Some Recent Developments in Coastal Protection

The nation's coastal areas are among its most significant natural resources. Coastal zones include a variety of ecological niches, in either marshy wetlands or beach and rocky areas. Partially submerged lands subject to tidal action are a rich biological factory, providing nutrients for numerous varieties of fish and birds and spawning grounds for the majority of the fish caught commercially off the U.S. coasts. Wetlands act as valuable protection against flooding due to minute rises in ocean levels and help maintain coastal water quality by containing bacteria and other organisms that break down organic wastes discharged from secondary treatment plants. Both marshlands and other types of coastal areas offer an invaluable aesthetic and recreational resource.

Pressures from residential populations expanding toward coastal areas, together with increasing industrial development in the coastal zone, have resulted in drastic reductions in the amount of natural shoreline left untouched. Concern among state and federal policy-makers over this trend has led to enactment of various schemes for coastal protection. Some states, including California, have established programs to extend comprehensive protection to almost all of the land contiguous to coastal areas. California's Coastal Zone Conservation Act¹ provides for interim regulatory control over lands between the three mile limit seaward and 1,000 yards inland of mean high tide, and for a permanent planning jurisdiction from the three mile limit to either five miles inland or to the nearest mountain range, whichever is closer.

Other states have enacted less comprehensive legislation to protect coastal areas and have left regulation of contiguous zones, both seaward and inland, to other statewide legislation or to local zoning ordinances. For example, New York's Tidal Wetlands Act² deals exclusively with protection of those "areas which border on or lie beneath tidal waters."

In both California and New York, regulation of development in coastal areas is in an interim phase pending completion of long-range planning studies. California's Coast Plan is scheduled to be completed by the California Coastal Zone Conservation Commission and submitted to the state legislature by 1976. Under § 27402 of the California Coastal Zone Conservation Act, during the interim period the Commission is required to find, prior to granting development permits, that the "development will not have any substantial adverse environmental or ecological effect." The New York Act imposes a moratorium on alteration of tidal wetlands until such time as the Commissioner of Environmental Conservation has promulgated land-use regulations for these areas in cooperation with local officials. Prior to enactment of any regulations, all of the tidal wetlands in the state must be inventoried by the Commission. The New York Act does not specify a time schedule, but according to one member of the Commission staff the inventory is expected to be finished by April 1, 1975. Section 25-0202 (2) of the statute establishes procedures for relief from the moratorium where strict application would work an unnecessary hardship on a particular landowner.

An issue presently being disputed under both the New York and California legislation is the extent to which interim construction permits will be granted before final planning has been completed. In each state this issue has recently been contested before the state administrative agency charged with jurisdiction to consider applications for interim permits.

[4 ELR 10139]

New York

A decision reached by the Commissioner of the New York Department of Environmental Conservation on March 25, 1974, denied applications from landowners seeking permits to fill 104 acres of tidal wetlands for construction of a subdivision at Lido Beach, Long Island.³ The applicants had planned to build 607 low-density single-family homes on the filled area. Objections to the applications were made by the Town of Hempstead, the Nassau County Planning Commission, several conservation organizations, including the Environmental Defense Fund, and numerous individuals. In addition to arguments based primarily on the ecological and recreational value of the undisturbed wetlands, the objectors contended that construction of a large number of homes would further burden the sewage treatment facilities of the City of Lido Beach, which were already in violation of state and federal standards.

The landowners did not respond to the environmental objections to the proposed development. Rather, they argued that if the land could not be developed the real estate taxes they had been assessed in past years created such an extreme burden as to constitute a hardship as defined under the Act. The applicants contended that in light of the financial burden of these property taxes, a denial of the permits would be an unconstitutional taking.

The Commissioner's decision adopted without change the findings of the hearing officer. The hearing officer, inter alia, found that the estuarine marshes of the land in question provided habitats for many species of wildlife, including shellfish and other varieties of fish. Referring to the decline in wetlands as a contributing factor in the reduction of fish supplies on the Atlantic Seaboard, the hearing officer concluded that the marshlands owned by the applicants were capable of yielding up to 37,500 pounds of fish annually. The officer agreed with the objectors' arguments as to the environmental worth of the land, and found that allowing applicants to place fill on the areas would cause irreparable damage, contrary to the Act's stated policy of preserving wetlands in their natural state.

The hearing officer concluded with a one-sentence statement that consideration of the taxes assessed on applicant's lands was not within the Department's jurisdiction. Although this statement is in a strict sense correct, the Tidal Wetlands Act does address the problem caused by tax assessments geared to uses anticipated prior to the moratorium. Section 25-0302 (2) of the Act states:

The placing of any tidal wetlands under a land-use regulation which restricts its use shall be deemed a limitation on the use of such wetlands for the purposes of property tax evaluation in the same manner as if an easement or right had been acquired under the general municipal law. Assessments shall be based on present use under the restricting regulation.

Unfortunately, the Act's language does not on its face indicate whether imposition of the moratorium constitutes such a land-use regulation. Since the section quoted follows discussion of regulations to be promulgated after the wetlands inventory is completed, it would seem evident that the meaning of "land-use regulation" does not include the moratorium itself. However, as noted by the Environmental Defense Fund in a letter to the Supervisor of the Town of Hempstead urging reassessment of the property taxes in light of the decision denying moratorium permits, the Nassau County Administrative Code requires that real property be reevaluated annually and taxable value be determined "according to its condition and ownership."⁴ The fair market value is the basis for an assessment for tax purposes; the moratorium's restrictions reduce that value. The New York Court of Appeals noted in Golden v. Planning Board of the Town of Ramapo,⁵ which validated a development plan severely restricting development of some properties, that the correlation between restrictions and tax reductions was significant to the reasonableness of the plan. Hopefully, real estate assessments under the moratorium will be modified to reflect the policy expressed by the New York legislature concerning preservation of wetlands; such action will prevent developers from arguing hardship as an excuse for ignoring the Act.

The Commissioner's decision did not address the applicants' contentions that denial of a moratorium permit would be an unconstitutional taking. The Commission's avoidance of this question was appropriate; it is not within the Commission's authority to decide the constitutionality of its enabling statute. Although the constitutionality issue cannot be treated adequately in this comment, it can be noted that the courts of New York and other states have found zoning statutes to be valid if they sought to prevent further development only until studies and long-range planning have been completed. The courts have recognized that suspension of development is essential to the preparation of acomprehensive plan, and have validated such suspensions where the duration involved was reasonable in light of the difficulty of necessary planning tasks.⁶

[4 ELR 10140]

California

On June 19, 1974, the California Coastal Zone Conservation Commission by a vote of nine to two approved 11 permits for development at the Sea Ranch,⁷ a subdivision of luxury second homes in Sonoma County, and one of the largest subdivisions on the California coast. Environmentalists opposed to the permits reacted sharply, asserting that the Commission had violated the California Coastal Zone Conservation Act which is designed to protect the coast pending completion of land-use plans. No long-range land-use scheme had been prepared for the area; as noted above, plans prepared under the Act are not slated for submission to the state legislature until 1976. On July 11 the Natural Resources Defense Council and the California Coastal Alliance, participants in the Commission's hearings, filed suit in the San Francisco Superior Court seeking a writ of mandate (a remedy created by the Act) overturning the Commission's order.

The environmental groups had argued before the Commission that the developer had failed to meet the burden of proof imposed upon applicants for development permits by § 27402 of the Act. That section requires applicants to show that their plans would have no "substantial adverse environmental or ecological effect." The environmental groups contended that the Sea Ranch, when completed, would be the largest coastal community in the state, with an estimated population of 10,000 persons in 4,000 homes. One of the nation's most scenic highways, California Highway 1, follows the coastline where the Sea Ranch development is proposed. Unless reconstruction of this roadway were undertaken, additional growth at the Sea Ranch could be expected to overload and destroy its rural, scenic character. Trees planted by the developer of the Sea Ranch were already obstructing views from the highway; and the plaintiffs asserted that construction of additional dwelling units could be expected to cause further obstruction. Uncertainties about the area's water tables and the percolation capacity of the soil raised questions on the effectiveness of the septic tanks and leach fields planned for the homes, the environmentalists also pointed out. The development's water supply could, by reducing stream flows, harm fish populations in the Gualala River. Moreover, Sea Ranch construction could cause erosion and retreat of the coastal cliffs.

The State Commission adopted the text of the staff recommendations with a few amendments. The staff recognized that the extent of development ultimately planned for the Sea Ranch was considerable, and that the Commission had a duty to look beyond the limited development proposed in the applications at issue. The Commission, however, was unwilling to address the issue of the entire development.

The Commission's decision produced a confusing and unenforceable scheme for insuring that construction undertaken at the Sea Ranch would pay due regard to environmental considerations. The staff recommendations adopted by the Commission proposed that before any construction be allowed, either (a) the Sea Ranch homeowners association be required to agree to a list of environmentally protective conditions or (b) the individual applicants be required to deposit $1,500 per lot with the North Central Regional Commission to be used "to mitigate environmental problems" caused by the development. These peculiar alternatives reflect the fact that the common areas of the Sea Ranch are held by the property owners' association, which was not a party to the Commission's proceedings. Plaintiff Natural Resources Defense Council pointed out in its brief to the Superior Court that the Sea Ranch Association could not be made to consent to the conditions and thus would not be bound by them. Since fulfillment of the conditions attached to the Commission's approval (for example, a coastal access permit system to allow limited members of the public access to the shoreline) would depend in large part upon the consent of the Association, as holder of the common areas, the Commission's plan for ensuring protection of the coastal environmental seems bound to fail.

Conclusion

The two state proceedings discussed above point up the fact that given statutory language which is essentially equivalent in expressing a recognized state policy to protect coastal areas, and which, prior to completion of comprehensive land-use regulations, places the burden upon applicants for development permits to show that no harmful environmental consequences will occur, state agencies charged with administering environmental protection legislation often reach remarkably different conclusions. The New York agency, in the first major decision by the Department of Environmental Conservation concerning the issuance of moratorium permits under the New York Tidal Wetlands Act, found that the policy of the Act mandated permit denial where development would damage the environment even if the denial might impose a severe financial burden on the applicant. Yet in California, in a decision termed by a representative of one of the environmental groups involved "a dramatic example of [the Commission's] unwillingness to face up to their responsibilities under the Act," the state agency found that additional growth at one of the state's largest coastal subdivisions would not adversely affect the environment, presuming several conditions imposed on the developers prove to be enforceable.

As has been amplified by numerous decisions dealing with temporary suspensions of construction pending preparation of long-range planning schemes, allowance of unfettered development before planning is completed may severely restrict future options. The California Act, in §§ 27001 (c) and 27402 (b), recognizes this by providing that development which conflicts with the objectives of [4 ELR 10141] the ultimate plan should not be allowed in the interim period. Section 27402 expressly requires the Commission to find that the applicants' proposed development will satisfy the standards imposed by the Act. Section 27001 of the California statute states that the "California coastal zone is a distinct and valuable natural resource …" and that "the permanent protection of the coastal zone is a paramount concern to present and future residents of the state and nation." These provisions, coupled with the fact that the California Act was mandated by the voters of the state as an initiative measure, make it particularly ironic that the California Commission has not shown itself in this case to be an aggressive protector of the coastline. The Commission's analysis of the environmental problems with the Sea Ranch development is scanty and conclusory; considering the complexity of the issues, adequate reasoning and explanation of the Commission's approval would seem to require more than the five pages of staff recommendations adopted by the Commission as the totality of its findings.

Neither the California statute nor the New York Act specifies that a balancing of economic values against environmental costs is to be performed by the appropriate agency in deciding whether to grant permits for development during the interim period. Such considerations are more appropriately reserved for policy-makers who must prepare permanent and final land use plans for the coastal areas. The language in both Acts is conjunctive. The New York agency is required to find both that no environmental damage will result and that applicants will be subjected to unnecessary hardship by denial; the California Act requires the Commission to find not only that no adverse environmental impact will occur but also that allowance of the development would not conflict with the ultimate objectives of the Act. Both statutes place roughly the same burden on applicants, making the conflicting results in the decisions noted above especially difficult to reconcile.

The two decisions indicate the difficulty of formulating legislative directives that, while vesting necessary discretion in administrative agencies, ensure that bureaucratic inertia and political considerations do not interfere with the purposes of the statute. The New York agency is to be commended for its refusal to compromise its mandated duty. The decision by the California agency illustrated at least one reason why courts are given jurisdiction to review administrative agency orders. At present the future of the Sea Ranch rests with a California Superior Court. Hopefully, the court will require the California Commission at a minimum to enunciate more thoroughly its analysis of the issues and the reasons for its conclusions. It is difficult to see how the court, on the basis of a record in the case as inadequate as that provided by the Commission, could even review the matter on the merits, let alone find that the California Commission did not abuse its discretion under the California Act, by arbitrarily granting approval for continued coastal development during what should be a period of suspended construction.

1. Pub. Resources Code §§ 27000 et seq. The Act was passed by the California electorate by a referendum in November, 1972 and is still popularly known as Proposition 20.

2. New York Environmental Conservation Law §§ 25-0101 et seq.

3. In Re Applications of Estate of Ovide de St. Aubin, N.Y. Department of Environmental Conservation, 4 ELR 30001 (March 25, 1974).

4. Section 6-21, Chapter 272, Laws of 1939.

5. 30 N.Y.2d 359, 334 N.Y.S.2d 138 (1972).

6. See Rubin v. McAlevy, 54 Misc. 2d 338, 282 N.Y.S.2d 564 (1967), aff'd. 29 A.D. 2d 874, 288 N.Y.S.2d 519 (1968); Hasco Electric Corporation v. Dassler 143 N.Y.S.2d 240, reh. 144 N.Y.S.2d 857 (1955), aff'd. 150 N.Y.S.2d 552 (1956); Meadowland Regional Dev. Agency v. Hackensack Meadowlands Dev. Comm., 119 N.J. Super. 572, 293 A.2d 192 (1972); Candlestick Properties, Inc. v. San Francisco Bay C&D Comm., 89 Cal. Rptr. 897, 906 (1970).

7. Decision of the Commissioner, California Coastal Zone Conservation Commission, appeal Nos. 66-74, 84-74, 86-74, 91-71 (June 19, 1974).