1 See Federal Coastal Zone Management Act § 306, 16 U.S.C.A. § 1455 (West 1974 & Cum. Supp. 1980), for the federal requirements. See also letter from John DeGrove, chairman, Task Force on Coastal Zone Management, to Governor Reubin O'D. Askew (Apr. 4, 1977) (“It is the view of the Task Force that Florida already has implemented landmark environmental legislation so that the development of the coastal zone program requires only the adaptation of these existing programs rather than the development of a new and distinct apparatus”).Google Scholar

Florida's existing legislation provides alternative means of achieving a well-coordinated, comprehensive coastal planning and regulatory program. As of May 1980, the section of coastal zone management within the Department of Environmental Regulation (DER) is preparing a coastal management program to be proposed for § 306 funding under the Federal Coastal Zone Management Act. Because of the 1978 legislative limitation on new programs, Fla. Stat. Ann. § 380.21, the DER proposal will be “restricted to coordinating through interagency understandings, the somewhat fragmented powers and responsibilities of the various Florida agencies.” Interview with William L. Townsend, Jr., director, Division of Environmental Programs, DER, in Tallahassee (May 17, 1980). Because of time limitations on federal funding, this approach will probably either succeed or fail later this year. If DER's approach succeeds, Florida will accomplish many of its coastal planning and regulatory goals through means other than those discussed in this article. If the approach fails, then this article should at least be a reminder that Florida's coastal management goals can be achieved by better use of its existing land-planning and management processes, particularly the Environmental Land and Water Management Act of 1972.Google Scholar

2 California Coastal Act of 1976, Cal. Pub. Res. Code §§ 30000–30900 (West 1977 & Cum. Supp. 1980).Google Scholar

3 See, e.g., The Federal Regulatory Role in Coastal Land Management, 1978 A.B.F. Res. J. 169, 174–98 [hereinafter cited as The Federal Role], for a discussion of the expansion of federal power under programs administered by the Army Corps of Engineers and the Environmental Protection Agency.Google Scholar

4 See my earlier articles, Coastal Land Management: An Introduction, 1978 A.B.F. Res. J. 153 [hereinafter cited as An Introduction]; The Federal Role, supra note 3; Coastal Land Management in California, 1978 A.B.F. Res. J. 647 [hereinafter cited as California CLM].CrossRefGoogle Scholar

5 ALI Model Land Development Code (1976). The ELA, enacted in 1972, was based on an earlier draft of the ALI Model Land Development Code (Tent. Draft No. 3, Apr. 22, 1971). Unless otherwise indicated, all subsequent citations are to the 1976 version.Google Scholar

6 “[T]he 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 proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches…. The zone extends inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters.” Federal Coastal Zone Management Act 5 304(a), 16 U.S.C.A. 5 1453(1) (West Cum. Supp. 1980).Google Scholar

7 California Coastal Act of 1976, Cal. Pub. Res. Code § 30103 (West Cum. Supp. 1980).Google Scholar

8 See notes 170–72 infra and text at same.Google Scholar

9 California Coastal Zone Conservation Act of 1972, 1972 Cal. Stats. A-181 (repealed on Jan. 1, 1977). See generally California CLM, supra note 4, at 652–702.Google Scholar

10 See California CLM, supra note 4, at 702–9, for my evaluation of California's state comprehensive planning process, as administered by the Office of Planning and Research. Cal. Gov't Code §§ 65037-65040.7 (West Supp. 1966–79).Google Scholar

11 The 1972 legislative package (text at notes 170–72 infra) was strongly backed by Governor Reubin Askew, who during his 1971–79 tenure pushed consistently for responsible environmental protection and growth management programs. In 1979 he said, “the Environmental Land and Water Management Act was the most important piece of legislation passed in state government during my career of twenty years.” Interview with Honorable Reubin O'D. Askew, former governor of Florida, in Miami (July 2, 1979).Google Scholar

12 Askew, Reubin, Quality of Life Rated High in Florida, EnviroSouth, May 1978, at 4.Google Scholar

13 Florida's APA was extensively revised, effective Jan. 1, 1975, on the basis of a report and recommendation of the Florida Law Revision Council.Google Scholar

14 Most of Florida's state environmental regulatory functions are now performed by the Department of Environmental Regulation, an agency headed by the governor. Among other duties, it has chief responsibility for formulating and submitting Florida's coastal zone management program for federal approval. Some environmental regulatory functions, e.g., administration of the coastal construction regulatory program under the Beach and Shore Preservation Act, Fla. Stat. Ann. §§ 161.011-.45 (West 1972 & Cum. Supp. 1980), remain in the Department of Natural Resources, an agency headed by the governor and independently elected cabinet members. The state planning process is handled by the new Executive Office of the Governor, created in 1979 Fla. Sess. Law Serv. ch. 79–190, § 1, and many of the planning functions under the ELA are now performed by the Division of Local Resource Management within the Department of Community Affairs, headed by the governor, 1979 Fla. Sess. Law Serv. ch. 79–190, §§ 47–48. Several important ELA functions are performed directly by the governor and cabinet. See, e.g., ELA, §§ 380.031(1),.05–.07.Google Scholar

15 The history of Florida's pre-1967 land and water policy formulation is well chronicled in Luther J. Carter, The Florida Experience: Land and Water Policy in a Growth State 57–62 (Baltimore: Johns Hopkins University Press, 1974).Google Scholar

16 Id. at 58.Google Scholar

17 Id. at 80–81.Google Scholar

18 Id. at 63–66.Google Scholar

19 Id. at 64.Google Scholar

20 Id. at 65.Google Scholar

21 Askew, supra note 12, at 1. Askew noted how governmental attitudes have changed:Google Scholar

Id. Google Scholar

22 Locke, John, Of Property, in Treatise of Civil Government and a Letter Concerning Toleration 28–29 (1689; Charles L. Sherman, ed. New York: D. Appleton-Century Co., 1937).Google Scholar

23 See notes 214–69 infra and text at same.Google Scholar

24 Carter, supra note 15, at 80–81.Google Scholar

25 Bentham, Jeremy, Theory of Legislation: Principles of the Civil Code 111–13 (Hildreth ed. 1931), as quoted in Curtis J. Berger, Land Ownership and Use 3 (2d ed. Boston: Little, Brown & co., 1975).Google Scholar

26 See, e.g., Final Report of the Governor's Property Rights Study Commission ([Tallahassee, Fla.] Mar. 17, 1975). The Florida legislature enacted, in 1978, a “property rights” bill, which provides, inter alia: Google Scholar

1. (2)

   (2) Any person substantially affected … may seek review … and request monetary damages and other relief …; however, circuit court review shall be confined solely to determining whether final agency action is an unreasonable exercise of the state's police power constituting a taking without just compensation….

2. (3)

   (3) If the court determines the decision reviewed is an unreasonable exercise of the state's police power constituting a taking without just compensation, the court shall remand the matter to the agency which shall, within a reasonable time:

3. (a)

   (a) Agree to issue the permit;

4. (b)

   (b) Agree to pay appropriate monetary damages; however, in determining the amount of compensation to be paid, consideration shall be given by the court to any enhancement to the value of the land attributable to governmental action; or

5. (c)

   (c) Agree to modify its decision to avoid an unreasonable exercise of police power.

ELA, §§ 380.085(2), (3).Google Scholar

This act implemented some, but not all, of the recommendations of earlier studies. See also Florida, House of Representatives, Committee on Natural Resources, Seminar on The Constitutional and Legal Limits to the Regulation of Private Land (Tallahassee, Jan. 23–24, 1975). See generally notes 417–62 infra and text at same.Google Scholar

27 Fla. Stat. Ann. § 286.011 (West 1975 & Cum. Supp. 1980).Google Scholar

28 Carter, supra note 15, at 47–52.Google Scholar

29 369 U.S. 186 (1962).Google Scholar

30 See Fla. Stat. Ann. §§ 403.011–411 (West 1973 & Cum. Supp. 1980).Google Scholar

31 1975 Fla. Laws ch. 75–22, § 10, transferred former regulatory responsibilities of the Board of Trustees of the Internal Improvement Trust Fund to the Department of Environmental Regulation. See Fla. Stat. Ann. §§ 20.261, 253.01, 403.801-. E17 (West Cum. Supp. 1980).Google Scholar

32 See generally The Federal Role, supra note 3.Google Scholar

33 Some agencies in Florida report to the governor (e.g., Department of Environmental Regulation); others to the governor and cabinet (e.g., Department of Natural Resources).Google Scholar

Carter, supra note 15, at 44.

34 The Florida Coastal Management Act of 1978, Ha. Stat. Ann. §§380.20-.25 (West Cum. Supp. 1980), provides that the “Department of Environmental Regulation shall be the lead agency pursuant to 16 U.S.C. s. 1451 et seq., and shall compile and submit to the appropriate federal agency an application to receive funds pursuant to s. 306 of the Federal Coastal Zone Management Act of 1972, as amended.”Google Scholar

35 Beach and Shore Preservation Act, Ha. Stat. Ann. §§ 161.011-.45 (West 1972 & Cum. Supp. 1980).Google Scholar

36 The Coastal Coordinating Council, created in 1970 Fla. Laws ch. 70–259, was abolished, and its staff functions were first transferred to the Department of Natural Resources, then to the Department of Environmental Regulation to be administered under the Florida Coastal Management Act of 1978, Fla. Stat. Ann. $0 380.20-.25 (West Cum. Supp. 1980).Google Scholar

37 Fla. Const. of 1968, art. 10, § 11 (amended 1970).CrossRefGoogle Scholar

38 Fla. Const. of 1968, art. 10, § 11 (included in the 1968 revision of the Florida constitution), gave constitutional status to the “trust doctrine.” See generally Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957) (discussion of common law doctrine).Google Scholar

39 Fla. Stat. Ann. §§ 259.01-.07 (West 1975).Google Scholar

40 Id.§ 373.013-.201 (West 1974 & Cum. Supp. 1980).Google Scholar

41 Many Florida officials, including William L. Townsend, Jr., drew attention to future housing problems. Interview, supra note 1.Google Scholar

42 E.g., the extensive 1974 revisions of the APA.Google Scholar

43 1979 Fla. Sess. Law Sew. ch. 79–73, § 4 (amending ELA, § 380.05).Google Scholar

44 See Final Report to Governor Bob Graham of the Resource Management Task Force (Tallahassee, Jan. 1980) [hereinafter cited as Graham task force report].Google Scholar

45 1979 Fla. Sess. Law Serv. ch. 79-73, § 4 (amending ELA, 5 380.05).Google Scholar

46 Graham task force report, supra note 44, 5 3.Google Scholar

47 See note 6 supra and text at same.Google Scholar

48 See California CLM, supra note 4, at 702–9, for my evaluation of California's state comprehensive planning process, as administered by the Office of Planning and Research. Cal. Gov't Code §§ 65037–65040.7 (West Supp. 1966–79).Google Scholar

49 See California Coastal Act of 1976, Cal. Pub. Res. Code 58 30200-30264 (West 1977), for California's coastal resources planning and management policies. See generally California CLM, supra note 4, at 718–33 for my analysis of the policies and how they were formulated.Google Scholar

50 SCPA, 6 23.0114(4)(b).Google Scholar

51 Then governor Askew thought such an intent “was rather clear in the original law.” Askew interview, supra note 11.Google Scholar

52 1972 Fla. Laws ch. 72-295, Q 6 (codified at Fla. Stat. Ann. 5 23.012(1) (West Cum. Supp. 1980).Google Scholar

53 SCPA, Q 23.011.Google Scholar

54 1972 Fla. Laws ch. 72–295, § 8 (emphasis added); this provision, which corresponded to Fla. Stat. Ann. § 23.013(3), was substantially changed (and subsection (3) deleted) by 1978 Fla. Laws ch. 78–287.Google Scholar

55 1972 Ha. Laws ch. 72–295, § 8.Google Scholar

56 SCPA, § 23.0114(1) (emphasis added).Google Scholar

57 See letter from Reubin Askew, governor, to the president and members of the senate and the speaker and members of the house of representatives (May 4, 1977) in State Comprehensive Plan Element Compendium (Tallahassee, May 1977).Google Scholar

58 1977 Fla. Laws ch. 77–306, § 2 (not included in current version of SCPA).Google Scholar

59 Id.§ 5(2) (current version at SCPA, 5 23.0114(4))(b)).Google Scholar

60 Askew interview, supra note 11.Google Scholar

61 See Helge Swanson & Jim Tait, Adoption of the Florida State Comprehensive Plan, 6 Fla. Envt'l & Urban Issues, Nov./Dec. 1978, at 13.Google Scholar

62 Fla. Exec. Order No. 78–48, reprinted in id. at 14. As of May 1980, Governor Graham had not revoked the Askew executive order (interview with Jim Tait, director, Office of Planning and Budgeting, in Tallahassee (May 15, 1980)), although there was considerable skepticism concerning the plan's existing relevance to decision making. Interviews with gubernatorial agency staff members and officials in Tallahassee (May 15, 1980). A staff member in the coastal zone management section of the Department of Environmental Regulation commented that “after 1977, there was no state policy on coastal management in the state comprehensive plan. A previous draff coastal element was dropped from the state plan.” Note to the author (May 15, 1980).Google Scholar

63 SCPA, §§ 23.0114(1),.013(2).Google Scholar

64 Id.§§ 23.0112(2),.0114(4)(b).Google Scholar

65 Cal. Pub. Res. Code §§ 30200–30264 (West 1977 & Cum. Supp. 1980).Google Scholar

66 ELA, § 380.06(1l)(a). Notwithstanding the apparent legislative intention to provide a close connection between the state comprehensive plan and decision making under other acts such as the DRI process Under ELA, 6 380.06(1l)(a), some knowledgeable Florida attorneys and agency officials are reluctant, for various reasons, to assume that these duties will be enforced by Florida courts. E.g., Townsend interview, supra note 1 (relating the observation that “the 'toilers in the field' have serious doubts [that the language in ELA quoted in the text] strengthens the ‘state plan.’”). A Tallahassee attorney who represents major development interests and is a close observer of the state legislative process suspects that when the 1978 legislature “took the teeth out of the state planning process,” there was a legislative aversion to “driving local planning [with] state and regional plans.” At a minimum, he asserts that the state comprehensive plan must be promulgated pursuant to the rule-making requirements of the Florida MA before the duty “to consider,”ELA, § 380.06(11)(a), will be enforced. Interview with Robert Rhodes, Esq., in Tallahassee (May 15, 1980).Google Scholar

67 LGCPA, 5 163.3184(2).Google Scholar

68 Fla. Stat. Ann. §§ 403.507-.508 (West Cum. Supp. 1980).Google Scholar

69 ELA, § 380.06(11)(a).Google Scholar

70 Fla. Stat. Ann. § 373.036 (West 1974 & Cum. Supp. 1980).Google Scholar

71 SCPA, § 23.012(3), (4). See Swanson & Tait, supra note 61, at 16, for discussion of federal programs.Google Scholar

72 See, e.g., ELA, 6 380.06(11)(a).Google Scholar

73 See California CLM, supra note 4, at 702–9.Google Scholar

74 Fla. Stat. Ann. § 373.073(2) (West Cum. Supp. 1980) (appointed by the governor, subject to confirmation by the senate).Google Scholar

75 See, e.g., 33 C.F.R. § 320.4(a)(1), 6) (1979) (any adopted state, regional, or local land use classification, determination, or policies applicable to the disposal site are presumed to reflect the local factors of public interest and must be considered by the corps decision maker).Google Scholar

76 372 So. 2d 913 (Fla. 1978). See text at notes 237–76 infra for discussion of Cross Key. Google Scholar

77 This summary of the present direction of state comprehensive planning is based on an interview with Jim Tait, director, Office of Planning and Budgeting, in Tallahassee (May 15, 1980); and on Policy Process and State Program Structure (undated draft memorandum prepared by the Office of Planning and Budgeting, distributed during May 1980). See Fla. Sess. Law Serv. ch. 79–190 for the Reorganization Act of 1979.Google Scholar

78 See generally Richard F. Babcock, The Zoning Game: Municipal Practices and Policies (Madison: University of Wisconsin Press, 1966); An Introduction, supra note 3, at 156–64.Google Scholar

79 Cal. Gov't Code §§ 65300.5-65428 (West Supp. 1966–79). See generally California CLM, supra note 4, at 712–14.Google Scholar

80 See LGCPA, 5 163.3194. see also Mandelker, Daniel R., The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 899, 960–65 (1976). “Florida … both more focused and more extensive in scope than that of California.”Id. at 960.Google Scholar

81 LGCPA, 5 163.3194(1).Google Scholar

82 See, e.g., California Coastal Act of 1976, Cal. Pub. Res. Code 5 30604 (West Cum. Supp. 1980).Google Scholar

83 See text at notes 170–72 infra. Google Scholar

84 1972 Fla. Laws ch. 72–317, 5 9.Google Scholar

85 See ALI code, supra note 5, at xii.Google Scholar

86 Id.§§ 2-101 to 2–301.Google Scholar

87 Id.§ 2–210.Google Scholar

88 Compare the LGCPA with the ELMS committee's recommendation in Environmental Land Management: A Final Report and Recommendations by the Florida Environmental Land Management Study Committee 18–60 (Tallahassee, Fla., Dec. 1973).Google Scholar

89 LGCPA, § 163.3167(1), (2)-(3), (7).Google Scholar

90 See text at notes 108–52 infra. Sanibel Island had started work on its plan well before the LGCPA was implemented.Google Scholar

91 Telephone interview with Dwynal Pettengill, associate planner, Department of Community Affairs, Chicago to Tallahassee (Aug. 8, 1979).Google Scholar

92 LGCPA, § 163.3167(4).Google Scholar

93 Id.§ 163.3167(5).Google Scholar

94 Pettengill interview, supra note 91.Google Scholar

95 Some other reasons suggested by a state planner are: (1) a significant number of local officials thought the LGCPA might be repealed; and (2) the degree of public interest was underestimated (e.g., in Putnam County, “hundreds of people turned out”) with the amount of public participation and suggestions requiring more public hearings and more delays. He believed, nevertheless, that “the planning process has been reinforced in most places,” and that the public is now “better educated in the nuts and bolts of the planning process.”Id. Google Scholar

96 See ELMS committee's final report, supra note 88, at 26.Google Scholar

97 See Lewis, Sylvia, Florida's Cities Bite the Planning Bullet, in Planning 25–27 (Chicago: American Planning Association, Feb. 1979).Google Scholar

98 Transcript of meeting of Resource Management Task Force, in Tallahassee (Nov. 29–30, 1979). According to Hon. Bobbie Lisle, city commissioner, Gainesville, she and Hon. Dennis P. Koehler, commissioner, Palm Beach County, “who are local elected officials, feel very strongly that local government should come up with a comprehensive plan, and you should not have to reward them to do it; that is their responsibility.”Id. at 19. Lisle and Koehler apparently supported state assistance in the form of “technical assistance to locals in developing plans,” but not “rewards” for doing what they should be doing anyway. Michael Garretson, an official of the Department of Community Affairs, said in relation to LGCPA funding: “In the first two years, no funds were appropriated. In the last three years, $750,000.00 a year has been appropriated for a total of 2 1/4 million dollars. In the DCA, only $35,000 is appropriated annually to find [sic] one Senior Planner, and one Secretary to implement the state's [LGCPA].”Id. at 19.Google Scholar

99 See Lewis, , supra note 97, at 26–27.Google Scholar

100 Cf. LGCPA, 5 163.3194 (legal status of comprehensive plan).Google Scholar

101 Cf., e.g., text at notes 48–75 supra. An official of the state Department of Environmental Regulation notes: “The Florida political process (and, for all I know, state processes everywhere) is not geared to give impetus. The ALI has never met the challenge of how to get change accepted as opposed to generating law that, if accepted, would be effective.” Townsend interview, supra note 1.Google Scholar

102 See N.Y. Times, Aug. 6, 1979, at 1, col. 1. But cf. President Carter's designation of 1980 as the “year of the coast.”Google Scholar

103 See, e.g., the LGCPA, enacted in 1975; the 1979 amendments to the ELA, in response to the Cross Key decision, discussed in text at notes 185–87 infra; pending bills in the 1980 session, including responses to the report of Governor Graham's Resource Management Task Force, supra note 44, discussed in the text at notes 463–68 infra. Google Scholar

104 Examples include Boca Raton, Delray Beach, Sanibel Island, Town of Palm Beach, and Sarasota County. Telephone interview with Daniel W. O'Connell, Houston to Ft. Lauderdale (May 20, 1980). Although some people argue that only a “small, number of elite communities” are showing this tendency, an official in the Department of Environmental Regulation disagrees that the changes are caused only by elitists: “Another ‘;quiet revolution’ is occurring. The environment is being regarded more and more as an economic rather than an aesthetic asset. Many who care nothing for birds resent the sewage rates generated by increased development or the loss of livelihood by fishermen.” Townsend interview, supra note 1.Google Scholar

105 See generally Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 900 (1976); Edward J. Sullivan & Laurence Kressel, Twenty Years After—Renewed Significance of the Comprehensive Plan Requirement, 9 Urb. L. Ann. 33 (1975).Google Scholar

106 Cf., e.g., Southern Burlington County NAACPV. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713, appeal dismissed, 423 US. 808 (1975); Oakwood at Madison Inc. v. Township of Madison, 72 N.J. 481, 371 A.2d 1192 (1977); Pascack Ass'n Ltd. v. Mayor and Council, 74 N.J. 470, 379 A.2d 6 (1977).Google Scholar

107 Lewis, supra note 97, at 29.Google Scholar

108 Sanibel Planning Commission, Comprehensive Land Use Plan, City of Sanibel, Lee County Florida, adopted July 19, 1976, Sanibel Ordinance No. 76–21 [hereinafter cited as Sanibel plan]. The legal consultant was the Chicago law firm of Ross, Hardies, O'Keefe, Babcock & Parsons. Facts in this section, if not otherwise documented, were obtained from Fred P. Bosselman, Esq., and Charles Siemon, Esq., of the firm. See generally John Clark, The Sanibel Report: Formulation of a Comprehensive Plan Based on Natural Systems (Washington, D.C.: Conservation Foundation, 1976); Fred P. Bosselman, Local Regulation of Coastal Areas, study materials in 2 ALI-ABA Course of Study in Hawaii, Land Planning and Regulation of Development 431 (Philadelphia: American Law Institute, 1977).Google Scholar

109 This process resembles that provided for by existing English planning law. Not surprisingly, it also resembles the local system that Fred Bosselman, the associate reporter of the American Law Institute's Model Land Development Code, presumably would have preferred for the ALI code.Google Scholar

110 Interview with Charles Siemon, Esq., in Chicago (Aug. 10, 1976).Google Scholar

111 Planning consultant: Wallace, McHarg, Roberts, and Todd; legal consultant: Ross, Hardies, O'Keefe, Babcock & Parsons; economic consultant: Dr. J. C. Nicholas; civil engineering: Johnson Engineering, Inc.; traffic consultant: J.H.K. Associates; geologist/hydrologist: Dr. A. H. Johnson. The Conservation Foundation and Sanibel-Captiva Conservation Foundation conducted and sponsored much of the scientific study. Scientists were commissioned to do specific studies on water quality, vegetation, marine ecology, beaches and dunes, and interior wetlands. Their papers identified system components that needed protection and management goals. The planning consultants worked with the city planning commission. Ten unpaid citizens' task forces, with about six people on each task force, did much of the work themselves, particularly in collecting the data.Google Scholar

Three citizens' groups composed of retired government employees and officials in their fifties and sixties provided the principal push for a Sanibel plan. They favored single-family development and tried to work with Lee County to develop a plan for the island's growth. But Lee County was not interested in growth control, preferring the money received for building permits and from the increasing tax base.Google Scholar

112 See LGPCA, § 163.3174.Google Scholar

113 See, e.g., Island Reporter, June 3, 1977, at 1, col. 1 (moratorium on new construction imposed because of water shortage).Google Scholar

114 In study materials for the Hawaii ALI-ABA program, supra note 108, at 434–35, Bosselman cited the following cases as examples of the kinds of factors that courts have recognized require restrictive land use regulations.Google Scholar

A significant recent case on wetlands regulation and the “taking issue” is Estuary Properties, Inc. v. Askew, 380 So. 2d 1126 (Fla. 1st Dist. Ct. App. 1979), an opinion that Bosselman was quoted as describing to the Lee County, Florida, commissioners as follows: “I think without equivocation this is the most devastating opinion I've seen in any state of the union …. If this becomes law, you might as well throw out the Lee County Comprehensive Land Use Plan and your zoning department and just allow the judges to run the county. That is what they are telling you they are doing …. I think you will get a much different opinion from the Florida Supreme Court.” Island Reporter, Dec. 21, 1979, at 1, col. 1. See also text at notes 417–62 infra. Google Scholar

115 Sanibel plan, supra note 108, 5 4.6.2Google Scholar

116 Id.§ 4.6.4. The chairman “may impose reasonable limitations on the number of witnesses heard and on the nature and length of their testimony and cross examination.”Id. Google Scholar

117 Id.§ 4.6.5(2).Google Scholar

118 Id.§ 4.8.1.Google Scholar

119 Id.§§ 4.8.3 (specific), 4.8.4 (general).Google Scholar

120 Id.§§ 4.9.4(2); LGPCA, § 163.3184.Google Scholar

121 Siemon interview, supra note 110.Google Scholar

122 Sanibel plan, supra note 108, § 3.9.1(4).Google Scholar

123 Siemon interview, supra note 110.Google Scholar

124 Bosselman, supra note 108. See Sanibel plan, supra note 108, § 2.5.3, and LGPCA, § 163.3177(f)(4) for the required housing element, which includes the following: “provision of adequate sites for future housing, including housing for low- and moderate-income families and mobile homes, with supporting infrastructure and community facilities.” Apparently, no one disputes that Sanibel Island is located within a region in which there is not an adequate “mix” of housing. Proponents of Sanibel's plan contend, however, that because of the island's isolation, Sanibel has a limited role in attempting to alleviate any regional shortage of low- and moderate-income housing.Google Scholar

125 ALI code, supra note 5.Google Scholar

126 See generally, The Federal Role, supra note 3.Google Scholar

127 Fla. Stat. Ann. § 161.052 (West Cum. Supp. 1980).Google Scholar

128 The chief of the Bureau of Beaches and Shores estimated that 95 percent of variance requests have been granted, but emphasized that the variances were approved only after requested changes were made—especially erosion controls and building safety. Interview with W. T. Carlton, Department of Natural Resources, in Tallahassee (May 1976).Google Scholar

129 See, e.g., Sanibel plan, supra note 108, 5 3.9.5 (Bay Beach zone).Google Scholar

130 Cf. The Federal Role, supra note 3, at 174–98.Google Scholar

131 Cf. id. at 207.Google Scholar

132 372 So. 2d 181 (Fla. 2d Dist. Ct. App. 1979).Google Scholar

133 See generally ALI code, supra note 5, art. 4, on “discontinuance of existing land uses.”Google Scholar

134 372 So. 2d at 182. Compare Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (general constitutional attack), with Nectow v. City of Cambridge, 277 U.S. 183 (1928) (specific constitutional attack).Google Scholar

135 Siegan, Bernard H., Other People's Property (Lexington, Mass.: D.C. Heath & Co., 1976).Google Scholar

136 See, e.g., Bernard H. Siegan, Land Use Without Zoning (Lexington, Mass.: D.C. Heath & Co., 1972).Google Scholar

137 Siegan, supra note 135, at 98.Google Scholar

138 Id. at 8.Google Scholar

139 Id. at 54.Google Scholar

140 Id. at 42.Google Scholar

141 Id. at 16.Google Scholar

142 Id. at 117.Google Scholar

143 See, e.g., Janet Guyon, Down the Drain? Critics Question Cost of Maintaining Coasts in Storm-Prone Areas, Wall Street J., Nov. 23, 1979, at 1, col. 6. “The U.S. Army Corps of Engineers currently is rebuilding the beach at Miami Beach for about $65 million in local and federal funds, although many experts believe the new beach will just wash away in the first big storm.” Concerning the consequences of a big hurricane hitting a highly developed area like South Florida, the report notes: “One major hurricane could cause $1.5 billion of damage, the total amount of damage caused by hurricanes in Florida between 1960 and 1975, the Interior Department says.”Google Scholar

The report notes further that Hurricane Frederic did an estimated $2 billion in damage, causingGoogle Scholar

144 Sanibel plan, supra note 108, §§ 3.9.1(4), 3.9.5.Google Scholar

145 See Hardin, Garrett, The Tragedy of the Commons, 162 Science 1243, 1244 (1968) (describing why a rational herdsman utilizing a pasture open to all will conclude that “the only sensible course for him to pursue is to add another animal to his herd. And another; and another…. But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit—in a world that is limited”).Google Scholar

146 Cf. Fred Bosselman, David Callies, & John Banta, The Taking Issue: A Study of the Constitutional Limits of Governmental Authority to Regulate the Use of Privately-owned Land Without Paying Compensation to the Owners 260 (Washington, D.C.: Government Printing Office, 1973).Google Scholar

147 Cf., e.g., Chief Judge Breitel's explanation of how traditional zoning and historic district regulation function:Google Scholar

Penn Central Tramp. Co. v. City of New York, 42 N.Y.2d 324, 366 N.E.2d 1271, 397 N.Y.S.2d 914 (1977), aff'd, 438 U.S. 104 (1978).Google Scholar

148 “[L]andmark regulation is different because the burden of limitation is borne by a single owner. He may or may not benefit from that limitation but his neighbors most likely will.”Id. 366 N.E.2d at 1274 (Breitel, C.J.).Google Scholar

149 See, e.g., Penn Central Tramp. Co. v. New York City, 438 U.S. 104 (1978). See generally John J. Costonis, Development Rights Transfer: An Exploratory Essay, 83 Yale L.J. 75 (1973).Google Scholar

150 Fred Bosselman & Charles Siemon, Improving Due Process in Local Zoning Decisions, in Environmental Comment 14 (Washington, D.C.: Urban Land Institute, Aug. 1976). An official of Florida's Department of Environmental Regulation emphasizes how unusual it is for a Florida community to be moving toward “overregulation.” Townsend interview, supra note 1.Google Scholar

151 See California CLM, supra note 4, at 692–702, 746.Google Scholar

152 See, e.g., ELA, § 380.06; text at notes 277–95 infra. Google Scholar

153 The initial regional planning agencies designated to report on the regional impacts of DRIS under the ELA were formed under either the regional planning council enabling act, Fla. Stat. Ann. §§ 160.01-.02 (West 1972 & Cum. Supp. 1980), or the Florida Interlocal Cooperation Act of 1969, Fla. Stat. Ann. §§ 163.01-.03 (West 1972).Google Scholar

154 The Demonstration Cities and Metropolitan Development Act of 1966, 42 U.S.C. §§ 3301–3374 (1976), and the Intergovernmental Cooperation Act of 1968, 42 U.S.C. §§ 4201–4244 (1976), called for areawide review and evaluation, implemented in circular A-95 of the federal Office of Management and Budget by requiring applicants for certain federal assistance to notify designated “clearinghouses” so that an “A-95 review” could be made. See ALI code, supra note 5, § 8–102, at 309–15.Google Scholar

155 ELA, § 380.06.Google Scholar

156 Fla. Stat. Ann. §§ 373.013-.617 (West 1974 & Cum. Supp. 1980).Google Scholar

157 Id. 0 373.036.Google Scholar

158 See, e.g., id.§§ 403.0615-.90 (West 1973 & Cum. Supp. 1980). 1975 Ha. Laws ch. 75–22, § 10, transferred the previous powers, duties, and functions of the board of trustees of the Internal Improvement Trust Fund to the Department of Natural Resources and the Department of Environmental Regulation.Google Scholar

159 See text at notes 170–72 infra. Google Scholar

160 See text at notes 78–107 supm. Google Scholar

161 Graham task force report, supra note 44, § 2, Regional Resource Management.Google Scholar

162 Much of the text of this part is taken verbatim, with permission, from my article, Saving Paradise: The Florida Environmental Land and Water Management Act of 1972, 1973 Urb. L. Ann. 103.Google Scholar

163 Carter, supra note 15, at 126 (paraphrasing John M. DeGrove).Google Scholar

164 Id. Google Scholar

165 See The Federal Role, supra note 3, at 229–47.Google Scholar

166 See, e.g., Fred Bosselman & David Callies, The Quiet Revolution in Land Use Control (Washington, D.C.: Government Printing Office, 1971).Google Scholar

167 The 1972 task force concluded that the Hawaii districting approach might prove rigid and administratively cumbersome in a larger state such as Florida. See, e.g., id. at 24 (monopoly effect leading to high land prices), 29 (excessive time for processing applications); N.Y. Times, June 20, 1972, at 38, col. 1: “The clearest message from the voters in this year's primary elections is that government is too unresponsive to the immediate needs and concerns of the people.” Other statutes seemed to concentrate primarily on geographic problems, such as Wisconsin's Shoreland Protection Program, Wis. Stat. Ann. 89 59.971 (West Cum. Supp. 1979–80). 144.26 (West 1974 & Cum. Supp. 1979–80), or on functional needs, as in Mass. Gen. Laws Ann. ch. 40B, § 20 (West 1979).Google Scholar

168 See ALI code (Tent. Draft No. 3), supra note 5, at 7 Note (1).Google Scholar

169 Reilly, William K., ed., The Use of Land: A Citizens' Policy Guide to Urban Growth 39 (New York: Thomas Y. Crowell Co., 1973), the Rockefeller-Sponsored Task Force on Land Use and Urban Growth.Google Scholar

170 1972 Fla. Laws ch. 72–300 (codified at Fla. Stat. Ann. ch. 259 (West 1975 & Cum. Supp. 1980)).Google Scholar

171 1972 Fla. Laws ch. 72–299 (codified at Fla. Stat. Ann. ch. 373 (West 1974 & Cum. Supp. 1980)).Google Scholar

172 Governor Reubin Askew appointed the 14-member Task Force on Resource Management in October 1971. Its membership included, among others, then senator Robert Graham, now governor of Florida. See Carter, supra note 15, at 126–30.Google Scholar

173 S.B. 629, § 7(1) (1972).CrossRefGoogle Scholar

This approach tracked the ALI code and reflected a decision to provide reasonable insulation from undue political pressures and to avoid overloading the state's executive officers. The compromise reflected strong views of elected officials that review of land use decisions of locally elected officials should be conducted by elected officials at the state level. From the author's notes as chairman of the task force's subcommittee on land use. See ALI code, supra note § Q 8–101, at 303–4 for the reporter's note on advantages of a state land-planning agency “which will act as an integral part of, but serve as a separate division of, the agency responsible for state planning,” and advantages of having an agency that will have “gubernatorial commitment.”Google Scholar

174 The governor and cabinet was an established, credible decision-making body, and no one was shocked when these new duties were assigned to them. Interview with Dr. John DeGrove, Joint Center for Environmental and Urban Problems, FAU/FIU, in Boca Raton, Fla. (Mar. 18, 1975). DeGrove was chairman of the 1972 task force. The first director of the state land-planning agency shared DeGrove's view. Interview with Earl Starnes, director, Division of State Planning, in Tallahassee (Mar. 26, 1975).Google Scholar

The 1980 report of the Graham task force, supra note 44, at 26, recommends that “[t]he composition of the Florida Land and Water Adjudicatory Commission (Governor and Cabinet) should not be changed.”Google Scholar

175 See California CLM, supra note 4, at 679–81.Google Scholar

176 Cf. id. at 657–70, for arguments supporting differences during the early stages of a program's implementation.Google Scholar

177 But cf. the recommendation of the Graham task force, supra note 174.Google Scholar

178 ELA, § 380.05(20).Google Scholar

179 Id.§ 380.055.Google Scholar

180 1972 Fla. Laws ch. 72–317, § 13.Google Scholar

181 Askew interview, supra note 11.Google Scholar

182 The vote was 1,131,718 for and 432,584 against. Tallahassee Democrat, Nov. 8, 1972, at 12, col. 1. It authorized issuance of bonds for $200 million for purchase of environmentally endangered lands and $40 million for purchase of recreation lands, in addition to making all the critical area process effective.Google Scholar

183 ELA, 4 380.05. See text at notes 214–37 infra. Google Scholar

184 “‘Land development regulations’ include local zoning, subdivision, building, and other regulations controlling the development of land.”ELA, 5 380.031(7).Google Scholar

185 372 So. 2d 913 (Fla. 1978). A special session of the legislature, which convened and adjourned on Dec. 6, 1978, immediately responded to the Cross Key decision by redesignating the Florida Keys and Green Swamp as areas of critical state concern and by appointing a joint select committee to study the critical area process and make recommendations to the legislature by Mar. 15, 1979. See generally, for a discussion of Florida's critical areas process and a suggestion that the 1979 legislature's response to Cross Key is “largely cosmetic,” Thomas G. Pelham, State Land-Use Planning and Regulation: Florida, the Model Code, and Beyond 99–143 (Lexington, Mass.: D.C. Heath & Co., 1980).Google Scholar

186 ELA, §§ 380.05(1)(c), (8).Google Scholar

187 Id.§ 380.05(15).Google Scholar

188 Id.§ 380.07(2).Google Scholar

189 Id.§ 380.05(l)(d)(popularly called the “local government backsliding amendment”).Google Scholar

190 Id.§ 380.05.Google Scholar

191 The state land-planning agency was originally the Division of State Planning within the Department of Administration, but now is the Division of Local Resource Management within the Department of Community Affairs. 1979 Fla. Sess. Law Sew. ch. 79–190, §§ 47–49. The act provides for continuing recommendations to the state land-planning agency coming from each regional planning agency and local government concerning suggested areas for designation as critical areas. ELA, § 380.05(3). The state agency must respond and explain in writing to the regional agency or local government if it does not designate substantially such an area.Google Scholar

192 ELA, 0 380.031(13).Google Scholar

193 Id.§ 380.05(1)(b).Google Scholar

194 Id.§ 380.05(1)(c).Google Scholar

The ELA provided for certain other conditions precedent to initial designations of a critical area. Before any designation was made, an inventory of state-owned lands had to be filed with the state land-planning agency. 1972 Fla. Laws ch. 72–317, § 5(1). During the first 12 months no more than 500,000 acres could be designated. Id.§ 5(17). Some environmental types of designations first required a favorable vote on a state-wide referendum. Id.§ 13. And still operative is a provision that at no time may more than 5 percent of the land of the state be subject to supervision under the critical area technique. ELA, § 380.05(20).Google Scholar

195 ELA, § 380.045.Google Scholar

196 Id.§ 380.05(l)(c).Google Scholar

197 See The Apalachicola River and Bay System: A Florida Resource (Tallahassee, Fla.: Department of Administration, Division of State Planning, 1977).Google Scholar

198 See Charlotte Harbor: A Florida Resource (Tallahassee, Fla.: Department of Administration, Division of State Planning, [1978]).Google Scholar

199 See text at notes 108–52 supra. Google Scholar

200 But cf. Estuary Properties, Inc. v. Askew, 381 So. 2d 1126 (Fla. 1st Dist. Ct. App. 1979), and its implications for environmental protection. See notes 417–62 infra and text at same.Google Scholar

The coastal zone management section of the Department of Environmental Regulation emphasizes that other state environmental agencies have performed major roles in assuring that critical area designations would not be necessary in the Apalachicola and Charlotte Harbor areas. Townsend interview, supra note 1.Google Scholar

201 ELA, § 380.05(5).Google Scholar

202 Id.§ 380.045.Google Scholar

203 Id.§ 380.05(7).Google Scholar

204 Id.§ 380.05(6), (8).Google Scholar

205 Id.§ 380.05(8).Google Scholar

206 Id.§ 380.05(9).Google Scholar

207 Id.§ 380.05(17).Google Scholar

208 Id.§ 380.05(11).Google Scholar

209 1974 Fla. Laws ch. 74–326 (“The rule may specify that such principles for guiding development shall apply to development undertaken subsequent to the designation of the area of critical state concern but prior to the adoption of land development regulations”).Google Scholar

210 “Such principles for guiding development shall apply to any development undertaken subsequent to the legislative review pursuant to paragraph (c) of the designation of the area of critical state concern with or without modification but prior to the adoption of land development rules and regulations.”ELA, § 380.05(1)(b), as amended (by emphasized words) by 1979 Fla. Sess. Law Serv. ch. 79–73, § 4(l)(b). An official in the state land-planning agency explained this amendment as a “conscious choice,” grounded in a concern for meeting the requirements of Cross Key, 372 So. 2d 913 (Fla. 1978). Interview with James W. May, in Tallahassee (May 16, 1980).Google Scholar

211 ELA, 5 380.05(1)(b).Google Scholar

212 Id. 55 380.05(18),.06(12). See Compass Lake Hills Dev. Corp. v. Department of Administration, No. NN-458 (Fla. 1st Dist. Ct. App., Dec. 27, 1979) (construes ELA, § 380.06(12)).Google Scholar

213 ELA, 5 380.07(2).Google Scholar

214 Id. 5 380.055(4).Google Scholar

215 1972 Fla. Laws ch. 72–317, § 5(2)(a)-(b). The third potential use for a “proposed area of major development potential, which may include a proposed site of a new community,” was never used and was repealed by the 1979 legislature. Id.§ 5(2)(c) (repealed by Fla. Laws ch. 79–73, § 4).Google Scholar

216 Carter, supra note 15, at 246.Google Scholar

217 ELA, § 380.055(3).Google Scholar

218 Carter, supra note 15, at 249.Google Scholar

219 Id. Google Scholar

220 Id. at 254.Google Scholar

221 Id. at 252–53.Google Scholar

222 Id. at 254.Google Scholar

223 Interview with Joseph W. Landers, Jr., then executive director, Board of Trustees of the Internal Improvement Trust Fund, in Tallahassee (Mar. 26, 1975).Google Scholar

224 The state land-planning agency is empowered to institute judicial proceedings to compel proper enforcement if it determines that administration of the local regulations is inadequate. ELA, §§ 380.05(13),.11.Google Scholar

225 Interview with Roland Eastwood, executive director, Southwest Florida Regional Planning Council, in Fort Myers, Fla. (Mar. 19, 1975). A county commissioner asserted that the state must be the primary enforcement agency if the act is to function properly. Interview with the Hon. Clifford Wenzel, vice-chairman, Collier County Board of County Commissioners, in Naples, Fla. (Mar. 21, 1975).Google Scholar

226 See Division of State Planning, Final Report and Recommendations for the Proposed Florida Keys Area of Critical State Concern (Tallahassee: State of Florida, 1974) [hereinafter cited as DSP's Keys Report], for the full reasons.Google Scholar

227 Id. at iv (quoting Carson).Google Scholar

228 ALI code, supra note 5, art. 7, pt. 2, at 257. An area of the Green Swamp, 322,690 acres in Polk and Lake counties, was designated a critical area on July 16, 1974. In Postal Colony Co., Inc. v. Askew, 348 So. 2d 338 (Fla. 1st Dist. Ct. App. 1977), however, the court first held that the administration commission's development regulations were not effective within the required 12-month period under ELA, § 380.05, and on rehearing held the designation unconstitutional on the same nondelegation grounds as in Cross Key Waterways, Inc. v. Askew, 351 So. 2d 1062 (Fla. 1st. Dist. Ct. App. 1977). The two decisions were affirmed in Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1978) [hereinafter referred to as Cross Key]. See notes 282–323 infra and text at same.Google Scholar

See generally, for a discussion of other state experiences with the critical areas process, Pelham supra note 185, at 75–98.Google Scholar

229 This section is based mainly on interviews with Kermit Lewin, Monroe County planning director, in Key West, Fla. (Stock Island) (Mar. 26, 1976; Apr. 4, 1977; Mar. 1979).Google Scholar

230 See ELA, § 380.05(12).Google Scholar

231 ELA, § 380.06.Google Scholar

232 See rule 22F-9.06, Administration Commission regulations for the Florida Keys, Monroe County [hereinafter cited as Ha. Keys regs.], incorporating ordinance no. 21–1975, adopted Dec. 15, 1975.Google Scholar

233 Much of this section is based on interviews with the Hon. Charles McCoy, mayor of Key West, in Key West, Fla. (Mar. 21, 1975; Mar. 26, 1976; April 4, 1977).Google Scholar

234 DSP's Keys Report, supra note 226, at 30.Google Scholar

235 The author's count in City Hall, Key West, Ha., Apr. 4, 1977.Google Scholar

236 In re City of Key West Ordinance Nos. 76–8 and 76–112, No. 76–9 (Fla. Land & Water Ajudicatory Comm'n, Nov. 29, 1977). See generally Pelham, supra note 185, at 116.Google Scholar

237 372 So. 2d 913 (Fla. 1978).Google Scholar

238 Two important exceptions to the United States Supreme Court's tendency to uphold congressional 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 include 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. 0 2.00, at 40–78 (St. Paul, Minn.: 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” (id. at 43); 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 delegation doctrine.”Id. at 84).Google Scholar

239 See, e.g., 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 1960); Barry & Barry, Inc. v. Department 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). See also cases cited in Cross Key, 372 So. 2d at 918. Notwithstanding the liberalization of the doctrine in many state courts, it has retained considerable vitality in others. See generally 1 Frank E. Cooper, State Administrative Law (Indianapolis: Bobbs-Merrill Co., 1965); Gelhorn & Byse, supra note 238, 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).Google Scholar

240 ALI code, supra note 5, art. 7, § 7–201.Google Scholar

241 Professor Davis maintains that there should be a shift in emphasis from legislatively imposed standards for administrative action to procedural safeguards in the administrative process…. His premises are that (1) strict adherence to the nondelegation doctrine would stultify the administrative process; (2) the doctrine, in fact, has been used as a label to invalidate legislation of which courts disapprove without any rational distinction between standards approved and those disapproved; and (3) the danger of arbitrary or capricious administrative action is best met through procedural due process safeguards in the administrative process.Google Scholar

Although the Davis view is an entirely reasonable one as demonstrated by its adoption in the federal courts and a minority of state jurisdictions, nonetheless, it clearly has not been the view in Florida.Google Scholar

Cross Key, 372 So. 2d at 922–23, 924 (Sundberg, J.).Google Scholar

242 Id. at 925.Google Scholar

243 Id, at 919.Google Scholar

244 Id. at 918. Several other procedural and constitutional attacks were rejected by the lower court: “Thus invoking well-established standards which limit governmental regulation of the use of private property, the Act does not unconstitutionally take private property without compensation, deprive persons of property without due process of law, or abridge the basic right to acquire, possess and protect property.” Cross Key Waterways, Inc. v. Askew, 351 So. 2d 1062, 1065 (Fla. 1st Dist. Ct. App. 1977) (Smith, J.), aff'd on other grounds, Askew v. Cross Key Waterways, 372 So. 2d 913 (Fla. 1978).Google Scholar

245 Cross Key, 372 So. 2d at 915.Google Scholar

246 Id. at 919.Google Scholar

247 Id. Google Scholar

248 302 So. 2d 737 (Fla. 1974). The Barg case played a puzzling role in the Cross Key litigation because of Professor Davis's assessment of Barg: “If the Florida test were used, approximately one hundred percent of federal legislation conferring rulemaking authority on federal agencies would be unconstitutional.” (Emphasis added.) Kenneth Culp Davis, Administrative Law of the Seventies, supplementing Administrative Law Treatise, at 32–33 (Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1976). Judge Smith's lower court opinion quotes the Davis assessment, Cross Key Waterways v. Askew, 351 So. 2d 1062, 1069 11.15 (Fla. 1st Dist. Ct. App. 1977), and cites Burg as controlling on the issue of delegation of rule-making power. Id. at 1068. But the facts in Burg are distinguishable from the facts in Cross Key, a point that although argued in the amicus curiae brief for Governor Askew, was ignored in the supreme court's Cross Key opinion. Instead, the supreme court cited the same Davis source as indicating that the Davis view “has not been the view in Florida.” Cross Key, 372 So. 2d at 924.Google Scholar

Burg and Cross Key are distinguishable because Cross Key considered delegation of rule-making power to the governor and cabinet of Florida while Burg considered delegation of adjudicative power (but cf. Burg court's characterization as “delegation of legislative authority,” 302 So. 2d at 742) to a board of appeals whose members were appointed by the governing body of Sarasota County (whose citizens gave effect to the subject act by approving it at a referendum). “Courts and legislatures draw sharp distinctions between administrative rule-making and administrative adjudication.” Gellhorn & Byse, supra note 238, at 103. In Barg, the legislature had created the Manasota Key Conservation District within Sarasota County. Certain activities within this district were prohibited, e.g., “undue or unreasonable dredging, filling” and “[t]he unreasonable destruction of natural vegetation within the district in a manner which would be harmful or significantly contribute to air and water pollution.” Barg, 302 So. 2d at 739. The Florida Supreme Court held: “The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the Act. This amounts to an unrestricted delegation of legislative authority, in violation of the Florida Constitution, Article II, Section 3, F.S.A.”Id. at 742. But compare the rule-making function of the governor and cabinet under the ELA and the procedural safeguards of the ELA and the MA. NO landowner would be similarly affected by a regulation until the final land development regulations were in effect, which could be as long as one year after the area was designated an area of critical state concern. Even if the local government failed to submit its own land development regulations, if the governor and cabinet imposed land development regulations on the local government, the land development regulations could only become effective upon promulgation of a rule, pursuant to the Florida APA. ELA 5 380.05(8). Cross Key nevertheless ignores the distinction between delegation of rule-making power and delegation of adjudicative power and cites Burg as controlling on the delegation issue in Cross Key. Cross Key, 372 So. 2d at 918.Google Scholar

249 Cross Key, 372 So. 2d at 919. “The benefits of the current version of Chapter 120 were not available at the time of the Barg decision.”Id. Google Scholar

250 Id. at 913, 918–20, 924.Google Scholar

251 Id. at 919.Google Scholar

252 Id. at 920.Google Scholar

253 Id. at 918–19.Google Scholar

254 The state Courts are troubled by the spectre of discriminatory administration. In the field of general business regulation state decisions are not notably different from the federal decisions. Rate regulation has been uniformly upheld….Google Scholar

It is when delegated power affects the use of real property or the practice of a profession that the judicial nerve tingles. The doctrine of delegation is then likely to be invoked against delegations which because of an uncertainty of standards (in phrase or in fact) encourage undetectable discrimination or subjective notions of policy.Google Scholar

Jaffe, supra note 239, at 76–77.Google Scholar

255 The idea that sovereign power should intrude on personal liberty only when the applicable general directive arrangements have been prescribed by processes that provide maximum protection against arbitrariness and capriciousness. See Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 17 (Baton Rouge: Louisiana State University Press, 1969); James M. Landis, The Administrative Process 123–24 (New Haven: Yale University Press, 1938). See also, on the nature and significance of “general directive arrangements,” Henry M. Hart, Jr., & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 124–25 (Tent. ed. Cambridge, Mass., 1958).Google Scholar

256 The idea that the potential tyranny of unbridled sovereign power can and should be minimized by dividing governmental power and providing internal checks and balances to prevent one branch of government from overpowering the others. See Gellhorn & Byse, supra note 238, at 54–57; Jaffe, supra note 239, at 32; Landis, supra note 255, at 88; Arthur T. Vanderbilt, The Doctrine of the Separation of Powers and Its Present-Day Significance (Lincoln: University of Nebraska Press, 1953); Symposium, Separation of Powers, 52 Ind. L.J. 311 (1977). But see Justice Cardozo's dissent in Panama Ref. Co. v. Ryan, 293 U.S. 388, 440 (1935), saying it is no “doctrinaire concept to be made use of with pedantic rigor.”Google Scholar

257 See, e.g., James O. Freedman, Delegation of Power and Institutional Competence, 43 U. Chi. L. Rev. 307, 310 (1976).Google Scholar

258 Id.; Horst P. Ehmke, “Delegata Potestas Non Potest Delegari”: A Maxim of American Constitutional Law, 47 Cornell L.Q. 50 (1961).Google Scholar

259 56 Fla. 617, 47 So. 969 (1908).Google Scholar

260 Fla. Const. of 1968, art. 2, § 3 (“The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein”).Google Scholar

261 Both opinions in Cross Key noted that the Washington Supreme Court construed the relevant provisions of the Washington constitution as a grant of power rather than a limitation of power. “What was not done in Washington is precisely what has been done in Florida.” Cross Key, 372 So. 2d at 926 (England, C.J.).Google Scholar

262 Id. at 925.Google Scholar

263 Landis, supra note 255, at 2.Google Scholar

264 Id. at 15.Google Scholar

265 If the doctrine of the separation of power implies division, it also implies balance, and balance calls for equality. The creation of administrative power may be the means for the preservation of that balance, so that paradoxically enough, though it may seem in theoretic violation of the doctrine of separation of power, it may in matter of fact be the means for the preservation of the content of that doctrine.Google Scholar

Id. at 46 (emphasis added).Google Scholar

266 Davis, supra note 255, at 17. See also St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 84 (1936), for the realistic view of Mr. Justice Brandeis.Google Scholar

267 “The major demand for good government today and in the future must be found in the development of effective, yet fair and just procedures which cut to the barest minimum the instances where the system goes wrong and an extraordinary corrective device is necessary.” Jerre S. Williams, Fifty Years of the Law of the Federal Administrative Agencies—and Beyond, 29 Fed. B. J. (1970), as quoted by Gellhorn & Byse, supra note 238, at 14.Google Scholar

268 Cross Key, 372 So. 2d at 924.Google Scholar

269 Except for acknowledging that the questioned delegation is to the governor and independently elected cabinet, the main opinion gives no hint that the nature of the delegate is relevant to the delegation issue. Indeed, Justice England adds in his concurring opinion: “Law giving, the power involved here, is a responsibility assigned to the legislature, and that body is prohibited from relegating its responsibility wholesale to persons, whether elected or appointed, whose duties are simply to see that the laws are observed.” Cross Key, 372 So. 2d at 925 (emphasis added).Google Scholar

270 Gellhorn & Byse, supra note 238, at 86. see also Jaffe, Louis L., The Illusion of the Ideal Administration, 86 Harv. L. Rev. 1183, 1185 (1973) (“Responsibility is, I would suggest, as much a function of the institutional characteristics of the delegate as it is of the character of the power bestowed. It may be that if the delegate is highly visible, as is the President, broad powers promote responsibility”).Google Scholar

271 See Zabel v. Pinellas County Water & Navigation Control Auth., 171 So. 2d 376, 380 (Fla. 1965) (quoting Hayes v. Bowman, 91 So. 2d 795, 802 (Fla. 1957)):Google Scholar

272 Although a few state supreme courts have reconceptualized the small-tract rezoning, e.g., Aldom v. Borough of Roseland, 42 N.J. Super. 495, 127 A.2d 190 (1956); Fasano v. Board of County Com'rs, 264 Or. 574, 507 P.2d 23 (1973); Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371 (1975); City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974), other state supreme courts, e.g., Olley Valley Estates, Inc. v. Fussell, 232 Cia. 779, 208 S.E.2d 801 (1974), continue to follow the majority position that even a small-tract rezoning is a legislative function. See generally Edward J. Sullivan, Araby Revisited: The Evolving Concept of Procedural Due Process Before Land Use Regulatory Bodies, 15 Santa Clara Law. 50 (1974).Google Scholar

273 See, e.g., California CLM, supra note 4, at 677–81.Google Scholar

274 California Coastal Act of 1976, Cal. Pub. Res. Code § 30312(b) (West Cum. Supp. 1979).Google Scholar

275 ELA, § 380.031(1).Google Scholar

276 See note 271 supra. Google Scholar

277 The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331–4347 (1976), has significantly affected the designs of state impact review processes, including the California Environmental Quality Act of 1970, Cal. Pub. Res. Code §§ 21000–21176 (West 1977 & Cum. Supp. 1979), which was “both the first and most original of state environmental policy laws.” 2 Frank P. Grad, Treatise on Environmental Law § 9.07[2][a], at 9–158 (New York: Matthew Bender, 1979 & Cum. Supp. Oct. 1979).Google Scholar

278 ELA, § 380.06(1).Google Scholar

279 Id.§ 380.031(3).Google Scholar

280 Id.§ 380.07(2).Google Scholar

281 See General Dev. Corp. v. Division of State Planning, 353 So. 2d 1199, 1202 (Fla. 1st Dist. Ct. App. 1977) [hereinafter cited as GDC V. DSP].Google Scholar

282 ELA, § 380.06(2)(a). See 6 Fla. Admin. Code 22F-2.01 to.12 for the 12 DRI categories.Google Scholar

283 ELA, § 380.06(4)(a).Google Scholar

284 353 So. 2d 1199.Google Scholar

285 GDC v. DSP, 353 So. 2d at 1208.Google Scholar

286 For example, if a county has a population of more than 50,000 but less than 100,000, a residential development in the county that involves 750 or more units is presumptively a DRI. § Fla. Admin. Code 22f-2.10. What if a potential developer owns 700 acres of land in the middle of a major multi-county aquifer recharge area, but plans only 740 units in his development? It does not fall within the presumptive guidelines and according to division practice before GDC v. DSP (353 So. 2d 1199) was not a DRI; however, if the developer plans 760 units, then the development is presumptively a DRI. To interpret the guidelines as definitive (as was done before GDC v. DSP) was always highly questionable, for the 20 units of difference were de minimis. See Gilbert Finnell & William Townsend, The Environment and Land Use Planning, in Environmental Regulation and Litigation in Florida 5 7.70, at 222 (Tallahassee: Florida Bar Continuing Legal Education, 1973).Google Scholar

287 GDC v. DSP, 353 So. 2d at 1209.Google Scholar

288 8 Fla. Admin. Code 22f–2.01 to.12.Google Scholar

289 Address of Senator D. Robert Graham, Florida Society of Newspaper Editors (May 6, 1972).Google Scholar

290 Pelham, Thomas G., Regulating Developments of Regional Impact: Florida and the Model Code, 29 U. Fla. L. Rev. 789, 801 (1977). See ALI code, supra note 5, § 7–301(4) (development of regional benefit).Google Scholar

291 See GDC V. DSP, 353 So. 2d at 1208.Google Scholar

292 ELA, § 380.06(1).Google Scholar

293 Id.§ 380.06(8)(e).Google Scholar

294 Id.§ 380.06(8)(f).Google Scholar

295 Id.§ 380.04(3)(e). Governor Graham's task force report, supra note 44, recommends “that the Governor commission an in-depth study to determine the exact needs for protection of agricultural lands.” If such a commission is established, it should seriously reconsider the wisdom of ELA, § 380.04(3)(e).Google Scholar

296 ELA, § 380.06(8).Google Scholar

297 Fla. Stat. Ann. 85 373.013-.617 (West 1974 & Cum. Supp. 1980).Google Scholar

298 Final Report, Environmental Land Management 9 (Tallahassee: State of Florida, 1973). The central Florida (Orlando) area, for example, is located in more than one watershed.Google Scholar

299 ALI code, supra note 5, § 7–402, at 284.Google Scholar

300 Graham task force report, supra note 44, at 17.Google Scholar

301 Fla. Stat. Ann. § 160.01 (regional planning councils).Google Scholar

302 Starnes interview, supra note 174. Interview with Robert Rhodes, Esq., former chief, Bureau of Land Management, Division of State Planning, in Tallahassee, (Mar. 26, 1975).Google Scholar

303 E.g., interview with Hon. John Mullins, vice-chairman, Bay County Board of County Commissioners, in Panama City, Fla. (Mar. 28, 1975).Google Scholar

304 ALI code, supra note 5.Google Scholar

305 Id.§ 7–403. Eastern Tin, formerly chief of the state land-planning agency's Bureau of Land and Water Management, argued against the ALI position, believing that “making it discretionary would be an invitation to abuse.” He prefers the “predictability of requiring all DRIS to be subject to regional review.” Interview in Tallahassee (May 21, 1976).Google Scholar

306 ALI code, supra note 5, § 8–102.Google Scholar

307 Id.§ 7–401.Google Scholar

308 See notes 332–51 infra and text at same.Google Scholar

309 Graham task force report, supra note 44, at 17–18.Google Scholar

310 Interview with Scott Wilson, executive director, Tampa Bay Regional Planning Council, in St. Petersburg, Fla. (Mar. 25, 1975). Wilson thought their procedure promoted administrative efficiency, expeditious handling of applications for development approval, and thereby served the simple purpose of assisting local governments in making an informed decision.Google Scholar

311 Interview with Hon. Harvey Ruvin, Dade County commissioner and member and former chairman, South Florida Regional Planning Council, in Miami (Mar. 17, 1975).Google Scholar

312 ELA, § 380.06(8).Google Scholar

313 Id.§ 380.06(14)(a).Google Scholar

314 Id.§ 380.07(2).Google Scholar

315 Id.§ 380.06(6) (“shall file … with the appropriate local government”); Developments of Regional Impact: Summary of the First Five Years, July 1, 1973 Through June 30, 1978, at 1 (Tallahassee: Division of State Planning, June 1979) [hereinafter cited as DRI: The First Five Years] (administrative practice requires filing also with the appropriate regional agency and the state land-planning agency).Google Scholar

316 ELA, § 380.06(7)(b).Google Scholar

317 Id.§ 380.06(7)(a).Google Scholar

318 Id.§ 380.06(8).Google Scholar

319 Interviews with officials of General Development Corporation, in Miami (Mar. 17, 1975) [hereinafter cited as GDC interview].Google Scholar

320 Interview with Jacob Varn, Esq. (now secretary of the Florida Department of Environmental Regulation), in Tampa (Mar. 24, 1975). A Tallahassee attorney who represents major development interests corroborated these figures, at least for “large-scale, residential” developments. Interview with Robert Rhodes, Esq., in Tallahassee (May 15, 1980).Google Scholar

321 Interview with Allan Milledge, Esq., chairman of the Environmental Land Management Study Committee, in Miami (Apr. 6, 1977).Google Scholar

322 Graham task force report, supra note 44. Compare Florida's DRI experience with the federal NEPA experience, as discussed in 2 Grad, supra note 277, § 9.06, at 9–153 (“The [NEPA] process has turned out to be very expensive both for government and industry”).Google Scholar

323 Varn interview, supra note 320.Google Scholar

324 The chief of the state land-planning agency's Bureau of Land and Water Management showed me an undated draft report that concluded that, for “all those [applications for development approval (ADA)] properly submitted from July, 1976, to December, 1978, … [p]rocessing time ranged from 3 to 12 months and averaged about 5 1/2 months. Eighty-four percent of the ADA's (21) were processed within 7 months. All but 1 ADA was processed within 9 months …. Overall, residential applications require a little more processing time than the average for all 25 ADA's due to the extended time of 1 project.” May interview, supra note 210.Google Scholar

325 GDC interview, supra note 319.Google Scholar

326 Cf. General Dev. Corp. v. Land & Water Adjudicatory Comm'n, 368 So. 2d 1323 (Fla. 1st Dist. Ct. App. 1979). The case considers one aspect of the DRI application for Myakka Estates, an 8,000-acre planned residential community, with related commercial and essential facilities, in the city of North Port, Sarasota County. The opinion traces subsequent steps of an incremental application for development approval in Oct. 1974, incremental development order in June 1975, appeal in July 1975, prehearing by hearing examiner in Nov. 1975, “Comprehensive Prehearing Order” by hearing officer in Jan. 1976. The case holds, that since “the testimony given at the hearing before the City was not made under oath and there was not an adequate opportunity for cross-examination…. the hearing officer did not err in determining that the hearing on appeal from the development order would be a full evidentiary hearing.”Id. at 1326.Google Scholar

327 Interview with James W. May, then senior planner, Division of State Planning, Bureau of Land and Water Management, in Tallahassee (May 21, 1976).Google Scholar

328 See notes 408–16 infra and text at same.Google Scholar

329 The express language of ELA§ 380.06(8) provides for “a report and recommendations on the regional impact of the proposed development” (emphasis added). And in listing the specific matters for consideration, subparagraphs (a), (b), and (f) expressly refer to impact on the region; subsections (c), (d), and (e) do not contain the regional reference. Arguably, however, the words “regional impact” in the first sentence of § 380.06(8) modify the subsequent listing of specific considerations. Similarly, the final specific reference to “such other criteria for determining regional impact,” in subparagraph (f), also implies that the preceding specific considerations shall be regional impacts. The difficulty, of course, is that even if only regional impacts are to be included, it is often difficult to differentiate between local and regional impacts, e.g., “public facilities.” The 1977 legislature added to the end of (f): “provided such criteria and related policies have been adopted by the regional planning agency pursuant to s. 120.54 [APA].” 1977 Ha. Laws ch. 77–215, § 2.Google Scholar

330 Varn interview, supra note 320.Google Scholar

331 Interview with William M. Register, Jr., Esq., in Tampa (Mar. 24, 1975).Google Scholar

332 § 380.06(8)(e). Cf. Southern Burlington County NAACPV. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713 (1975) (regional general welfare).Google Scholar

333 See Carley, Terry, Judicial Interpretation of Florida's Developments of Regional Impact, 53 Fla. B.J. 633 (1979). But cf. Estuary Properties, Inc. v. Askew, 381 So. 2d 1126 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

334 APA, § 120.52(1)(b).Google Scholar

335 Id.§§ 120.52(2), (9),.57 (heading uses “affect substantial interests,” but text uses “determined”). See also L. Harold Levinson, A Comparison of Florida Administrative Practice Under the Old and the New Administrative Procedure Acts, 3 Fla. St. U.L. Rev. 72, 73 (1975); APA, 5 120.52(9).Google Scholar

336 Levinson, supra note 335, at 73.Google Scholar

337 Id. at 77.Google Scholar

338 See notes 408–15 infra and text at same.Google Scholar

339 APA, § 120.57. See note 335 supra. Google Scholar

340 Op. Att'y Gen., No. 075–58 (Mar. 6, 1975) (The RPA decision to appeal a local development order to the adjudicatory commission pursuant to ELA§ 380.07 is not a decision that determines the substantial interests of a party within the meaning of APA§ 120.57).Google Scholar

341 Cf. South Fla. Regional Planning Council v. Division of State Planning, 370 So. 2d 447 (1st Dist. Ct. App. 1979). In an opinion holding that a regional planning council does not have standing to intervene as a party in the state land-planning agency's “binding letter” determinations under ELA§ 380.06(4)(a), the court added: “the legislature has assigned to the regional planning agency powers and functions which are advisory only, in instances where the development is determined to be a development of regional impact…. Thus the South Florida Regional Planning Council … has been given no role under Chapter 380 [ELA] other than in a purely advisory capacity.”Id. at 449.Google Scholar

342 See, e.g., on exhaustion of administrative remedies in Florida, Odham v. Foremost Dairies, Inc., 128 So. 2d 586 (Fla. 1961); Pest Control Comm'n v. Ace Pest Control, Inc., 214 So. 2d 892 (Fla. 1st Dist. Ct. App. 1968); Board of Medical Examiners v. James, 158 So. 2d 574 (Fla. 3d Dist. Ct. App. 1963); 1 Fla. Jur. Admin. Law §§ 175, 176. Note also that APA§ 120.68 says that an adversely affected party is entitled to judicial review, but it does not say when.Google Scholar

343 Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289 (1975).Google Scholar

344 42 U.S.C. § 4332(C) (1976).Google Scholar

345 Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 319 (1975).Google Scholar

346 Anderson, Frederick R., Jr., The National Environmental Policy Act, in Erica L. Dolgin & Thomas G. P. Guilbert, eds., Federal Environmental Law 238, 375 (St. Paul, Minn.: West Publishing Co., 1974). See generally 2 Grad, supra note 277, § 9.02, at 9–37 to 9–117.Google Scholar

347 Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 759 (E.D. Ark. 1971).Google Scholar

348 See, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551 (1978) (Rehnquist, J.) (“To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility…. [C]ommon sense also teaches us that the ‘detailed statement of alternatives’ cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man”); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972). See generally William H. Rodgers, Jr., A Hard Look at Vermont Yunkee: Environmental Law Under Close Scrutiny, 67 Geo. L.J. 699 (1979).Google Scholar

349 Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir. 1971). [hereinafter cited as Calvert Cliffs]. Many subsequent cases are substantially in accord. See, e.g., Environmental Defense Fund v. Tennessee Valley Auth., 339 F. Supp. 806 (E.D. Tenn. 1972), aff'd, 468 F.2d 1164 (6th Cir. 1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916 (N.D. Miss. 1972), aff'd, 492 F.2d 1123 (5th Cir. 1974). The statement is to be the “environmental source material” for the decision makers, Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972), and must be sufficient to enable them to make an “informed choice.” Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787 (D.C. Cir. 1971).Google Scholar

350 Anderson, supra note 346, at 379. See also id. at 380. Lathan v. Volpe, 350 F. Supp. 262 (W.D. Wash. 1972), considers public involvement in preparation of an EIS as essential to its validity.Google Scholar

351 LGCPA, § 163.3194(3)(a). Cf. Estuary Properties, Inc. v. Askew, 381 So. 2d 1126, 1135 (Fla. 1st Dist. Ct. App. 1979) (court criticizes the regional planning council's report as “replete with nebulous assessments”).Google Scholar

352 ELA, §§ 380.06(5)(a),.07(2).Google Scholar

353 See id.§ 380.06(11) for the legislative standards delimiting local governments' decision-making discretion and the required findings to support its order.Google Scholar

354 ALI code 5 §7–304(1). (2).Google Scholar

355 ELA§ 380.06(11). I do not believe the Florida ELA really provides for broader discretion in local government, however. A court, in reviewing an order of the state adjudicatory commission that overruled a local government's order, would probably apply the same standard for the scope of the commission's discretion. The discretion of local government in issuing its initial order and the discretion of the state adjudicatory commission on appeal should be about the same under both statutes because of the inherent limitations of the cost-benefit analysis technique, the scope of the hearing before the state adjudicatory commission, and the composition of the commission. See Pelham, supra note 290, at 816.Google Scholar

356 Cost-benefit analysis, which has been used with varying degrees of success in water resources management, is emerging as a possible technique for analogous problems of multiple use land management. It has been described as “comparison of the cost of an investment possibility with as explicit a measure as possible of the benefits or the gains to be realized.” Marion Clawson & Jack L. Knetsch, Economics of Outdoor Recreation 256 (Baltimore: Johns Hopkins University Press, 1966).Google Scholar

357 Along the Delaware River, basic pollution policies are being developed “that would be rejected by most thoughtful citizens if their premises were made explicit.” Bruce Ackerman & James Sawyer, The Uncertain Search for Environmental Policy: Scientific Fact-finding and Rational Decisionmaking Along the Delaware River, 120 U. Pa. L. Rev. 419, 430 (1972). The authors challenge lawyers “to understand the alternative ways the administrative process may be structured to find the ‘facts’; how the ‘facts’ condition the policy options perceived to be open; how the decision maker must go beyond the numbers to probe the reliability of the experts' predictions.”Id. at 496.Google Scholar

358 Cliffs, Calvert, 449 F.2d at 1112, 1117.Google Scholar

359 Id. at 1113–15.Google Scholar

360 See generally 2 Grad, supra note 277, § 9.03, at 9–126.1 (“Although a clear majority of the circuits of the Court of Appeals now hold that substantive agency decisions under NEPA are judicially reviewable and that Sections 101 and 102(1) of NEPA provide the law to apply in such a review, the issue remains at best unresolved by reason of the decision of the Supreme Court in Kleppe v. Sierra Club [427 U.S. 390 (1976)]”); William H. Rodgers, Jr., Handbook on Environmental Law 0 7.5, at 741 (St. Paul, Minn.: West Publishing Co., 1977). Rodgers, supra note 348, at 709, notes that although eight courts of appeals “have reached the conclusion that NEPA grants a limited authority to the judiciary to modify or nullify agency action found offensive to the substantive goals of the Act,” Mr. Justice Rehnquist's observation in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), has obvious significance: “NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural.”Id., quoting Vermont Yankee at 558. After noting the significance of Kleppe and Vermont Yankee, Grad observes: “Undismayed by the view of the Supreme Court, the Council on Environmental Quality has strongly asserted its belief in the availability of the right of substantive review under NEPA. While the belief may be shared, its realization may well be receding.” 2 Grad, supra note 277, § 9.03, at 9–126.2 (Oct. 1979 Cum. Supp.). See Anderson, supra note 346, at 279, for reasons for the court's vigorous intervention. Compare, for a debate on whether environmental policy should be furthered by substantive or procedural emphasis, Mark Sagoff, On Preserving the Natural Environment, 84 Yale L.J. 205, 265–67 (1974). with Laurence H. Tribe, From Environmental Foundations to Constitutional Structures: Learning from Nature's Future, 84 Yale L.J. 545 (1974). Rodgers reminds one that “the special entitlement of environmental claims to judicial protection … has origins deep in the common law, [citing the common law public trust doctrine, ‘which deems certain natural resources to be held in trust for public’] and finds expression in contemporary administrative law addressing issues of health and safety [citing Certified Color Mfrs. Ass'n v. Matthews, 543 F.2d 284, 297 (D.C. Cir. 1976); Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 598 (D.C. Cir. 1971)].” Rodgers, supra note 348, at 723.Google Scholar

361 470 F.2d 289, 300 (8th Cir. 1972). See generally Anderson, supra note 346, at 307.Google Scholar

362 Anderson, supra note 346, at 302, 303.Google Scholar

363 ELA, § 380.06(11)(c).Google Scholar

364 Id.§ 380.07(2).Google Scholar

365 Cf. Estuary Properties, Inc. v. Askew, 381 So. 2d 1126, 1133 (Fla. 1st Dist. Ct. App. 1979), where the court drew attention to a related issue when a local government development order was appealed and a state hearing officer heard the appeal de novo. The court decided that, since the hearing officer's findings with respect to most issues had become the law of the case, the only evidentiary issue remaining to be resolved on the appeal was whether, and the extent to which, the “development will have a favorable or unfavorable impact on the environment and natural resources of the region.” Although the hearing officer concluded that “if [the mangrove] forest is removed pollution of [the] bays with urban runoff from the proposed development will be the concomitant result” and that “introduction of additional nutrients, as well as harmful heavy metals from the proposed development will, absent the scrubbing effect of the mangrove forest if this forest is removed, result in the degradation of the waters of the adjoining bays” (id. at 1134), the court refused to consider petitioner's argument that such conclusions were without evidentiary basis and in fact contrary to the evidence, deciding the case, instead, on other points. See notes 417–62 infra and text at same.Google Scholar

366 Milledge, Allan, chairman of the 1972–74 Environmental Land Management Study Committee, agrees with me. Interview in Miami (fall 1974) in conjunction with author's report to the DSP, Final Report, Emerging Issues Under the DRI Process, to the Division of State Planning (Tallahassee, Jan. 6, 1975). He particularly disagrees with the Turner & Smith references to a “presumption of correctness” of local government DRI decisions and views of the appeal process. M. Stephen Turner & C. McFerrin Smith 111, Developments of Regional Impacts—Review by State Adjudicatory Commission, 48 Fla. B.J. 776 (1974). But cf. Pelham, supra note 290, at 824, where he concludes: “the Adjudicatory Commission and the courts may have difficulty in reversing local decisions denying approval of DRI which is consistent with the regional impact statement but inconsistent with local development regulations.”Google Scholar

367 Pelham, e.g., supra note 290, at 817, concludes that the APA is not applicable to local governments, based on the construction of APA§ 120.52(1)(c) in Board of County Comm'rs v. Casa Dev. Ltd., 332 So. 2d 651 (Fla. 2d Dist. Ct. App. 1976); Sweetwater Utility Corp. v. Hillsborough County, 314 So. 2d 194 (Fla. 2d Dist. Ct. App. 1975). This conclusion seems plausible; the cases cited did not arise under ELA, however, and therefore did not pose the question whether local governments performing an ELA function could be treated as a “unit of government in the state, including counties and municipalities to the extent they are expressly made subject to this act by general or special law or existing judicial decisions.”APA, § 120.52(1)(c).Google Scholar

368 ELA, § 380.07(3).Google Scholar

369 ALI code, supra note 5, § 7–503 and subsequent note.Google Scholar

370 Compare the APA with the ALI code, supra note 5, § 2–304.Google Scholar

371 ALI code, supra note 5, § 2–102(4).Google Scholar

372 ELA, §§ 380.021,.07(3), and text at note 368 supra. Google Scholar

373 ELA, 380.07(3). The model for such a rule could be § 120.57 of the Florida APA or § 2–304 of the ALI code, supra note 5.Google Scholar

374 368 So. 2d 1323 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

375 Id. at 1325–26.Google Scholar

376 See, e.g., on the substantial competent evidence rule, United States Cas. v. Maryland Cas. Co., 55 So. 2d 741 (Fla. 1951); O'Neil v. Pallot, 257 So. 2d 59 (Fla. 1st Dist. Ct. App. 1972). With respect to the applicability of the substantial competent evidence rule to the adjudicatory commission's review of a recommended order of its hearing officer, cf. Venetian Shores Home & Property Owners v. Ruzakawski, 336 So. 2d 399 (Fla. 3d Dist. Ct. App. 1976). See generally Pelham, supra note 290, at 837.Google Scholar

377 ELA, § 380.07(2).Google Scholar

378 DRI: The First Five Years, supra note 315, at 16.Google Scholar

379 This procedure is used by Allan Milledge, Esq. Interview, supra note 321.Google Scholar

380 Fla. Stat. Ann. § 403.412(5) (West 1974 & Cum. Supp. 1980). Cf. Chief Judge Boardman's special concurring opinion in Sarasota County v. Department of Administration, 350 So. 2d 802, 807 (Fla. 2d Dist. Ct. App. 1977), quoted in note 381 infra. Google Scholar

381 See Sarasota County v. Beker Phosphate Corp., 322 So. 2d 655 (Fla. 1st Dist. Ct. App. 1975); Sarasota County v. General Dev. Corp., 325 So. 2d 45 (Fla. 2d Dist. Ct. App. 1976); Sarasota County v. Department of Administration, 350 So. 2d 802, 807 (Fla. 2d Dist. Ct. App. 1977) (Boardman, C.J., concurring specially) (“petitioner may initiate legal proceedings under the Florida Environmental Protection Act of 1971 to require Manatee County to comply with the DRI process. See Section 403.412, Florida Statutes”). But cf. Pelham, supra note 290, at 833–35, for arguments favoring more liberal standing rules. He suggests that “the statutory enumeration is not exclusive since it does not expressly prohibit appeals by other parties.”Id. at 833.Google Scholar

382 See Orange County Audubon Soc'y v. Hold, 276 So. 2d 542 (Fla. 4th Dist. Ct. App. 1973).Google Scholar

383 Cf. Sarasota County v. Beker Phosphate Corp. 322 So. 2d 655, 658 (Fla. 1st Dist. Ct. App. 1975).Google Scholar

384 ELA, § 380.031(2).Google Scholar

385 Id.§ 380.031(3).Google Scholar

386 Id.§ 380.07(2).Google Scholar

387 Interview and author's report to the DSP, supra note 366.Google Scholar

388 See Pelham, , supra note 290, at 831 11.223, for two hearing officers' recommendations that were rejected by the adjudicatory commission. Compare ELA§ 380.07 with Cal. Pub. Res. Code § 30625(b) (West 1977) (“appeal raises no substantial issue”).Google Scholar

389 ALI code, supra note 5, § 7–502(1).CrossRefGoogle Scholar

390 Drawn from the author's report to the DSP, supra note 366.Google Scholar

391 Cf. Pelham, supra note 290, at 831–32, for a discussion of the state land-planning agency's and adjudicatory commission's attempts to limit appeals of local DRI zoning orders. He concludes: “Legally, the position taken by the two state agencies is untenable.”Google Scholar

392 DRI: The First Five Years, supra note 315, at 17.Google Scholar

393 Telephone interview with Allan Milledge, Esq., legal counsel to the South Florida Regional Planning Council, Houston to Miami (May 24, 1980) (the council's automatic appeal policy has been used “only once”). Developers have long been aware of the appeal policy. E.g., interview with Daniel Dennison, coordinator, developments of regional impact, General Development Corp., in Miami (Mar. 17, 1975).Google Scholar

394 ELA, § 380.031(1). See note 33 supra. The governor and cabinet adopt rules as the administration commission, e.g., ELA§§ 380.031,.05(l)(b),.06(2)(a), and adjudicate controversies on appeal as the Land and Water Adjudicatory Commission. ELA, § 380.07.Google Scholar

395 “The commission shall encourage the submission of appeals on the record made below in cases in which the development order was issued after a full and complete hearing before the local government or an agency thereof.”ELA, § 380.07(3).Google Scholar

396 See 1972 Fla. Laws ch. 72–317, § 7(4). 1978 Fla. Laws ch. 78–95, § 15, deleted the express authorization for designation of a hearing officer as part of an extensive modification of all Florida statutes “containing procedural language superseded or made redundant by chapter 120 of the Florida Statutes (the Administrative Procedure Act)” and to bring all affected provisions “into conformity with chapter 120.”Id.§ 1. I have found no indication that the legislature intended to deny the adjudicatory commission the power to appoint a hearing officer. Florida attorneys seem to assume such power still exists. E.g., interview with Earl Gallop, Esq., in Miami (Feb. 8, 1980).Google Scholar

397 ELA, § 380.07(3). Cf. General Dev. Corp. v. Florida Land & Water Adjudicatory Comm'n, 368 So. 2d 1323 (Fla. 1st. Dist. Ct. App. 1979).Google Scholar

398 From the author's notes as chairman of the land use subcommittee of Governor Askew's Task Force on Resource Management.Google Scholar

399 ELA, § 380.07(3); “[S]uch state land and water management policies should, to the maximum possible extent, be implemented by local governments through existing processes.”Id.§ 380.021.Google Scholar

400 E.g., Fla. Stat. Ann. §§ 161.011-.45 (West 1972 & Cum. Supp. 1980), 403.011-.90 (West 1973 & Cum. Supp. 1980).Google Scholar

401 APA, § 120.52(9).Google Scholar

402 Id.§ 120.57(1).Google Scholar

403 DRI: The First Five Years, supra note 315, at 17.Google Scholar

404 See note 376 supra. See generally Pelham, supra note 290, at 837.Google Scholar

405 APA, § 120.66(1)(a).Google Scholar

406 Id.§ 120.58(1)(e).Google Scholar

407 See Fuller, Lon L., Mediation—Its Forms and Functions, 44 S. Cal. L. Rev. 305 (1971). Mediation is receiving increasing attention as a technique for environmental dispute settlement. See, e.g., William K. Reilly, Mediation: An American Solution?inALI-ABA Course of Study Materials, Land Planning and Regulation of Development (Hawaii, 1977); Dan Fenno Henderson, Conciliation and Japanese Law: Tokugawa and Modern (Seattle: University of Washington Press, 1965). see also California, CLM, supra note 4, at 700–702, where a mediation process might have been valuable.Google Scholar

408 ELA, §§ 380.06(11),.031(2).Google Scholar

409 For example, a study of the administration of the federal poverty programs reported complaints similar to those heard in this study. Edgar S. Cahn & Jean Camper Cahn, The New Sovereign Immunity, 81 Harv. L. Rev. 929 (1968). To be sure, the relationship of federal poverty grantee to federal government is dissimilar in important ways to that of land developer to state government. The political power of land developers and their sometimes cynical disregard of the public interest make direct comparison absurd. Nevertheless, many of the problems of the two groups in dealing with the bureaucracies are similar. The following findings show some of the similar attitudes: “[L]litigation alone could have secured a reconsideration, but not necessarily a reversal, of the decision.”Id. at 957. “[T]he relationship between federal grantees and federal agencies is such that victory and vindication can be Pyrrhic if they destroy the underlying relationship of faith and confidence.”Id. at 958. “[T]he effort involved in preparing for litigation by itself was so time-consuming and expensive as to preclude its use by the vast numbers of grantees.”Id. at 958. “The grantee, … is forced either to beg for grace or, alternatively, to go on an all-out offensive, pulling all stops and escalating the issue to a political confrontation.”Id. at 975. “[T]he official faced with a dispute is caught between the external image of his all-powerfulness and the internal sense of the precariousness and insecurity of his position …. He responds to such threatening requests by seeking to make sure that the demand is as safe and reasonable and unobjectionable as possible, by imposing new barriers and requirements of proof …. The official engages fundamentally in a balancing process, weighing the demand upon his generosity and the appeal to his principles against the cost of possible disapproval by his immediate superiors.”Id. at 976–77.Google Scholar

410 Id. at 977.Google Scholar

411 California also retains political responsiveness through commissions whose members are “pleasure appointees.” Cal. Pub. Res. Code § 30312(b) (West Cum. Supp. 1979). See California CLM, supra note 4, at 677–81.Google Scholar

412 See notes 237–76 supra and text at same.Google Scholar

413 See, e.g., note 407 supra. See also Cahn & Cahn, supra note 409, calling for an increased use of mediation in the administration of poverty programs.Google Scholar

414 See generally An Introduction, supra note 4.Google Scholar

415 Townsend interview, supra note 1.Google Scholar

416 See California CLM, supra note 4, at 661–65.Google Scholar

417 “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 US. 393, 415 (1922) (Holmes, J.).Google Scholar

418 Brennan, Justice, in his majority opinion in Penn Central, explains the Court's difficulty:Google Scholar

While this Court has recognized that the “Fifth Amendment's guarantee … [is] designed to bar 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,”… this Court, quite simply, has been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons …. Indeed, we have frequently observed that whether a panicular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely “upon the panicular circumstances [in that] case.”Google Scholar

Penn Central Transp. Co. v. New York City, 438 US. 104, 123–24 (1978).Google Scholar

For some of the scholarly efforts to explicate the taking issue, see generally Bosselman et al., supra note 146; Curtis J. Berger, The Accommodation Power in Land Use Controversies: A Reply to Professor Costonis, 76 Colum. L. Rev. 799 (1976); John J. Costonis, “Fair” Compensation and the Accommodation Power: Antidotes for the Taking Impasse in Land Use Controversies, 75 Colum. L. Rev. 1021 (1975); Allison Dunham, A Legal and Economic Basis for City Planning (Making Room for Robert Moses, William Zeckendorf, and a City Planner in the Same Community), 58 Colum. L. Rev. 650 (1958); id., Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 Sup. Ct. Rev. 63; Robert Kratovil & Frank J. Harrison, Jr., Eminent Domain—Policy and Concept, 42 Calif. L. Rev. 596 (1954); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Haw. L. Rev. 1165 (1967); Joseph L. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149 (1971); Arvo Van Alstyne, Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria, 44 S. Cal. L. Rev. 1 (1970); id., Statutory Modification of Inverse Condemnation: The Scope of Legislative Power, 19 Stan. L. Rev. 727 (1967).Google Scholar

419 381 So. 2d 1126 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

420 See, e.g., Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972); Candlestick Properties, Inc. v. San Francisco Bay Conservation & Dev. Comm'n, 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1970); Sibson v. State, 336 A.2d 239 (N.H. 1975). But cf. and compare State v. Johnson, 265 A.2d 711 (Me. 1970), with In re Spring Valley Dev., 300 A.2d 736 (Me. 1973). see also Ackerman, Bruce A., Private Property and the Constitution 217–18 (New Haven, Conn.: Yale University Press, 1977), for a listing of cases that the author concludes indicate that “wetland regulations have been upheld and struck down in approximately equal numbers.”Google Scholar

421 See, e.g., bibliography collected in John Clark, Coastal Eco-systems 173–78 (Washington, D.C.: Conservation Foundation, 1974).Google Scholar

422 336 A.2d 239 (N.H. 1975).Google Scholar

423 123 U.S. 623 (1887).Google Scholar

424 69 N.H. 1, 39 A. 260 (1897).Google Scholar

425 336 A.2d at 243 (quoting Just v. Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d 761, 768 (1972)).Google Scholar

426 56 Wis. 2d 7, 201 N.W.2d 761 (1972). For a careful empirical study of the initial effects of Just, see David P. Bryden, A Phantom Doctrine: The Origins and Effects of Just v. Marinerre County, 1978 A.B.F. Res. J. 397.Google Scholar

427 Bosselman, Fred, et al., supra note 146, at 229, 264.Google Scholar

428 See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (safety of children); Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972) (protection of public waters).Google Scholar

429 See, e.g., Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892); State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640 (1893); Colberg, Inc., v. State ex rel. Department of Pub. Works, 67 Cal. 2d 408, 432 P.2d 3, 62 Cal. Rptr. 401 (1967), cert. denied, 390 U.S. 949 (1968). See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Interpretation, 68 Mich. L. Rev. 471 (1970); Note, The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine, 79 Yale L.J. 762 (1970).Google Scholar

430 201 N.W.2d 761, 769 (1972).Google Scholar

431 381 So. 2d 1126, 1140 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

432 The Florida Supreme Court has granted certiorari and will hear oral arguments on June 6, 1980. Telephone interview with Charles Siemon, Esq., Houston to Chicago (May 21, 1980). More than 20 amici curiae briefs have been submitted, including, e.g., by the U.S. Department of Justice and several state and national industry representatives.Google Scholar

433 The adjudicatory commission's order recited, inter alia: “Here the introduction of additional nutrients … will, absent the scrubbing effect of the mangrove forest if this forest is removed, result in the degradation of the waters of the adjoining bays.” Estuary Properties, Inc. v. Askew, 381 So. 2d 1126, 1140 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

434 For example, the court's position on the burden of proof is particularly puzzling. Robert Angerer, Esq., argues that the burden-of-proof issue is the critical issue in Estuary Properties. His informal legal opinion was that the “taking” analysis in this section is sound “if it is properly found that destruction of the mangroves would have a nuisance-like effect.” Angerer argues, however, that, although every relevant agency found that destruction of the mangroves would have a nuisance-like effect, these “findings were infected by the standard of proof.” Hence, he does not believe that the Florida Supreme Court should consider the taking issue until the facts are properly determined. Interview with Robert J. Angerer, Esq., in Tallahassee (May 15, 1980). Without arguing the burden-of-proof issue, I concede that proper official determination of “nuisance-like effect” is critical, because filling of coastal wetlands may be a classic example where today's nuisance may have been yesterday's beneficial use.Google Scholar

435 Properties, Estuary, Inc. v. Askew, 381 So. 2d 1126, 1138 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

436 The classic statement of the harm prevention-benefit conferral test is in Ernst Freund, The Police Power: Public Policy and Constitutional Rights § 511, at 546–47 (Chicago: Callaghan & Co., 1904) (“Under the police power, rights of property are impaired not because they become useful or necessary to the public, or because some public advantage can be gained by disregarding them, but because their free exercise is believed to be detrimental to public interests; it may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful …. From this results the difference between the power of eminent domain and the police power, that the former recognises a right to compensation, while the latter on principle does not”).Google Scholar

437 Cf., e.g., Penn Central Tramp. Co. v. New York City, 438 U.S. 104 (1978), and quotation therefrom, supra note 418. See generally Michelman, supra note 418.Google Scholar

438 Costonis, supra note 418, at 1049.Google Scholar

439 Berger, supra note 418, at 823.Google Scholar

440 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970).Google Scholar

441 Cf. Henry M. Hart, Jr., & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 113 (Tent. Ed. Cambridge, Mass., 1958) (“The first of these objectives [of every institutional system] is the underlying imperative of group life: to avoid the disintegration of social order and the consequent destruction of the existing benefits of group living. The second is the great desideratum: to maximize the total satisfactions of valid human wants, and keep on maximizing them, by making a steadily more effective use of the resources of group living”).Google Scholar

442 Id. at 110 (quoting Joseph M. Snee, Leviathan at the Bar of Justice, in Arthur E. Sutherland, ed., Government Under Law: A Conference Held at Harvard Law School on the Occasion of the Bicentennial of John Marshall, Chief Justice of the United States, 1801–1835, at 47, 52 (Cambridge, Mass.: Harvard University Press, 1956)).Google Scholar

443 260 U.S. 393 (1922).Google Scholar

444 438 U.S. 104, 124 (1978).Google Scholar

445 260 U.S. 393, 416 (1922).Google Scholar

446 Rehnquist, Justice, in his dissent in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), examines “the two exceptions where the destruction of property does not constitute a taking”: The first he calls the “nuisance exception to the taking guarantee,” i.e., “that the government can prevent a property owner from using his property to injure others without having to compensate the owner for the value of the forbidden use.”Id. at 144. The second he describes as follows: “Even where the government prohibits a noninjurious use, the Court has ruled that a taking does not take place if the prohibition applies over a broad cross section of land and thereby ‘secure[s] an average reciprocity of advantage.’“Id. at 147 (citing Pennsylvania Coal). There is no indication in the Penn Central opinion that any member of the Supreme Court would take exception to Justice Rehnquist's statement of these two principles of “taking” jurisprudence.Google Scholar

447 Properties, Estuary, Inc. v. Askew, 381 So. 2d 1126, 1138 (Fla. 1st Dist. Ct. App. 1979) (quoting from Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922)).Google Scholar

448 276 U.S. 272 (1928). A Virginia statute required destruction of red cedar trees infected by cedar rust, declaring the diseased trees a “public nuisance” because of the danger they posed to apple trees. Apple growing was a major Virginia industry, employing a large part of the state's population. The Court upheld the regulation against a taking attack; however, the affected land still had value for other purposes.Google Scholar

449 123 U.S. 623 (1887).Google Scholar

450 239 U.S. 394 (1915).Google Scholar

451 369 U.S. 590, 592 (1962).Google Scholar

452 438 U.S. 104 (1978).Google Scholar

453 Cf. id. at 134.Google Scholar

454 Properties, Estuary, Inc. v. Askew, 381 So. 2d 1126, 1132 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

455 See note 447 supra and text at same.Google Scholar

456 See note 446 supra. Google Scholar

457 “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.” Fla. Const. of 1968, art. 2, § 7. See also ELA, LGCPA.Google Scholar

458 See note 446 supra. Google Scholar

459 See generally The Federal Role, supra note 3, at 219–21, for a brief discussion of the navigation servitude.Google Scholar

460 See note 429 supra. Google Scholar

461 See note 446 supra. Google Scholar

462 381 So. 2d 1126 (Fla. 1st Dist. Ct. App. 1979).Google Scholar

463 Graham task force report, supra note 44, at 23.Google Scholar

464 Id. Google Scholar

465 Interviews in Tallahassee (May 15–17, 1980) indicated that committee substitutes for H.B. 1452 and S.B. 1070, relating to regional planning councils and amending sections of Fla. Stat. Ann. ch. 160, had a high probability of passage by the end of the 1980 legislative session, June 6, 1980.Google Scholar

466 Interviews in Tallahassee (May 15–17, 1980) indicated that committee substitutes for H.B. 1422 and S.B. 908, relating to developments of regional impact and amending ELA§ 380.06, had a fair chance of passage but had become controversial because of serious splits on several issues between environmental groups and the Florida Homebuilders Association.Google Scholar

467 Graham task force report, supra note 44, at 23.Google Scholar

468 353 So. 2d 1199. See notes 191, 284–87 supra and text at same.Google Scholar

469 Graham task force report, supra note 44, at 24.Google Scholar

470 Id. at 28.Google Scholar

471 Cf. California CLM, supra note 4, at 743, for my similar suggestion concerning the California Coastal Commission: A stronger case can be made for separating planning and regulation once there is a relatively stable community consensus on policy preferences, and policies and standards are clearly defined. In such a “mature” system, the adjudicative function can be better protected from extraneous political factors than in the interim California process.Google Scholar

472 See notes 50–77, 89, 153–57 supra and notes 475–81 infra and text at same.Google Scholar

473 S.B. 629 (1972); ALI code, supra note 5, § 7–501(1).Google Scholar

474 See notes 270–76 supra and text at same.Google Scholar

475 Interview with Jim Tait, director, Office of Planning and Budgeting, Office of the Governor, in Tallahassee (May 15, 1980).Google Scholar

476 Cal. Pub. Res. Code §§ 30000–30900 (West 1977 & Cum. Supp. 1980). See California CLM, supra note 4, at 718–33, for a discussion of the California coastal resources planning and management policies and how they were formulated.Google Scholar

477 Tait interview, supra note 475.Google Scholar

478 Graham task force report, supra note 44, at 11.Google Scholar

479 Id. at 11–12.Google Scholar

480 See notes 78–107 supra and text at same.Google Scholar

481 Graham task force report, supra note 44, at 9 (“Many of the failures of resource management efforts in Florida can be directly attributed to inadequate financial support for the implementation of very promising laws”). See notes 95–99 supra and text at same.Google Scholar

482 See notes 95–99 supra and text at same.Google Scholar

483 See notes 237–76 supra and text at same.Google Scholar

484 See notes 183–237 supra and text at same.Google Scholar

485 See notes 195–200 supra and text at same.Google Scholar

486 See notes 277–407 supra and text at same.Google Scholar

487 See Pelham, , supra note 290, at 828.Google Scholar

488 ELA, § 380.05, as amended by 1979 Fla. Sess. Law Sew. ch. 79–73.Google Scholar

489 See California CLM, supra note 4, at 726–29.Google Scholar

490 See notes 226–37 supra and text at same.Google Scholar

491 See Federal Coastal Zone Management Act § 306, 16 U.S.C.A. 5 1455 (West 1974 & Cum. Supp. 1980), for the federal requirements.Google Scholar

492 Daniel W. O'Connell, Florida's Experience with the Federal Coastal Zone Management Act of 1972, at 8 (unpublished discussion paper prepared for the Lincoln Institute of Land Policy, round-table discussion in Cambridge, Mass., May 28, 1980) (citing interview with William Matuszeski, Office of Coastal Zone Management, in Washington, D.C. (Mar. 1980)). At the round-table discussion, id., Matuszeski corroborated this position.Google Scholar

493 Townsend interview, supra note 1.Google Scholar

494 The Interagency Management Committee (IMC) is composed of “the secretaries of the Department of Commerce, Environmental Regulation, Transportation, Community Affairs, and Health and Rehabilitative Services, the executive directors of the Game and Freshwater Fish Commission and Department of Natural Resources, and the director of the Governor's Office of Planning and Budgeting. The IMC has been directed to give special attention to the management of coastal resources, to natural hazard prevention and mitigation, to funding practices which create conflicts with natural resource policies, and to a more efficient, effective, and coordinated administration of environmental licensing laws.” O'Connell, supra note 492, at 9.Google Scholar

495 E.g., promulgation of rules implementing the coastal construction setback line requirements, Fla. Stat. Ann. § 161.052. O'Connell, supra note 492, at 5.Google Scholar

496 Fla. Stat. Ann. 5 380.21.Google Scholar