Environmental land use, indirect source controls and California's south coast plan; is the day of attainment coming?

• Author: Woods, Barry T.

1. INTRODUCTION

   From the beginning, land use boards and environmentalists have butted heads, each perceiving the other as its prime competitor in a race for a limited resource. However, this historic feud has generated necessary compromises from its adversarial tensions. As testimony to this developing relationship, the land use reform movement of the 1970s sprang from the friction between a rapidly expanding society and the need to preserve the environment. Thus land use planning began to weigh, balance and account for more than just commercial, localized interests. It recognized that land ownership provided not only capital and power to the landowner, but responsibility for the land's public value. This responsibility, ideally, encompassed a vision of the public interest and the environment.

   Reformers of land use control urged that land use planning become centralized, that federal, state, and regional viewpoints be used to counterbalance local ones.(1) This led to a change of land use control from being a patchwork, local-level political tool to a comprehensive state-level vision.(2) Various state programs, spurred by this 1970s critique, remain positive models.(3) They provided the starting point for analyzing the benefits of centralized authority and the meaningful compromises between business and environmental groups that can be achieved.(4) One land use model is California's South Coast Plan.

   This comment will focus on California's South Coast Plan after a preliminary discussion of the historical and present role of the federal, state and local government in land use planning and the evolution and current relationship between land use planning and environmental protection through the example of the South Coast Plan.

2. THE HISTORIC INTERSECTION OF LAND USE PLANNING AND ENVIRONMENTAL LAW

   The scope of land use is dictated in large part by our historic view of private property rights, as borrowed from the English and expressed in our Constitution. So important were these rights, that the Founding Fathers narrowly substituted "happiness" for "property" in the lead of the Declaration of Independence. Indeed, property was synonymous with wealth and political privilege. For the yeoman, one's property boundaries were tangible expression of an individual's freedom. In the 19th century, "[l]and ownership and economic liberty were equated with civil liberty, and governmental interference of any sort was anathema."(5)

   Yet, our understanding of private property is not complete without recognizing its reliance on the social order to uphold it.(6) Private property, it can be persuasively argued, is maintained for social purposes.(7) Thus, to the degree that private property contradicts the general welfare, government has been deemed the valid agent for addressing this contradiction.

   Land use, in the form of zoning, first evolved in the United States in the 1920s, thanks to Herbert Hoover, then Secretary of Commerce.(8) Hoover helped draft guidelines for an enabling act by which states could delegate zoning to local municipalities.(9) This concept of local zoning was challenged by private interests as an unconstitutional deprivation of liberty and property in Village of Euclid v. Ambler Realty Co.(10)

   By upholding Euclid's zoning law, the U. S. Supreme Court confirmed that land use was a valid exercise of the state's police power.(11) Zoning, the Court found, was an acceptable governmental tool when done in the service of public health, welfare, and environment.(12) Thus the Court allowed the government some control over private property, fashioning over time constitutional limitations on that role, primarily through the takings clause.(13)

   As courts carefully draft and redraft the line between land use regulation and regulatory taking, they bear witness to society's changing perspective toward private property, one which accepts an expanded role for government in the affairs of the individual. Through motivating government to control private property, society shows its awareness that individuals often lack an incentive to use their property consonant with the greater public good. As environmental concerns become more closely associated with this public good, so will government's role continue to expand. At present, the federal government and most states lack a comprehensive land use policy.(14) A primary obstacle to any notion of a national or even state land use policy is the enduring fiction that localities are the best level for any land use implementation strategies.(15)

   Regardless of who controls the planning, land use is most aptly considered as a tool rather than a separate body of law or social policy. Its goals vary according to the party wielding it. Thus environmental land use should be distinguished from other forms of land use because it represents a separate land use ethic.(16) The environmental land use ethic presumes that a comprehensive plan is precisely what is needed to achieve public interest. The environmental land use ethic operates to inform each of us that our actions must be viewed in the larger context of external effects upon nature and society. If we accept that some land use decisions are governed by a separate ethic, that the value of land, in the environmental context, is based on society's need for cleaner air or water, we have the justification to begin our analysis as to where authority for environmental land use controls should lie.

   To summarize, land use has become an accepted infringement upon private property rights. As government continues to find reason to regulate our use of land, society's environmental concerns are quite properly interjected into government's concept of land use, making it less a question of whether environmental land use is a legitimate goal, given competing interests, and more a question of which level of government is best suited for implementing this form of land use. Informing this environmental land use is the development of a changed land use ethic. This ethic promotes the "public" value of land over the private one, and undergirds government's use of land control for environmental ends.

3. IS LOCAL DECISIONMAKING OVER LAND USE CONTROLS BEST?

   Since the 1920s and Euclid, states have habitually delegated authority for land use decisions to those municipalities directly affected. The courts have accepted this as proper economic and social policy.(17) Because of the sheer number of decisions that need to be made, it was felt that the federal government lacked the resources, knowledge, and techniques to properly assume authority.(18) Further, "many of the decisions are too trivial to justify federal intervention."(19) The practical difficulties of the task were also supported by philosophical resistance allowing a centralized body to become involved in planning the complexion of a neighborhood. "Local land use control powers are an almost unassailable article of faith embodied in such catch phrases as home rule, local control, and participatory or grassroots democracy."(20) The Thoreauvian ideal, "that government governs best which governs least," remains a tenacious part of American political philosophy.(21) Increasingly, however, this premise has come under criticism.(22)

   Problems quickly became apparent in communities under home rule. Besides ignoring the environmental effects of development,(23) local decisions were uniquely susceptible to local special interests, prompting Ralph Nader to label local regulation of land use "the developer's best friend."(24) Localities, needing a healthy tax base, erred on the side of more development rather than wiser development.(25) This inherent preference for development was often fueled by competition with neighboring communities for commercial and residential projects.(26) "Often localities fail to recognize the regional importance of natural areas and ecosystems. And even if they are sensitive to environmental imperatives, they frequently lack the personnel and expertise necessary to handle the complexities of environmental land use planning."(27) Thus, by virtue of their own myopia, local communities were ill-equipped to either notice broader environmental needs or muster the discipline to meet them.(28)

   As a result of these failures, land use reformers have looked toward greater centralization either at the state or federal level, while preserving a diminished role for localities.(29) A more centralized form of land use decisionmaking has many virtues. Because of its broader scope and constituency, it can deal more objectively with development. It "insure[s] . . . uniformity and a more indepth development of the range of standards."(30) Nonetheless, the issue remains as to what is the most appropriate level for centralization. There is no simple response to this question, mainly because the solution is tied to the type of problem being confronted.(31) In the case of environmental problems whose boundaries and effects range beyond neat political borders, some overlap between local, state and federal authority may be necessary.(32) The question becomes what is the proper harmony between the various levels of government?

   In looking where to establish a baseline, states have frequently received the most attention. In comparison to local or regional agencies, "[t]he state is a much more powerful, better recognized political division, far more capable of succeeding at a politically controversial task."(33) States are at the proper distance both to appreciate the impact local communities have on each other and to have a vested interest in regulating that impact. They can respond to environmental problems that spillover across local government jurisdictions and remain reasonably well insulated from the attendant conflicts of interest.(34) Further, many local governments in undeveloped, rural parts of states lack effective land use controls, leaving them open to exploitation from quick-thinking...