How to Fight Land Use Planners
America, it seems, is caught up in a stampede toward "comprehensive state land-use planning," which is to say comprehensive state land-use controls. Hawaii led the way with its Land Use Law of 1961. Vermont's pioneering legislation, popularly (and unpopularly) known as Act 250, came in 1970. The same year saw the enactment of the Maine Site Location Law and the Florida Environmental Land and Water Control Act. In 1972 California voters approved by referendum "Proposition 20," the Coastal Zone Conservation Act. All of these measures impose environmental controls over at least certain areas of the states, and Hawaii and Vermont laws would, in one way or another, put the state in charge of all land use and growth. Parallel to this state activity has been a strong push for Federal legislation, led by Senator Henry Jackson and Representative Morris K. Udall.
The movement has a catechism of slogans. "Land is a resource, not a commodity." "The public has rights as well as property owners." "Land 'owners' are really land holders, who must exercise stewardship for the benefit of the broader community and unborn generations." Leaving the slogans aside, however, it is clear that the operational goal of this movement is the complete centralization of control over what until now have been known as private rights in land.
The supreme irony of this movement is its determination to move forward by moving backward—backward to feudalism. For its advocates' ideal society is one in which all property in land is not held in fee simple, as we now know it, but "of a superior." That superior is no longer the king—since in a moment of possible irrationality our forefathers scuttled the idea of monarchy—but the State, a less personal but more permanent institution.
Since Vermont has by now run through the full cycle of environmental hysteria, state development controls, a statewide zoning battle, a catastrophic defeat, a sober reappraisal, and the slow beginning of a serious search for alternatives, it may well prove instructive to describe the land-use control movement in Vermont since 1969. It might also shed some light on the direction of Federal legislation, since the Vermont "process" was frequently lauded as a model of that envisioned under the Jackson-Udall bill.
In 1968 the nation's economy was in high gear. People had money to spend, and many of those living the larger cities of the Eastern seaboard began to consider buying second homes in relatively accessible yet unspoiled rural areas. Vermont had long been a beautiful but somewhat distant backwater, but in the mid-sixties something new came to Vermont—the interstate highway system. By 1968 southern Vermont was a mere two hours' drive from Boston, four hours' from New York City. With its scenery, skiing, summer sports, and relatively cheap land, it suddenly became a mecca for urban expatriates and vacation-home buyers.
By summer of 1968 second-home developers were gobbling up southern Vermont's countryside, leading Gov. Deane C. Davis to name a Commission on Environmental Control in May 1969. By the fall of that year the commission, chaired by Representative (now Senator) Arthur Gibb, issued its report, which formed the basis for enactment of Act 250 by the 1970 legislature.
That the Gibb Commission might have proposed a libertarian-oriented solution was, unfortunately, far too much to hope for. It could, however, have relied upon the traditional Vermont practice of local government control of development, that is, decentralized coercion. Indeed, as of mid-1968 Vermont towns had sweeping powers to control development. But the Gibb Commission did not believe that local people would implement sufficiently stringent local rules to guide large developments.
So the commission embarked on state control over development. In a gesture to local control it recommended the creation of district environmental commissions, staffed by laymen, to pass on permits. The criteria for the issuance of permits would be written into state law. A State Environmental Board would prepare guidelines for the permit process and act as an appeals board. Finally, two important plans were to be prepared for subsequent legislative approval—the "capability and development plan" and the "land-use plan."
Initially it was intended that the first be a sort of master plan for the state, indicating which kinds of development were best suited to which areas in light of numerous policy decisions. The plan made public by the Environmental Board in November 1972 made only a feeble attempt in this direction. The sweeping statements in the plan alarmed opponents of centralized planning, while the lack of detail and general vagueness dismayed the environmentalists.
The result was something of a legislative debacle. The capability and development plan submitted by the board was promptly scrapped, as was an equally inchoate land-use plan. In its place came a bewildering series of legislative drafts. Finally, on the last day of the 1973 legislative session, a bill bearing the name of a "capability and development plan" squeaked through to final passage. As the state planning director later admitted, however, the bill had little of a "capability and development plan" in it. Instead it added numerous refinements to the permit criteria section of Act 250 and stated 19 policies for future land-use planning. These policies, however, had no regulatory force and were not codified into the state statutes.
The other plan, the "land-use plan," was to be state zoning, pure and simple. It was to "consist of a map and statements of present and prospective land uses based on the capability and development plan,…to be further implemented at the local level by authorized land use controls such as subdivision regulations and zoning." The appointed State Environmental Board would supervise the process.
The first attempt at a land-use plan, unveiled in late 1972, was so inept a document that neither outgoing Governor Davis nor incoming Gov. Thomas P. Salmon was willing to sign it. But it underscored an important fact: the ultimate end of the "Act 250 process" was not merely requiring environmental permits from "larger developers" but the complete centralization of power over the use and exchange of land.
For the first two and a half years after enactment of the Act 250 land-use plan there had been no organized opposition, although there was some unhappiness among developers. Ironically it was not that act at all but a related measure, the Health Department subdivision regulations, that provoked the organization of opposition, culminating in the smashing defeat of Act 250.
To stall development until a comprehensive law could be passed, Governor Davis in September 1969 approved the adoption by his health commissioner of "subdivision regulations." Their ostensible purpose was to prevent the subdivision of land into lots lacking adequate sewage disposal capability. November 1972 saw the adoption of horrendous new subdivision regulations requiring, for example, a costly percolation test on every acre of a thousand-acre parcel divided into three parcels for sale. Bearing only marginal relation to sewage disposal, the new regulations were clearly designed to prevent subdivision of land.
At Lyndonville, in the state's relatively undeveloped northeast kingdom, 75 citizens came together in a spontaneous protest meeting. About a third of those present were associated with the real estate business. Others were just landowners, large and small. Many were notably conservation-minded, although that was more than the environmentally oriented daily press was willing to concede. The meeting resulted in the formation of the Landowners Steering Committee to fight back against the bureaucrats. To get public attention the group pledged to post some 100,000 acres of Vermont land against hunting, fishing, or snowmobiling.
While the cause of the protest meeting was subdivision regulations, the Steering Committee quickly recognized that far more of the same kind of thing lay on the horizon. The committee adopted a reasonable and balanced five-point program:
- Reject the Act 250 statewide zoning plan.
- Put the responsibility for preserving the environment on the developer, not on the mere seller of land.
- Prevent bureaucrats from imposing impossible regulations on the citizens without legislative approval.
- Enforce the laws against polluters.
- Allow multiple use of state-owned lands.
Despite this very moderate program the Steering Committee was roasted in the daily press. Its members were castigated as irresponsible hucksters and polluters, hell-bent on personal profit at the expense of present and future generations.
The committee quickly broadened its board to include representatives from 10 of Vermont's 14 counties and launched a series of public meetings and radio spots to alert Vermonters to the issues. The environmental organizations responded with meetings of their own and attempts to suppress the opponents. Due in part to the vigorous efforts of the Steering Committee and circulation of some 10,000 copies of its tabloid newspaper, the Vermont Watchman, the 1973 "capability and development plan" emerged from the legislature minus most of its teeth. Its main significance was that it was admittedly the legal foundation for the land-use plan to be presented in 1974.
Following the 1973 legislative session Governor Salmon called a press conference to announce that he intended to take personal direction of the program to develop a land-use plan for 1974. From the beginning, however, the State Planning Office and the State Environmental Board engaged in a running battle over the form of the plan to be produced. To the delight of the opposition, the Governor seemed either unwilling or unable to insist on a resolution of these differences.
In September 1973 the Planning Office, in conjunction with the various regional planning commissions, conducted a series of hearings on its proposal. Scarcely had these hearings concluded when the Environmental Board took to the field for its own set of hearings. Expressly disavowing the Planning Office draft, the board offered no draft whatsoever. The purpose of the hearings was merely to gather opinion, said the board; then it would retire to its chambers and bring forth the plan for submission to the governor and the legislature. This rather cavalier approach produced prompt criticism, and the board was ultimately forced to produce a draft plan and conduct several additional field hearings on it. Now, with the board's intentions revealed, public reaction arose quickly.
The proposal was simply a state zoning scheme. The state was to be subdivided into seven zones, each with its own set of purposes, allowed uses, prohibited uses, and density limitations. Local towns were given a year to prepare a zoning map "furthering the purposes of the State Land Use Plan." If they failed to do so the State Environmental Board would supervise the zoning of the town. To satisfy the board, a town plan would have to comply with 16 detailed criteria. Any mention of compensating landowners for violated property rights was scrupulously avoided.
A howl of protest went up at the unveiling of this plan—not only from landowners but also from local government officials. The plan's emphasis on keeping rural areas undeveloped clearly meant that growth in taxable development would be directed to regional centers. The plan promised tax chaos, as the restrictions changed the value of land drastically and unpredictably. It virtually ordered the towns to provide adequate housing for such people as the state thought ought to be living there.
The uncautious declaration by the chairman of the Environmental Board that "local control is out of the Dark Ages" did much to inspire and enlarge the opposition. So did the deliberate refusal of the board to produce the map clearly called for by the statute. Key legislators gave prompt notice to the board that if it intended to zone everyone's property it would have to present the required map to the legislature. Two lawsuits to force the board to produce the map were filed, and although both were dismissed on technical grounds they further dramatized the issue.
Throughout this furor Governor Salmon sided with the Environmental Board. Before a sportsmen's gathering in January he said that publication of the zoning maps would kill the whole plan—and that since his plan was too important to suffer this fate at the hands of an outraged citizenry, no maps would be published!
But pressure built up rapidly, until the board reluctantly asked the Planning Office to bring forth the maps, which were released in mid-February. Due to the necessary imprecision in zoning a whole state from the capital and to the extreme haste in which the maps were completed, they carried countless errors that were immediately detected by local officials and landowners. But more importantly the maps dramatized the land-use plan as statewide zoning, a charge frequently made but until that point not clearly proven.
The board did another thing in its draft plan that produced a new wave of opposition. Since 1971 the board had been concerned about the inapplicability of the land-use plan to developments too small to be required to obtain a permit, that is, with less than 10 units of housing. So in October 1972 it adopted a resolution asking the legislature to amend the law to make it applicable to even the surveying of lot lines on a single lot! Not only did the legislature not honor this request, it responded by inserting in the law a sentence affirming that the land-use plan would explicitly not apply to anything but "developments" as defined in the act—those with 10 or more housing units, and industrial and commercial development on 10 or more acres (one acre in unzoned towns).
When the board began to prepare a land-use plan for 1974, this provision caused great perplexity. How could a meaningful statewide zoning plan be put forth, argued the planners, when anyone might build nine houses in any open field without being governed by the restrictions in the plan? The board decided to ignore this provision of the law by presenting a plan that covered every single acre, every single lot, in the state of Vermont.
Within 60 days of its approval by the Governor and within 40 days of the publication of the maps, the 1974 Land Use Plan was stone-cold dead. The end came at a tumultuous public hearing before the House Natural Resources Committee on February 26, 1974. Farmers, landowners, and just plain citizens flocked to Montpelier 800 strong to berate the plan for over four hours, while only a handful of special-interest representatives, principally architects, rose to defend it. The committee, which had voted in favor of a watered-down version of the plan by a 7-to-4 margin the previous day, voted 9 to 2 the following day to shelve the whole project for 1974.
Recognizing that the map was a major cause of the public uproar, Salmon quietly caused to be introduced into the house a modest measure eliminating the requirement that any state land-use plan "shall consist of a map." This measure was dutifully brought to the floor by the Natural Resources Committee, where, in the words of the ardently proenvironment Rutland Herald it was "belted out of sight." As a desperate effort to salvage something from the legislature, the Governor finally pried from it a bill to require Act 250 development permits whenever more than five lots were to be sold at public auction. This wholly illogical piece of legislation was based on the idea that, since public auctions are highly visible, imposing regulations on them would satisfy the more distraught environmentalists favoring an embargo on the sale of land by other people.
Finally, the legislature established by resolution a Land Use Study Committee, charging it to meet during the eight-month recess period "to review all laws, rules, and regulations relating to land use planning." Despite its mandate to review the entire subject, the majority of the committee voted to allow discussion only of zoning and capital-investment controls. Its final report was little more than a watered-down version of the defeated land-use plan, and was never seriously considered.
Disappointed with the committee's product, Governor Salmon promptly began work on his own version for 1975, placing the responsibility, not on the Environmental Board, but on the State Planning Office. This had the incidental effect of permitting circumvention of the requirements of Act 250 that any land-use plan be aired at public hearings in each of the nine environmental control districts and that it be submitted to the more than 200 town and regional planning commissions for a 30-day review period before being sent to the legislature.
On January 17, 1975, Salmon unveiled his new model to the public. It preserved the basic state-supervised zoning scheme intact, relaxing various requirements as to designation of zones, deadlines for compliance, burden of proof, and the imposition of state controls in the case of towns whose citizens were so backward and reactionary as to fail to zone themselves to state satisfaction on schedule.
The Salmon plan was introduced in the General Assembly, along with the plan favored by a majority of the summer Land Use Study Committee. Despite the election of a sharply increased number of legislators of the Governor's Democratic party, the wave of enthusiasm so evident in 1972 was strikingly absent. Indeed, the first chairman of the Environmental Board came before the legislature to state in no uncertain terms that no regulatory land-use plan of any kind should be adopted. Instead, he said, the state should prepare a sound technical data base as to the environmental impact of development and create controls over public investments by public bodies at all levels. He continued to support the present permit system for so-called larger developments. Meanwhile, the chief drafter of the original Act 250 and its various amendments publicly stated that the 1975 legislature should not attempt to adopt any kind of land-use plan.
With these two defections the cause was seriously weakened. When the 1975 legislature adjourned without taking action on land use, the state planning director jumped ship, advising the Governor not to attempt yet another plan in 1976. In July the Environmental Board's chairman, perhaps the most vigorous booster of statewide zoning, caved in. This rash of desertions left Salmon a noticeably isolated advocate of a state land-use plan, and late in the year he announced that he would not ask the 1976 legislature to take any action.
The House Natural Resources Committee, however, made one last attempt, introducing a bill late in the 1975 session, basically the 1974 Salmon plan with every provision watered down as far as possible. The bill was buried in the House Ways and Means Committee upon adjournment of the 1975 session in April. When it was ultimately dragged to the house floor in March 1976 the committee amendments were defeated on a 73-to-65 vote, after which the bill itself was overwhelmingly rejected by voice vote.
Over the ensuing weekend the chief sponsors of the bill worked desperately to find a member who would switch his vote, and the following Monday the bill was brought back for reconsideration on an 82-to-65 vote. The Governor now leaped back into the act. Notwithstanding his earlier abandonment of support for any land-use control effort in 1976, he called Democratic house leaders into his office and pleaded for passage of the measure. Admittedly, he said, the bill was toothless and largely symbolic; but it should be passed to shore up Vermont's sagging reputation among environmental groups across the nation.
On March 16, after a bloody floor debate, the house passed the bill by a four-vote margin. It received final approval by the same margin the following day, but not until an amendment had stripped from it the only overtly coercive section: a provision that Federal and state permits and grant-in-aid funds would be cut off if local governments failed to impose satisfactory zoning by 1981.
As passed by the house, the bill merely required that every town designate which lands lay in five state-specified zones. Local zoning was not affected by any such designation, however. In passing on land development permits, the district environmental commissions could deny a permit if the project was not compatible with the list of uses specified in the legislation for each type of zone. This provision clearly would prevent any further ski-area development, as all suitable land in the state above 2,500 feet was defined to be in "conservation" zones, where practically no use was to be allowed.
The measure was quickly reported to the senate, but opponents, including house members, ski-area operators, farmers, and other landowners, actively urged that the bill be killed. On March 24 the bill was quietly shipped off to the Senate Agriculture Committee, where it died a natural death with the adjournment of the legislature at the end of the week.
With this overview of the six-year Vermont experience it is now appropriate to identify some of the important features of the campaign to centralize power over land. While there is no reason to believe that the same features will appear in every state afflicted by the New Feudalism, or in Federal land-use control movements, the list is nonetheless instructive.
1. The Idea of Social Property
Underlying the movement for the New Feudalism is the concept of "social property," the polar opposite to the "sole and despotic dominion" claimed for the freeholder by Blackstone. Under the "social property" concept, common both to feudalism and socialism, land is always held at the sufferance of a superior. In olden times there was a long chain of superiors starting at the top with the king and extending downward to serf. Under the New Feudalism the ultimate superior is the state—or possibly the Federal—government. The once free and independent landowner becomes the modern counterpart of the serf.
The ideas of freehold and social property necessarily tend to approach each other. No freeholder, Blackstone notwithstanding, may use his property in a manner infringing upon the property rights of another. Nor may he claim access to facilities provided by the public on his, rather than the public's, terms. But under freehold land ownership, the presumption favors the use, enjoyment, power to convey, and power to exclude of the landowner of record, and the various qualifications, though not unimportant, are incidental.
Under social property, by contrast, land is presumed to belong to society; so-called land "owners" are merely land "holders" with a temporary usufruct, subject to termination upon society's demand. But since continuous governmental management of every square foot and every use is not administratively feasible, the social property school concedes to the "holder" the privilege (though not the right) to engage in various small-scale and relatively innocuous uses without obtaining governmental permission. But such "freedom" derives only from administrative limitations—there is no right of the "holder" to act independently.
In Vermont, with a relatively conservative political history, the "social property" theory was rarely enunciated with any great precision. It is even possible that some of the advocates of land controls sincerely failed to recognize that their proposals were based on such a doctrine. Some, however, were willing to bite this bullet. In the April 16, 1973, Boston Globe the former chairman of Vermont's House Appropriations Committee was quoted: "I advocate nothing less than doing away with private ownership as it concerns real estate. We will have to change our legal philosophy to do that. We will have to stop thinking of land ownership and start thinking of land holdership." And a letter in the Rutland Herald, July 24, 1974, he declared: "The property you possess in the form of real estate does not belong to you. It belongs to the government and the government is the people."
2. The Lofty Goals
The preamble of every environmental bill sets forth a series of lofty goals that it is said society must achieve—or else. It is significant that individual liberty and a republican form of government never appear in such a list, although at least a few Orwellian attempts have been made to equate "planning" with "freedom."
Section 6042 of Vermont's Act 250 is a classic example of the recitation of lofty goals.
The board shall adopt a capability and development plan…with the general purpose of guiding and accomplishing a coordinated, efficient and economic development of the state, which will, in accordance with present and future needs and resources, best promote the health, safety, order, convenience, prosperity and welfare of the inhabitants, as well as efficiency and economy in the process of development, including but not limited to, such distribution of population and of the uses of the land for urbanization, trade, industry, habitation, recreation, agriculture, forestry and other uses as will tend to create conditions favorable to transportation, health, safety, civic activities and educational and cultural opportunities, reduce the wastes of financial and human resources which result from either excessive congestion or excessive scattering of population.…
There is to be a bureaucracy charged with achieving those goals. That bureaucracy will never be able to achieve those goals so long as free citizens go about their business in ignorance of the Grand Design revealed to, or at the least prepared by, the planners. Thus the combination of lofty, unattainable goals and a bureaucracy charged with their achievement must necessarily lead to steadily advancing controls over individual freedom of action. There can be no logical end to this process.
3. The Affirmation of "Broader Interests"
The bane of Grand Designers is local control over land use and development. What satisfied them in 1925, when the Grand Design was envisioned only at the local level, is now anathema. That control process has been captured by local interests oblivious to the needs of the "broader community"—most commonly the region or the state, but occasionally the whole of North America and even all of "Spaceship Earth." The time has come for the government representing the "broader community" to at least supervise the local land-use control process, and perhaps to recover the police power delegated decades ago and exercise it from some more elevated vantage point.
There can be little doubt that local governments have in many cases used the police power unwisely and even corruptly. But the thought that perhaps the defect lies not in the level of government but in the exercise of the police power itself rarely seems to occur to the New Feudalists.
4. The Rejection of Alternative Remedies
There is a host of techniques for guiding responsible growth that do not require a New Feudalism: public investment controls, transferable development rights, graduated taxation, public acquisition and land banking, a reformulation of nuisance law, guaranteed value and compensated regulation plans, and an institutionalized private covenant system.
Rejection of these alternatives by Vermont environmentalists was significant, for it revealed that their goal was not so much protecting the environment, guiding responsible growth, etc. but the concentration of power over the use and exchange of privately owned land. Throughout the six-year struggle they steadfastly refused to even discuss anything other than uncompensated police-power controls.
5. The Marketing Strategy
The first round in any environmental control battle will almost necessarily be an impassioned appeal to "stop pollution" and "save the environment" for "our children's children" against the "ravages of uncontrolled development." Any voices of balanced judgment are banded together with "unscrupulous developers and land speculators."
A second ingredient might be called clamor generating. This is an attempt to persuade the average citizen not only that he is deeply concerned about growth and development—which many citizens are—but also that increasing public controls over private property is the sole solution to the problem. The Vermont Natural Resources Council obtained a grant of $120,000 in 1971 from the Ford Foundation to underwrite an Environmental Planning Information Center.
According to the Ford Foundation Letter announcing the grant, a major function of the council was "to ensure the widest communication and understanding of facts and maximum public participation" before a plan was submitted to Vermont's legislature. For openers, the program produced a slide show entitled "So Goes Vermont…" As noted in a report of the same name, prepared by The Conservation Foundation (Washington, D.C.): "The sound track's only voices were those of Vermonters who watched brutal subdivision builders chop away at their land and expressed their hope that Act 250 could put a stop to haphazard growth." "So Goes Vermont…" was shown extensively at public meetings and on television.
Third, following the generation of sufficient clamor for stopping pollution, comes the bait and switch so beloved by discount merchandisers. Once Vermonters were foaming at the mouth about the iniquity of pollution, Governor Salmon pulled the switch. Instead of antipollution laws, he explained, the real need is to put the state in charge of growth. The state must have the power to veto growth, he stated, even where the proposed development meets ecological standards.
Fourth, the marketing strategy calls for outspoken vilification of opponents. It is necessary to portray opponents of state land-use controls as, to use Governor Salmon's terms, "land rapists and fast buck artists," whose every argument is unworthy of a public hearing.
Perhaps the nadir of this technique was reached on February 15, 1973, when the environmental conservation secretary launched this missile at the Landowners Steering Committee: "This group is using tactics we have seen throughout the nation—techniques of fear, distrust, distortion, hysteria, misstatement, and innuendo. All these far out types, regardless of what they are pushing—crime, drugs, prostitution, communism, fascism, or land speculation—use these same techniques and then try to hide behind our Constitution."
Fifth, the legislative component of the strategy calls for the progressive expansion of the controls to every single lot in the state. Otherwise, small operators will "nickel and dime" the environment to death. The Grand Design cannot be effected if small operators can do as they please.
Sixth, the map is to be avoided at all costs. Production of a map has a strong impact on the public. It dramatizes that a state land-use plan is state zoning, something backers in Vermont were at pains to deny until the appearance of the map made further protest pointless. The last-ditch attempt of Governor Salmon to eliminate the map requirement in the 1974 legislature underscores the truth of this observation.
The central thrust of the Vermont experience was to replace freehold property with social property, the desirability of which is the basic tenet of the New Feudalism. The Old Feudalism was not without virtue. It meant military security in an age of brigandage and invasion. It curbed economic fluctuations by preventing alienability of land. It was a strong force for social stability. It imposed a system of mutual rights and responsibilities tied to the use of land, some of which might profitably be restored in our own day.
The problem of the Old Feudalism was that it stifled freedom, productivity, and self-government. And that will also be the problem of the New Feudalism. If fully implemented, it will mean the concentration of all power to use, exchange, and perhaps even to enclose land in the hands of a governmental bureaucracy. With the government in control of all land-related economic activity, in addition to all the functions already under governmental control, clearly property would cease to be the basis not only of economic activity but also of individual liberty. Could John Adams, James Madison, Thomas Jefferson, or even Alexander Hamilton have conceived of a republic of free citizens in which the State holds full control over land? Merely to ask such a question is to answer in the negative.
The choice, happily, is not between the New Feudalism and destruction of the environment and natural resources. As noted above, a host of techniques exist for guiding responsible land use and growth—techniques that may not be wholly laissez-faire but are not founded on the doctrine of social property. After six years of near-hysteric thrashing about in pursuit of a restored feudal society, the tide in Vermont has now turned in the direction of alternative techniques. The same result can occur in other states-provided the New Feudalism can be held off long enough for wiser heads to prevail.
John McClaughry is president of the Institute for Liberty and Community, Concord, Vermont. This article is adapted from his "The New Feudalism," which appeared in Environmental Law 5, No. 675 (1975), © Environmental Law, Inc.