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December 1974

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National Land Use Consensus
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President's Notes (Diane Hastert)
Note for Action
League Action Service
Ugly Kailua?
League Testifies
New General Plan for Oahu (General Plan Revision Program)

GENERAL MEETING DECEMBER 12

9:00 Coffee 9;15 Meeting AAUW CLUBHOUSE

Come and make your feelings known and Bring the attached info and Consensus Questions!!

at Noon ENJOY OUR CHRISTMAS POTLUCK LUNCHEON

Please make reservations for the Luncheon... Call Marjorie Taylor 732-0827 or Mildred Walston 941-2938


National Land Use Consensus

INTRODUCTION

The intent of the narrative before the questions below is to furnish the minimum you will need to study in order to participate in the National Land Use Consensus at the Dec. meeting. You are urged to read the National Pub. No. 485 Land Use: Can We Keep Public and Private Rights in Balance? and the Honolulu The Citizen and the Planning Process: Understanding the System, furnished to all members.

The national land use consensus is divided into 5 parts:

  1. The Philosophical Framework--The Concept of Public Interest in the Use and Ownership of Land.

  2. National Land Use Goals.

  3. Role of Government.

  4. Role of Federal Government in Land Use Decisions.

  5. Mechanisms to Ensure Full Considerations of State, Local and National Interests in National Land Use Decisions.

The following material provides some brief background and the exact questions for each section. Note footnotes for clarifying terms.

League position on national land use will need to deal specifically with

  1. the role of government and the balance between private and public rights;

  2. the extent and nature of the federal role and

  3. the relationship among federal, state, regional, and local land use, programs.

SECTION I. The Concept of Public Interest in the Use and Ownership of Land.

Plainly, the Land Use study is related to other League activities. Among the most important energy-related land use issues are the siting of power Plants or other energy facilities; the choice of energy sources and the method and place of their procurement; and means of energy conservation such as mass transportation and more compact communities. Many conflicts in land use will arise from energy issues. The Land Use position, because it will be focused on Process (not only what kinds of decisions government should make; but also by what means); should ultimately be very useful in future action on energy.

To get a handle on the complex issues in land use requires some historical. perspective on our changing attitudes toward land, as we evolved from an agrarian colonial society to a point where we face a future of coast-to coast megalopolis--how we grew and where we are headed. It is against this backdrop that one must examine the most hotly debated land use to.pic--a direct consequence of our nation's rapid urbanization: Do we need to guide urban growth by con trolling land use? If so, what tools are available in the governmental tool kit, and how might each of these tools--planning, regulation, purchase, taxation, and public expenditure—work?

Solutions are not going to come in pre-packaged kits, however sophisticated. To limit and guide the use of land is necessarily to infringe on dearly-held rights of private property. The toughest questions Americans have to answer lie in this sphere. At what point should the line be drawn between private rights in land And the public interest? Are there overriding human concerns? Do the noon, the minorities, and the elderly require special attention in land use decisions? Even if we agree that our use of land should be better controlled, there are still hard choices to be made.

IT IS THE CITIZEN SHOULD ULTIMATELY DECIDE WHEN THE PUBLIC INTEREST TRANSCENDS PRIVATE PROPERTY RIGHTS, WHOM LAND USE DECISIONS SHOULD SERVE, WHAT KINDS OF DEVELOPMENT AND LA ND USE SHOULD BE CONTROLLED, WHO SHOULD CONTROL THEM, AND HOW MUCH. THE PUBLIC ILL PAY FOR PLANNING AND CONTROL.

QUESTIONS

Instructions - Where appropriate, circle

Y (yes) if you support the idea

N (no) if you oppose the idea

U (undecided) if you haven't decided after weighing pros & cons. Leave it blank if you don't know enough to have an opinion. Furnish any expository material including reasons for decision, explanation, etc.

If you are unable to attend the consensus meeting, you may mail or send your response no later than the meeting date, 12 December, 1974.

Do you agree with the following statements which set forth a general philosophy concerning the use and ownership of land?

  1. Both public and private ownership of land imply stewardship. Y N U

  2. Land should be viewed as a finite resource as well as a commodity. Y N U

  3. It is imperative that citizens have meaningful participation in land use planning and regulation. Government must provide for (a)involvement of citizens in the earliest planning and regulatory stages and throughout the process; (b) adequate funding of public information process; (c)development of mechanisms to minimize conflict of interest on the part of persons who make land use decisions. Y N U

SECTION II. NATIONAL LAND USE GOALS

QUESTIONS

Please check all of the following land use goals with which you agree:

  1. Protect public health, welfare and safety.

  2. Protect private property rights and values in accordance with overall consideration of the public health, safety and welfare.

  3. Ensure public access to unique recreational areas such as beaches.

  4. Maintain and improve the quality of existing urban communities.

  5. Restore lands exposed by such activities as surface mining, overgrazing, construction, etc.

  6. Relate use of land to its inherent characteristics and carrying capacities. —1

  7. Relate use of land to human needs - social, environmental and economic.

  8. Relate the conservation and wise use of energy and other natural resources to land use planning.

  9. Develop processes for comprehensive land use Planning.

  10. Encourage regional planning - c/ and decision-making.

  11. Promote development of new concepts of community design.

  12. Enhance local and state capabilities for land use Planning and regulation. 1/

  13. Develop a national growth policy.

  14. Other. (List on additional sheet)

If there are any goals listed with which you do not agree, please explain why on additional sheet.

a_/ stewardship of land as a "finite resource" relates to "protecting" and not just "consuming" and/or buying and selling various commodities. (See also below, III Background;

b_/ carrying capacity - The suitability of land for various uses, based upon natural/ecological characteristics. If the intensity of a particular land use exceeds the natural and ecological resource constraints of an area, adverse environmental consequences could result. For example, a development with too many septic tanks will exceed the soil's natural capacity to treat septic tank effluent and thereby cause water pollution.

c_/ regional planning - Sub-state land use bodies, acting under the guidance of the state, would oversee land use of more than local impact. Hawaii has only two levels of government so is not directly affected.

d_/ national growth policy - An overall coordinated set of policies and priorities at the federal level of government to determine how large and in what directions our nation should grow physically, socially, and economically. Coordinating potentially conflicting and diverse federal programs, such as dam construe wilderness preservation, to meet a specific set of priorities could be one component of a national growth policy. Other policies could include correlating patterns of settlement, employment, and community services.

SECTION III. ROLE OF GOVERNMENT (NATIONAL, STATE, OR LOCAL) IN LAND USE DECISIONS.

BACKGROUND

THE PUBLIC GOOD VS. PRIVATE RIGHTS: The Fifth Amendment to the U.S. Constitution guarantees that private property cannot be taken or regulated for public use without just monetary compensation. But determining exactly when land use regulation constitutes a taking is left to the courts to resolve on a case-by-case basis. The question of how far any government can go in limiting development or, in other words, when a restriction becomes a taking is still unsettled legally. Advocates of stronger public controls recognize that the lust compensation entailed in bringing lands under public control through purchase would be prohibitively expensive. They argue that there are,, nonetheless, legitimate restraints on the concept of private control of land. They believe that in some situations the public good transcends the private right to sell or to lease for whatever use will bring the owner the maximum amount of money. They say that development is' as much a privilege as a right, that if development is indeed a private right, then some public obligations go along with that right.

Because the relationship between land and income is so complex and interwoven, the issue of taking land through the regulatory process is a serious one far from easy to resolve. Owners often base their own economic security on the expectation of "unearned increments.” Pensioners and retired persons who have invested their life savings in land, farmers who depend on land for their livelihood could suffer economic hardship if the rules of the game were to be abruptly changed. What would happen to the economically disadvantaged, the elderly, the poor, the minorities, if land use restriction caused high rents, smaller incomes, or a depressed supply of homes? On the other hand, is it fair that an individual land-. owner realize enormous profit from the extension of a highway, a public facility paid for by the taxpayer?

As American attitudes and values toward land are challenged, citizens must face these issues: Is the right to own and develop land an inalienable right? Or should land be viewed as a scarce public resource and/or as a commodity, that is, as private capital? Does private ownership in land imply social obligations? Who should benefit when public expenditures increase private land values--a few owners or the public? How can private property rights be balanced with public rights in land?

One proposed concept for controlling land use, which respects private investment in land and at the same time allocates land use in the public interest, is that of transferable development rights. In essence, it means that if a government were to prohibit development in an environmentally sensitive zone, it would allow an owner to transfer his frozen development Potential to a more appropriate district. Bills 101 to 106, proposed by Honolulu City and County Council, include transfer of development rights from Waikiki.

WHAT GOVERNMENTAL TOOLS A E AVAILABLE TO REGULATE OR INFLUENCE LAND USE?

THE POLICE POWER: The police power is the inherent power of government to exercise reasonable control over persons and property in the interest of general security, health, safety, morals and welfare.

EMINENT DOMAIN: Governments also have the power .of eminent domain, the power to condemn and purchase private land for Public purposes, such as highways or parks.

TAXATION: Taxation is another important power. In fact, the property tax is often cited as a chief cause of distortion in land use patterns.

PUBLIC EXPENDITURE: Zoning, of whatever kind, has in practice exerted less influence on land use patterns than has the power to spend public monies. The location and design of water and sewer lines, airports and highways, for example, can spur intense land development by providing access to an otherwise quiet rural community. Recently, the idea of Public recoupment of private speculative gains in land value created by expenditure of public monies (often referred to as the "unearned increment") has been receiving increased attention.

Please note: Although no specific question has been posed on the conflicts between private interests and the public good, this issue is

implicit in the questions. On the basis of responses, the national board will develop criteria for fu-' tore guidance in making decisions where public and private interests conflict.

The conscious, successful coordination (which would include resolution of conflicts) of the powers of (1) control/police, (2) eminent domain, (3) taxation, and (4) public expenditure with the overall practice of planning - resulting in the implementation of plans - might be realizable.

QUESTIONS

Should some governmental level

  1. Develop and provide inventories of land resources and present uses? Y N U

  2. Develop and provide information on social, environmental and economic needs? Y N U

  3. Identify and regulate areas of critical concern?

    1. fragile or historic lands, where development could result in irreversible damage (such as shorelands of rivers, lakes, and streams; estuaries and bays; rare or valuable ecosystems and geological formations; significant wildlife habitats; unique scenic or historic areas; wetlands; deserts) Y N U

    2. renewable resource lands, where development could result in the loss of productivity (such as watershed, aquifers and aquifer recharge areas; significant agricultural and grazing lands; forest lands) Y N U

    3. natural hazard lands, where development could endanger life and property (such as floodplains, areas with high seismic or volcanic activity, areas of unstable geologic, ice, or snow formations) Y N U

  4. Identify and regulate areas impacted by public investment (such, as transportation, energy uses, water and sewer utilities, waste disposal facilities) where siting results in secondary land use demands Y N U

  5. Identify and regulate large scale private development (such as industrial parks, subdivisions, new communities, shopping centers, rural land sales and development projects) which may have substantial impact upon the physical, social and economic environment Y U

  6. Determine and provide land development of more than local benefit (such as low and moderate income housing, recreational and open space uses) not provided by private sector Y N U

  7. Require environmental, social and economic impact statements on major public and private developments Y N U

  8. Exercise the power to regulate the use of land without compensation, where reasonable and necessary, for the protection of the public health, safety, and welfare Y N U

  9. Acquire land for public use Y N U

  10. Other (List on additional sheet)

SECTION IV. ROLE OF THE FEDERAL GOVERNMENT IN LAND USE DECISIONS

Background: The only "national land use law" we currently have is the Coastal Zone Management Act of 1972, which sets up in the Department of Commerce a direct grant-in-aid program to encourage states to plan for and manage their coastal lands and waters. Other federal laws have impacts on land use: the Clean Air Act Amendments of 1970 require regulation of "complex sources" of air pollution, such as shopping centers, and the Federal Water Pollution Control Act Amendments of 1972 require that developments affecting water Quality be related to overall land use planning.

However, over federal departments and agencies administer some 112 programs relating to land use. Until recently, the federal government has done little to coordinate these potentially conflicting programs. The most significant federal activities-affecting land use include the highway, airport, and mass transit programs, the sewer and water grant programs, open space finding, agricultural subsidies, planning assistance, the location of major federal facilities, and water resource projects.

National Policies and Substantive Review?

All these federal roles, existent or proposed, fall short of what some see as the preeminent responsibility: to specify national goals and to develop guidelines which define the states' role and establish consistent substantive standards for all states to follow.

Minimal Federal Role?

At the opposite pole, others see any federal role in land use as an unconstitutional Preemption of the state's inherent 'power to regulate land use, as well as an invasion of private property rights. They believe that the federal role should not include participation in land use planning at the state levels, however indirect or procedural.

There are serious deficiencies in certain Federal-State relationships because Hawaii is unique and often has needs and problems unshared by the other states. We note that Federal standards for the environment, transportation, agriculture, commerce and industry, the atmosphere, the coastal zone, and even the ocean, are based on the average climate of the North, Temperate Zone and on a continental configuration of contiguous states. Such standards may not apply to Hawaii and may be inappropriate or deleterious. For example, Federal standards for sewage treatment are contrary to the best interests of our vast, nutrient-poor ocean; they establish a mainland standard which initially calls for secondary treatment of discharges and, ultimately, fresh water discharge with land disposal of nutrients. Such treatment may be appropriate for most mainland communities, but local studies indicate that for Hawaii the most environmentally effective form of sewage. disposal consists of advanced primary treatment with a deep ocean discharge.

These peculiarities suggest either blanket legislation permitting Hawaii to set its own standards in lieu of Federal standards when conditions singular to Hawaii can be demonstrated or, in the alternative, individual clauses in each new Federal enactment recognizing this environment.

Please Check which of the following federal functions you support:

  1. Give states and localities financial assistance.

  2. Give states and localities technical assistance.

  3. Collect, analyze and disseminate -economic, environmental, and social data.

  4. Establish criteria e/ /for state and local land use planning and regulation.

  5. Develop standards /e — for state and local land use planning and regulation.

  6. Provide financial incentives for states and localities that comply with standards or criteria.

  7. Impose sanctions on states or localities that do not comely with standards or criteria (such as denial of federal funding).

  8. Mediate interstate land use con-

  9. Broaden use of eminent domain f/ (for such purposes as: land banking /g, purchase of land for narks and open space, large scale land assembly. for new towns or major development, development of low income housing, redevelopment of inner city areas).

  10. Review of federally-funded projects by all governmental levels for conformance with a comprehensive land use plan.

  11. Other (List on additional sheet)

If there are any functions listed with which you do not agree, Please explain why on additional sheet.

e/ criterion and standard--These terms are often used interchangeably" In order to eliminate confusion, we are drawing distinctions between the terms in this study. In Land Use publication and in the questions, we use standard to mean a general requirement; we use criterion to mean a specific test, to determine whether or not a standard is being met. For example, under a standard that requires land areas of critical environmental concern be identified .and regulated, one specific criterion . might be that land with slopes over 20 degrees and above 2,500 feet in elevation must be regulated as an area of critical environmental concern.

f/ eminent domain--The governmental power to condemn and Purchase private land, for public purposes, such as highway's or parks. By exercising eminent domain, a government can condemn and purchase land for outright public ownership or buy only some of a private landowner's development rights through easements.

g/ land banking--Purchase of land by government for future transfer or sale to public agencies or private developers. In the interim, a government could hold and manage the land or rent it out for various purposes..

SECTION V. MECHANISMS TO ENSURE FULL CONSIDERATION OF STATE, LOCAL AND NATIONAL INTERESTS IN NATIONAL LAND USE DECISIONS

Currently in Hawaii the State. Land Use Commission has been conducting a five-year' boundary review and at the-same time the City & County of Honolulu has been preparing a proposed revised General Plan for Oahu only. These questions are not specifically addressed to the insurance of coordination and cooperation in planning and in implementation. We may make suggestions to National LWV on this matter.

This section is concerned with developing a process for defining which and decisions are of "multi-state" or "national" concern. Just as certain land decisions can be classed as "local", "greater-than-local", or "statewide" in importance, so can certain land decisions be labeled "national". In Hawaii, for example, Waikiki as the center of the tourist industry, has been considered by many as of "statewide" concern and Diamond Head has been deemed of "national" significance.

Questions B, C, and D cover whether federal land activities (which include federal tax policies, financial assistance, siting of federal installations, and granting of permits and leases) should conform to state programs, preempt state programs, or be subject to some mechanisms for accommodating non-federal interests.

Some see the preeminent responsibility of the federal government:

to specify national goals and to develop guidelines which define the state's role and establish consistent substantive standards for all states to follow.

Others see any federal role in land use as an unconstitutional preemption of the state'' s inherent power to regulate land use, as well as an invasion of private property rights.

They believe that the federal role should not include Participation in land use planning at state levels, however indirect or procedural. They reason that if we are to have land use planning legislation, it should only do what it professes to do and no more. If private property rights are restricted, the argument runs, our needs for economic development, energy, natural resources, food and housing will be ignored.

Greater communication and transportation costs tend to inhibit citizen participation when land use authority is exercised by higher levels of government. On the other hand, if governmental roles are realigned to' assign authority to the level of government which most nearly represents all the people affected by a decision, then citizens who might otherwise be excluded can have a voice. Without a mechanism for more-than-local decision making, only these living within the boundaries of a single community could sneak, pro or con.

A. Should criteria be developed to identify scope of areas and activities of

  1. multi-state concern Y N U

  2. national concern Y N U

B. Should federal land use activities conform to approved state land use programs? Y N U

Under what conditions? Use additional sheet if needed.

C. Should. mechanisms for decision-making on land use be developed which would include

  1. representation of

    1. all levels of government Y N U

    2. all Public agencies affected Y N U

    3. all public and private parties affected by a land use decision Y N U

  2. an administrative appeals procedure for arbitrating conflicts Y N U

D. Should the federal government have the power to make preemptive decisions on matters of national interest? Y N U

For what kinds of land use decisions? (See question III. 3-6 for possibilities). Use additional sheet if needed.

h/ administrative appeals procedure--a quasi-judicial process that takes place in the executive branch of government. A board or body would be established to hear appeals on administrative actions and to grant relief from literal enforcement of those actions in certain hardship situations. Decisions made by such bodies are always subject to reversal on appeal to the courts.


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