"Land use is the single most important element affecting the quality of our environment which remains substantially unaddressed, as a matter of national policy,” Russell E. Train, chairman of the Council on Environmental Quality (CEQ), observed last September. Train was testifying on behalf of the Nixon Administration's proposed National Land Use Policy Act, and he may have understated his case. Not even pollution abatement, a problem given much congressional attention during the 1960s, is of more importance to environmental quality than the way land is used. Indeed, in many cases effective prevention or abatement of pollution at reasonable cost may be impossible if intensive industrial or residential development is allowed in the wrong places.
Traditionally, regulation of the use of nonfederal lands has been reserved to the states as part of their police power. The states, however, generally have not sought to regulate land use and have delegated the authority to do so to local government. The limits of local jurisdiction have usually been too narrow to encompass regional environmental systems or to encourage desirable patterns of regional development. Furthermore, local zoning, even where honestly administered, typically has been used only to separate incompatible land uses in urban and suburban areas and not to control land use countywide according to environmental as well as other criteria.
Federal influences on land use in the states have been cautious and indirect. Within the last year or so there has been increasing sentiment in Congress that something more is in order. Literally scores of bills have been introduced that would deal with one or another aspect of land use policy.
Concurrently, a number of attacks upon land use zoning have been made in the courts and before administrative bodies on the grounds that land use zoning as actually practiced is discriminatory in a racial and economic sense. In several state court decisions, zoning actions by local bodies have been overthrown on these grounds. Thus far, no conclusive case has been decided by the Supreme Court, but it seems highly probable that some case will reach that Court and be decided by it, in the not too distant future. Any definitive court action that seriously threatened the legality of land use zoning as it has grown up in the past 50 years would surely spur the Congress and the state legislatures to action.
Senator Henry M. Jackson persuaded his committee to report out an ambitious National Land Use Policy bill as early as the fall of 1970. This complex measure was still undergoing revision and committee consideration in late 1971. Briefly stated, the Jackson bill would require that the states prepare, within five years, enforceable land use plans as a condition for receiving federal funds for new projects having an environmental impact. Federal grants to assist the states with their land use management programs would be generous; a total of up to $100 million would be authorized for such grants each year. Regional land use commissions, each chaired by a presidential appointee and with federal agencies as well as states represented, would be set up to ensure that state plans were mutually compatible. If the Secretary of the Interior disapproved of a state's land use plan, his decision would be reviewed by an ad hoc hearing board established by the President. Planning of objectives would include the protection or reservation of environmentally "critical" areas, "new town" sites, prime agricultural lands, transportation corridors, industrial sites, and the like. Commenting on an early version of this measure, Secretary of the Interior Rogers C. B. Morton observed that its goals were too broad and would lead to diffuse efforts producing no meaningful results.
The Nixon administration bill, which Morton and Train have been pushing, is much simpler than the Jackson bill and more limited in its objectives. Its principal aim is to have state governments assume responsibility for three categories of land use problems: (1) protecting environmentally critical areas, with special attention to estuaries; (2) controlling land use in areas affected by the construction of "key facilities," such as interstate highway interchanges and major airports; and (3) keeping controversial land uses of ""regional benefit,"" such as construction of low-income housing, from being excluded from desirable areas by discriminatory local zoning. Under the bill, a state could elect to meet these problems through direct land use planning and regulation, through the establishment of standards subject to judicial enforcement which local governments would have to follow, or by administrative review of local planning and regulatory actions which would be subject to a state veto. Relatively modest 50 percent matching grants would be available to assist the states, with total funds authorized for this purpose limited to $20 million a year. The states would be expected to concentrate their attention on the three problem issues and leave it to the local governments to continue handling the great bulk of land use questions.
The sanctions available in case a state failed to develop an appropriate land use management program would be mild. The first version of the bill proposed by CEQ included a powerful sanction—states not in compliance with the Land Use Act would not have received their full share of federal funds available for new projects such as airports and highways, with the sums thus withheld being distributed to states that had complied. Although this provision was struck from the bill because it conflicted with the President's proposal for revenue sharing without strings, Train has indicated that the Administration would not object if the Congress wrote stronger sanctions into the legislation. As one congressional source put it, "Train was in effect telling us, 'If you put in the sanctions, fine; just so we didn't do it.'”
Although the fund cutoff provided in the Jackson bill does constitute a strong sanction, local governments would inevitably, under the terms of the measure, continue to play a large, if not decisive, role in most major land use decisions. Cities of 250,000 population or more could, at the state's discretion, be excluded from the statewide land use plan, and these would include all the local "metro" or consolidated city-county governments whose territorial jurisdictions are sometimes very large. (For example, Florida's Dade Metro embraces over 2,000 square miles.) Moreover, authority to carry out the land use planning and management responsibilities prescribed under the act could be delegated to regional or local government entities, subject to state review and approval of plans and enforcement procedures. Reviews at the state level of locally developed land use programs might easily become no more than perfunctory. If, on the other hand, the review process were given public visibility and involved the participation of the governor, supported by a competent staff, more objectivity and political accountability would be brought to major land use decisions. The Jackson bill does not say what kind of review mechanism the state should establish and the senator and his staff believe that this important and possibly critical detail must be left for the states to work out themselves.
Work on land use legislation last year was by no means definitive, and it will be some time yet before Congress is ready to act. General land use bills have been considered thus far only in the Interior committees of the Senate and House, and some other committees will want to have their say.
While the immediate prospect for enactment of a national land use bill is uncertain, ultimately passage of such legislation seems likely. To judge from testimony before the Senate Interior Committee by conservation groups, the National League of Cities, the National Governors’ Conference, the National Grange, and some resource user groups, there is a developing consensus that a national land use policy is needed. There will be fierce arguments over the details, but in time a policy probably will emerge.
A version of this article appeared in print in the January 1972 issue of Resources magazine.
