1 The subject of this study is the landward portion of the “coastal zone,” defined generally in the Federal Coastal Zone Management Act of 1972, 16 U.S.C. §1453(1) (1976) [hereinafter cited as FCZMA] asGoogle Scholar

These areas are more specifically defined by participating states. For example, the California Coastal Act of 1976, Cal. Pub. Res. Code § 30103 (West 1977), establishes a general zone 1,000 yards landward, with larger zones in certain environmentally sensitive areas and smaller ones in urban areas.Google Scholar

The “coastal zone,” it should be emphasized, is composed of unique natural resources that may require different land management techniques than urban land areas. The administrative decision-making systems analyzed in this study may have value in resolving some urban disputes, but the reader should recognize that these coastal programs mainly regulate exurban areas.Google Scholar

2 For a history of coastal zone management, see, e.g., the “Stratton Commission Report,” Our Nation and the Sea-a Plan for Action, Report of the Commission on Marine Science, Engineering and Resources (Jan. 1969); 2 Frank P. Grad, Treatise on Environmental Law § 10.04 [21, at 10-205 (New York: Matthew Bender, 1977); Daniel R. Mandelker, Environmental and Land Controls Legislation 225 (Indianapolis: Bobbs-Merrill Co., 1976); Zile, A Legislative-Political History of the Coastal Zone Management Act of 1972, 1 Coastal Zone Management J. 235 (1974).Google Scholar

3 See, e.g., Lon L. Fuller, Freedom-a Suggested Analysis, 68 Harv. L. Rev. 1305 (1955), for an analysis of how individual freedom can suffer as a system evolves from an “organization by reciprocity” to an “organization by common ends.”Id. at 1316. Fuller, although not generally decrying such organizational changes, nevertheless warns that, if freedom is to be realized in an organization by common ends, attention must be given to setting forth the aims of the organization, to the methods used in realizing the aims of the organization, and to assuring maximum participation by all parties in decisions affecting the organization. Id. at 1318-19. He also warned of “the inevitable tendency of effective control over the organization and its members to drift into the hands of those who actually manage it.”Id. at 1319.Google Scholar

4 See p. 169 infra. Google Scholar

5 The California article, scheduled to appear in a forthcoming issue of the Research Journal, primarily analyzes the implementation of the California Coastal Zone Conservation Act of 1972 (repealed on Jan. 1, 1977) (“Proposition 20”) and the succeeding California Coastal Act of 1976, Cal. Pub. Res. Code §§ 30000-30900 (West 1977 & Cum. Cupp. 1978).Google Scholar

6 The Florida article, to follow the California article, will analyze several of Florida's relevant acts, with principal emphasis on the implementation of the Environmental Land and Water Management Act of 1972, Fla. Stat. Ann §§ 380.012-380.10 (West 1974 & Cum. Supp. 1978), which was based upon the ALI's Model Land Development Code art. 7 (1976).Google Scholar

7 The widely publicized tax limitation, approved by the people, June 6, 1978, adding art. 13A, §§ 1-6 to the California constitution. See West's Cal. Legis. Serv. 1978, no. 4, at xxv-xxvi.Google Scholar

8 The Florida article will show how several of Florida's recent land-planning and regulatory acts, e.g., the Environmental Land and Water Management Act of 1972, Fla. Stat. Ann. ch. 380 (West 1974 & Cum. Supp. 1978); State Comprehensive Planning Act of 1972, Fla. Stat. Ann. §§23.011-.0191 (West Cum. Supp. 1978); and the Local Government Comprehensive Planning Act of 1975, Fla. Stat. Ann. §§ 163.3161-.3211 (West Cum. Supp. 1978), could easily be combined with the state's environmental regulatory programs to produce a coastal management program similar to California's. During 1977-78, however, Florida's Department of Environmental Regulation (DER) recommended a program to the 1978 Florida legislature that would have provided for a stronger direct state regulatory role, based primarily on the state's environmental regulatory programs. See the Department of Environmental Regulation's Florida Coastal Management Program (Legislative Draft, Mar. 1, 1978). The DER's coastal management program was expressly rejected in the Florida Coastal Management Act of 1978, S.B. 2-D, §§ 5-10. Thus, the Florida legislature seems to be resisting moves toward a stronger state role in coastal zone management than the state-local cooperative programs the legislature enacted in 1972 and 1975.Google Scholar

Another recent development relates to Florida's ALI-derived “Areas of Critical State Concern” process, Fla. Stat. Ann § 380.05 et seq. (West. 1974 & Cum. Supp. 1978), which could have been the core of a coastal regulatory process designed to give local governments a maximum planning and regulatory role. The critical areas process, which has been used sparingly in Florida, was “tainted,” at least temporarily, by the decision in Cross Key Waterways v. Askew, 351 So. 2d 1062 (Fla. 1st Dist. Ct. App. 1977), which held the act's standards for guiding the governor and cabinet in designation of certain kinds of areas of critical state concern inadequate and unconstitutional under the separation of powers section of the Florida constitution. Arguments in Cross Key occurred before the Florida Supreme Court in Jan. 1978; the Florida article will analyze the supreme court decision, if handed down by that time.Google Scholar

9 See my article, The Federal Regulatory Role in Coastal Land Management [hereinafter cited as The Federal Role], 1978 A.B.F. Res. J. 169, at notes 1-272 and text at same.Google Scholar

10 Id. at notes 488-557 and text at same.Google Scholar

11 § 404, 33 U.S.C.A. § 1344 (West Pamph. 4 Feb. 1978).Google Scholar

12 See generally Charles M. Haar & Lance Liebman, Property and Law 1027-46 (Boston: Little, Brown & Co., 1977).Google Scholar

13 Lawyers are trained to distinguish between those legal relationships called “property” and the “object” of those relationships, such as land. “Property,” when used in this study, means those rights, privileges, powers, and immunities and the correlative duties, no-rights, liabilities, and disabilities that form the basis of legally enforceable expectations. See, e.g., Curtis J. Berger, Land Ownership and Use 3-18 (2d ed. Boston: Little, Brown & Co., 1975); John E. Cribbet & Corwin W. Johnson, Cases and Materials on Property 1-29 (4th ed. Mineola, N.Y.: Foundation Press, 1978); Restatement of Property § 1-4 (1936); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).Google Scholar

14 This criticism has often been noted. See, e.g., the remarks by Donald Hagman and Julian Juergensmeyer at the seminar presented at the Florida House of Representatives by the Committee on Natural Resources, The Constitutional and Legal Limits to the Regulation of Private Land 140-41 (Tallahassee, Jan. 23-24, 1975).Google Scholar

15 See, e.g., Berger, supra note 13, at 4-11; Hohfeld, supra note 13.Google Scholar

16 58 N.J. 297, 277 A.2d 369 (1971).CrossRefGoogle Scholar

17 56 Wis. 2d 7, 201 N.W.2d 761 (1972).Google Scholar

18 Cal. Pub. Res. Code §§ 30000-30900 (West 1977 & Cum. Supp. 1978).Google Scholar

19 Throughout this series of articles, I shall use these terms with the following meanings, unless the context indicates otherwise.Google Scholar

1. Rule.“The most precise form of authoritative general direction….[A] rule may be defined as a legal direction which requires for its application nothing more than a determination of the happening or non-happening of physical or mental events-that is, determinations of fact.” Henry M. Hart, Jr., & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 155 (tentative ed., Cambridge, 1958) (authors' italics omitted).Google Scholar

2. Standard.“A standard may be defined broadly as a legal direction which can be applied only by making, in addition to a finding of what happened or is happening in the particular situation, a qualitative appraisal of those happenings in terms of their probable consequences, moral justification, or other aspect of general human experience.”Id. at 157.Google Scholar

3. Principles and Policies.“Notably to be contrasted with rules and standards are principles and policies…. A policy is simply a statement of objective…. [A] principle also describes a result to be achieved. But it differs in that it asserts that the result ought to be achieved and includes, either expressly or by reference to well understood bodies of thought, a statement of the reasons why it should be achieved …. Primarily, principles and policies are used and useful as guides to the exercise of a trained and responsible discretion. Usually, this means official discretion.”Id. at 159-60.Google Scholar

20 See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926).Google Scholar

21 Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713, appeal dismissed, 423 U.S. 808 (1975).Google Scholar

22 See, e.g., Berenson v. Town of New Castle, 38 N.Y.2d 102, 341 N.E.2d 236 (1975); Township of Willistown v. Chesterdale Farm, Inc., 462 Pa. 445, 341 A.2d 466 (1975).Google Scholar

23 ALI Model Land Development Code (1976).Google Scholar

24 Ackerman, Bruce A., Private Property and the Constitution (New Haven: Yale University Press, 1977).Google Scholar

25 “[A] Scientific Policymaker is an analyst who (a) manipulates technical legal concepts so as to illuminate (b) the relationship between disputed legal rules and the Comprehensive View he understands to govern the legal system. In contrast, an Ordinary Observer is an analyst who (a) elaborates the concepts of nonlegal conversation so as to illuminate (b) the relationship between disputed legal rules and the structure of social expectations he understands to prevail in dominant institutional practice.”Id. at 15.Google Scholar

26 Id. at 21.Google Scholar

27 Id. at 188.Google Scholar

28 California Coastal Act of 1976, Cal. Pub. Res. Code § 30501 (“shall be completed not later than July 1, 1980, and certified not later than December 1, 1980”) and § 30108.6 (“‘Local coastal program’ means a local government's land use plans, zoning ordinances, zoning district maps, and implementing actions which, when taken together, meet the requirements of, and implement the pro-visions and policies of, this division at the local level”).Google Scholar

29 See, e.g., in addition to the programs analyzed in this study, Minn. Stat. Ann. §§ 473.851-.872 (West 1977). See generally 2 Grad, supra note 2, § 10.03 et seq.; Mandelker, supra note 2; Fred Bosselman & David Callies, The Quiet Revolution in Land Use Control (Washington, D.C.: Government Printing Office, 1972); Robert H. Freilich & John W. Ragsdale, Jr., Timing and Sequential Controls-the Essential Basis for Effective Regional Planning: An Analysis of the New Directions for Land Use Control in the Minneapolis-St. Paul Metropolitan Region, 58 Minn. L. Rev. 1009 (1974).Google Scholar

30 See generally Daniel R. Mandelker, The Role of the Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 900 (1976).CrossRefGoogle Scholar

31 See, e.g., Florida Local Government Comprehensive Planning Act of 1975, Fla. Stat. Ann. § 163.3194 (West Cum. Supp. 1978); California Coastal Act of 1976, Cal. Pub. Res. Code § 30604 (West 1977).Google Scholar

32 See Hart & Sacks, supra note 19, at 124-25, for a discussion of the elements of general directive arrangements. “The prime fact about these general arrangements or understandings is that they are directive. They speak from one point of time to another.”Id. at 124. “If they are to serve their purpose, these arrangements or understandings, besides being directive, must be authoritative, claiming to be entitled to observance and acceptance by all members of the society.”Id. at 125. “The basic arrangements under which people live together must in the first instance be general, since it is, of course, impossible to make particular provision for every potential action of every member of the society.”Id. at 125. “A proposition which is at once general, directive, and authoritative fulfills one common meaning of the term law, in the sense of a law.”Id. at 125.Google Scholar

33 1 Norman Williams, Jr., American Land Planning Law: Land Use and the Police Power §§ 5.02-.05, at 103-11 (Chicago: Callaghan & Co., 1974).Google Scholar

34 272 U.S. 365 (1926).Google Scholar

35 1 Williams, supra note 33, at 107.Google Scholar

36 Id.§ 5.06, at 111. Mount Laurel, 67 N.J. 151, 336 A.2d 713, appeal dismissed, 423 U.S. 808 (1975), was subsequently decided.Google Scholar

37 Housing and the environment seem, currently, to be the major causes of judicial and legislative change. As plainly put by Richard Babcock: “The current and popular ecological kick will have a major impact on the location of power to regulate housing. Not that the Cry Environment types dwell much on housing. Why should they? The environment thing is predominantly a middle-class phenomenon led by persons who have satisfied the threshold need for shelter and accessibility to jobs. Air and water and solid waste disposal are important only if one can afford new tennis shoes, whether one happens to be a little old lady or not.” Richard Babcock, The Courts Enter the Land Development Marketplace, reprinted in Billboards, Glass Houses, and the Law 49, 52 (Colorado Springs, Colo.: McGraw-Hill Book Co. [Shephard's], 1977).Google Scholar

38 Reps, John, Pomeroy Memorial Lecture: Requiem for Zoning, presented at the 1964 ASPO National Planning Conference, reprinted in Berger, supra note 13, at 867.Google Scholar

39 Id. at 870.Google Scholar

40 Id. at 871.Google Scholar

41 Id. Google Scholar

42 Summarized in Berger, supra note 13, at 873.Google Scholar

43 See Herbert Wechsler's foreword to the Model Land Development Code xi (Proposed Official Draft 1975), explaining why the institute rejected requiring planning as a precondition.Google Scholar

44 See ALI Model Land Development Code §§ 2-101 to 2-301 (1976). “Because the determination of whether discretion is involved in a particular decision may not always be clear-cut, [§ 2-102] provides that the applicant or any person entitled to notice on discretionary permits may request and must be given a hearing if he believes that the development order involves the exercise of discretion. If no request for a hearing is filed within four weeks after the issuance of a development order, the order cannot be set aside for failure to hold a hearing.”Id., note to § 2-102, at 35.Google Scholar

45 “‘Coastal development permit’ means a permit for any development within the coastal zone that is required pursuant to subdivision (a) of § 30600.” California Coastal Act of 1976, Cal. Pub. Res. Code § 30101.5 (West 1977).Google Scholar

46 Fla. Stat. Ann. §§ 163.3161-.3211 (West Cum. Supp. 1978).Google Scholar

47 “‘Development order’ means any order granting, denying, or granting with conditions an application for a development permit.”Id.§ 163.3164(5). “‘Development permit’ includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.”Id.§ 163.3164(6). “After a comprehensive plan … has been adopted … all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.”Id.§ 163.3194(1). “The comprehensive plan shall consist of materials in such descriptive form, written or graphic, as may be appropriate to the prescription of principles, guidelines, and standards for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area.”Id.§ 163.3177(1).Google Scholar

48 Work on the ALI code began in 1964. See Herbert Wechsler's foreword, supra note 43. A critical meeting of the advisory committee occurred in La Costa, California, in the fall of 1973, where the “Advisers' Proposed Official Draft No. 1,” dated Oct. 1, 1973, was discussed. This meeting, which I attended as a guest, was probably the last meeting of the advisory committee at which any substantial changes to articles 2 and 3 might have been made. ALI policy prohibits disclosure of the contents of the advisers' proposed draft, id., or of the discussions at these preliminary meetings.Google Scholar

49 See The Federal Role, supra note 9, at notes 325-64 and text at same.Google Scholar

50 Id. at notes 364-81 and text at same.Google Scholar

51 Id. at notes 1-272 and text at same.Google Scholar

52 Id. at notes 419-73 and text at same.Google Scholar

53 Id. at notes 393-404, 627-34 and text at same.Google Scholar

54 Id. at notes 401-4, 632-35 and text at same.Google Scholar

55 Id. at notes 382-411 and text at same.Google Scholar

56 This theme will be explored fully in my subsequent article on Florida's experiences. Cf. The Federal Role, supra note 9, at notes 180-88 and text at same.Google Scholar

57 Two important exceptions to the United States Supreme Court's tendency to uphold congressional delegations are A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935). Subsequent decisions upholding broad delegations include Arizona v. California, 373 U.S. 546 (1963); Yakus v. United States, 321 U.S. 414 (1944); and Lichter v. United States, 334 U.S. 742 (1948). See generally Kenneth Culp Davis, Administrative Law Treatise, 1970 Supp., § 2.00, at 40 et seq. (St. Paul: West Publishing Co., 1971) for three cases (out of “perhaps three hundred cases”) in which Davis believes “the whole policy of the government on the particular subject was made by the agency without guidance from Congress”; Walter Gellhorn & Clark Byse, Administrative Law: Cases and Comments 71-84 (6th ed. Mineola, N.Y.: Foundation Press, 1974) (“The steady course of Supreme Court decisions since the Panama Refining and Schechter cases underscores the improbability that a federal statute regulating business practices and not affecting freedom of expression will be found defective on the ground that it violates the delegation doctrine.”Id. at 84).Google Scholar

58 The nondelegation doctrine has been relaxed in many state courts. See, e.g., CEEED v. California Coastal Zone Conservation Comm'n, 43 Cal. App. 3d 306, 118 Cal. Rptr. 315 (4th Dist. Ct. App. 1974); Friends of Mammoth v. Board of Supervisors, 8 Cal. 3d 247, 502 P.2d 1049, 104 Cal. Rptr. 761 (1972); and J. M. Mills, Inc. v. Murphy, 116 R.I. 54, 352 A.2d 661 (1976), which will be discussed in subsequent articles.Google Scholar

See also, for recent state supreme court decisions that have adopted the position that procedural safeguards, including the formulation of subsidiary administrative standards, are more important than insisting on precise legislative standards, Boehl v. Sabre Jet Room, Inc., 349 P.2d 585 (Alaska 1960); Barry & Barry, Inc. v. State Dep't of Motor Vehicles, 81 Wash. 2d 155, 500 P.2d 540 (1972), appeal dismissed, 410 U.S. 977 (1973); Watchmaking Examining Bd. v. Husar, 49 Wis. 2d 526, 182 N.W.2d 257 (1971). Notwithstanding the liberalization of the doctrine in many state courts, it has retained considerable vitality in others. See generally 1 Frank E. Cooper, State Administrative Law (Indianapolis: Bobbs-Merrill Co., 1965); Gellhorn & Byse, supra note 57, at 84; Louis L. Jaffe, Judicial Control of Administrative Action 73-85 (Abridged ed. Boston: Little, Brown & Co., 1965); Note, Safeguards, Standards, and Necessity: Permissible Parameters for Legislative Delegations in Iowa, 58 Iowa L. Rev. 974 (1973); Recent Developments, State Statutes Delegating Legislative Power Need Not Prescribe Standards, 14 Stan. L. Rev. 372 (1962). The doctrine will be comprehensively analyzed in the Florida article because of Cross Key Waterways v. Askew, 351 So. 2d 1062 (Fla. 1st Dist. Ct. App. 1977), which was argued before the Florida Supreme Court in Jan. 1978.Google Scholar

59 See The Federal Role, supra note 9, at notes 180-88 and text at same.Google Scholar