* President, Horsley & Witten, Inc.; Member, Daley & Witten, LLC; Adjunct Professor, Boston College Law School; Lecturer, Tufts University Department of Urban and Environmental Policy and Planning. J.D., Suffolk University Law School, 1997; M.R.P., Cornell University, 1981; B.A., Boston College, 1979.
1 Cumulative impact can be defined as the impacts on a built or natural system which result from the incremental impacts of past, present and foreseeable future actions.
2 See generally Devon Schnieder et al., The Carrying Capacity Concept as a Planning Tool (1978). Carrying or assimilative capacity is defined as: (1) the maximum population density for a given species in an environment which could be supported without significant environmental degradation; and, (2) the ability of a natural or man-made system to absorb population growth or physical development without significant degradation. See id. at 1.
3 This article presumes that there is an assimilative capacity to every natural and built resource. Although built resource capacities can be expanded and improved, natural resource limitations are finite. This presumption was the focus of an interesting colloquy between Jane Jacobs and the author wherein Ms. Jacobs responded that carrying capacity approaches are “too simplistic” and that the use of regulatory tools to manage growth has been applied throughout the years in a “simple-minded” and overly restrictive fashion. Jane Jacobs, Address at the Boston College Environmental Affairs Law Review Symposium, Jane Jacobs and the New Urban Ecology (Nov. 18, 2000). The theme that government is both inflexible and often uncreative in its application of landuse controls is found in Jane Jacobs’s The Death and Life of Great American Cities. See generally Jane Jacobs, The Death and Life of Great American Cities (1961) [hereinafter Jacobs, Death and Life]. In fact, the opening sentence of The Death and Life of Great American Cities states that “[t]his book is an attack on current city planning and rebuilding.” Id. at 1. The same critique is found in Ms. Jacobs’s more recent Systems of Survival. See generally Jane Jacobs, Systems of Survival (1992) [hereinafter Jacobs, Systems of Survival]. In Systems of Survival, Ms. Jacobs characterizes society as consisting of two moral halves, the “guardian” and the “commercial.” Id. at 51. The “guardian” half—the government—is conservative, shuns trading, is obedient, and adheres to tradition. Id. at 58. The “commercial” side—the private sector—is the opposite; it is optimistic, efficient, industrious and uses initiative and enterprise. Id. at 33–38. Ms. Jacobs sees it as the role of government to take responsibility for enacting policies into law, while it is the role of the commercial half to take responsibility for developing innovative means and methods of compliance. Id. This belief in “guardian” and “commercial” systems appears to be the basis for Ms. Jacobs’s reaction to the author’s proposal that government restrict new and expanded growth and development to the carrying capacity of the underlying resource. Jane Jacobs, Address at the Boston College Environmental Affairs Law Review Symposium, Jane Jacobs and the New Urban Ecology (Nov. 18, 2000). Under the systems she describes, government could enact a law that proscribes the destruction of a natural resource, but it should not articulate the means or methods by which the resource be preserved or protected. Jacobs, Systems of Survival, supra, at 208. In other words, establishment of policies and regulations is the job of the government. Id. But determining how to comply with adopted regulations should be left up to the innovation of the private sector:
I used to think of government—meaning good government—as the major force at work in the civilizing process. Now I’m inclined to think of government as being essentially barbaric—barbaric in its origins and forever susceptible to barbaric actions and aims. . . . Some other civilizing agent must therefore be necessary. This, I now think, is the guardian-commercial symbiosis that combats force, fraud, and unconscionable greed in commercial life and simultaneously impels guardians to respect private plans, private property and personal rights. . . . So perhaps we have a useful definition of civilization: reasonably workable guardian-commercial syndrome.
Id. at 214. The market alternative approach to landuse regulation was similarly summarized by former professor, and now United States Senator, W. Philip Gramm: “Land use planning, clearly an inefficient system, represents a step backward and not a step forward. We must remember that in another age of government controls and intervention (the age of Mercantilism) economic and social progress was made by reducing market interferences, not by increasing them.” W. Philip Gramm & Robert B. Ekelund, Jr., Land Use Planning: The Market Alternative, in No Land Is an Island: Individual Rights and Government Control of Land Use 140 (1975).
Notwithstanding the private sector’s ability to engineer solutions to carrying capacity limitations of built resources, this article contends that such creative and industrious thinking is not relevant to protection of natural systems insofar as carrying capacity thresholds are concerned. While the private sector is clearly capable of engineering nitrogen removing septic systems, it cannot increase the carrying capacity thresholds of the receiving waters denigrated by excessive nitrogen. Thus this article contends that without a carrying capacity approach to resource management, natural and built systems will continue to be programmed by local governments to assimilate development densities which cannot be assimilated, and that once the carrying capacity of a resource is exceeded, it may be difficult if not impossible to remedy.
4 See Schnieder et al., supra note 2, at 1.
5 Built resources such as bridges, roads, water distribution systems and wastewater treatment facilities, for example, each have design carrying capacities. See, e.g., Standard Handbook for Civil Engineers (Frederick S. Merritt ed., 3d ed. 1983).
6 It is presumed that all natural resources have a carrying capacity, although the carrying capacity for many natural resources has not been quantified. For example, underlying many federal laws designed to protect wildlife is the assumption that wildlife habitat must be protected to ensure the protection of the species. See, e.g., Northern Spotted Owl v. Lujan, 758 F. Supp. 621, 629 (W.D. Wash. 1991) (holding that the Endangered Species Act required listing of Northern Spotted Owl occur in conjunction with designation of the species’ critical habitat).
Drinking water supplies, surface water bodies and coastal water systems have been the subjects of intensive studies relating to carrying capacity thresholds over the past several years. For example, Congress acknowledged the carrying capacity of drinking water supplies in the 1986 Amendments to the Safe Drinking Water Act and the carrying capacity of surface and coastal waters in the Clean Water Act (CWA), first adopted in 1972. Safe Drinking Water Act Amendments of 1986, 42 U.S.C. § 300f (1994); CWA, 33 U.S.C. § 1313 (1994). Section 303(d) of the CWA requires states to develop a list of waters not meeting water quality standards or waters that have impaired uses. CWA, 33 U.S.C. § 1313(d). Listed water bodies must be prioritized and a management strategy or total maximum daily load (TMDL) must be developed for all listed waters. Id. § 1313(d)(3). A TMDL is the sum of pollutants a water resource can assimilate and still meet articulated water quality standards for specific uses, including drinking water, recreation and marine life. See, e.g., Natural Res. Def. Council v. Fox, 909 F. Supp. 153, 156 (S.D.N.Y. 1995); Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981, 983 (9th Cir. 1994); Hearings before the House Subcomm. on Oversight, Investigations and Emergency Mgmt. Comm. on Transp. and Infrastructure, 106th Cong. (July 27, 2000) (testimony of J. Charles Fox, Assistant Adm’r for Water, EPA); Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation; Final Rules, 65 Fed. Reg. 43,585, 43,585–670 (July 13, 2000) (to be codified at 40 C.F.R. pt. 9).
7 In his famous work, The City of To-morrow and its Planning, Le Corbusier criticized the cities of Europe for their poor design, inadequate infrastructure and absence of planning logic as unable to support the growing population, a growth that would only be possible by rebuilding the infrastructure and the urban center. See generally Le Corbusier, The City of To-morrow and its Planning (Frederick Etchells trans., 1929) (1926). Le Corbusier also noted, however, that the lack of adequate infrastructure was only half of the problem: the other half, as discussed in this article, is that built systems have a tolerance level that renders the system inoperable or unsafe when it is exceeded. See id. at 112. This tolerance level is exceeded by land development and its coincident population growth. See id.
8 See, e.g., Robert Howarth et al., Some Approaches for Assessing Human Influences on Fluxes of Nitrogen and Organic Carbon to Estuaries, in Estuarine Sci. 17 (John E. Hobbie ed., 2000); Gordon E. Beanlands, Cumulative Effects and Sustainable Development (1992) (paper presented at the United National University International Conference on Definition and Measurement of Sustainability: The Biophysical Foundations) (stating that “our intuitive understanding of the [carrying capacity] concept . . . is much more advanced than our ability to apply that knowledge in a meaningful and practical manner”).
9 Local governments face an additional dilemma concerning the degree of certainty of the science or engineering upon which the regulation is based. While “more” science is generally better than “less,” local governments should still adopt carrying capacity regulations even though the science is incomplete because courts may well defer to the expertise of the local governmental experts. See, e.g., State of Louisiana v. Verity, 853 F.2d 322, 329 (5th Cir. 1988).
10 See Zygmunt J.B. Plater et al., Environmental Law and Policy: Nature, Law and Society 20–21 (1998).
“Development” is part of the concept of sustainable development. Most environmentalists do not propose rolling society back to the natural conditions of the frontier. But human actions that cause continuing net losses overall, deplete critical resource bases, or foreclose other future necessities, are a shortsighted endgame that long has been the target of environmental law’s protective efforts.
Id.
11 See id.
12 See Tom Pierce, Comment, A Constitutionally Valid Justification for the Enactment of No-Growth Ordinances: Integrating Concepts of Population Stabilization and Sustainability, 19 U. Haw. L. Rev. 93, 113 (1997). In this work, the author cites two Florida cases. In the first, the City of Boca Raton attempted to limit growth based on water supply and other infrastructure limitations; in the second, the City of Hollywood attempted to limit growth to a fixed number of dwelling units. See generally City of Hollywood v. Hollywood, Inc., 432 So. 2d 1332 (Fla. App. 1983); City of Boca Raton v. Boca Villas Corp., 371 So. 2d 154 (Fla. 1979). City of Boca Raton was overturned, while City of Hollywood was sustained on appeal. The court in City of Hollywood distinguished the two cases in large part due to the extensive analytical work prepared by the City of Hollywood prior to adoption of the challenged ordinance. Specifically, the court noted that in City of Boca Raton, the growth cap was established by public referendum, the City planning department was never even consulted and the Boca Raton Planning Director knew of no compelling reason for imposing the fixed limitation. See 432 So. 2d at 1335. However, Hollywood “did not adopt any such Alice-in-Wonderland approach. The record is replete with comprehensive plans, studies, reports, public meetings and actual discussions . . . .” Id.
13 J.B. Ruhl, Biodiversity Conservation and the Ever-Expanding Web of Federal Laws Regulating Non-Federal Lands: Time for Something Completely Different?, 66 U. Colo. L. Rev. 555, 559 (1995) (stating that the message of biodiversity conservation dissolves into an abstract, unwieldy set of principles and debates over what the policy of biodiversity conservation should be). But see Bryan Norton, Commodity, Amenity and Morality: The Limits of Quantification in Valuing Biodiversity, in Biodiversity 200 (E.O. Wilson ed., 1988). See also Oliver A. Houck, Clean Water Act and Related Programs, CA37 A.L.I.-A.B.A. 295, 303–04 (1996) (criticizing carrying capacity standards as “guesswork” and “simplistically linear” assumptions which are often confronted by embarrassing differences between the predictions of models and the results of actual monitoring).
14 Articles and texts on the subject of carrying capacity typically present only a methodology for establishing carrying capacity formulas. The link to an effective regulatory program is generally absent. The Marine Law Institute of the University of Maine Law School has prepared a comprehensive bibliography on cumulative impact and carrying capacity studies for the U.S. Department of Commerce and the National Oceanic and Atmospheric Administration. See generally University of Maine Law School, Marine Law Institute, Methodologies and Mechanisms for Management of Cumulative Coastal Environmental Impacts (1995); Larry Canter et al., Impact of Growth: A Guide for Socio-Economic Impact Assessment and Planning (1985).
15 Jacobs, Death and Life, supra note 3, at 209.
16 Numerous commentators have written extensively on the fact that natural systems are not inexhaustible and that few natural resources can withstand indefinite impacts without undergoing fundamental change. See generally Scientific America, Inc., Managing Planet Earth: Readings from Scientific America magazine (1989); Lloyd Timberlake, Only One Earth (1987); The World Commission on Environment and Development, Our Common Future (1987). Contrary opinions are plentiful. See Richard Pipes, Property and Freedom 250–51 (1999) (blaming “environmental hysteria” as a powerful and emotional rationale for the encroachment on property rights and analogizing the situation to the doomsday scenarios proffered during the Cold War).
17 Carrying capacity analyses for road and highway systems is accomplished through an alphabetic (A to F) rating system entitled “level of service.” See Michael R. Lindeburg, Civil Engineering Reference Manual 16-8 (4th ed. 1986). Level of service is defined as a qualitative measure describing operational conditions within a traffic stream and perceptions by motorists as to mobility and safety. Id. A level of service definition provides a determination as to quality of traffic flow in terms of factors such as speed, freedom to maneuver, comfort, safety and travel time. Id. Six levels of service are defined for each roadway, with level of service “A” defined as little or no delay, and level of service “F” indicating significant delays with volume exceeding roadway capacity. See id.
18 Many jurisdictions have “resolved” the financial constraints affecting improvements to built resources through the use of “impact fees” and “linkage” programs. For a further discussion on impact fees and their relationship to carrying capacity programs, see infra n.97 and accompanying text.
19 Several commentators have proposed a “risk-based” taxation policy for developments that pose public health threats due to development in areas vulnerable to coastal storms, earthquakes and other natural disasters. See, e.g., Robert Deyle & Richard Smith, Risk-Based Taxation of Hazardous Land Development, 66 J. Am. Planning Ass’n 421, 422 (2000). In exchange for development within these locations, public subsidies should be eliminated and the developer should assume the payment of a user fee or separate tax to compensate the local government for the public costs of providing emergency management services necessitated by the development’s location. See id.
While I concur that public subsidies for development in known risk areas should be discontinued, I strongly disagree with the option of developing-yet-paying-for-the-risk (destruction). It is raised here only to deflect its possible application to the current topic. The concept of allowing hazardous development if the development adequately compensates local government for the associated risk ignores the principles of carrying capacity limitations and threats to public health and safety. Such a process leads to the possibility that land developers could “purchase” natural or built resource damages. For example, a carrying capacity analysis has determined that 35 dwelling units can be constructed within the watershed of a small surface water body without exceeding the water body’s capacity for phosphorus loading. Translated into zoning regulations, a developer within the watershed would be allowed to develop no more than 35 dwelling units. Under the “risk-based” approach, however, the developer could simply purchase the carrying capacity exceedance. In the alternative, and although the result is the same, the developer could pay a higher tax, a user fee or special assessment to compensate the local government for the exceedance.
20 A maximum contaminant level (MCL) for nitrate, as “N,” in drinking water supplies was established at 10 mg/l by the Public Health Service in 1962 and subsequently adopted by EPA under the Safe Drinking Water Act of 1986. See Safe Drinking Water Act Amendments of 1986, 42 U.S.C. § 300h (1994). Nitrate, when ingested, can cause the potentially fatal condition of methemoglobinemia (also known as blue baby syndrome) in infants under six to eight months. R. Rajagopal & Graham Tobin, Expert Opinion and Ground Water Quality Protection: the Case of Nitrate in Drinking Water, 27 Ground Water 835, 838–47 (1989). In addition, studies have suggested that nitrate in drinking water could react with certain compounds in foods to form nitrosamines, a cancer-causing agent. See id. At least one study has determined a positive correlation between nitrate in ground water supplies and birth defects where the water supply had more than 10mg/l nitrate. See Margaret M. Dorsch et al., Congenital Malformations and Maternal Drinking Water Supply in Rural South Australia: A Case Control Study, 119 Am. J. Epidemiology 473, 477–79 (1984).
21 The difficulty of removing nitrogen lies in the fact that nitrogen dissolves in ground water; it does not float on or sink in ground water. See Sanjay Jeer et al., Nonpoint Source Pollution: A Handbook for Local Governments 47 (1997) [hereinafter Nonpoint Source Pollution]. Thus excessive nitrogen loading to the ground water through non-point sources such as septic systems, agricultural runoff or a host of other diffuse contributors removes practical options for “capturing” the contaminant. See Rajagopal & Tobin, supra note 20, at 837–38. This fact compares with removal of “floaters” and “sinkers,” contaminants that due to their solubility in water, either float on the water table or sink through an aquifer until they encounter an impermeable layer (e.g. bedrock or clay). By virtue of their relatively contained status and the fact that most “floaters” and “sinkers” are from point sources, these contaminants can generally be remediated. See Nonpoint Source Pollution, supra note 21, at 41–53. Although expensive, so-called “pump and treat” technology exists and allows the pumping of contaminated ground water to the land surface for treatment. See Robert M. Cohen et al., EPA Ground Water Issue Paper, Pub. No. EPA/540/S–97/504, Design Guidelines for Conventional Pump-and-Treat Systems 19–21(1997).
22 See John W. Brawley et al., Landscape and Watershed Processes: A Time-Dependent Model of Nitrogen Loading to Estuaries from Coastal Watersheds, 29 J. Envtl. Quality 1448, 1448 (2000); Peter K. Weiskel & Brian L. Howes, Differential Transport of Sewage-Derived Nitrogen and Phosphorus Through a Coastal Watershed, 26 Envtl. Sci. & Tech. 352, 353–60 (1992); Michael H. Frimpter et al., A Mass-balance Nitrate Model for Predicting Nitrate in Ground Water, 104 New Eng. Water Works Ass’n 219, 219 (1989).
23 For example, in nitrogen-limited coastal systems, excessive nitrogen loadings increase the growth of aquatic plants, which leads to diminished water clarity, loss of shellfish habitat, depressed dissolved oxygen levels, build up of bottom sediments and fish kills. Long-term exposure of certain coastal waters to excessive nitrogen levels alters the ecosystem, causing indigenous species to be replaced with an overpopulation of nuisance species, a process commonly referred to as eutrophication. See I. Valiela & J.M. Teal, The Nitrogen Budget of a Salt Marsh Ecosystem, 780 Nature 652, 652–56 (1979).
24 Thus a shallow coastal embayment such as the Chesapeake Bay (e.g., average depths are under 20 feet) may have a carrying capacity of 100 grams of nitrogen per cubic meter while Santa Monica Bay, given its deep water characteristics (e.g., average depths over 100 feet), is likely to have a carrying capacity of 260 grams of nitrogen per cubic meter. See U.S. EPA, Office of Wetlands, Oceans & Watersheds, Tools for Coastal Watershed Protection 4–1, 4–70 to 4–71(1998).
25 See generally Stephen Brown & Peter Veneman, Compensatory Wetland Mitigation in Massachusetts (1998); U.S. Army Corps of Engineers, New England Division, Evaluation of Freshwater Wetland Replacement Projects in Massachusetts (1989).
26 See Michael R. Deland, No Net Loss of Wetlands: A Comprehensive Approach, 7 Nat. Resources & Env’t 3, 52–53 (1992). The federal “no net loss” wetland policy was first set forth by then Vice President George Bush in 1988 and codified in principle at Wetland Resources: General Provisions, 16 U.S.C. § 3901 (1986). See id.
27 A 1989 study prepared by the U.S. Army Corps of Engineers and a 1998 study by the University of Massachusetts analyzed the success of wetland mitigation and replication projects. See generally Brown & Veneman, supra note 25; U.S. Army Corps of Engineers, supra note 25. The findings of both studies demonstrate that replication does not always work and the values of the original wetland resource, such as plant community diversity and wildlife habitat, were generally not replicated. Id.
28 See generally Model Transfer of Development Rights Ordinance (Dwight Merriam & Jon Witten 1997); Transfer of Development Rights Revisited (American Planning Ass’n 2000).
29 See Daniel J. Curtin, Jr., The Comprehensive Plan as Constitution: General Lessons from Recent California Zoning Initiative Cases, in 1992 Zoning and Planning Law Handbook (Kenneth H. Young ed., 1992); see generally Daniel J. Curtin, Jr., Curtin’s California Land Use and Planning Law (2000).
30 See Daniel R. Mandelker, Land Use Law 86–90 (1997).
31 See Jon Witten, Commentary and Critical and Sensitive Areas Element, in American Planning Ass’n, Growing Smart: Legislative Guidebook 7–134 to 7–141 (1999). However, plan states generally do not require local governments to assess the relative importance of each plan element:
While the relative ranking of each element is difficult, it is important. It is difficult because it requires a subjective ranking of one resource’s value over another’s. The relative ranking is important as it allows local governments to focus on priority protection areas. For communities that deem all their resources of equal value or all their needs of equal importance, the resulting analysis should state so. Otherwise, the community should attempt to prioritize where possible.
See id. at 7–135.
32 See Mandelker, supra note 30, at 86, 87.
33 Professor Charles M. Haar has made clear the importance of linking planning to regulation, a fact that still escapes many jurisdictions:
The legal implications of this theory seem manifest. A city undertaking to exercise the land regulatory powers granted to it by state enabling legislation should be required initially to formulate a master plan, upon which the regulatory ordinances, of which the zoning ordinance is but one, would then be based.
Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154, 1156 (1955).
34 See generally id. Without such an analysis, the plan and resultant regulations are vulnerable to attack. This attack would be similar to that in a “non-plan” state: the plan and regulations fail to protect resources from exceeding their assimilative capacity and, therefore, cannot be protective of health, safety or welfare. By definition, the plan and regulations must, therefore, be arbitrary. As Haar states, “. . . only an ordinance drawn with forethought can be a reasonable ordinance, and only a reasonable ordinance can hurdle the constitutional barriers of due process and equal protection.” Id. at 1171.
35 See, e.g., Cal. Gov’t Code § 65300 (1997) (requiring cities and towns in California to prepare a general plan consisting of seven mandatory elements); Alaska Stat. § 29.40 (2000) (requiring municipalities in Alaska to prepare comprehensive plans containing five mandatory elements); R.I. Gen. Laws § 45–22.2 to 45–22.6 (1999) (requiring local governments in Rhode Island to prepare comprehensive plans containing eight mandatory elements and an implementation plan); Ariz. Rev. Stat. § 9–461.05 (1996) (requiring local governments in Arizona to develop general plans containing nine elements).
36 See Cal. Gov’t Code § 65303 (1997).
37 Consistency, for these purposes, is often divided into horizontal and vertical consistency. See American Planning Ass’n, Growing Smart: Legislative Guidebook 2–1, 2–10 (1999) [hereinafter Growing Smart]. Horizontal or internal consistency requires that the mandated elements of the plan be consistent with each other. See id. at 2–7. For example, a plan element that calls for open space protection in a portion of the community should not be contradicted by a different element that calls for increased industrial activity at the same locus. Vertical or external consistency requires that all regulatory enactments (e.g. zoning ordinances and subdivision regulations) be in accordance with—consistent with—the plan. See id. at 2–7. Florida provides a specific definition of consistency: “A development approved or undertaken by a local government shall be consistent with the comprehensive plan if the land uses, densities . . . and other aspects of development are compatible with and further the objectives, policies, land uses and densities or intensities in the comprehensive plan.” Fla. Stat. Ann. § 163.3194(3)(b) (2000). Tennessee’s is more general: after the approval of the growth plan, all landuse decisions made by a city or county must be consistent with the provisions of the growth plan. Tenn. Code Ann. §§ 6-58-101, 6-58-107 (1998). See generally Edward J. Sullivan, The Evolving Role of the Comprehensive Plan, 32 Urb. Law. 813 (2000); Daniel R. Mandelker, The Role of the Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 899 (1976).
38 A municipality’s build-out refers to a quantitative evaluation of the total number of residential dwellings and non-residential square footage that is possible given the jurisdiction’s land use regulations, most notably, zoning. As a build-out assumes that landowners will maximize their development potential, it generally reflects a development density in excess of historical densities. A build-out should be distinguished from a more analytically derived population estimate for the jurisdiction or a sub-region within a municipality. See Steve Murdock et al., Evaluating Small-Area Population Projections, 57 J. Am. Planning Ass’n 432 (1991); see also Gerrit Knaap & Terry Moore, Land Supply and Infrastructure Capacity: Monitoring for Smart Urban Growth, (Lincoln Institute of Land Policy: Working Paper, 2000) (discussing the potential ways in which urban growth can be measured to gain a better understanding of urban growth processes and growth management policy) (copy on file with author).
39 See generally Rando v. Town of N. Attelborough, 692 N.E.2d 544, 550 (Mass. App. Ct. 1998). The court, in finding that the rezoning was not void, held that “[n]either the master plan nor the law requires that zoning be in strict accordance with a master plan.” Id.
40 Philip R. Berke & Maria Manta Conroy, Are We Planning for Sustainable Development?, 66 J. Am. Planning Ass’n 21, 31 (2000). In a detailed analysis of 30 municipal comprehensive plans, Berke and Conroy concluded that the preparation and adoption of a comprehensive plan, as mandated by the state, furthered efforts toward ensuring “sustainability” and management of natural resources:
Prior research suggests that the presence of state planning mandates has a strong influence on the content and quality of local plans. . . . State mandates could thus help local governments to go beyond the rhetoric of sustainable development by requiring local adoption of plan policies that promote balanced and mutually reinforcing sustainable development principles.
Id.
41 See Growing Smart, supra note 37, at 4–64 (citing the U.S. Advisory Commission on Regulatory Barriers to Affordable Housing, Report to the President, Not in My Back Yard: Removing Barriers to Affordable Housing 7–12–13 (1991) [hereinafter Not in My Backyard]).
42 See, e.g., Commonwealth of Massachusetts: Executive Office for Admin. and Fin., Bringing Down the Barriers: Changing Housing Supply Dynamics in Massachusetts 24 (2000) [hereinafter Bringing Down the Barriers]; Growing Smart, supra note 37, at 4-64 (citing Not in My Back Yard, supra note 41, at 7–12–13).
43 See generally Rolf Pendall, Local Land Use Regulation and the Chain of Exclusion, 66 J. Am. Planning Ass’n 125 (2000).
44 See Growing Smart, supra note 37, at 4–64 (citing Not in My Back Yard, supra note 41, at 7–12–13 (1991)).
45 Perhaps the greatest controversy is whether local land use regulations, even aggressive land use regulations, impact the cost and supply of housing. “Restrictive local policies not only reduce the amount of land available for development and decrease the number of units that can be built on undeveloped land, but they can also exacerbate the economic stratification of communities.” Bringing Down the Barriers, supra note 42, at 24. An exhaustive survey of 25 metropolitan regions of the country found, however, that regulations designed to manage growth and protect resources have little, if any, impact on the supply or cost of housing. See Pendall, supra note 43, at 138.
According to this study, permit caps and growth boundaries, often modeled as supply constraints that will inexorably elevate housing prices, did not consistently reduce housing growth in the 1980s. Neither did they have any consistent average effect on housing unit types, tenure, or affordability. . . . In short, permit caps and growth boundaries sometimes have exclusionary effects, but often they are little more than symbols of concern about the pace and shape of new growth.
Id.
46 Mass. Gen. Laws ch. 40B, §§ 20–23 (1997).
47 Id.
48 See discussion, supra Part I (discussing how nitrogen and phosphorus are generated and transported by certain aspects of land development, including wastewater disposal systems, stormwater runoff, landscaping, and lawn fertilization).
49 Mass. Gen. Laws ch. 40B, §§ 20–23; Low and Moderate Income Housing Act, R.I. Gen. Laws §§ 45–53 (1999).
50 Comprehensive Planning and Land Use Regulation Act, R.I. Gen. Laws § 45–22.2 (1999).
51 R.I. Gen. Laws §§ 45–53.
52 A recent report analyzing the costs to municipalities of unplanned growth and land development was prepared for the State of Rhode Island. Among the report’s many conclusions was that suburban sprawl and urban decay are caused by state policies encouraging home ownership outside of metropolitan areas with a coincident decline of urban centers, decline of open space, and destruction of natural habitat. See generally Grow Smart Rhode Island, The Costs of Suburban Sprawl and Urban Decay in Rhode Island: Executive Summary (1999).
53 This article presumes that changes to municipal zoning ordinances are legislative and not adjudicative functions. A majority of states support this presumption. See, e.g., Margolis v. Dist. Court, 638 P.2d 297 (Colo. 1981); but see Fasano v. Bd. of County Comm’rs of Washington County, 507 P.2d 23 (Or. 1973).
54 Other municipal landuse actions also require a takings analysis, but that analysis is beyond the scope of this article. For example, physical invasions, eminent domain, and temporary takings can trigger federal and coincident state compensation requirements.
55 447 U.S. 255, 260-61 (1980).
56 See id.
57 See id. at 260.
58 438 U.S. 104 (1978).
59 Agins, 447 U.S. at 260–61; Penn Cent. Transp. Co., 438 U.S. at 131.
[A]ppellants, focusing on the character and impact of the New York City law, argue that it effects a “taking” because its operation has significantly diminished the value of the Terminal site. Appellants concede that the decisions sustaining other land-use regulations, which, like the New York City law, are reasonably related to the promotion of general welfare, uniformly reject the proposition that diminution in property value, standing alone, can establish a “taking.”
Penn Cent. Transp. Co., 438 U.S. at 131 (citing Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Hadacheck v. Sebastian, 239 U.S. 394 (1915)).
60 See, e.g., William Haas & Co. v. City and County of San Francisco, 605 F.2d 1117 (9th Cir. 1979) (holding that a city zoning regulation that effectively reduced the plaintiff’s property value from $2 million to less than $100,000 did not constitute a compensable taking).
61 Agins, 447 U.S. at 260–62.
62 See id. at 260–62.
63 This conclusion presumes that state laws, as in Texas, do not define a regulatory taking more narrowly than the U.S. Supreme Court. See Texas Gov’t Code § 2007.002(5)(B)(ii) (2000). Under this provision of Texas law, entitled “Governmental Action Affecting Private Property Rights,” a regulatory taking could include a governmental action that reduces the market value of private property by 25% or more. Id. See also Harvey Jacobs, The Impact of State Property Rights Laws: Those Laws and My Land, 50 Land Use L. & Zoning Digest, Mar. 1998, at 3.
64 505 U.S. 1003 (1992). In Lucas, the Supreme Court stated a new categorical takings rule: when a landowner is subject to total deprivation of all economically viable use of her land, a taking has occurred regardless of the purpose or effect of the regulation. Id. at 1027–28. Thus, a regulation that was designed to protect public health, but left the landowner with no economic value, would constitute an unconstitutional regulatory taking. See id. Although Justice Scalia narrowed the scope of this categorical takings rule (allowing for some instances where a complete deprivation could be justified without compensation), the Court’s holding in Lucas reversed the long held position that in some instances, private property could be regulated without compensation afforded, no matter how aggressive the regulation. See id. Citing cases dating back to Mugler v. Kansas, 123 U.S. 623 (1887), Justice Blackmun’s strong dissent cited numerous cases where a landowner’s property value was destroyed, yet no compensation was awarded, because of the general principle that states have the power to prohibit the use of property when the use is harmful to the public. Lucas, 105 U.S. at 1051. Further, “[i]t would make no sense under this theory to suggest that an owner has a constitutionally protected right to harm others, if only he makes the proper showing of economic loss.” Id.
65 See Agins, 447 U.S. at 260–61.
66 See Lucas, 505 U.S. at 1027–28; Agins, 447 U.S. at 260–61.
67 See Lucas, 505 U.S. at 1027 (requiring compensation for taking of land).
68 Society for the Protection of New Hampshire Forests, Permanently Protecting Water Supply Lands with Conservation Easements 3 (1997). “The most secure means of protecting drinking water is to acquire the land or controlling interests in the land at the source.” Id.
69 See Lucas, 505 U.S. at 1028. This option is the least desirable given the Court’s requirement that support for use prohibition under a common law nuisance theory “must inhere in the title itself, in the restrictions already placed upon land ownership.” Id.
70 See Lucas, 505 U.S. at 1025–27.
71 See Nonpoint Source Pollution, supra note 21, at 46–53.
72 See generally Richard J. Hughto et al., Massachusetts Continuing Legal Education: Environmental Science and Engineering for Lawyers (2000); Charles Hopkinson, Jr., & Joseph J. Vallino, The Relationship Among Man’s Activities in Watersheds and Estuaries: A Model of Runoff Effects on Patterns of Estuarine Community Metabolism, 18 Estuaries 598 (1995).
73 See Lucas, 505 U.S. at 1027–28; Agins v. City of Tiburon, 447 U.S. 255, 260–61 (1980).
74 See, e.g., Robinson v. City of Bloomfield Hills, 86 N.W.2d 166, 172 (Mich. 1957):
But many of the cases coming to us involve merely the legislative judgment. They are the peripheral problems (should the line be drawn here or there?) and the allegations of more advantageous use, with its corollary of “confiscation” (the property is worth more if devoted to some other use). Save in the most extreme instances, involving clearly whimsical action, we will not disturb the legislative judgment.
Id.
75 See Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Control Law § 5.14 (1998).
76 See generally id. at § 5.24.
77 See, e.g., Robinson, 86 N.W.2d at 172.
78 See discussion, supra Part III.A.
79 By adjudicative permit, this article refers to the special and conditional use permitting processes enacted through state statutes. States use different terminology to define adjudicative permits. See, e.g., Cal. Gov’t Code § 65901 (1997) (calling adjudicative permit a “conditional use permit”); 65 Ill. Comp. Stat. 5/11–13 (1.1) (1993) (calling adjudicative permit a “special use permit”); Mass. Gen. Laws ch. 40A, § 9 (1996) (calling adjudicative permit a “special permit”); Pa. Stat. tit. 53, §§ 10912.1, 10913.1 (1997) (calling adjudicative permit a “conditional use permit”).
80 Adjudicative permits are generally required for uses that the jurisdiction encourages or, at a minimum, will support, but nevertheless requires some level of scrutiny by a municipal board or commission. This distinguishes an adjudicative permit from a use “by right.” It also distinguishes an adjudicative permit from a variance. Whereas adjudicative permits are obtainable provided that the applicant’s development does not, for example, exceed the carrying capacity of the affected resources, a variance is specifically reserved for uses or structural construction that the zoning ordinance does not allow. See, e.g., Juergensmeyer & Roberts, supra note 75, §§ 5.14, 5.24.
81 Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987).
82 See id. Referring to the decisions in Nollan and Dolan, the California Supreme Court noted, “[s]cholarly comment on the two cases is almost unmanageably large.” Ehrlich v. City of Culver City, 12 Cal. 4th 854, 868 (1996). The California Supreme Court then cited seventeen references to the two cases and the issues of nexus and proportionality. Id.
83 See Nollan, 488 U.S. at 837.
84 See Dolan v. City of Tigard, 512 U.S. 374, 391–92 (1994).
85 “The Fifth Amendment guarantee . . . was designed to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole . . . .” Armstrong v. United States, 364 U.S. 40, 49 (1960).
86 512 U.S. at 394–96.
87 For example, in Ehrlich the California Supreme Court held that the nexus and proportionality requirements of Nollan and Dolan are not limited solely to land and, in the facts presented, apply to monetary exactions. Erlich, 12 Cal. 4th at 860. Notwithstanding Ehrlich, and relying on Nollan, Dolan and the Supreme Court’s decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) and others (e.g., Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)), case law seems to narrow the limitations of the nexus and proportionality requirements to only real property takings.
88 See Dolan, 512 U.S. at 391–92; Nollan, 483 U.S. at 837.
89 See Dolan, 512 U.S. at 391–92; Nollan, 483 U.S. at 837.
90 See Nollan, 483 U.S. at 837.
91 See Dolan, 512 U.S. at 392.
92 See, e.g., Isla Verde Int’l Holdings v. City of Camas, 990 P.2d 429, 435 (Wash. Ct. App. 1999), petition for review granted, 10 P.3d 1071 (Wash. Sept. 5, 2000). In Isla Verde Int’l Holdings, the Washington Appeals Court held that a 30% land dedication imposed regardless of the impact of the new development failed the proportionality test of Dolan. See 990 P.2d at 435. The court went further, however, stating that the United States Supreme Court’s holding in City of Monterey v. Del Monte Dunes, regarding impermissible land takings was “nonbinding dicta” and that the record in the case before it was devoid of evidence of studies or formulas showing a reasonable relationship between the impact of Dove Hill and the 30% set-aside requirement. Isla Verde Int’l Holdings, 990 P.2d at 436–37; see also City of Monterey v. Del Monte Dunes of Monterey, Ltd., 526 U.S. 687 (1999).
93 See Fred P. Bosselman, Dolan’s Mysteries Explained?, 51 Land Use L. & Zoning Digest, Jan. 1999, at 3.
94 Admitting that all resources have definable capacities is also an admission that resources, built or natural, impose certain limits on economic growth. Although well beyond the scope of this article, it is worth inquiring as to the commonly held perspective on the limits to growth. “Everybody is in favour of sustainability. But (almost) everyone at the same time remains committed to an understanding of the economy-environment interface that fails to acknowledge limits to growth. As long as that is so, pronouncements on sustainable development will inevitably be little more than rhetoric.” Daniel Mittler, Environmental Space and Barriers to Local Sustainability: Evidence from Edinburgh, Scotland, 4 Local Env’t 363 (1999).
95 Zoning, subdivision control, health, wetlands, and historic district regulations are five examples. Each technique has numerous applications. For example, zoning regulations include overlay districts, transfer of development rights, adjudicative permits, density restrictions, growth and timing controls, and so on.
96 Non-regulatory tools generally include those used to acquire, in fee simple or less than fee simple, development rights to private property. They include outright acquisition of the fee, acquisition of an easement, and lease-purchase arrangements.
97 These financial investments can be municipal (via property taxation, special assessments, bonds, or borrowing) or more recently, via developer paid “impact fee.” Impact fees are fees paid by an applicant for development approval for the pro rata “impacts” caused by her new development. Impact fees are extremely popular in several states (e.g. Florida, Hawaii, California, Rhode Island, and Utah) and are often seen as an equitable shifting of the burden of development’s impacts onto the private sector. Yet, imposition of impact fees may place unintended obstacles in the path of local government’s use of carrying capacity regulations to restrict and guide future growth. The danger lies where local governments, seduced by impact fee collections, forget the importance of requiring ad hoc balancing of new or expanded development against carrying capacity standards.