulatory system under its Local Government Comprehensive Planning
Act of 197546 uses the single concept of "development order" which, once
Florida's local plans are in effect, must be "consistent with" the plan's
"principles, guidelines, and standards."47 These two differences are em-
phasized here because the California and Florida programs institute a flex-
ible, discretionary review system bearing more resemblance to the British
system than to the ALI code.
Articles 2 and 3 of the ALI code were effectively completed before most
of the programs analyzed in this study were passed.48 In many ways, the

43. See Herbert Wechsler's foreword to the Model Land Development Code xi (Proposed Official
Draft 1975), explaining why the institute rejected requiring planning as a precondition.
44. See ALI Model Land Development Code 2-101 to 2-301 (1976). "Because the determination
of whether discretion is involved in a particular decision may not always be clear-cut, [ 2-102] pro-
vides that the applicant or any person entitled to notice on discretionary permits may request and must
be given a hearing if he believes that the development order involves the exercise of discretion. If no
request for a hearing is filed within four weeks after the issuance of a development order, the order
cannot be set aside for failure to hold a hearing." Id., note to 2-102, at 35.
45. 'Coastal development permit' means a permit for any development within the coastal zone
that is required pursuant to subdivision (a) of 30600." California Coastal Act of 1976, Cal. Pub.
Res. Code 30101.5 (West 1977).
46. Fla. Stat. Ann. 163.3161-.3211 (West Cum. Supp. 1978).
47. 'Development order' means any order granting, denying, or granting with conditions an ap-
plication for a development permit." Id. 163.3164(5). 'Development permit' includes any
building permit, zoning permit, subdivision approval, rezoning, certification, special exception,
variance, or any other official action of local government having the effect of permitting the develop-
ment of land." Id. 163.3164(6). "After a comprehensive plan...has been adopted...all develop-
ment undertaken by, and all actions taken in regard to development orders by, governmental agencies
in regard to land covered by such plan or element shall be consistent with such plan or element as
adopted." Id. 163.3194(1). "The comprehensive plan shall consist of materials in such descriptive
form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and stan-
dards for the orderly and balanced future economic, social, physical, environmental, and fiscal
development of the area." Id. 163.3177(1).
48. Work on the ALI code began in 1964. See Herbert Wechsler's foreword, supra note 43. A
critical meeting of the advisory committee occurred in La Costa, California, in the fall of 1973, where
the "Advisers' Proposed Official Draft No. 1," dated Oct. 1, 1973, was discussed. This meeting,
which I attended as a guest, was probably the last meeting of the advisory committee at which any
substantial changes to articles 2 and 3 might have been made. ALI policy prohibits disclosure of the
contents of the advisers' proposed draft, id., or of the discussions at these preliminary meetings.


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164 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:153


enactment of major federal and state environmental protection programs
during the 1972-77 period drastically changed the assumptions on which
the ALI code was based. Arguably, the ALI code should have given more
attention to discretionary review within the framework of preadopted
plans. Coastal land management-or the management of any sensitive
resource area-will require local governments and other agencies to make
decisions consistent with existing, and fast-changing, federal, state, and
local environmental standards. Discretionary review, thus, seems in-
evitable; and preadopted and regularly updated plans and adequate proce-
dural protections seem essential safeguards if the foreseeable abuses of
discretionary decision making are to be avoided.
Two questions deserve emphasis, though, as California and Florida im-
plement their discretionary review systems: (1) Do the systems provide
adequate certainty and predictability, and, if not, what are the conse-
quences of uncertainty? (2) Will there be enough qualified personnel to
administer such discretionary systems, and, if not, what are the conse-
quences of weak public agencies regulating strong private businesses?

II. THE PRINCIPAL THESES

The theses and conclusions of this study relate mainly to intergovern-
mental relationships and the kinds of administrative arrangements best
designed to resolve coastal land use disputes. In the article on the federal
role, I draw several conclusions that should cause state and local policy
makers to give special attention to their attitudes toward coastal regula-
tion.
First, I conclude that the United States Congress is empowered by the
commerce clause of the Constitution to enact comprehensive land plan-
ning and regulatory programs in the coastal zone;49 indeed, if Congress so
chooses, the commerce and supremacy clauses empower Congress to
preempt entirely the field of coastal land management.50 By tracing the
evolution of two of the programs of the Army Corps of Engineers,1 I also
review how the federal regulatory presence often expands even without
affirmative congressional action.
I conclude, however, that Congress should be reluctant to expand the
existing direct federal regulatory role in the coastal zone. Rather, it should
continue to encourage state and local governments to enact coastal land
management programs through grant-in-aid programs such as the Federal


49. See The Federal Role, supra note 9, at notes 325-64 and text at same.
50. Id. at notes 364-81 and text at same.
51. Id. at notes 1-272 and text at same.










COASTAL LAND MANAGEMENT


Coastal Zone Management Act of 1972.52 Congress is not well equipped to
carry the full burden of experimentation, amendment, and interstitial
development of coastal land management programs; other federalist
values are also at stake that argue for a strong, concurrent state role.
Preemptive federal programs should be exceptional, and cooperative and
concurrent regulatory programs should be encouraged."
State legislatures ought to take the leading role in designing coastal land
management programs. But for reasons similar to my arguments against
the "homogenizing dictates of federal uniformity,"54 I also conclude that
most large, diverse coastal states such as California and Florida should
design programs providing for the strongest feasible planning and
regulatory role for local governments. More is at stake in coastal land
management than just intelligent use of coastal resources. Accessibility
and accountability of government to its citizens; promotion of the values
of localism, voluntarism, and diversity; encouragement of private initia-
tive and experimentation: these and other values are better promoted by
keeping coastal land use decision making at the lowest feasible level of
government.
In the succeeding articles on the California and Florida experiences with
coastal land management, I elaborate on state-local intergovernmental
relationships. There I conclude that, notwithstanding the general
desirability of giving local governments a cooperative role in coastal land
management, a state's coastal program nevertheless must provide
mechanisms to assure that local governments will not ignore the extraterri-
torial effects of their decisions. The need to monitor the external effects of
local decisions is paralleled, to some degree of course, by a similar need at
the state-federal level, a point that is introduced in the federal article
under a discussion of the negative aspects of the commerce clause."
The proliferation of environmental and land use regulatory programs
also has resulted in a need for better program coordination. A state's
coastal land planning process should be coordinated, to the maximum
degree feasible, with other state programs such as transportation, energy,
and water resource planning. In large states, such as California and
Florida, state legislatures may need to formulate and adopt state compre-
hensive plans.
The California and Florida experiences cause me to conclude that the
complex interaction of environmental, economic, and social values in the


52. Id. at notes 419-73 and text at same.
53. Id. at notes 393-404, 627-34 and text at same.
54. Id. at notes 401-4, 632-35 and text at same.
55. Id. at notes 382-411 and text at same.


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166 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:153


coastal zone requires that coastal land management programs include flex-
ible decision-making systems administered by administrative agencies that
have been delegated reasonably broad discretion. Of course, discretionary
systems have potential for administrative abuse, but the potential for
abuse is probably less than presently exists in the "Euclidean" system that
was supposed to offer so much predictability and certainty. Careful atten-
tion must nevertheless be given to finding ways to confine and structure
administrative discretion, including particular attention to (1) the pro-
cedures by which decisions are made, (2) the standards by which the deci-
sions are measured, and (3) the composition and nature of the decision-
making bodies. I conclude, for example, that coastal land use decision-
making bodies, particularly in the early stages of policy formulation,
should be composed of "generalists," as opposed to "experts," and
should be designed to be sensitive and responsive to the political process.
Coastal land management, as a new and complex field, requires delega-
tion pursuant to broad, general legislative standards. But state legislatures
can and should adequately confine administrative discretion by including
the best possible procedural protections, political checks, and action-
forcing mechanisms designed to assure that the agencies themselves
(including local governments) will gradually confine their own discretion
through promulgation of detailed rules (and in the case of local govern-
ments, through enactment of detailed plans and land development regula-
tions).56 The delegation issue, although of little concern at the federal ad-
ministrative level," is still important at the state level.58 Hence, the


56. This theme will be explored fully in my subsequent article on Florida's experiences. Cf. The
Federal Role, supra note 9, at notes 180-88 and text at same.
57. Two important exceptions to the United States Supreme Court's tendency to uphold congres-
sional delegations are A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and
Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935). Subsequent decisions upholding broad delegations in-
clude Arizona v. California, 373 U.S. 546 (1963); Yakus v. United States, 321 U.S. 414 (1944); and
Lichter v. United States, 334 U.S. 742 (1948). See generally Kenneth Culp Davis, Administrative Law
Treatise, 1970 Supp., 2.00, at 40 etseq. (St. Paul: West Publishing Co., 1971) for three cases (out of
"perhaps three hundred cases") in which Davis believes "the whole policy of the government on the
particular subject was made by the agency without guidance from Congress"; Walter Gellhorn &
Clark Byse, Administrative Law: Cases and Comments 71-84 (6th ed. Mineola, N.Y.: Foundation
Press, 1974) ("The steady course of Supreme Court decisions since the Panama Refining and
Schechter cases underscores the improbability that a federal statute regulating business practices and
not affecting freedom of expression will be found defective on the ground that it violates the delega-
tion doctrine." Id. at 84).
58. The nondelegation doctrine has been relaxed in many state courts. See, e.g., CEEED v.
California Coastal Zone Conservation Comm'n, 43 Cal. App. 3d 306, 118 Cal. Rptr. 315 (4th Dist.
Ct. App. 1974); Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247, 502 P.2d 1049, 104 Cal.
Rptr. 761 (1972); and J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976), which will be
discussed in subsequent articles.
See also, for recent state supreme court decisions that have adopted the position that procedural
safeguards, including the formulation of subsidiary administrative standards, are more important
than insisting on precise legislative standards, Boehl v. Sabre Jet Room, Inc., 349 P.2d 585 (Alaska










COASTAL LAND MANAGEMENT


delegation issue, although introduced in the initial federal article,59 will be
fully explored in the later Florida article. Maximum certainty and pre-
dictability of how coastal lands can be used is best achieved through
ongoing promulgation of increasingly detailed standards and rules. State
legislatures will be unable to enact a priori standards and rules that will
cover all foreseeable circumstances; government's responsibility to res-
pond, as necessary, to changing views of the "public interest" and
"general welfare" can better be discharged by using a combination of
policies and principles enacted at the state legislative level, followed by
more detailed standards and rules promulgated at the administrative and
local governmental levels.
Finally, I should record one of my strongest impressions after com-
pleting this study. The entire United States coastal zone is inevitably going
to be regulated and soon; the question is not whether, but how, and by
whom. State and local governments that resist the enactment and imple-
mentation of concurrent and cooperative regulatory programs are prob-
ably doing themselves and their citizens serious disservice. There may be
short-term political advantage in decrying state and federal intervention,
but that is not the political statesmanship that will be required if coastal
lands are to be managed in a sensible way. The ultimate question for state
and local governments is not whether they can retain most of their
regulatory authority in the coastal zone; rather, it is whether they can keep
any at all.












1960); Barry & Barry, Inc. v. State Dep't of Motor Vehicles, 81 Wash. 2d 155, 500 P.2d 540 (1972),
appeal dismissed, 410 U.S. 977 (1973); Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 182
N.W.2d 257 (1971). Notwithstanding the liberalization of the doctrine in many state courts, it has re-
tained considerable vitality in others. See generally 1 Frank E. Cooper, State Administrative Law (In-
dianapolis: Bobbs-Merrill Co., 1965); Gellhorn & Byse, supra note 57, at 84; Louis L. Jaffe, Judicial
Control of Administrative Action 73-85 (Abridged ed. Boston: Little, Brown & Co., 1965); Note,
Safeguards, Standards, and Necessity: Permissible Parameters for Legislative Delegations in Iowa, 58
Iowa L. Rev. 974 (1973); Recent Developments, State Statutes Delegating Legislative Power Need Not
Prescribe Standards, 14 Stan. L. Rev. 372 (1962). The doctrine will be comprehensively analyzed in
the Florida article because of Cross Key Waterways v. Askew, 351 So. 2d 1062 (Fla. 1st Dist. Ct. App.
1977), which was argued before the Florida Supreme Court in Jan. 1978.
59. See The Federal Role, supra note 9, at notes 180-88 and text at same.


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