ENVIRONMENTAL LEGISLATION-AN ALTERNATIVE TO MINIMUM ACREAGE ZONING

ENVIRONMENTAL LEGISLATION-AN

ALTERNATIVE TO MINIMUM ACREAGE

ZONING

Frank F.

Skillern*

Traditionally zoning has been the means of regulating the use of land and controlling the development of a city. Zoning ordinances were early recognized as an appropriate exercise of the police power by a state and municipality in Village 0/ Euclid v. Ambler Realty

Co.

I

That case adopts the police power tests of reasonableness to determine whether a particular ordinance is a proper exercise of that power. These determinations must be made on a case-by-case basis, because what may be a reasonable regulation as applied to one piece of property, may be arbitrary if applied to another.

Another goal of zoning is the regulation of population density in a community. Ordinances may be passed which restrict the size of a dwelling,2 the number of persons who may live in a particular space,3 or the size of the lot upon which residential dwellings may be built.

4 Each of these ordinances ultimately regulates the number of persons occupying a particular space within the defined zone.

However commendable the regulation of population density may be, the ordinances designed to achieve that goal may be used to control the expansioI]. of a community and its surrounding area. The rural community within a few miles of an expanding metropolitan area may pass an ordinance requiring that homes be built only on lots of one acre or more. The community desires to retain its rustic character and avoid the deterioration brought by the onslaught of

• Associate Professor of Law, Texas Tech University; A.B., University of Chicago, 1964;

J.D., University of Denver, 1966; LL.M., University of Michigan, 1969.

Funds for part of the research for this article were provided by the Institute on Land

Resource Management at Texas Tech University. The author acknowledges with special thanks the research assistance of Frederick X. Walker, a second-year student at the Texas

Tech University School of Law and W. David Ralston, a third-year student at the Texas Tech

University School of Law.

1.

272 U.S. 365 (1926).

2.

E.g., Cosmopolitan Nat'l Bank v. Chicago, 22 Ill. 2d 367, 176 N.E.2d 795 (1961);

Lionshead Lake, Inc. v. Wayne Township, 10 N.J. 165, 89 A.2d 693 (1952), appeal dismissed,

344 U.S. 919 (1953).

3.

Cf.

Chicago City Bank & Trust Co. v. Highland Park, 9 Ill. 2d 364, 137 N.E.2d 835

(1956)(ordinance providing minimum space per occupant upheld).

4.

E.g., Flora Realty & Inv. Co. v. City of Ladue, 362 Mo. 1025,246 S.W.2d 771 (1952), appeal dismissed, 344 U.S. 802 (1952) (three-acre lot requirement for residential unit).

1

HeinOnline -- 6 Tex. Tech L. Rev. 1 (1974-1975)

2

TEXAS TECH LA W REVIEW [Vol. 6:1 urbanism.

5 With population growth comes the need for increased public services such as police and fire protection, water, parks, utilities, schools, and sewage. These increased services require more revenue, and lower priced housing that might otherwise be built in a minimum acreage zone does not broaden the tax base sufficiently to cover the costs of the new services. Hence, the community must adopt higher taxes.

6

In addition to avoiding urban sprawl in favor of planned development, the community may use large lot zoning to place a buffer zone between it and the rapidly expanding metropolis. The community may hope that the area zoned for minimum acre lots will in fact not be developed at all. Minimum acreage zoning may also be used to preserve the nature of the community. In this sense the present residents may value the rural way of life or historical and unique architectural designs in the community. Of course, because most suburbanites are affluent and white,7 this purpose has strong racial and economic discriminatory overtones.

Minimum acreage zoning does not usually achieve its objectives. Clearly zoning cannot forestall the growth of a metropolitan area,8 but the area can be affected by the zoning in communities that surround it.

9 If necessary, the new development will merely leapfrog the unwilling area.

IO Moreover, minimum acreage zoning does not assure a buffer zone between the community and new areas. Only if there are further restrictions on the use of the land, such as building size or setback, will open space be assured. In addition, even on the large lot the landowner can clear trees or level it and thus destroy its scenic nature. Nor does minimum acreage zoning preserve the convenience factors or architecture that are characteristic of a rural community. With lot requirements of two or more acres, a person is not within walking distance of his work or school as he might otherwise be in the small community. Greater use of cars and school buses would probably be necessary, which in

5.

E.g., Hitchman v. Oakland Township, 329 Mich. 331, 45 N.W.2d 306 (1951) (threeacre minimum held invalid); Lionshead Lake, Inc. v. Wayne Township, 10 N.J. 165,89 A.2d

693 (1952), appeal dismissed, 344 U.S. 919 (1953).

6.

Hallman, Growth Control: A Proposal for Handling Scattered Metropolitan

Development, 33

LAND ECON.

80, 81 (1957).

See also Frieden, The Legal Role in Urban

Development, 12 U.C.L.A. L. REv. 856, 862 (1965) [hereinafter cited as Frieden].

7.

Becker, The Police Power and Minimum Lot Size Zoning-Part I: A Method of

Analysis, 1969 WASH. U.L.Q. 263, 264 [hereinafter cited as Becker].

8.

Id.

9.

[d.

10.

[d.


1974] ENVIRONMENTAL LEGISLATION 3 turn would cause new traffic problems. In addition, unless restrictions are imposed regarding the type or style of home built, the owner of the large lot can build what he likes. In that sense the physical nature of the community could change. Nor will the spaciousness of the rural area be guaranteed. Nothing in minimum acreage zoning itself prevents homes from being built close together or from covering the entire lot (although in the latter case practical considerations militate against it).

The resort to minimum acreage requirements for residential dwellings has received favorable acceptance from the courts.

II

Ordinances creating a five-acre minimum have been upheld as reasonable.

12 This judicial approval causes serious concern because it challenges the traditional test of reasonableness usually applied to zoning ordinances. Although initially the courts determined reasonableness on the basis of the effect of the minimum acreage requirement and its relationship to standards of health and safety, more recently this zoning has been upheld on the basis of the relationship of the requirement to a more nebulous concept, public welfare.

Under that rubric virtually no limit on minimum lot size can be determined.

It is one thing for regulation to protect a natural resource such as water that is available for the public at large, but quite another to place a burden on the community for the good of a select few. The net result is the creation of exclusive neighborhoods designed to attract and retain the wealthy and preserve the character of the community. These are not proper objectives of zoning and should not be condoned by the courts.

13

In addition to the use of zoning for improper objectives, the minimum acreage lot requirements do not realistically perceive the needs of the expanding city and the region as a whole.

U

Minimum

11.

E.g., Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 516 (1942); Fischer v.

Bedminster Township, 11 N.J. 194,93 A.2d 378 (L.

Ct. 1952).

The phrase "minimum acreage" as used in this paper in conjunction with minimum lot size zoning ordinances refers to a lot requirement of one acre or more. Unless otherwise indicated, the cases discussed herein relate to minimum acreage requirements.

12.

Honeck v. County of Cook, 12 Ill. 2d 257, 146 N.E.2d 35 (1957); County Comm'rs v. Miles, 246 Md. 355, 228 A.2d 450 (1967); Fischer v. Bedminster Township, 11 N.J. 194, 93

A.2d 378 (L.

Ct. 1952).

13.

Recent literature on the exclusionary effects of zoning is voluminous.

See, e.g., Aloi

& Goldberg, Racial and Economic Exclusionary Zoning: The beginning of the End?, 1971

URBAN L.

ANNUAL 9; Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and

the Indigent, 21 STAN.

L.

REv. 767 (1969); Williams, The Three Systems of Land Use Control

Or, Exclusionary Zoning and Revision of the Enabling Legislation, 25 RUT. L.

REv. 80 (1970).

14.

For an example of the problems of zoning without consideration of adjacent counties, see Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 104 A.2d 441 (1954). Many


4

TEXAS TECH LA W REVIEW [Vol. 6:1 acreage ordinances effectively prevent the subdivision of usable land and inhibit many persons building around the expanding city.

Because the needs of the city are so pressing and the lack of space so great, the rural community should not be allowed to hamstring regional development by its concern for status quo.

Minimum acreage zoning serves as a focal point on the one hand to illustrate the inadequacies of traditional Euclidian zoning as a planning tool and on the other hand to show how its objectives can be met with new planning devices. Examples of new planning techniques are the various statutes to protect the environment that recently have been enacted by the federal, state, and local governments. This environmental legislation warrants careful consideration by planners not only because it sometimes uses a novel approach to old planning problems, but also because it may be an alternative to traditional zoning that achieves basically similar objectives in a less controversial manner.

I.

MINIMUM ACREAGE ZONING

A.

Steel Hill Development, Inc. v. Town of Sanbornton Visited

Steel Hill Development, Inc. v. Town of Sanbornton 15 vividly presents the conflicting values at issue in situations involving zoning or rezoning for larger minimum acreage requirements. On its face the case seems relatively simple. The developer had purchased over 500 acres of land, which he sought to develop as a seasonal or second home development for persons in the Boston area 100 miles from Sanbornton. The town had a permanent population of 1000 which would be doubled by the proposed development. Negotiations to permit cluster zoning failed, and the townspeople voiced serious opposition to any development. The planning board finally rezoned an area that encompassed 30 percent of the plaintiff's land from a requirement of 35,000 square feet for a single family home to a

100,000 square foot requirement. The remaining 70 percent of plaintiff's land was rezoned from three to six acres for a single family home.

16 writers have frequently cricized "localism" in zoning and sought regional or statewide planning.

E.g., Aloi, Recent Developments in Exclusionary Zoning: The Second Generation Cases

and the Environment, 6 Sw. L. REV. 88, 90-98 (1974). See also Cunningham, Land-Use

Control The State and Local Programs, 50 IOWA L. REv. 367, 388-89 (1965) [hereinafter cited as Cunningham]; Haar, Zoning for Minimum Standards: The Wayne Township Case,

66 HARV. L. REV. 1051 (1954); Fagin, Planning for Future Urban Growth, 30 LAw & CONTEMP.

PROB. 9, 14-15 (1965).

15.

469 F.2d 956 (1st Cir. 1972).

16.

[d.

at 959.


1974] ENVIRONMENTAL LEGISLATION 5

The developer argued that the sole purpose of the ordinance was to exclude any development in the town. He contended that the ordinance is discriminatory and operates to exclude persons who cannot afford either to purchase or to maintain, or who simply do not want, large 10tsY Moreover, he argued that the town was motivated by animosity to natural growth of urban areas.

IS

According to the developer the ordinance was not necessary for reasons of health, safety, or the general welfare.

19

The developer contended the town merely objected to the increase in services such as fire and police protection, utilities, and sewage disposal that naturally accompanies a community's growth. Avoidance of these costs, maintenance of property value, and preservation of the rural character of the community, the developer contended, were improper legislative objectives 20 because they seek private benefits that are not within the general welfare.

The town, on the other hand, denied any exclusionary purpose.

21 Moreover, it stressed the fact that basically the developer is the only one who benefits, at least economically, by a change in zoning.

22 In addition, the town argued that no demand exists for land in Sanbornton; the demand was to be created by the developer through his development.

23 If so, the town argued, it was not acting to prevent natural growth into the suburbs. Lastly, the town stated that its purpose was to avoid the fire, traffic, and sanitation problems created by a development in a mountainous region. Services could be provided more easily to homes on larger lots with less traffic and better access roads than on overburdened narrow roads into a packed development.

24 In addition, the ordinance was designed to minimize pollution of the lake nearby from improper sewer drainage and erosion and to avoid air pollution resulting from increased use of cars.

25

17.

Brief for Appellant at 15, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956

(lst Cir. 1972).

18.

[d.

19.

[d.

at 18.

at 20. Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956, 959 (1st Cir.

1972).

20.

Brief for Appellant at 18, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F .2d 956

(lst Cir. 1972).

21.

Brief for Appellee at 7, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956

(1st Cir. 1972).

22.

[d.

23.

[d.

at 9.

24.

[d.

at 11.

25.

Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956, 960 (lst Cir. 1972).


6

TEXAS TECH LA W REVIEW [Vol. 6:1

B.

Judicial Appraisal

1.

Declared Valid

Minimum acreage zoning ordinances have withstood challenges in the past in large part because of the presumption of validity underlying zoning ordinances generally and reliance on the traditional police power test of reasonableness and the relationship of the regulation to health, safety, and the general welfare. The problem is not simply that minimum lot requirements are per se invalid.

Requirements of one acre in rural areas where no public sewer or water service is available and the fire and police service is limited may well be reasonable for the health and safety of the community.26

Nor is the power of the municipality to control its development with due consideration for its existing facilities and ability to expand them in question. 27 In short, minimum lot requirements up to one acre under certain conditions may be the best means of controlling the density of population for the well-being of the community at large.

One of the early cases sustaining minimum acreage zoning applied the traditional police power test of constitutionality. In Simon u.

Town of Needham 28 the town had passed an ordinance requiring residential dwellings be built on lots of at least one acre. Needham is a Boston suburb that was undergoing rapid growth. The court upheld the validity of the ordinance. After pointing out the locationa I advantages of the zone district, the available market for the homes in the district, and the need for this type of suburban housing, the court stated:

The establishment of a neighborhood of homes in such a way as to avoid congestion in the streets, to secure safety from fire and other dangers, to prevent overcrowding of land, to obtain adequate light, air and sunshine, and to enable it to be furnished with transportation, water, light, sewer and other public necessities, which when established would tend to improve and beautify the town and would harmonize with the natural characteristics of the locality,

26.

E.g., Cunningham, supra note 14. Health and safety might also justify flood plains.

Mandelker, The Role of Law in the Planning Process,

[hereinafter cited as Mandelker); cf.

Note,

30 LAW & CONTEMP. PROB. 26,32 (1964)

Techniques for Preserving Open Spaces, 75 HARV.

L. REv. 1622 (1962).

(1972); Comment,

See generally Golden v. Planning Bd., 30 N.Y.2d 359, 285 N.E.2d 291

Environmental Considerations: New Arguments for Large Lot Zoning, 7

URBAN L. ANNUAL 370 (1974).

27.

See, e.g., Toll, Zoning for Amenities, 20 LAW & CONTEMP. PRoB. 266 (1955).

28.

311 Mass. 560, 42 N.E.2d 516 (1942).


1974] ENVIRONMENTAL LEGISLA TION 7 could be materially facilitated by a regulation that prescribed a reasonable minimum area for house lots.

29

The court continued to show the advantages that might accrue to the occupants of the home and the community at, large from this regulation. 30 It concluded that the determination of whether those advantages are desirable for the community is a legislative one best left to the local planning authorities. Because the ordinance was shown to relate to public health and safety and was not unreasonable, it was sustained.

Needham was one of the early cases involving minimum lot size zoning ordinances. In addition to its health and safety test approach, the court in dictum, apparently intending to limit the scope of these ordinances, stated:

A zoning by-law cannot be adopted for the purpose of setting up a barrier against the influx of thrifty and respectable citizens who desire to live there and who are able and willing to erect homes upon lots upon which fair and reasonable restrictions have been imposed nor for the purpose of protecting the large estates that are already located in the district. The strictly local interests of the town must yield if it appears that they are plainly in conflict with the general interests of the public at large, and in such instances the interest of "the municipality would not be allowed to stand in the way."31

Unfortunately, examination of later cases reveals that this warning often went unheeded.

In Fisher v. Bedminster Townshi p

32 the New Jersey Supreme

Court upheld the validity of a five-acre minimum lot requirement.

As is typical in most of these cases, the municipality and those surrounding it were rural in character. The court, as had the lower court,33 relied heavily on the fact that the New Jersey Constitution

29.

[d.

at 564.42 N.E.2d at 518.

30.

More freedom from noise and traffic might result. The danger from fire from outside sources might be reduced. A better opportunity for rest and relaxation might be afforded. Greater facilities for children to play on the premises and not in the streets would be available. There may perhaps be more inducement for one to attempt something in the way of the cultivation of flowers, shrubs and vegetables.

[d.

These health and safety advantages cited by the court were not persuasive to one writer.

Cunningham, supra note 14.

31.

311 Mass. at 564,42 N.E.2d at 518, citing Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926)(other citations omitted).

32.

11 N.J. 194,93 A.2d 378 (1952).

33.

Fischer v. Bedminster Township, 21 N.J. Super. 81, 90 A.2d 757 (L.

Ct. 1952).


8 TEXAS TECH LA W REVIEW [Vol. 6:1 requires liberal construction in favor of validity of zoning ordinances. 34 The court held that the ordinance was not per se unreas0rtable, especially in light of ordinances in surrounding communities which had a 10-acre minimum lot requirement. 35 The justifications sustaining the ordinance were "preserving the character of the community, maintaining the value of property therein, and devoting the land throughout the township for its most appropriate use. 36

The Illinois Supreme Court has also sustained a five-acre minimum lot requirement. 37 The court based its finding on the fact that the landowner did not object to the classification when the ordinance was first passed and also the fact that any question of the highest and best use of the property, if disputed, is one to be resolved in favor of the municipality.38 That determination is a legislative judgment not to be intruded upon by the courts.39 No showing or contention was made by the city that the ordinance was for the health, safety, or general welfare of the city; rather the ordinance was held valid because the landowner failed to prove the unreasonableness of the five-acre requirement.

In Connecticut a four-acre minimum lot requirement has been held reasonable. 40 To a limited extent, however, the court's findings did relate to police power criteria of health and safety to justify its result: it found the zone to be semi-rural and without water or sewer service. 41 After acknowledging that upgrading of a zone is generally valid in semi-rural areas,42 the court held that the objective of creating a "superior residential district" as the most appropriate use of the land was proper. 43 The court went on to say that the effect of this upgrading was not to limit ownership to the wealthY,44 even though it was done in part because the town had the highest per capita income in the United States according to the 1950 census. 45

34.

[d.

35.

11 N.J. at 198, 93 A.2d at 383-84.

36.

[d.

37.

Honeck v. County of Cook, 12 Ill. App. 2d 257, 146 N.E.2d 35 (1957).

38.

[d.

39.

[d.; accord, Simon v. Town of Needham, 311 Mass. 560, 42 N.E.2d 516 (1942); see

Comment, 106 PA.

L. REv. 292, 297 (1957).

40.

Senior v. Zoning Comm'n, 146 Conn. 531, 153 A.2d 415 (1959), appeal dismissed,

363 U.S. 143 (1959).

41.

146 Conn. at 532, 153 A.2d at 416-17; see note 26 supra.

42.

146 Conn. at _ , 153 A.2d at 417.

43.

[d.

44.

[d.

at 533, 153 A.2d at 418.

45.

[d.

at 532, 153 A.2d at 417.



One of the more extreme examples of the departure from traditional zoning criteria is Bilbar Construction Co. u. Board of

Adjustment.46

While upholding a one-acre minimum lot requirement for residential buildings, the court applied the broad test of

"general welfare" to determine whether the ordinance was a reasonable exercise of the police power.

It held that the validity of the ordinance may be sustained by promotion of the general welfare.

47

The significance of that test is the consideration of aesthetics and other matters unrelated to general health and safety. In so doing, the court followed Berman u. Parker,48 a case involving the federal exercise of eminent domain on a redevelopment project in Washington, D.C. Whether the "general welfare" standard for the federal government exercising its power of eminent domain under the fifth amendment is, or should be, identical with the standard to apply to a state exercising its police power is questionable.

49

As the dissenting opinion points out,50 the result in Bilbar is a blanket approval of general welfare as the unlimited test of constitutionality of zoning ordinances.

If this were true, no boundaries would exist on the exercise of the police power, for every act would be subsumed under "general welfare."51

Two New York cases, with merely token reference to the general health, safety, or morals of the community, have upheld minimum acreage requirements of two acres52 and slightly less than one acre. 53

46.

393 Pa. 62, 141 A.2d 851 (1958).

47.

"We ourselves have a number of times upheld the constitutionality of zoning ordinances which bore no reasonable relation to the health, safety or morals of the community but whose constitutional validity rested alone upon their promotion of the general welfare."

393 Pa. at 69, 141 A.2d at 857.

48.

348 U.S. 26 (1954).

49.

One article recognizes this distinction between public use as a limitation on eminent domain and public purpose or welfare as a guide for exercising the police power and concludes that it is at least an "anachronism" which must be considered in zoning for open spaces.

Krasnowiecki & Paul, The Preservation of Open Space in Metropolitan Areas, 110 U. PA. L.

REv. 179,202-05 (1961). Another writer, after apparently drawing the distinction, proceeds to conclude in his article that the tests under eminent domain and the police power are the same. Note, 23 GEO. WASH.

L.

REV. 730 (1955).

This distinction is, however, supported by case law which generally has only applied the

Berman doctrine in eminent domain or redevelopment situations. See, e.g., Miller v. City of

Tacoma, 61 Wash. 2d 374, 378 P.2d 464 (1963); cases cited in Comment, 50 CALIF.

L. REv.

483, 484-86 (1962).

50.

393 Pa. at 87, 141 A.2d at 872 (dissenting opinion).

51.

[d.

52.

Dilliard v. Village of North Hills, 276 App. Div. 969, 94 N.Y.S.2d 715 (1950).

53.

Gignoux v. Village of Kings Point, 109 Misc. 485, 99 N.Y.S.2d 280 (Spec. Term

1950) (40,000 square feet minimum lot requirement).


10 TEXAS TECH LA W REVIEW [Vol. 6:1

Another case that used the health and safety test to determine the constitutionality of a lot size ordinance was Clary v. Borough of

Eatontown.

54 Clary differs factually, however, from the other cases under discussion because the ordinance upheld required a minimum lot size of approximately one-half acre,55 not one acre or more as in the other cases.

Needham and Clary illustrate why smaller minimums on lot size are easier to sustain. With the small lot requirement, i.e., one acre or less, the usual health reasons are the lack of adequate sewer and water services. 56 Moreover, the desire for open space, regulation of population density, and avoiding the overcrowding of existing school facilities are all objectives that can be achieved by the regulation which is a reasonable limitation on the level of development.

In contrast, the one to five-acre lot minimum seemingly reaches the point of diminishing returns. The health and safety and even general welfare goals are usually reached at lower minimums or by other means;57 hence other motives must justify the increased minimum requirement. 58

2.

Declared Invalid

The minimum acreage lot ordinances have not always been upheld. Ostensibly the reason of the court is either that the ordinance is unreasonable or unrelated to the health, safety, and welfare of the community. Another frequent basis is that the land surrounding the zoned area is not similarly restricted. Thus, a two and onehalf-acre minimum was invalidated in Du Page County v. Halkier, 59

54.

41 N.J. Super. 47, 124 A.2d 54 (App. Div. 1956) (11,000 and 20,000 square feet minimum lot size).

55.

Id. at 55, 124 A.2d at 61.

56.

E.g., De Mars v. Zoning Comm'n, 142 Conn. 580,115 A.2d 653 (1955); see authorities cited note 26 supra.

57.

Cunningham, supra note 14; National Land & Inv. Co. v. Kohn, 419 Pa. 504, 215

A.2d 597 (1966). For a general discussion of the health and safety tests in minimum lot zoning ordinances, see Haar, Zoning for Minimum Standards: The Wayne Township Case, 66 HARV.

L.

REv.

1051 (1954) [hereinafter cited as Haar]; Nolan & Horack, How Small A House? -

Zoning for Minimum Space Requirements, 67 HARV. L.

REv.

967 (1954); Haar, Wayne Town-

ship: Zoning for Whom? In Brief Reply, 67 HARV. L. REv. 986 (1954).

58.

E.g., Cunningham, supra note 14 (exclusionary purpose and maintenance of low tax rate); Dukeminier, Zoning for Aesthetic Objectives: A Reappraisal, 20 LAW & CONTEMP. !'ROB.

218, 229-32 (1955) (zoning for neighborhood amenities); Frieden, supra note 6, at 872-73

(exclusionary purposes); Williams, Planning Law and Democratic Living, 20 LAW & CONTEMP.

!'ROB. 317, 343-48 (1955) (economic segregation).

See generally Coke & Liebman, Political

Values and Population Density Controls, 37 LAND ECON. 347 (1961).

59.

1 Ill. 2d 491, 115 N.E.2d 635 (1953).


1974] ENVIRONMENTAL LEGISLA TION 11 and a three-acre minimum in Hitchman v. Oakland Township.60

In both these cases the court found that the police power criteria as well as the aesthetic considerations for open spaces could be satisfied by lower lot minimums. These courts also found that the essential purpose of the higher requirement was to maintain the rural nature of the community and to create an aesthetically more attractive neighborhood owned by higher income families.

The Virginia Supreme Court also had to confront the effects of minimum acreage zoning on area growth in Board of County

Supervisors v. Carper. 61 That case was different, however, from the explosive metropolitan growth problem, because in Carper the developmental controls restrained the county's internal rather than its external growth. The ordinance in Carper provided in part for a two-acre minimum for a residential dwelling in the western two-thirds of Fairfax County, with minimums of 12,500 and

8,400 square feet applicable in the eastern third. The eastern portion is the most populous and more developed area of the county. The court held that the ordinance was invalid.

62

This determination rested in part on the "grandfather clause" in the ordinance which would permit developers who record a plat based on a one-half-acre minimum within 2 years of its passage to develop according to that plat.

63 But the court also held that

[t]he practical effect of one amendment is to prevent people in the low income bracket from living in the western area and forcing them into the eastern area, thereby reserving the western area for those who could afford to build houses on two acres or more. This would serve private rather than public interests. Such an intentional and exclusionary purpose would bear no relation to the health, safety, morals, prosperity and general welfare.

64

C.

Judicial Re-appraisal

Recently several courts which previously validated minimum acreage zoning have had occasion to reconsider their earlier position. These decisions reflect a mixed reaction to large lot zoning that effectively curtails growth and movement into a community.

Clearly they show that at some point minimum lot size becomes so

60.

329 Mich. 331, 45 N.W.2d 306 (1951).

61.

200 Va. 653, 107 S.E.2d 390 (1959).

62.

[d.

The decision has been criticized as invalidating a green belt ordinance. Mandelker, supra note 26, at 33.

63.

200 Va. at 659, 107 S.E.2d at 396.

64.

[d.

(emphasis added).


12 TEXAS TECH LA W REVIEW [Vol. 6:1 large as to be unreasonable and unrelated to health, safety, and general welfare.

1.

Declared Invalid

Massachusetts, which earlier upheld a one-acre minimum lot size, was asked to evaluate an ordinance requiring a lot size of

100,000 square feet (approximately two and one-half acres) and width of 200 feet for single family residences in Aronson v. Town of

Sharon.

65 One of the arguments made to justify the ordinance was that the zoning was designed to keep the land in its natural state and preserve recreational areas for the community at large and for those who move into it. This would provide, it was claimed, " . . .

the living and recreational amenities that are fundamental to mental and physical health."66 The court rejected that argument because, in effect, the town wanted to acquire the land without condemning it. The court said, "We cannot resist the conclusion that, however worthy the objectives, the by-law attempts to achieve a result which properly should be the subject of eminent domain."67

The court then proceeded to acknowledge and follow its cautionary language in 'Simon v. Town of Needham.

68 Commenting on Simon, the court stated:

While initially an increase in lot size might have the effects there noted, the law of diminishing returns will set in at some point. As applied to the petitioners' property, the attainment of such advantages does not reasonably require lots of 100,000 square feet. Nor would they be attained by keeping the rural district undeveloped, even though this might contribute to the welfare of each inhabitant. Granting the value of recreational areas to the community as a whole, the burden of providing them should not be borne by the individual property owner unless he is compensated.

69

The Pennsylvania Supreme Court in a series of cases has retreated from and severely limited its early expansive application of the general welfare test in Bilbar.

70 The liberalization begun by

65.

346 Mass. 598, 195 N.E.2d 341 (1964).

66.

Id. at _ , 195 N.E.2d at 345.

67.

[d.

68.

311 Mass. 560, 42 N .E.2d 516 (1942). See text accompanying note 28 supra.

69.

Aronson v. Town of Sharon, 346 Mass. 598, _ , 195 N.E.2d 341, 345 (1964).

70.

Bilbar Constr. Co. v. Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958). See text accompanying note 46 supra.


1974] ENVIRONMENTAL LEGISLA TION 13

Bilbar was curtailed significantly in National Land & Investment

Co. v. Kohn 71 when the court invalidated a four-acre lot minimum requirement in a semi-rural area. The justifications for the ordinance would seem to fall within the aesthetic considerations of the general welfare test of Bilbar: 72 (1) sewage and drainage problems which would cause water pollution; (2) traffic congestion which poses a fire hazard; (3) preservation of the character of the area; and

(4) preservation of historic sites and hDmes in their proper setting.

73

The court disposes of the health and safety arguments perfunctorily on the facts and holds that a community cannot use minimum lot requirements to halt movement into a community or to avoid additional expenses that accompany natural growth. 74 The justifications in this case were factually opposite the city's contention, and the ultimate goal was determined to be the exclusion of new people from the area. 75 Zoning should not be used for that purpose.

Not only by the result in National Land, but also in a footnote, the court seems to back down from its liberal general welfare test in Bilbar. The court notes that "zoning may not be sustained solely on the basis of aesthetic considerations."76 One argument by the proponents of the ordinance was that it protects the "setting" or character of the community which in turn would promote the general welfare.

77 The court also rejected it, responding:

Unfortunately, the concept of the general welfare defies meaningful capsule definition and constitutes an exceedingly difficult standard against which to test the validity of legislation. However, it must always be ascertained at the outset whether, in fact, it is the public welfare which is being benefited or whether, disguised as legislation for the public welfare, a zoning ordinance actually serves purely private interests.

78

The National Land court continued its discussion of the justification of the ordinance on the ground that it preserves open spaces and historic sites. The court examined whether in fact there were

71.

419 Pa. 504, 215 A.2d 597 (1966).

72.

See note 70 supra.

73.

National Land & Inv. Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1966).

74.

Id. at 521, 215 A.2d at 610.

75.

Id. at 523, 215 A.2d at 612.

76.

Id. at 521 n.29, 215 A.2d at 610 n.29.

77.

Id. at 522, 215 A.2d at 611.

78.

Id.


14 TEXAS TECH LA W REVIEW [Vol. 6:1 sites of historical significance or merely older homes to preserve in the area. From the court's viewpoint:

Of course, the fact that these houses are old makes them architecturally and historically interesting. But it does not justify the creation of a special setting for them. They are all privately owned; most are already surrounded by substantial land holdings which, if their owners so desire, serve as protection against being "fenced in" by new residential development. In addition, there is nothing about south Easttown which differentiates it from any other area in the southeastern section of Pennsylvania. Surely, no one would seriously maintain that the entire southeast corner of the state should be declared immune from further development on areas of less than four acres simply because there are many old homes located there.

79

The court in National Land also raises the perplexing problem of whether the community by zoning can halt normal ingress into its area from a nearby metropolitan region. The court answered that question in the negative. The court stated:

A zoning ordinance whose primary purpose is to prevent the entrance of newcomers in order to avoid further burdens, economic or otherwise, upon the administration of public services and facilities can not be held valid.

so

In 1970 the Pennsylvania Supreme Court was again asked to evaluate its approach in National Land and Bilbar.

In Appeal of

Kit-Mar Builders, Inc.

81 the court adhered to its decision in

National Land.

In Kit-Mar the region owned by the builders had been rezoned to require a minimum of two and three-acre lots for single-family homes. The court said:

We decided in National Land that a scheme of zoning that has an exclusonary purpose or result is not acceptable in Pennsylvania.

We do not intend to say, of course, that minimum lot size requirements are inherently unreasonable. Planning considerations and other interests can justify reasonably varying minimum lot sizes in given areas of a community. "At some point along the spectrum, however, the size of lots ceases to be a concern requiring public regulation and becomes simply a matter of private preference."

79.

[d.

80.

[d. at 523, 215 A.2d at 612.

81.

439 Pa. 466, 268 A.2d 765 (1970).



. [M]inimum lot sizes of the magnitude required by this ordinance are a great deal larger than what should be considered as a necessary size for the building of a house, and are therefore not the proper subjects of public regulation. As a matter of fact, a house can fit quite comfortably on a one acre lot without being the least bit cramped.

82

The court continued to reject summarily the justification of the two and three-acre lot requirement on grounds of a sewage problem.

Again quoting extensively from National Land the court stated,

"The implication of our decision in National Land is that communities must deal with the problems of population growth. They may not refuse to confront the future by adopting zoning regulations that effectively restrict population to near present levels."83 The court proceeded to declare invalid the minimum acreage requirement and reaffirmed its position in favor of planned unit developments originally taken in Village 2 at New Hope, Inc. 84

A decision by an intermediate appellate court will provide the

New Jersey Supreme Court an opportunity to reconsider its prior approval of minimum acreage zoning in Fischer. 85 In Oakwood at

Madison, Inc. v. Township of Madison 86 a New Jersey superior court declared an ordinance requiring one and two-acre lots invalid.

In

1970 the community desired to curb population growth and stabilize the tax rate; in the court's language, it wanted to "catch its breath."87 The court distinguished Fischer on the ground that the

Madison Township ordinance was not designed to preserve existing land values. The land that was zoned in Madison was basically vacant and unimproved and hence did not have established residential character or property values. 88

In its opinion the New Jersey court does an extensive analysis of housing needs and population growth in the region around Madison Township.

It points out that the effect of minimum acreage zoning is to increase greatly the costs of land and construction.89

This in turn would limit the number of persons to whom the houses

82.

[d.

at _,268 A.2d at 766-67.

83.

[d.

at _ , 268 A.2d at 768.

84.

[d.

at _ , 268 A.2d at 769. See also Part II, G. infra.

85.

Oakwood at Madison, Inc. v. Township of Madison, 62 N.J. 185, 299 A.2d 720 (1972)

(certification granted).

86.

117 N.J. Super. 11,283 A.2d 353 (1971).

at _ , 283 A.2d at 355.

87.

[d.

88.

[d.

89.

[d.

at _ , 283 A.2d at 357.

at _ , 283 A.2d at 358.


16 TEXAS TECH LA W REVIEW [Vol. 6:1 could be sold. Moreover, "[t]he underlying objective of the ordinance under attack was fiscal zoning, zoning as a device to avoid school construction and other governmental costs incident to population expansion. Housing needs of the region were not taken into consideration in its enactment, according to several members of the township council and planning board. "00 The test of validity is whether the ordinance "promotes reasonably a balanced and well ordered·plan for the entire municipality."ol In that sense fiscal zoning per se is not a valid legislative purpose.0

2

The court concluded that the minimum acreage zoning here could not satisfy the balanced community test.

It observed:

The exclusionary approach in the ordinance under attack coincides in time with desperate housing needs in the county and re~ion and expanding programs, federal and state, for subsidized housing for low income families. . . .

In pursuing the valid zoning purpose of a balanced community, a municipality must not ignore housing needs, that is, its fair proportion of the obligation to meet the housing needs of its own population and of the region. Housing needs are encompassed within the general welfare. The general welfare does not stop at each municipal boundary. Large areas of vacant and developable land should not be zoned, as Madison Township has, into such minimum 'lot sizes and with such other restrictions that regional as well as local housing needs are shunted aside.

D3

The court also held that the city did not present necessary evidence to show the zoning was needed to avoid problems of sewer drainage and pollution of a local aquifer. Consequently the ordinance was invalid.

Another state that reconsidered the validity of minimum acreage zoning is Connecticut.

Kavenewsky v. Zoning Board of

Appeals 04 shows another basis for invalidating large lot zoning.

In that case the town in 1959 had enacted an ordinance which required a one-acre minimum lot with a width of 100 feet for single family homes. After a proposed subdivision had been offered by the plaintiff, the zoning board amended the 1959 ordinance so that it would require a minimum lot size of two acres and a minimum width of 200 feet. These changes are the ones to which the plaintiff

90.

[d.

lit _ , 283 A.2d

lit 357.

91.

[d.

92.

[d.

93.

[d.

lit _ , 283 A.2d

lit 358.

94.

160 Conn. 397, 279 A.2d 567 (1971).


1974] ENVIRONMENTAL LEGISLATION 17 was objecting. To determine the reason for the rezoning the court examined the minutes of the commission meeting. The court found that "the changes in regulation were made in demand of the people to keep Warren a rural community with open spaces and to keep undesirable businesses out."95 The court summarily dismissed this as a valid justification for the ordinance. The court concluded that "the most generous reading of the commission's reason for the upgrading of the zoned area failed to show any compliance with even a single requirement of the legislative directive contained in Section 8-2 [the state enabling act]. The action of the commission, accordingly, was arbitrary and illegal and cannot be sustained."96

2.

Declared Valid

Not all courts, however, have found minimum acreage zoning invalid even after taking a second look at it. The Maryland Court of Appeals first had an opportunity to consider large lot zoning in

County Commissioners v. Miles.

97 In Miles the court was faced with an ordinance which created a five-acre minimum lot size zone that included plaintiff's property. The plaintiff's land was an estate of about 588 acres and fronted water on two sides for

7,200 feet and 9,000 feet. Notwithstanding a statement by the chairman of the zoning commission that the zoning was done to assure the property would be sold only to "substantial" persons who have "more than ample" resources,98 the court upheld the ordinance. 9B The court distinguished National Land and Carper on the basis that the land rezoned in Miles only constituted 6.7

percent of the county and that the county was not in an area of high population growth.

100

In addition the court pointed out the long history of Queen

Anne's county dating back to the American Revolution.

It concluded, "Certainly, the concept of preserving some aspects of the past is not alien to our law."1D1 However, the court did note that changed conditions such as population expansion into the area could alter its position.10

2 Finally, the court rejected the idea that

95.

[d.

96.

[d.

at _ , 279 A.2d at 570.

at _ , 279 A.2d at 571.

97.

246 Md. 355, 228 A.2d 450 (1967).

98.

[d.

99.

[d.

100.

[d.

101.

[d.

at _ , 228 A.2d at 452-53.

at _ , 228 A.2d at 455.

at _ , 228 A.2d at 458.

102.

[d.

at _ , 228 A.2d at 459.


18 TEXAS TECH LA W REVIEW [Vol. 6:1 the rezoning was clearly a benefit to private parties. "The benefits to the estate owners in the R-1 District, in our opinion, are not the primary purpose or effect of the ordinance, but may be reasonably considered only incidental to the attempt to promote the general welfare.",03 Under these circumstances the court was unwilling to invalidate the ordinance.

The Maryland Court of Appeals took a second look at large lot zoning in Norbeck Village Joint Venture v. Montgomery County

Council.

104 In Norbeck the county zoned a region where it later wanted to develop a self-contained community in isolation from urban sprawl that otherwise characterized the region. The two-acre lot minimum was designed to allow time for planned growth in light of available services and to create a green belt of open spaces and parks. 105 The court held that the objectives of planning a community to avoid the consequences of urban sprawl and to control pollution problems are within the general welfare. By locating the community away from a watershed and by planning new traffic arteries to the urban center rather than using the presently overloaded ones, the county could minimize both air and water pollution problems. 106

The plaintiff did not overcome the strong presumption of validity of the ordinance. Nor did it establish that the classification was unreasonable or constituted a taking of its property.107 Hence the regulation was valid.

D.

Steel Hill Development, Inc. v. Town of Sanbornton Revisited

It was against the foregoing judicial setting shrouding minimum acreage zoning that the First Circuit Court of Appeals decided

Steel Hill Development, Inc. v. Town of Sanbornton.

lOS

The court initially notes that the earlier cases do not govern. The problem is different from those cases (e.g., National Land and Madison

Township) involving a metropolis that is expanding naturally into a rural area, because the developer wanted to create demand for housing that did not otherwise exist. 109 Similarly, the case was not governed by decisions like waterfront estates. In

Miles that dealt with preservation of

Miles only a small segment of the county was

103.

[d.

104.

254 Md. 59, 254 A.2d 700 (1969).

105.

[d.

at _ , 254 A.2d at 703.

106.

[d.

at _ , 254 A.2d at 704.

107.

[d.

at _ , 254 A.2d at 706.

108.

469 F.2d 956 (1st Cir. 1972).

109.

[d.

at 961.


1974] ENVIRONMENTAL LEGISLATION 19 zoned for five-acre lots, whereas in Sanbornton over 50 percent of the community was zoned for six-acre 10ts.

lIO If anything, the case most closely resembles Kavanewsky in which the community rezoned for the express purpose of keeping undesirable businesses out.

III

The next problem for the court was whether the six-acre zone was a reasonable regulation. The court agreed with the trial court that the ordinance would be invalid if health and safety were the only factors to consider. But it affirmed the trial court's finding that the ordinance was valid because of environmental factors. In the court's words:

We recognize, as within the general welfare, concerns relating to the construction and integration of hundreds of new homes which would have an irreversible effect on the area's ecological balance, destroy scenic values, decrease open space, significantly change the rural character of this small town, pose substantial financial burdens on the town for police, fire, sewer, and road service, and open the way for the tides of weekend "visitors" who would own second homes.

1I2

Next the court proceeded to discuss why the case was so difficult to decide. Neither party was in a particularly good posture. For example, the town failed to show how the six-acre figure was determined or selected. Nor were engineering data or studies presented to support it.

1I3 Moreover, the record contains indications that the rezoning was adopted, in fact, to keep development out; it was enacted after the plaintiff's development plans were proposed, and the town meeting at which it was adopted had striking resemblances to the one in Kavanewsky which the Connecticut court invalidated.

1I4 In addition, the court readily realizes that environmental zoning could easily become a guise to exclude and prohibit any development in a region-an impermissible result.

l15 Lastly, the position of the town seemed quite inconsistent. The developer pointed out that the recreational district which applied to land immediately adjacent to the lake (which the six-acre minimum lots were designed to protect from pollution) was zoned for one and one-

1l0.

Id.

lll.

Id.

112.

Id.

1l3.

Id.

at 962.

1l4.

Id.

1l5.

Id.


20

TEXAS TECH LA W REVIEW [Vol. 6:1 half-acre minimum lots.

118

It is highly doubtful that the area immediately adjacent to the lake could sustain housing and population density of one and one-half acres but that areas more distant from the lake require larger lots to protect and avoid polluting it.

On the other hand, the developer had his problems. For one thing he could not even establish that his development had diminished in value to the point of constituting any type of taking by the town. In fact by his own admission the value of property would have doubled per lot, from 6,000 dollars to 12,000 dollars.

'17 In addition, as previously mentioned, he wanted to disrupt the town's rural character by creating demand for second homes, thus doubling its population.

lls

The dilemma was resolved in favor of the town's initiallegislative determination.

In that sense the case is similar to those relying solely on the presumption of validity attaching to zoning ordinances to uphold minimum acreage zoning. In closing, however, the court sounds a stern warning against the minimum acreage zoning becoming permanent: "But, at this time of uncertainty as to the right balance between ecological and population pressures, we cannot help but feel that the town's ordinan'ce, which severely restricts development, may properly stand for the present as a legitimate stop-gap melilsure."IID It continued, "Thus, while we affirm the dis-.

trict court's determination at the present time, we recognize that this is a very special case which cannot be read as evidencing a general approval of six-acre zoning, and that this requirement may well not indefinitely stand without more homework by the concerned parties."12o

The First Circuit, realizing the complexities of the problem before it, sought to find justification for the town's acts in various ways. But it found great difficulty in relying on the traditional test of health, safety, and morals at least as applied to the six-acre minimum. On the other hand, the court was solicitous of the town's desire to preserve its rural character, open spaces, and the mountainous, scenic regions that had been redistricted. In last analysis

116.

Brief for Appellant at 22, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d

956 (1st Cir. 1972).

117.

Brief for Appellee at 8, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956

(lst Cir. 1972).

118.

[d.

at 9.

119.

Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956, 962 (1st Cir. 1972).

120.

[d.

at 962.


1974] ENVIRONMENTAL LEGISLATION 21 the court seemed to conclude reluctantly that it would uphold the ordinance as an interim measure.

Sanbornton is an important case because it directly confronts and validates zoning on environmental considerations. In fact the court expressly rejected health factors as justification for the sixacre minimum.

121 But health factors are not the only objectives to be considered; environmental objectives such as retaining scenic values or mountainous conditions in a region are proper objectives in the context of the general welfare.

Sanbornton is a weak precedent, however, because on its face it did not appear that the town tried to justify its zoning as being for environmental purposes.

122 In fact the court seemed to emphasize those objectives as a means of salvaging the ordinance. Nonetheless, the case is significant for acknowledging the idea that environmental objectives do fall within the general welfare.

123

E.

Evaluation

From the amount of litigation in recent years, mInImUm acreage zoning seems to remain highly popular and highly controversial. Its popularity stems in part from its use as a defense to protect the community from urban sprawl; its controversy in part arises from its inherent discrimination. For these reasons large lot zones in excess of one acre should be subjected to close judicial scrutiny. Not only is that classification easily economically and racially exclusionary, but also the large lot size has no obvious direct relation to the health and safety of a community, which remains the traditional test of validity of exercise of the police power.

124 Hence, the lot size may well be arbitrary and unreasonable. Moreover, many objectives of minimum acreage zoning can be achieved with smaller, less questionable lot sizes or through devices other than traditional Euclidian zoning.

For these reasons, the presumption of validity that usually attaches to zoning ordinances should not apply to minimum acreage zoning ordinances, at least not to its present extent of precluding judicial review. Once the reasonableness of the large lot regulation is challenged, the community should have the burden of coming forward with evidence justifying the classification. This burden

121.

[d.

122.

[d.

at 960.

123.

For a general discussion of

(1974).

Sanbornton, see Comment, 7 URBAN L.

ANNUAL

370

124.

A new test, however, has been applied to a city's ordinance that limited its growth


22 TEXAS TECH LA W REVIEW [Vol. 6:1 should fall on the community because it has, or should have, the necessary information to show reasonableness of the regulation or its relationship to health and safety. The topography or condition of the land, sewer drainage problems, preservation of historic sites, or other extrinsic facts to justify the zoning normally would be contained in studies and findings the community initially makes before adopting the ordinance.

The observation on the presumption of validity made by the

Pennsylvania Supreme Court in National Land deserves special attention. Although the court did not dispense with the presumption outright, the court refused to view it as an insurmountable obstacle to judicial review.t

25 The court observed that the modern planning to certain populations by restricting the number of housing units that could be built. The federal district court held the ordinance an unconstitutional violation of the individual's right to travel. Construction Ind. Ass'n v. City of Petaluma, 6 BNA ENV.

RPm. 1453, 375 F.Supp.

574 (N.D. Calif. 1974).

Although the case did not involve minimum acreage zoning, it did concern a city's efforts to curb urban sprawl and preserve its character, objectives that are also common to minimum acreage zoning. Because of its novel approach, the case almost assuredly will be appealed.

Regardless of the outcome on appeal, the case reflects serious flaws in traditional zoning techniques that are being subjected to closer judicial scrutiny. Rather than continuing with more of the same, which may be tenuous at best-especially in light of Petaluma, supra,-planners would be well-advised to consider newer methods, including environmental legislation discussed in Part II, infra, or planned unit developments.

Justice Douglas recently stayed the district court order in Petaluma pending fuller review of the trial record. 5 BNA ENV.

RPm.-CURR. DEV. 429 (Aug. 2, 1974). For a fuller discussion of the history and growth study made by Petaluma before adopting the ordinance, see Barnes,

The California Experience: How to Use Land, THE NEW

REpUBLIC,

Sept. 21, 1974, at 10.

If the decision in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), is any indication, it portends poorly for the district court's decision in Petaluma, supra.

In Belle Terre, supra, the present Supreme Court gave a very traditional interpretation of the equal protection clause of the fourteenth amendment which lower courts had applied to invalidate a zoning ordinance. The Court also rejected on the facts of Belle Terre the argument that the ordinance unconstitutionally infringed a fundamental right to travel or was exclusionary. The Petaluma ordinance, however, is distinguishable both in its growth study prior to adoption and its explicit effort to restrict the population in the city. Whether those distinctions will be persuasive to the Court to affirm the Petaluma decision remains to be seen. Hopefully they will.

125.

National Land & Inv. Co. v. Kohn, 419 Pa. 504, 215 A.2d 597 (1966).

In some instances the presumption of validity that attaches to zoning ordinances is dubious at best. Implicit in the presumption is the idea that the ordinance is based on factual data and public hearings (with appropriate notice and full citizen participation). Then the legislative body enacts the ordinance reflecting its judgment on the merits of the subject matter of the ordinance. It is that legislative judgment that is given high judicial deference under the presumption of validity. But, in some situations, it seems clear that the factual data and hearings are lacking.

See, e.g., Kavanewsky v. Town of Warren, 160 Conn. 397, 279

A.2d 567 (l971) and Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956 (lst Cir. 1972), which involve minimum acreage zoning ordinances. If the ordinance is not based on fact findings, public hearings, and debate, then it might not be inappropriate to dispense with


1974] ENVIRONMENTAL LEGISLATION 23 process for a city is very complicated, but that complexity cannot be used as an excuse for judicial inaction under the guise of the presumption of validity of an ordinance. The court said:

While recognizing this presumption we must also appreciate the fact that zoning involves governmental restrictions upon a landowner's constitutionally guaranteed right to use his property, unfettered, except in very specific instances, by governmental restrictions. The time must never come when, because of frustrations with concepts foreign to their legal training, courts abdicate their judicial responsibility to protect the constitutional rights of citizens. Thus, the burden of proof imposed upon one who challenges the validity of a zoning regulation must never be made so onerous as to foreclose, for all practical purposes, a landowner's avenue of redress against the infringement of constitutionally protected rights.

126

One reason to make the community explain its justifications for the minimum acreage ordinance is to discourage use of circuitous planning techniques under traditional zoning in favor of direct methods illustrated by recent examples of environmental legislation. Typically statutes to preserve the environment would more directly address the planning problems of urban and rural areas alike. For that reason they can attain some of the objectives of traditional zoning without its controversial aspects. Another reason exists to discourage minimum acreage zoning. When it is used to attain environmental objectives, it is at best temporary and cum· bersome. Even in Sanbornton, for example, the court did not have clear evidence of the environmental motives of the town. In fact it was not even clearly argued in the brief.

l27 If anything, the evidence tends to support exclusionary motives of the townspeople.

128

In addition, the court pointed out that minimum acreage zoning cannot be permanent. And, as is typical in many cases, the town did not have or make the necessary studies to sustain the environmental purposes. In short, the town merely postponed the inevitable-careful, detailed planning at a later date!29

the presumption of validity entirely. In those cases the burden of proof concerning the need for, and reasonableness of, the regulations should rest on the legislative body when the ordinance is challenged in court.

126.

419 Pa, at _,215 A.2d at 607.

127.

Brieffor Appellee at 10, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956

(lst Cir. 1972).

128.

Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir. 1972).

129.

[d.


24

TEXAS TECH LA W REVIEW [Vol. 6:1

Even in situations like Norbeck where the county wanted to phase in a planned, self-contained community, the minimum acreage zoning would not assure that result. The land could be purchased and developed in lots of two acres, and the region lost for a planned unit. Clearly the objectives in both cases could be obtained more directly and with greater exactitude about the result by use of the more recent and sophisticated environmental legislation that will be examined next.

II.

ENVIRONMENTAL LEGISLATION

Environmental zoning takes many different legislative forms.

In its broadest sense a common element to all forms is the effort of the legislative body to identify the particular environmental purpose to be achieved and act directly to obtain it. In the context of minimum acreage zoning, for example, the legislative body should differentiate illegitimate purposes such as exclusionary ones from legitimate purposes such as protection of critical ecological areas or historic preservation. Although minimum acreage zoning may seek many different purposes, some of them can clearly be delineated environmental. For example, preservation of open space or historic sites, protection of wildlife habitats, preservation of scenic or mountainous regions, or prevention of water and air pollution have each been offered at different times as justification for minimum acreage zoning. What these objectives have in common is that they can be valid environmental objectives that would come within the general welfare test for an exercise of the police power. Attainment of these objectives would be beneficial not only to the immediate community, but also to the public at large. Because ofthis public benefit the objectives fit within the general welfare test for a valid exercise of the police power. Hence, if the community adopts measures to achieve those objectives, its regulation will be permissible unless the regulation is unreasonable.

Obviously the available legislative actions to achieve these objectives can be quite varied. First, the community could exercise its eminent domain power and condemn property and maintain at public expense a historic site or an open area or park.

130 But from a planning perspective the issue, of course, in most instances is what regulation may the state impose short of undertaking eminent do-

130.

Obviously, this option is usually available to a community. But it is likely to be undesirable because the price of purchase and maintenance may be prohibitively high and the procedures are often very time-consuming.


1974] ENVIRONMENTAL LEGISLATION 25 main proceedings. Can a city preserve a historic site or park area within its boundaries by restricting uses in the area? Similarly, can a city make studies and determinations that certain scenic or mountainous regions require protection from development and zone the area accordingly? Likewise, can it restrict uses on waterfront areas or in open space regions?

If these options are available to a zoning body, it can directly confront the environmental issue and act to avoid the particular environmental harm. By its action the city would achieve objectives similar to those sought by minimum acreage zoning, but would do so in a more direct manner than the circuitous approach of minimum acreage zoning. Some examples of this directness under different environmental statutes that have already been adopted by various planning bodies and judicial reaction to them follow. 131

A.

Designation of Environmental Zones

In Confederacion de la Raza Unida v. City of Morgan Hill 132 a federal district court in California was confronted with the issue of the validity of an ordinance that was adopted to protect scenic, hilly, and mountainous regions within the city. The facts in the case are unclear about the specific provisions of the ordinance. They do not indicate the population density permitted, the size of the region zoned, and other areas in the city that were available for development. 133 The plaintiff had obtained an option to purchase land within the zoned area and proposed to build multi-unit apartments at a higher density than permitted under the ordinance.

It sought declaratory judgment concerning the constitutionality of the ordinance.

The court sustained the ordinance against the challenge that it violated the equal protection clause of the fourteenth amendment by denying poor persons the ability to live in certain parts of the community,134 The court considered that if the plaintiff's contention was upheld, all zoning that has the effect of increasing land values

131.

No effort has been made to examine in detail all possible types of environmental legislation. The illustrations discussed were selected because they are representative of recent legislative efforts to protect the environment and because their validity has been reviewed favorably by the courts in all instances. In addition, the examples used seem to have objectives quite similar to those sought by minimum acreage zoning and hence, may be the best alternatives to it.

132.

324 F. Supp. 895 (N.D. Cal. 1971).

133.

[d.

at 896.

134.

[d.

at 898.


26 TEXAS TECH LA W REVIEW [Vol. 6:1 might be challenged because it is more expensive for the poor

.135

But the court held that this type of economic discrimination standing alone would not invalidate the ordinance. Because the plaintiff did not assert that the Morgan Hill ordinance was exclusionary (either economically or racially)

136 nor that it prohibited building any lowincome housing in the city, it was valid.

137

The Morgan Hill court expressly acknowledged, and the plaintiff conceded, that the city may take aesthetic considerations into account in zoning. In the court's language; "Indeed, it is common knowledge that numerous enactments and policies adopted by state and federal agencies alike in recent years have stressed the importance of proper urban planning and of preserving such of the natural amenities of the urban landscape as have survived many regrettable years of inattention to such vital concerns and the consequent development of urban blight and crowded slums and ghettos.

"138

The Morgan Hill court's validation of zoning ordinances based principally on environmental considerations is significant. Presumably an ordinance could create an environmental zone even more directly than was done by the one upheld in Morgan Hill.

A community should be able to undertake an evaluation of existing land uses within the community and the areas of special environmental concern. The latter category could include, for example, those regions requiring particular attention to preserve an area's scenic or mountainous characteristics or regions that for geological or geographical reasons, such as being located near a waterfront, justify particular effort to preserve them. Specific studies could culminate in findings concerning soil conditions or the nature of the mountain slope that would demonstrate the concern for the ecology in the particular area and would show the threat posed to it by high density population growth or rapid development. In fact, the danger may relate to public safety by protecting against landslides as well as to general welfare by protecting the environment.

A cautionary note must be raised. In creating an environmental zone the community should not declare the entire city an area of environmental concern, nor select for protection only regions adjacent to affluent neighborhoods, nor zone areas environmentally if the purpose is only to preserve or enhance existing land values. The

135.

[d.

136.

[d.

137.

[d.

138.

[d.


1974] ENVIRONMENTAL LEGISLATION 27 fiscal nature of the zoning in the latter situations only operates for private, not public, benefit. Moreover, exclusionary or private fiscal benefits are in fact being sought notwithstanding the purported environmental objectives implicit in creation of an "environmental zone." The planning unit must assiduously watch to assure that valid environmental objectives are not misued for illegitimate, private benefit. Clearly if the principal purpose of the regulation is discriminatory or exclusionary, it is no more acceptable merely because it is couched in terms of environmental considerations. In those instances the regulation must be rejected so that otherwise invalid objectives that could not be attained directly are not attained indirectly.

139

B.

Restriction on Uses for Conservation of Shorelands or Wetlands ute 140

Wisconsin has adopted a Navigable Waters Protection Statthat is designed to preserve shorelands and wetlands as a conservation measure. The statute authorizes counties to adopt ordinances that would restrict uses on wetlands within a certain distance from navigable waters of the state.

14I If the county does not enact protective measures that comply with the state standards, the state enforcement agency is authorized to do

SO.142

Marinette

County, Wisconsin, adopted a shoreland zoning ordinance that designated lands immediately adjacent to navigable waters in the conservancy zone.

143 The ordinance then continued to place special use restrictions on the lands in those districts. Basically under the ordinance any land within the conservancy district is limited to natural land uses, such as wild crops, forestry, utilities, preservation of scenic, historic, and scientific areas, wildlife preserves, and related uses. The land in the conservancy zone may be filled or developed only if a permit under the "Conditional Uses" section of the ordinance is granted.

144

In Just v. Marinette County145 the Wisconsin Supreme Court was confronted with the question of the validity of the ordinance.

139.

Cf. Hagman, NEPA

'5

Progeny Inhabit the States- Were the Genes Defective?, 7

URBAN L.

ANNUAL 3, 41-46 (1974) [hereinafter cited as Hagman).

140.

WIS. STAT. ANN. § 144.26 (Supp. 1974).

See also DEL. CODE ANN. tit. 58 (1971).

141.

WIS. STAT. ANN.

§ 144.26 (Supp. 1974).

142.

Id. at § 59.971.

143.

Just v. Marinette County, 56 Wis. 2d 7,201 N.W.2d 761 (1972).

144.

Id. at _,201 N.W.2d at 765-66, quoting Marinette County Shoreland Zoning

Ordinance No. 24, § 3.42.

145.

56 Wis. 2d 7, 201 N.W.2d 761 (1972).



The plaintiff had filled in shoreland that was located within the county and subject to the conservancy district. The land-fill was a violation of the ordinance because the Justs had not obtained a special fill permit before they filled in the wetland region.u

s

They argued the restrictions on filling their wetlands constituted a taking of their property without compensation and was thus a violation of due process of law.

The Wisconsin Supreme Court in a lengthy decision sustained the validity of the ordinance.

147 The court distinguished the problem of taking from that of reasonable regulation under the police power.

The court said that the state and county had the authority to take protective measures of conservation of shorelands and to protect from pollution waters that are clean in their natural state. The court held that this was a reasonable regulation because the state was not seeking to acquire the property for public benefit. Rather the county sought to prevent harm to the public right to the land in its natural state. The court points out that this is not a case in which the landowner has been prevented from putting land to its natural uses, but rather has merely been restricted to those uses,148 Because the

Justs' land was unimproved, the restriction to natural uses did not affect an already existing use nor prevent it from being continued.

Moreover, because it was still in its natural state, no particular use was taken, and hence, there was no deprivation of the landowner's property.

149

This type of zoning for conservation purposes has been highly con troversial.

150

The Marinette County court acknowledged that several states have declared invalid similar ordinances on the ground that the limitation to natural uses does constitute an impermissible taking of property without just compensation.

151

The court stated, however, that the land itself did not lose any value; the loss would merely be the expected enhancement in value by its development. As to its present condition and natural uses, no diminution in value occurred.

152

146.

[d.

at _,201 N.W.2d at 766-67.

147.

[d.

at _,201 N.W.2d at 772.

148.

[d.

at _,201 N.W.2d at 768.

149.

[d.

at _,201 N.W.2d at 771.

150.

See, e.g., Bartlett v. Zoning Comm'n, 161 Conn. 24, 282 A.2d 907 (1971); State v.

Johnson, 265 A.2d 711 (Me. 1970); Comm'r of Natural Resources v. S. Volpe & Co., 349 Mass.

104, 206 N.E.2d 666 (1965); cf.

Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962).

151.

Just v. Marinette County, 50 Wis. 2d 7, 201 N.W.2d 761, 770 (1972).

152.

[d.

at _,201 N.W.2d at 771.



Marinette County represents another approach to environmental zoning.

It is a slight modification of the direct zone approach discussed above, but has basic similarities. In essence the zoning board or state is determining particular areas of environmental concern and is acting in the public interest to preve'nt harm to the environment. This approach bears great similarity to that in Miles in which the court held that minimum acreage zoning could be used to preserve manorial estates on a waterfront in the state of Maryland. 153 A major difference, however, is the greater restrictions in a conservation zone on the use of the land.

Furthermore, the type of ordinance in Marinette County has provisions for special permit users. This is important because it allows a person who wants to use the land to show that he can and will in fact take steps to minimize the environmenral harm to the land. The state in that sense is not completely prohibiting development, but just closely scrutinizing the kind of development to preserve, insofar as possible, the scenic and natural condition of the land and wildlife habitats in the region.

C.

Phase Development

One facet of minimum acreage zoning that has been frequently discussed is its use as an interim or temporary measure. 154 In some instances, such as the Sanbornton case, the court expressly acknowledged that, because of its questionable validity, the minimum acreage zoning can only be temporary.155 Then minimum acreage zoning is being used to postpone more permanent zoning or growth for the community. Obviously a city could not adopt an ordinance that prohibits any development whatsoever.156

A recent example of a more direct approach to achieve delayed development in a community was the ordinance involved in Golden v. Planning Board.

157 In that case Ramapo had adopted an ordinance which directly tied any subdivision or development in the community to the availability of municipal services. This restriction on development would last 18 years. 15S The Court of Appeals of New

153.

County Comm'rs v. Miles, 240 Md. 355, 228 A.2d 450 (1970). See note 9 supra and accompanying text.

154.

See, e.g" Becker, supra note 7, at 282-89.

155.

Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956, 962 (lst Cir. 1972).

156.

E,g" id.; cf.

Confederacion de la Raza Unida v. City of Morgan Hill, 324 F. Supp.

895 (N.D. Cal. 1971).

157.

30 N.Y.2d 359,285 N.E.2d 291 (1972).

158.

Id,



York upheld the validity of the ordinance against objections that it was not consistent with the state's enabling act l5U

' and that it unconstitutionally prohibited development for an unreasonably long period of time.

'60

While acknowledging the fact that Ramapo and other communities have serious problems from urban sprawl and premature development, the court began on the premise that exclusionary zoning cannot be tolerated.

'61 However, the court observed about the Ramapo ordinance, "But, far from being exclusionary, the present amendments merely seek, by the implementation ofsequential development and timed growth, to provide a balanced cohesive community dedicated to the efficient utilization of land."162 The court went on to hold the ordinance did not prohibit land development for 18 years.

In the court's view the total plan for the 18-year period anticipated that municipal services would be provided at stated intervals and that adjustments in granting permits would be made for planned services which, because of political or economic considerations, could not be put in immediately.

163

The ordinance and result in Ramapo are subject to criticism on several points. The exclusionary effects of the ordinance are obvious. The court acknowledged the serious problem for the landowner who is subject to the possibility that no development on his own land may be permitted for 18 years.

164 The court also acknowledged that under the permit system the city could deny in effect any development by simply not undertaking an obligation to make any improvement or changes in available services.

'65 It then continues:

The reasoning, as far as it goes, cannot be challenged. Yet, in passing on the validity of the ordinance on its face, we must assume not only the Town's good faith, but its assiduous adherence to the program's scheduled implementation. We cannot, it is true,

159.

Id. at _,285 N.E.2d at 300.

160.

Id. at _ , 285 N.E.2d at 303.

161.

Id. at _ , 285 N.E.2d at 302.

162.

Id.

But it is not so clear that the Ramapo ordinance lacked an exclusionary effect. Under the ordinance if the city had not provided the necessary services, the developer could do so at his expense. Obviously, this expenditure would be passed on to the ultimate purchaser by a higher price for a home. In that manner the ordinance has definite economic discriminatory effect, especially when coupled with large lot size requirements, no provision for apartments, and limited public housing.

See Haskell, Land Use and The' Environment: Public Policy

Issues, 5 BNA ENV. RPrn.-Monograph No. 20, p. 4 (Nov. 8, 1974).

163.

30 N.Y.2d at _,285 N.E.2d at 303.

164.

Id.

165.

Id. at _ , 285 N.E.2d at 298-99 n.7.


1974] ENVIRONMENTAL LEGISLA TION 31 adjudicate in a vacuum, and it would be remiss not to consider the

~ubstantial risk that the Town may eventually default in its obligations. Yet, those are future events, the staple of a clairvoyant, not of a court in its deliberations. The threat of default is not so imminent or likely that it would warrant prognosticating and striking down these amendments as invalid on their face. When and if the danger should materialize, the aggrieved land owner can seek relief by way of an article 78 proceeding, [declaratory judgment] declaring the ordinance unconstitutional as applied to his property. Alternatively, should it arise at some future point in time that the Town must fail in its enterprise, an action for declaratory judgment will 'indeed prove the most effective vehicle for relieving property owners of what would constitute absolute prohibitions.

166

In addition to this basic objection to phase zoning ordinances, the Ramapo ordinance does not seek essentially environmental objectives. However, the phase or delayed development approach of

Ramapo could be applied to environmental situations.

It is reasonable for a community to determine that a particular region, because of environmental factors such as the geography, geology, wetlands, or condition of the land, would be severely threatened or that the natural condition for wildlife habitats might be severely threatened by immediate or premature development. In those instances the city should be able to determine that the region is an environmental zone that requires special permits to develop. Conditions could be included in the permit that would assure the developer would not develop too rapidly or too prematurely in light of the potential environmental harm. For example, the conditions in a scenic or mountainous region might be that low density rather than a high density development be built or that part of the development be used to preserve the terrain and wildlife habitats in their natural conditions. Similarly, the permit might require the developer to avoid, or at least to minimize, the environmental harm. Another condition could relate to setting aside areas for environmental purposes. Dedication of land for public parks, open spaces, or schools has been long upheld as a reasonable condition to permit a landowner to develop a subdivision,167 Similarly, a requirement that certain areas be set aside for other public purposes such as conservation or wildlife preservation would seem equally reasonable.

166.

[d.

167.

For detail discussion of subdivision controls, see O.

BROWDER, R.

CUNNINGHAM, &

J. JULIN, BASIC PROPERTY LAW 1200-50 (2d ed. 1973) and cases cited therein for examples of dedication of land for specific purposes.



The important thing in the context of environmental zoning is that the purpose for delayed or postponed development is to protect against environmental harm. It has a very limited and readilyidentifiable purpose that the city can identify and defend objectively if called upon to do so in public hearings and, if necessary, before a court. Perhaps this is the most unique facet of environmental legislation generally. But those environmental considerations were not present or used in Ramapo, and absent them, delayed development is highly questionable.

It is even more suspect in the context of

Ramapo where the postponed or delayed development may continue for a period of 18 years for the entire community.

The reasons justifying phase development must be based on land use studies or inventories. The delayed or slower development is undertaken in the first place on grounds that the land topographically must be developed less rapidly. Environmental studies should be made by the planning board to support that conclusion.

D.

Special Permit Development

Another environmental legislative device at the state level is the Maine Site Location of Development Law.

16s Under the law any person who proposes to develop land in any manner that might substantially affect the local environment must get a permit from the State Environmental Improvement Commission.

16D The legislature specifically designated certain types of projects that would require a license. They included developments (1) in excess of 20 acres, (2) that contemplate drilling, and (3) that use natural resources within the state.

I7O Before obtaining a license from the State

Commission, the person proposing the development must show that his plan would protect the public health, safety, and general welfare-in particular that it would avoid environmental harm.

m

In Re Spring Valley Development l72 raised the issue for the

Supreme Court of Maine of the constitutionality of the statute; the court upheld its validity.

173

It first determined that the legislature's purpose was "to insure that commercial and industrial developments, which because of their nature or their size, will impose unusually heavy demands upon the natural environment, shall be

168.

ME. REV. STAT. ANN. tit. 38, § 481 (Supp. 1973).

169.

[d.

at § 482.

170.

[d.

171.

[d.

at § 484.

172.

300 A.2d 736 (Me. 1973).

173.

[d.


1974] ENVIRONMENTAL LEGISLA TION 33 located in areas where the environment does not have the capacity to withstand the impact of the development."I74 In Spring Valley the particular problem was that the person who proposed to sell the land was not going to develop it himself; he had subdivided the land and proposed to sell the subdivisions to developers. His argument was that the state law only applied to the person who would actually be doing the development of the property.

175

The court rejected this argument.

It pointed out that residual developments were within the law; in fact, it held that the statutory language "commercial" included subdivision.

176 The court then proceeded through a lengthy opinion to determine the legislative intent and the constitutionality of the statute. The court expressly held that a "limitation of use of property for the purpose of preserving from unreasonable destruction the quality of air, soil and water for the protection of the public health and welfare"l77 was a valid exercise of the police power of the state.

The Maine Site Location of Development Law is a modification of an idea suggested earlier that a state or municipality in exercising the police power can determine areas of environmental concern and place special conditions upon using them. The particular ordinance or law need not prohibit particular uses or restrict them, but rather can make them conditional upon efforts to avoid or minimize the environmental harm. The law is limited in application to those particular areas validly within the concern of the state. In one respect the Maine stlitute has a similar objective to the phase development in Ramapo; in both the effort is to avoid premature development without protective measures being taken. Special permit development, however, does not contain the objectionable features of the Ramapo ordinance, that is, the prohibition on any development being tied to the availability of state or municipal services. Also it does not prohibit any development for a specified period of time, least of all permanently. Another favorable feature of the statute is that it places the burden to safeguard and protect against environmental harm on the person proposing the development-not the planning body.

174.

[d.

175.

[d.

at at

741-42.

745.

176.

[d.

177.

[d.

at 742.

at 748.



E.

Limitation on Uses of Public Lands

Other environmental legislation could be adopted to restrict uses on public lands owned by the state or federal government. One example at the federal level is the Wilderness Act of 1964, which established particular uses on some public lands. One method-and perhaps the only one-to preserve wilderness areas in their natural state is to restrict or exclude all other uses. Although the Wilderness Act itself does not prohibit all other uses,178 the courts in interpreting the Act have strictly construed permissible uses. 179

In Parker u.

United States 180 the Tenth Circuit has determined that the Department of Interior could not lease or permit parts of the wilderness area to be used for timbering. Although the argument was made that the area was only subject to wilderness development in the future and not presently restricted by the Wilderness Act, the court held that to permit the use pending the study by Congress and the President required under the Act would violate the purpose of the Act.

l8l To permit timbering would destroy the wilderness features of the area forever.

In Izaak Walton League u. St. Clair 182 the court held that the wilderness area created by Congress had to be confined to natural uses which did not include mining. 183 In all these cases the federal courts in interpreting the Wilderness Act have found that Congress intended that use of the areas by the people of the United States was to be exclusively for the stated purposes. Using the land for mining, timbering, and similar uses requires roads, activities, and invasion by man that would be inconsistent with the wilderness area being preserved in its natural state. In effect other uses would destroy the habitat and irreparably change the nature of the land.

It would seem that a state could study and inventory its public lands and enact laws similar in objectives to the federal Wilderness

Act. The inventories could determine that particular areas should be dedicated for historic zones or for wilderness or conservation zones and prohibit or restrict any other uses inconsistent with the

178.

Wilderness Act of 1964, 16 U.S.C.

§ 113 et seq. (l970).

179.

Izaak Walton League v. St. Clair, 353 F. Supp. 698 (D. Minn. 1973), rev'd on other

grounds, 6 BNA

ENV.

RPTR. 1554 (8th Cir. 1974); see Parker v. United States, 448 F.2d 793

(lOth Cir. 1971); Izaak Walton League v. Butz, 367 F. Supp. 422 (D. W. Va. 1973).

180.

448 F.2d 793 (lOth Cir. 1971).

181.

Id.

182.

353 F. Supp. 698 (D. Minn. 1973), rev'd on other grounds, 6 BNA

ENV.

RPTR. 1554

(8th Cir. 1974).

183.

Id.

at 715.


1974] ENVIRONMENTAL LEGISLA TION 35 principal use in those regions. Obviously this would achieve strictly environmental purposes. Other uses that the state law might want to protect include location of utilities or nuclear reactor plants, different types of mining activities, or use of shoreland or coastal regions; it might also want to designate an agricultural district, a forestry district, or a wildlife refuge.

184 Or a state statute might provide for some type of special commission to determine where to locate various industries or other commercial activities to avoid or minimize their environmental impact within the state. These types of decisions regarding location of environmental impacting activities within a state, however, can best be made only after a thorough study and inventory of land and available facilities within that state.

185 Even though a state may adopt regulations on a statewide basis that would limit uses on its public lands without an inventory, the better approach would be first to make the study and findings that will support its determinations.

186

F.

The National Environmental Policy Act of 1969 (NEPA)

The National Environmental Policy Act of 1969 (NEPA) illustrates on the national level a method that has been used to bring environmental considerations into the decision making process in many areas, including land use,tS7 That Act requires that in all major federal activities substantially affecting the human environment, the agency milking the decision shall file an environmental impact statement (EIS).t

88 The Act requires that the EIS describe the project and its environmental impact in detail, discuss alternatives to the proposed action, and identify short and long term environmental effects of the proposed activity

.189

The Act also has provi-

184.

For an example of federal proposals of the land use planning suggested, see S. 268,

93d Cong., 2d Sess. (1974). That legislation passed the Senate, but was defeated by seven votes in the House. 5 BNA ENv. RPTR.-CURR. DEv. 179 (June 14, 1974). For recent state efforts,

see, e.g., 1972 CEQ Annual Report 180-99; 1973 CEQ Annual Report 214-22; The Quiet

Revolution in Land Use Control (CEQ 1971).

185.

Hawaii was the first state to inventory and study land uses. For a thorough discussion of the history of the study and resultant land use legislation in Hawaii, see The Quiet

Revolution in Land Use Control (CEQ 1971) and the authorities cited therein.

186.

Note 125 supra and authorities cited in note 184 supra.

187.

E.g., Sierra Club v. Lynn, Docket No. 73-3378, slip opinion at 164 (5th Cir. Oct.

4, 1974) (location of new community); Hanley v. Kleindienst, 484 F.2d 448 (2d Cir. 1973)

(location of federal courthouse in New York City); Calvert Cliffs' Coordinating Comm. v.

AEC, 449 F.2d 1109 (D.C. Cir. 1971) (location of nuclear energy plant).

188.

42 U.S.C.

§ 4332 (2)(c) (Supp. 1973).

189.

[d.


36 TEXAS TECH LA W REVIEW [Vol. 6:1 sions regarding publication of the EIS and public hearings when necessary.190

In Sierra Club u. Lynn l91 a federal district court in Texas was confronted with the situation involving a federal project that concerned NEPA. In that case a proposed unit development was being located partially over the Edwards Aquifier near San Antonio. 192

The local organizations had all approved location of the planned community whose population would be approximately 80,000 persons. 193 The federal government was providing the principal financial support for the private development. 194 The plaintiffs in the case argued that the action of the Department of Housing and Urban

Development (HUD) in granting the financial commitment to build the development was improper because it was made prior to filing the NEPA environmental impact statement}95

The case readily indicates how NEPA, or similar legislation by a state,196 can be used to avoid environmental harm. NEPA is designed to require that the federal decision making process encompass consideration and balancing of environmental factors. The

Sierra Club maintained in Lynn that the government failed to consider the pollution of the aquifier by the sewage treatment pipes for the city and failed to consider problems of sewage run-off and erosion that would result in the area. 197 The aquifier provides pure water for a region encompassing a population of a million people. 19s

Although the court in Lynn finally decided the case against the plaintiff, it did delay the project and require that the government file an EIS,'99 The court made the developer take preventive steps to avoid any present and future environmental harm. 20o Interestingly the court went on to allow attorney fees for the plaintiffs.

It required the defendant to pay these on the basis that the plaintiffs had provided a public service and function and had acted in the

190.

[d.

191.

364 F. Supp. 834 (W.D. Tex. 1973).

192.

[d.

at 840.

193.

194.

[d.

at 837.

[d.

184

195.

Sierra Club v. Lynn, Docket No. 73-3378, slip opinion at 164 (5th Cir. Oct. 4,1974).

196.

E.g., CAL.

PUB.

REs. CODE § 21100 (Supp. 1974).

See also authorities cited in note supra.

197.

Sierra Club v. Lynn, 364 F. Supp. 834 (W.D. Tex. 1973).

198.

Brief of Appellee at 41, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956

(lst Cir. 1972).

199.

Sierra Club v. Lynn, 364 F. Supp. 834 (W.D. Tex. 1973).

200.

[d.


1974] ENVIRONMENTAL LEGISLATION 37 public interest in raising the environmental problem.201 The court pointed out that these problems probably would have gone unattended unless raised by the plaintiffs, and the project would have been completed without adequate protection against environmental harm. 202 For their efforts the plaintiffs were justified in being awarded attorney fees; in effect, they were acting as private attorneys general in the public interest.203

The Sierra Club also alleged that the EIS was not prepared before the decision to finance was made and that the actual EIS was prepared by the developer, not the agency.204 HUD's position on the timing and preparation issues on similar facts have been quite controversial in other federal courts of appeals. 205 The Fifth Circuit recently affirmed the lower court's decision. 206 The appeals court also reversed the trial court's award of attorney fees. 207 Nonetheless, the case does illustrate how, by permitting private citizens to get involved in particular projects, efforts can be taken to avoid environmental harm. In Sanbornton, in fact, the court alluded to NEPA and pointed out that if such considerations are within the general welfare and police power for the federal government, the same should hold true for the state government. 208

California has adopted a NEPA-type statute that imposes an environmental impact statement requirement on decisions by state agencies. 209 The statute does bring into the public domain decisions affecting the environment and takes efforts and steps to avoid par-

201.

[d.

at 847-51.

202.

[d.

203.

[d.; accord, Wilderness Soc'y v. Morton, 495 F.2d 1026 (D.C. Cir. 1974) (environmental groups awarded attorney fees in Trans-Alaskan pipeline litigation notwithstanding fact they were ultimately unsuccessful in barring construction of the pipeline). The Supreme

Court has agreed to determine whether the company must pay the attorney fees of the environmental group, sub nom. Alyesta Pipeline Servo CO.

V.

Wilderness Soc'y., Washington

Post, Oct. 16, 1974, § A. col. 5.

204.

Sierra Club v. Lynn, Docket No. 73-3378, slip opinion at 164 (5th Cir. Oct. 4,1974);

Brief of Appellee at 22, Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956 (lst Cir.

1972).

205.

See Silva v. Romney, 473 F.2d 287 (lst Cir. 1973) (against HUD). Contra, Proetta v. Dent, 484 F.2d 1146 (2d Cir. 1973); Upper Pecos Assoc.

V.

Stans, 452 F.2d 1233 (lOth Cir.

1971).

206.

Sierra Club v. Lynn, Docket No. 73-3378, slip opinion at 164 (5th Cir. Oct. 4,1974).

207.

[d.

208.

Steel Hill Dev., Inc.

V.

Town of Sanbornton, 469 F.2d 956, 961 (1st Cir. 1972). See text Part I, A and D, supra.

209.

E.g., CAL.

PuB.

REs. CODE § 21100 (Supp. 1974). See also authorities cited in note

184 supra.


38 TEXAS TECH LA W REVIEW [Vol. 6:1 ticular environmental harm.

21o It seems clear that these types of decisions could also be moved from state to local level. This legislation has the advantages noted earlier that the person proposing the activity must come forward with proof that potential environmental harm will be avoided or minimized.

NEPA does have some adverse side effects, however. In some instances it seems clear that NEPA has been used less for environmental protection purposes and more for private and, in fact, exclusionary purposes that individuals were unsuccessful in achieving through the zoning process. For example, in some cases involving low-income housing in urban areas the local residents have tried to use NEPA to prevent the project entirely.

211

Usually, the objection to the project is not based principally on environmental concerns, but rather on the subjective threats and fears of the individuals in the neighborhood concerning the particular project. Typically it is a thinly-veiled exclusionary goal that is sought.

In cases where the exclusionary goals run together with possible environmental ones a court must closely scrutinize the action and prevent misuse of NEPA.

If the environmental concerns are valid, they will be readily apparent and easily provable.

If, however, the concerns are being used as a cover for more discriminatory and fundamentally private motives, the court should reject out of hand the effort to abuse NEPA.

To date the courts have carefully distinguished proper environmental objectives under NEPA. In Maryland-National Park &

Capital Planning Commission v. United States Postal Service 212 the court was confronted with this particular dilemma. In that case the

Postal Service proposed a bulk mailing service station in a region where such a station conflicted in part with local zoning ordinances.

As the court analyzed the problem:

Not all deviations from local zoning will necessarily rise to the level affecting the "quality of human environment" within the fair meanings of that term. The "over-riding" issue underlying

MNCPC's recommended rejection of this project was "social and economic" and as we observe, rooted in the prospective loss of real and personal property taxation. A secondary, and related factor,

210.

E.g.• Friends of Mammoth v. Board of Supervisors of Mono County, 4 BNA ENv.

RPTR. 1573. 502 P.2d 1049 (Cal. 1972). See also Desert Environmental Conservation Ass'n v.

Public Uti I.

Comm'n, 8 Cal. 3d 739,505 P.2d 223 (1973); Bozung v. Local Agency Formation

Comm'n, 112 Cal. 668 (1974).

211.

Nucleus of Chicago Homeowners v. Lynn, 6 BNA ENv. RPTR. 1094, 374 F. Supp.

147 (D. Ill. 1973).

212.

487 F.2d 1029 (D.C. Cir. 1973).


1974] ENVIRONMENTAL LEGISLATION 39 was the prospect of an influx of low-income workers in the county.

Concerned persons might fashion a claim, supported by the linguistics and etymology, that there is an impact from people pollution on "environment," if the term be stretched to its maximum.

We think this type of effect cannot fairly be projected as having been within the contemplation of Congress.

213

The court then proceeded to evaluate the assessment on which the agency had concluded that the proposed building was not an action

"significantly affecting human environment."214 The court remanded the case because the agency originally said it was unable to resolve some environmental factors-specifically the problem of water and oil run-off from the parking lot for the mail trucks. The court suggests that if this is true, a detailed statement might be necessary to identify alternatives to avoid the adverse environmental impact.

215 But the agency did not have to prepare an EIS if the only matters unresolved were of "people pollution."216

Town of Groton v. Laird 217 was an earlier case that had confronted this problem of achieving through environmental considerations objectives that could not be acquired through proper zoning.

Residents in the town brought an action under NEPA to require an

EIS be filed. Part of their objections was that the proposed housing region for naval personnel to support the naval submarine base in

Groton would be built in an area that was lightly wooded. According to the residents, the base would be incompatible with the surrounding neighborhood.

218 The Navy had determined that although this was a major federal action, it did not significantly affect the environment, and hence a NEPA EIS was unnecessary. 219 The court concluded that the naval housing project, although different from the existing use in the district, was substantially the same. The biggest difference was that the minimum setback and the dwelling area space for the projects were different from those imposed on other housing in the district. But it was not a situation in which a totally inconsistent use, such as multi-apartment units in a single

213.

[d.

214.

[d.

215.

[d.

216.

[d.

at 1037.

at 1038.

at 1041.

at 1037.

217.

353 F. Supp. 344 (D. Conn. 1972).

See Hagman, supra note 139, at 43.

218.

353 F. Supp. at 347.

219.

[d.

at 348.


40 TEXAS TECH LA W REVIEW [Vol. 6:1 family residential district, was being proposed; the entire area was zoned for multi-family units. 220 The court commented:

NEPA is not a sort of meta-zoning law.

It is not designed to enshrine existing zoning regulations on the theory that their violation presents a threat to environmental values. NEPA may not be used by communities to shore up large lot and other exclusionary zoning devices that price out low and even middle income families.

221

Another case, which on its facts may also represent local residents' opposition to an objectionable facility for other than environmental considerations, is Hanley v. Kleindienst.

222 In that case the threshold determination of whether an EIS was required was being challenged on the ground that the new jail facility in downtown

Manhattan would be objectionable and threaten the citizens who lived in the immediate region.

223 Ultimately the project was approved. 224

Another situation involving low-income housing in Houston,

Texas, was Hiram Clarke Civic Club, Inc. v. Lynn.

225 In that case the appellants were objecting to a low-income housing project that was to be financed in part by the federal government through HUD.

Here the local residents had at first been unsuccessful in efforts to attack the project through local zoning boards,226 so they sought to stop the project under NEPA.227 The residents, however, apparently raised no possible adverse environmental effects which already had not been considered by the agency. Moreover, they tried to argue that any activity which is highly controversial requires an impact statement,228 The latter argument is based on the Council on Environmental Quality guidelines for implementation of NEPA. The

Interim,229 as well as the Final, Guidelines230 require an EIS on controversial projects. The court notes, however, that the guidelines are not binding, but merely advisory, and holds the agency need not

220.

[d.

at 350.

221.

[d.

222.

471 F.2d 823 (2d Cir. 1972). See note 187 supra for subsequent litigation.

223.

471 F.2d at 826.

224.

See note 187 supra. This case is more difficult because the subjective fears, protection from prisoners in a jail located in a residential area, are more real than the fear from the persons in a low-income housing project; compare, Silva v. Romney, 473 F.2d 287 (1st

Cir. 1973), aff'd sub nom., Silva v. Lynn, 482 F.2d 1282 (1st Cir. 1973).

225.

476 F.2d 421 (5th Cir. 1973). See also note 224 supra and accompanying text.

226.

476 F.2d at 423.

227.

[d.

at 426.

228.

[d.

229.

CEQ Interim Guidelines, 36 Fed. Reg. 7723 (Apr. 23, 1971).

230.

CEQ Final Guidelines, 38 Fed. Reg. 20550 (1973).


1974] ENVIRONMENTAL LEGISLATION 41 literally follow them. 231 Although the court fails to allude to the true basis of the appellant's objections, it does point out that the environmental factors raised are totally insufficient to justify application of NEPA.232 The citizens, therefore, were refused any relief. 233

Another recent example in which a group tried unsuccessfully to use NEPA for nonenvironmental purposes is Nucleus of Chicago

Homeowners v. Lynn.

234 The court described the plaintiff's position as alleging

. . . that they are members of the "middle class and/or working class" which emphasizes obedience and respect for lawful authority, has a much lower propensity toward criminal behavior and acts of physical violence, and possesses a high regard for the physical and aesthetic improvement of real and personal property. The plaintiffs further allege that, as a "statistical whole" tenants of public housing possess a higher propensity toward criminal behavior and acts of physical violence, a disregard for the physical and aesthetic maintenance of real and personal property, and a lower commitment to hard work.

235

After so clearly stating the personal subjective fears that formed the plaintiff's only basis for wanting a NEPA EIS on a HUD proposed housing project in Chicago, the court rejects the argument that

HUD must file an EIS. As the court states, "human beings may be polluters, . . . but they are not themselves pollution."236 This opinion should be a model for subsequent courts confronted with the use of environmental legislation for strictly private, exclusionary motives.

The cases involving NEPA illustrate well the earlier point that the courts must closely examine legislative restrictions on the use of land so the laws are not misused. Obviously NEPA, as well as any zoning ordinance or environmental legislation, can be improperly applied to sustain contentions that are based not upon serious environmental considerations, but rather 'upon illegitimate objectives of private individuals. Careful evaluation of the contentions by courts can assure NEPA is appropriately used. A case in point of close examination is Sierra Club v. Lynn in which the direct environmental threat was present-pollution of an underground water system

231.

Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 426-27 (5th Cir. 1973).

232.

[d. at 424-26.

233.

[d.

at 427.

234.

6 BNA ENV. RPrR.

1094, 372 F. Supp. 147 (D. Ill. 1973).

235.

[d.

at 1095, 373 F. Supp. at 148-49.

236.

[d. at 1094-95, 373 F. Supp. at 149.


42 TEXAS TECH LA W REVIEW [Vol. 6:1 serving a larger region; it was not a situation involving a nebulous claim that the "quality of human environment" would be changed by the particular project. Certainly, the Groton court accurately concluded that NEPA was not intended to encompass purely subjective objections to particular activities.

G.

Planned Unit Developments237

Earlier a case was examined that used minimum acreage zoning to set apart an area for a planned development. In Norbeck

Village Joint Venture v. Montgomery County Counci[238 the court upheld minimum acreage zoning that was designed ultimately to isolate an area for a self-contained community. This objective of dedicated land for planned communities is another example of how objectives of minimum acreage zoning can best be achieved through more direct zoning ordinances. Specifically, in that instance an ordinance authorizing Planned Unit Developments (PUD) and setting apart a region that has been studied and deemed suitable for that development is a better approach. 239 Not only can a PUD ordinance avoid the discrimination controversy inherent in minimum acreage zoning,240 but also it directly accomplishes the objectives that the planning board seeks: open spaces, parks, conservation of resources, and environmentally wise use of land.

Although the PUD is not a new device, the concept is innovative in land use planning.

It differs from traditional Euclidian zoning by permitting more concentrated densities of population and different uses within a particular area. Its concern is not principally that same setback, same density, same platted regions or subdivisions be established throughout the district. Instead, nonuniformity provides the developer with flexibility to build an aesthetically attractive community. The PUD may be strictly residential.

If so, the development contains various type~ of housing including townhouses, multiple family units, low-income units, single family hous-

237.

See generally HUNTOON, PUD A BETrER WAY FOR THE SUBURBS (Urban Land Institute 1971); BURCHELL & HUGHES, PLANNED UNIT DEVELOPMENT (Center for Urban Policy Research, Rutgers University, 1972).

238.

254 Md. 59, 254 A.2d 700 (1969).

239.

[d. at _ , 254 A.2d at 703.

240.

But see Note, Exclusionary Use of the Planned Unit Development Standards for

Judicial Scrutiny, 8 HARV. CIV. RTS.-CIV. LIB. L. REv. 384 (1973), for discussion of ways to avoid use of PUD's for exclusionary purposes. Obviously, one way is to require a variety of housing, including apartments and low-income housing, in a residential PUD. The new community, for example, in Sierra Club v. Lynn provided 25 percent of the housing would be for low and moderate income facilities. See case cited note 206 supra at 172.


1974] ENVIRONMENTAL LEGISLA TION 43 ing, and even larger homes. But in its broader sense the PUD contains not only a variety of housing, but also commercial activities and industrial, or at least light industrial uses for the residents. In the latter situation the pun becomes a self-contained community where the individuals' homes are within walking or short driving distance of their places of employment. Similarly shopping centers, stores, parks, open spaces, churches, and schools would be conveniently located within walking distance of the residents' homes. Obviously by minimizing the use of cars, the PUD seeks to avoid air pollution.

In Norbeck other environmental objectives were sought. The planned community was located to avoid urban sprawl by situating it off the normal artery going into the urban center.

241 The purpose was to develop new traffic lines into the metropolitan area so that the planned community would be removed and separated from the piecemeal, patchwork subdivision that typically accompanies expansion of an urban area. At the same time the planned community also can seek to avoid water and air pollution problems. By locating it away from the urban center off otherwise overloaded traffic zones, air pollution caused by congested traffic is lessened or regulated.

And if the site for the community is well selected, the development can avoid problems of excessive sewage drainage in nearby water reservoirs or watersheds. Obviously unless care is taken in selecting a site, water pollution problems may be created as the Sierra Club v. Lynn case well illustrates.

242

One of the legal problems with the pun is its deviation from traditional zoning. Traditionally zoning required uniform and equal treatment among uses and persons within a zone. The ultimate objective of a PUD, however, is flexibility in the location and spacing of residences and businesses. Although the overall density, for example, may be the same as in other districts, within the PUD itself higher concentrations of people and varied setback and frontage requirements may exist. This closer location of homes, townhouses, and apartments permits greater use of parks, open spaces, and common areas.

The only court that has confronted the issue of the validity of a PUD ordinance is Pennsylvania in 1968. In Cheney v. Village 2 at New Hope, Inc.

243 the court was confronted with the problem that

241.

See note 239 supra.

242.

See note 191 supra and accompanying text.

243.

429 Pa. 626, 241 A.2d 81 (1968).


44 TEXAS TECH LA W REVIEW [Vol. 6:1 the zoning board had utilized a PUD ordinance rather than a zoning ordinance with uniform requirements for the area. The deviation, of course, was to allow flexible standards initially rather than having exceptions to uniform requirements under traditional zoning by allowing variances, special permits, or nonconforming uses. To break with this case-by-case approach, the ordinance permitted an entire area to be planned. In Cheney the court openly embraced the concept of PUD's and strongly encouraged their use.

244 Recognizing the flexibility inherent in the planned unit concept, the court encouraged continuation of it.

The Pennsylvania Supreme Court also took an opportunity later to urge use of PUD's. In Appeal of Kit-Mar Builders, Inc.

245 the court rejected minimum acreage zoning again and suggested that a viable alternative to minimum acreage zoning is planned unit development.

246 The court reaffirmed its position in New Hope and stated that the PUD may well serve the purposes of minimum acreage zoning, but without the objectionable features of the latter.

247

III.

CONCLUSION

The mixed judicial reaction to minimum acreage zoning and its frequency of litigation suggest that it is antiquated and no longer an efficient planning technique. Not only is its inhibiting effect on urban growth controversial, but also it fails miserably to achieve even its simplest objective: preserving rural characteristics of the comm unity.

248

New zoning techniques are available to planning boards. Basically these are legislative efforts to protect the environment. The frequency of attention and concern evidenced by numerous legislative enactments 249 reflects the strong public sentiment that environmental considerations are significant. Also the inadequacy of traditional zoning to deal effectively with environmental problems is evident daily. Simple examples include the air pollution problem caused by urban sprawl which created congested traffic routes into most cities, noise pollution, and inadequate sewage systems causing

244.

[d.

245.

439 Pa. 466, 268 A.2d 765 (1970).

246.

[d.

at _ , 268 A.2d at 769

247.

[d.

248.

See note 8 supra and accompanying text.

249.

See, e.g., Nev. Senate Bill No. 126 (Apr. 19, 1973), amending NEV. REV. STAT. tit.

22 (Supp. 1974); VT. STAT. ANN. tit. 10, § 6001 (1970).

See also authorities cited notes 184,

185, 196 supra.


1974] ENVIRONMENTAL LEGISLATION 45 water pollution. More complex examples are determining where to locate nuclear power plants for metropolitan areas that are hardpressed for electrical power and how to preserve scenic or natural areas from the influx and invasion of man by hasty and premature development. Another problem for any planning is the paucity of thorough land use studies and inventories.

250 Only when present uses are evaluated and available land examined to determine its capabilities can planning encompass land management and thus be effective.

The recent focus on the environment has produced a variety of legislative responses. In most instances they reflect a compromise between the landowner's ambitions to develop his land at once at a high profit and the public's interest in planned growth to preserve the environment and yet satisfy housing needs that come from population growth. The new techniques in environmental legislation should be seriously considered by planning boards at all levels.

Rather than trying to postpone the inevitable confrontation of what development to allow and where, as minimum acreage zoning does, environmental legislation directly attacks these issues and attempts to resolve them. Environmental legislation produces planned development.

It requires studies and findings that identify the problems to be handled. And it attempts to resolve, rather than postpone or avoid, them as traditional zoning sometimes does. In addition, these new planning techniques reject the ad hoc approach of first zoning a district then allowing variances on a case-by-case basis. The new techniques by thorough studies attempt to anticipate and settle the identifiable problems when the development decision is made. New environmental legislation also brings environmental considerations into land use planning decisions and injects "different" uses of land, such as for recreational, scenic, conservational, and aesthetic purposes, that traditional zoning did not always acknowledge.

Lastly, environmental legislation attempts to strike a reasonable balance between the public's need to satisfy demands of progress by development of land and its need for planned growth, as opposed to premature growth that is oblivious to its adverse environmental effect.

250.

See discussion of S. 268 and state laws, including Hawaii, at notes 184 and 185 supra. See also discussion note 125 supra and accompanying text.



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