Session No. 27

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**Course Title: Coastal Hazards Management**

**Session Title: Coastal Hazards Management Framework II**

**Author: Anna K. Schwab, University of North Carolina at Chapel Hill**

**Time: 50 minutes**

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**Objectives:**

27.1 Discuss the nature of coastal management law, including public and
private rights in the coastal zone.

27.2 Understand the basic premise of the Public Trust Doctrine as it
pertains to management in the coastal zone.

27.3 Consider a brief overview of constitutional issues in coastal
management, including the 5^th^ Amendment Takings Clause.

**Scope:**

The players and institutions discussed in the previous session do not
operate in a vacuum. As we have seen, there is a vast array of law and
policy that governs activities in the coastal zone. Much of this legal
context is legislative in nature; governments at all levels have enacted
statutes and regulations that deal with coastal development. Some of
this legislation directly pertains to natural hazards. Other laws and
programs cover land use, environmental protection, and other issues that
are more tangentially related to coastal hazards management. Specific
laws and government programs are discussed in later sessions. Session 27
provides a broad overview of some of the legal and policy issues
separate from agency action. Many of the topics covered in Session 27
derive from common law, customs, ancient doctrine, and the U.S.
Constitution. Topics to be discussed in this Session include public and
private rights in the coastal zone, including boundary determination;
the Public Trust Doctrine; riparian and littoral rights; and
Constitutional issues, including the 5^th^ Amendment Takings Clause.

**Readings:**

*Student and Instructor Readings:*

Beatley, Timothy, et al. 2002. *An Introduction to Coastal Zone
Management*. Washington, D.C.: Island Press, pp. 86-89.

Christie, Donna R. and Richard G. Hildreth. 1999. *Coastal and Ocean
Management Law in a Nutshell,* 2^nd^ edition. St. Paul, MN: West
Publishing, pp.1-41; 42-56; pp. 105-119.

Platt, Rutherford H. and Alexandra D. Dawson. 1999. "The Takings Issue
and the Regulation of Hazardous Areas" in Rutherford H. Platt, ed.
*Disasters and Democracy: The Politics of Extreme Natural Events.*
Washington, D.C.: Island Press, chapter 5.

Platt, Rutherford H. 1998. "Planning and Land Use Adjustments in
Historical Perspective" in Raymond J. Burby, ed. *Cooperating with
Nature: Confronting Natural Hazards with Land Use Planning for
Sustainable Communities*. Washington, D.C.: Joseph Henry Press,
subsection entitled "The Property Rights Movement: Putting the Brakes on
Land Use Management?" pp. 43-47.

*Additional Instructor and Student Readings:*

Jansuijwicz, Jessica Spelke. 1999. "Property Rights Organizations:
Backlash Against Regulation" in Rutherford H. Platt, ed. *Disasters and
Democracy: The Politics of Extreme Natural Events*. Washington, D.C.:
Island Press, chapter 4.

Wright, Robert R. and Morton Gitelman. 2000. *Land Use in a Nutshell*,
4^th^ edition. St. Paul, MN: West Publishing, pp. 82-111; 281-284.

**General Requirements:**

The material of Session 27 is to be presented as lecture, supported by
PowerPoint slides. The material here lends itself very well to class
discussion, which is to be encouraged.

Handout 27.1 contains definitions of various land use and constitutional
law terms that may be useful during class lecture and discussion.
Handout 27.1 appears in Appendix A to Session 27, available for
photocopying and distribution to the students.

### Handouts

**Handout 27.1** Land Use and Constitutional Law Definitions

**PowerPoint Slides:**

**PowerPoint 27.1** Types of Law Involved in Coastal Management

**PowerPoint 27.2** Lands Under Navigable Waters

**PowerPoint 27.3** Public-Private Boundary in Coastal Lands: Determined
By State Law

**PowerPoint 27.4** Ambulatory Boundaries

**PowerPoint 27.5** Coastal Processes That Can Change Property
Boundaries

**PowerPoint 27.6** Public Trust Doctrine

**PowerPoint 27.7** Public Trust Ownership

**PowerPoint 27.8** Extent of the Public Trust Doctrine in the U.S.

**PowerPoint 27.9** Rights Protected Under the Public Trust Doctrine

**PowerPoint 27.10** State Law Determines the Boundary of Public Trust
Lands

**PowerPoint 27.11** Public Trust Lands: Vested With Two Titles

**PowerPoint 27.12** Coastal Resource Management Issues That Can Be
Addressed by the Public Trust Doctrine

**PowerPoint 27.13** Use of the Public Trust Doctrine in State Coastal
Management Programs

**PowerPoint 27.14** U.S. Constitution: 5^th^ Amendment

**PowerPoint 27.15** Pennsylvania Coal v. Mahon (1922)

**PowerPoint 27.16** Takings Cases: First English Evangelical Lutheran
Church

**PowerPoint 27.17** Takings Cases: Nollan

**PowerPoint 27.18** Takings Cases: Dolan

**PowerPoint 27.19** Takings Cases: Lucas

**PowerPoint 27.20** Wild Dunes Resort

**PowerPoint 27.21** Lucas Lots, I

**PowerPoint 27.22** Lucas Lots, II

**PowerPoint 27.23** Lucas Lots, III

### PowerPoint 27.24 Lucas Lots Revisited, I {#powerpoint-27.24-lucas-lots-revisited-i .unnumbered}

**PowerPoint 27.25** Lucas Lots Revisited, II

### PowerPoint 27.26 A Summary of Takings Cases Rules {#powerpoint-27.26-a-summary-of-takings-cases-rules .unnumbered}

**PowerPoint 27.27** A Summary of Takings Cases Rules (continued)

Objective 27.1 Discuss the nature of coastal management law, including
public and private rights in the coastal zone.

**Requirements:**

The content should be presented as lecture, supported by PowerPoint
slides. Class discussion is to be encouraged. Handout 27.1 contains
definitions of various land use and constitutional law terms that may be
useful during class lecture and discussion. Handout 27.1 appears in
Appendix A to Session 27, available for photocopying and distribution to
the students.

The following PowerPoint slides will be used during this Objective:

**PowerPoint 27.1** Types of Law Involved in Coastal Management

**PowerPoint 27.2** Lands under Navigable Waters

**PowerPoint 27.3** Public-Private Boundary in Coastal Lands: Determined
By State Law

**PowerPoint 27.4** Ambulatory Boundaries

**PowerPoint 27.5** Coastal Processes That Can Change Property
Boundaries

**Remarks:**

**[Definitions:]{.underline}**

-   A few definitions are helpful before we discuss coastal law and
    property rights:

## \[Handout 27.1 Land Use and Constitutional Law Definitions\]

#### [Land Use and Constitutional Law Definitions]{.underline}

> **Accretion**: The gradual and imperceptible accumulation of alluvion
> (soil) by natural causes. This may result from a deposit of alluvion
> upon the shore, or by a recession of the water from the shore.
> Accretion is the act, while alluvion is the deposit itself.
>
> **Avulsion:** The loss of lands bordering on the seashore by sudden or
> violent action of the elements, perceptible while in progress; a
> sudden and rapid change in the course and channel of a boundary water.
>
> **Bottomlands**: Land below navigable freshwater bodies.
>
> **Custom Doctrine:** The long-standing customary use of land (such as
> beaches) by the public as a recreational area, resulting in a right to
> use the land. The custom doctrine requires certain elements to be
> met: 1) antiquity of use; 2) without interruption; 3) reasonable and
> peaceful use; 4) certainty as to the boundaries; 5) obligatory upon
> all landowners; and 6) not inconsistent with other customs or other
> law (Wright and Gitelman).
>
> **Dry Sand Beach**: Sandy area above the mean high tide line and the
> vegetation line.
>
> **Eminent Domain**: The power of government to condemn or take
> property for public use, an attribute of sovereignty.
>
> **Erosion**: The gradual and imperceptible washing away of the land by
> natural causes.
>
> **Foreshore:** The strip of land between the ordinary high and low
> water marks that is alternately covered and uncovered by the flow of
> the tide. Often used synonymously with "wet sand beach."
>
> **Freshwaters:** Waters that do not ebb and flow with the tide. The
> determinative factor is that the water body does not ebb and flow with
> the tide, not the salt content of the water.
>
> ***Jus Privatum***: The proprietary rights in the use and possession
> of land beneath tidal waters and navigable freshwaters. The *jus
> privatum* interest is often held by the State in tandem with the *jus
> publicum* interest, but may be conveyed to a private individual or
> entity (see Public Trust Doctrine).
>
> ***Jus Publicum***: The collective rights of the public to fully use
> and enjoy trust lands and waters for commerce, navigation, fishing,
> bathing, and other related public purposes. A State cannot convey the
> *jus publicum* interest into private ownership, nor can it abdicate
> its trust responsibilities (see Public Trust Doctrine).
>
> **Littoral Land**: Land that borders a lake or ocean.
>
> **Mean High Tide:** The mean average of all the high tides (high high
> tides and low high tides) occurring over a certain period of time
> (e.g., of 18.6 years).
>
> **Mean Low Tide**: The mean average of all the low tides (high low
> tides and low low tides) occurring over a certain period of time
> (e.g., of 18.6 years).
>
> **Navigable Waters:** Waters that are subject to commercial use; may
> also be to encompass recreational use
>
> **Nuisance Law:** The basis of a nuisance suit is the maxim: *sic
> utere tuo ut alienum non laedas*, which means that no one may use his
> property in such a way as to injure his neighbor (or neighbors in the
> area generally). A public nuisance is a use of land that results in an
> adverse effect on the health, morals, safety, welfare, comfort, or
> convenience of the public in general. Water pollution, air pollution,
> storage of explosives, a house of prostitution, emission of loud
> noises or bad odors, obstruction of public ways are all examples of
> nuisance.
>
> **Ordinary High Water Mark**: The line to which high water normally
> reaches under natural conditions, but not including floods, storms, or
> severe meteorological conditions.
>
> **Ordinary Low Water Mark**: The line to which low water normally
> reaches under natural conditions, but not including droughts, or
> severe meteorological conditions.
>
> **Police Power:** A shorthand term for the legislative or
> policy-making power that resides in each state to establish laws and
> ordinances to preserve public order and tranquility and to promote the
> public health, safety, and morals and other aspects of the general
> welfare.
>
> **Procedural** **Due Process:** The term due process or, more
> accurately, due process of law, refers to the constitutional
> protections given to persons to ensure that laws are not unreasonable,
> arbitrary or capricious. When such laws affect individuals' lives,
> liberty, and property, due process requires that they have sufficient
> notice and opportunity to be heard in an orderly proceeding suited to
> the nature of the matter at issue, whether a court of law or a zoning
> board of appeals. In a word, due process means fairness (Blaesser).
> Due Process of Law is required by the 5^th^ and 14^th^ Amendments to
> the US Constitution and similar provisions in state constitutions.
>
> **Public Trust Doctrine**: The Public Trust Doctrine derives from the
> English principle that the land covered by tidal waters is held by the
> sovereign for the common use of all the people.
>
> **Riparian Land**: Land that borders running waters (contiguous to a
> stream or river)
>
> **Riparian Rights**: The rights of an owner of land contiguous to a
> navigable body of water, including principally the right of access to
> the water, the right to accretions and relictions, and the right to
> other improvements.
>
> **Shorelands:** General term including tidelands and navigable
> freshwater shores below the ordinary high water mark.
>
> **Submerged Land**: Land lying below tidal waters, seaward of the
> ordinary low water mark, including bays, inlets, and other arms of the
> sea, out to the seaward boundary of the State.
>
> **Substantive Due Process**: In addition to imposing procedural
> requirements on land use decision-making, the due process clause of
> the US Constitution also imposes substantive requirements, for
> example, the requirement that land use controls further legitimate
> governmental purposes. There is a presumption of constitutionality in
> favor of a government regulation. A court may invalidate a regulation
> if it is found arbitrary and capricious, meaning that the regulation
> has no substantial relation to the public health, safety, morals, or
> general welfare (Blaesser).
>
> **Taking**: Government appropriation of private land, either directly
> through eminent domain, or indirectly, through the restrictive effect
> of its regulations, is termed a taking of property. The latter is
> termed a **regulatory taking**. The Fifth Amendment limits the
> government's power by requiring that government pay just compensation
> when it takes private property. The term **just compensation** means
> that the owner is entitled to the fair market value of the property at
> the time of the taking.
>
> **Tideland**: Land that is covered and uncovered by the daily rise and
> fall of the ordinary tides. More specifically, it is the zone between
> the "ordinary high water mark" and the "ordinary low watermark."
>
> **Tidewaters**: Waters that markedly and regularly ebb and flow in
> response to the gravitational forces of the moon and sun.
>
> **Upland**: Land lying above the "ordinary high water mark."
>
> **Wet Sand Beach**: Area between the mean high tide and the mean low
> tide lines.

# The Control of Land Use: An Overview

-   Controls on land use are **not a recent innovation**.

    -   Land use controls existed in various forms in England long
        before we were a nation, and in actuality extend back into the
        **ancient Roman past**.

        -   The earliest **Code of Roman Law**, the *Twelve Tables*,
            provided for **setback lines** from boundaries and for
            distances between trees and boundaries. This was promulgated
            in 451-540 B.C. (Wright and Gitelman)

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    -   Modern **fiction** has it that **property rights** have a
        certain **absolutism** about them. (Wright and Gitelman)

        -   However, it has always been the case that **property is
            subject to the law of the land.**

        -   What that law is has been **variously interpreted** over the
            years, going through times of extension and retrenchment
            depending upon the societal and economic conditions of the
            day.

        -   Early on, **judge-made law**, such as the law of nuisance
            and waste was **sufficient** to handle land use conflicts,
            but as our society became more populated and complex, and
            there were more demands made on limited natural resources,
            there arose the realization that **more extensive public
            controls were required.**

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    -   Throughout the **19^th^ century** in America, the **police
        power** developed with relatively little hindrance (Wright and
        Gitelman).

        -   But even early on, it was clear that the **police power was
            not unlimited**: it could not be exercised arbitrarily or
            capriciously, it could not be unreasonable, it could not be
            confiscatory.

        -   **Zoning** became acceptable as a means of regulating
            incompatible land uses in ***Euclid v. Ambler Realty Co*. in
            1926**.

        -   However, at the same time that the courts were expanding the
            use of the police power in its approval of comprehensive
            zoning, judges were also more inclined to find that a
            particular police power action (such as a land use
            regulation) had **encroached upon private property rights**
            to the point that it constituted an unconstitutional taking.

    -   Land use controls today retain a substantial **inheritance from
        the past**.

        -   The **common law doctrines** of customary use, nuisance,
            public trust, and others, remain available for use and are
            employed in land disputes today.

        -   The **police power has expanded** in a number of ways, and
            serves the basis for such purposes as zoning ordinances, and
            also for environmental law and regulations. (Wright and
            Gitelman).

        -   The **limitations on public restrictions** of private land
            uses have also been **more clearly defined**, with attempts
            made at a bright-line test to determine when a taking has
            occurred.

        -   However, this is still a **field in development and flux**,
            and there is no clear predictor for how a particular land
            use case would be resolved.

-   Land use and building **regulations** help to **reduce
    vulnerability** to natural hazards in geographic areas of high
    hazard, including:

    -   Floodplains

    -   Coastal areas

    -   Steep slopes

    -   Seismic areas

    -   Erosion

    -   Landslide

    -   Wetlands

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    -   We will explore some of these issues today, after a brief
        discussion of the nature of coastal law in general, and an
        exploration of the boundary between public and private lands in
        coastal areas.

### [Coastal Management Law]{.underline}

-   Coastal management law is unique because it **focuses on a place**,
    rather than on a generally recognized field of law.

> **\[PowerPoint 27.1 Types of Law Involved in Coastal Management\]**

-   Coastal management law comprises **aspects of many laws** in the
    special context of the coastal environment, including (Christie):

    -   Administrative Law

    -   Environmental Law

    -   Property Law

    -   Land Use Regulation

    -   Water Law

    -   Natural Resources Law

    -   Constitutional Law

    -   Federal/State Statutory Law

    -   International Law

-   **Natural interrelations of land, water, and natural resources** are
    complex and have equally **intricate legal consequences** that have
    resulted in ongoing conflicts over public and private rights,
    boundaries, jurisdictions, and management priorities (Christie).

-   The user conflicts, the jurisdictional gaps and overlaps, and the
    clash of public and private, and national and international
    interests all contribute to a legal regime that is evolving as
    rapidly as the stresses on the land and water resources are
    increasing (Christie).

# Coastal Property Rights

> **\[PowerPoint 27.2 Lands under Navigable Waters\]**

-   Under English common law, the **King exercised both ownership and
    dominion** over lands subject to the **ebb and flow of the tides**,
    often referred to as lands under *navigable waters* (Christie).

    -   Because the natural uses of these lands -- **navigation,
        commerce, and fishing** -- were **public in nature**, title to
        these lands vested in the King, as sovereign and representative
        of the nation (Christie).

    -   In general, this law was recognized in the colonies and later
        the states, with a few complicating factors involving French and
        Spanish civil law at the time territories were acquired by the
        United States (Christie).

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-   The simplicity of the principle that the state owns lands beneath
    navigable waters while the upland is subject to private ownership
    begins to break down immediately when one considers that the **line
    between water and coastal uplands is in constant flux** (Christie)

> **\[PowerPoint 27.3** **Public-Private Boundary in Coastal Lands:
> Determined By State Law\]**

-   In most states, the **boundary** between public and private property
    is determined by the **mean high tide line**, although some states
    recognize the mean low tide as the public/private boundary
    (Christie).

-   Some states use the **first line of stable vegetation** to determine
    the dividing line between public and private lands (Beatley).

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-   Even when the definition of the boundary is certain, physically
    **determining the mean high water line may be difficult**. The
    amount of land covered by the high tide varies depending on the
    coastal topography (Christie).

    -   In some areas, particularly along the coast of the Gulf of
        Mexico, the **slope** of the land is so **slight** that minor
        discrepancies in tidal calculations can affect hundreds of acres
        of land. (Christie)

    -   **Dynamic sandy beaches** also create a problem in fixing a high
        tide boundary line, because the profile of the beach is in
        constant flux (Christie).

    -   In states that use the first line of stable vegetation to
        determine the dividing line between public and private lands in,
        this line is also constantly changing.

# Ambulatory Boundaries

> **\[PowerPoint 27.4 Ambulatory Boundaries\]**

-   **Shorelines are rarely stable** and are subject to constant,
    gradual change from natural processes and man's activities. Storms
    and flooding may drastically change the character of the coast in a
    very short time (Christie).

-   Most states consider the **legal boundary**, as well as the physical
    boundary, ***ambulatory.***

-   The **line of demarcation** has been interpreted by courts to be
    dynamic and subject to periodic movement, as in response to natural
    erosion or coastal storms. Thus the line is a "**rolling public
    easement**" with many implications for coastal homeowners (Beatley).

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-   A **littoral (shoreline) owner may gain or lose land** affected by
    the processes of accretion, erosion, or avulsion (Christie).

> **\[PowerPoint 27.5 Coastal Processes That Can Change Property
> Boundaries\]**

-   ***Accretion*** is the process by which **upland is created** by the
    gradual depositing of sand or sediment along the shore by the
    waters. In general, when the water boundary moves seaward by the
    process of accretion, the **property boundary also moves**
    (Christie).

    -   A well-established **exception** to the accretion rule is that a
        shore owner does not gain title to accreted property that is the
        result of **acts of that owner** (Christie).

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-   ***Erosion*** is the gradual wearing away of land by water. Erosion
    also results in **movement of the property boundary** (Christie).

-   ***Avulsion*** is any sudden and perceptible change in the shoreline
    by action of the water. Because the change occurs quickly and the
    original boundary is still considered identifiable, the **boundary
    does not change** (Christie).

-   Boundary changes are also affected by ***subsidence**.* Withdrawl of
    large amounts of petroleum and water from coastal areas,
    particularly in Texas and Louisiana, has caused the land to sink or
    subside, allowing encroachment of water (Christie).

    -   Although such gradual changes would seem to be of the type that
        justify boundary relocation, Texas courts have recognized a
        **limited right of reclamation of subsided land**. Unlike
        erosion, subsidence does not involve the removal of land from
        its location, and is not an ordinary hazard of riparian
        ownership (Christie).

-   ***Global warming*** is also leading to sea level rise which is
    already detectable in some areas, with ramifications for issues of
    ownership (Christie)

***For class discussion:***

What are some of the ramifications for coastal hazards management that
arise from the nature of public and private rights in coastal areas?
Consider such a scenario:

A major hurricane strikes the coastline, causing severe damage to
structures located along the beachfront. Under state law, the private
property boundary is determined by the first permanent line of
vegetation. After the storm, the line of vegetation that existed before
the structures were built is wiped out. The new line of vegetation is
located seaward of the structures.

Should the state allow the homeowners of severely damaged buildings to
rebuild at the same location -- on land that is now actually public
property? Discuss

**Objective 27.2 Understand the basic premise of the Public Trust
Doctrine as it pertains to management in the coastal zone.**

**Requirements:**

The content should be presented as lecture, supported by PowerPoint
slides. Class discussion is to be encouraged.

The following PowerPoint slides will be used during this Objective:

**PowerPoint 27.6** Public Trust Doctrine

**PowerPoint 27.7** Public Trust Ownership

**PowerPoint 27.8** Extent of the Public Trust Doctrine in the U.S.

**PowerPoint 27.9** Rights Protected Under the Public Trust Doctrine

**PowerPoint 27.10** State Law Determines the Boundary of Public Trust
Lands

**PowerPoint 27.11** Public Trust Lands: Vested With Two Titles

**PowerPoint 27.12** Coastal Resource Management Issues That Can Be
Addressed by the Public Trust Doctrine

**PowerPoint 27.13** Use of the Public Trust Doctrine in State Coastal
Management Programs

**Remarks:**

\[**Note**: Unless otherwise noted, the following discussion is based
primarily on material found in the treatise *Putting the Public Trust
Doctrine To Work: The Application of the Public Trust Doctrine To the
Management of Lands, Waters and Living Resources of the Coastal States*,
as referenced in the "Course Developer References" section below.\]

-   Much of the discussion during the previous Objective could be
    included under the subject heading of "the *Public Trust Doctrine*."

# What is the Public Trust Doctrine?

> **\[PowerPoint 27.6 Public Trust Doctrine\]**

-   In the United States, special treatment under State and Federal law
    is accorded to:

    -   shorelands,

    -   bottomlands,

    -   tidelands,

    -   tidewaters,

    -   navigable freshwaters

    -   plant and animal life living in these waters

-   For the most part, these lands, waters, and wildlife are **owned by
    the public**, but **held in trust by the Stat**e for the benefit of
    the public.

> **\[PowerPoint 27.7 Public Trust Ownership\]**

-   Generically, the body of law pertaining to these lands, waters, and
    living resources is called the ***Public Trust Doctrine***.

    -   Public Trust lands are special in nature.

    -   They are **useless for agriculture**, **unsuitable for permanent
        structures**, and generally useful only for public purposes.

    -   To effectively manage the countless activities that take place
        within these **191,000 square miles** of navigable waters,
        including the lands beneath and the living resources inhabiting
        them, a coastal manager must be familiar with the Public Trust
        Doctrine.

# Background and History

-   The Public Trust Doctrine is an **ancient common law rule** with a
    long history of legal evolution.

    -   Under Roman law, navigable waters were ***res publicae***,
        things of the public.

        -   The ancient Romans developed the concept of **public
            ownership** of the ocean and estuarine areas, and created a
            corresponding right to use the shore bordering these waters.
            The **Roman government** held complete **legal title** to
            the land, but that title was **subject to the interests of
            the people** (Schwab and Brower).

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        -   Every Roman citizen had the right to prevent any action
            which would interfere with his free access to the water.

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    -   The **English common law** system continued to consider the
        people beneficiaries of a public trust of these important
        waters.

    -   Since land under tide waters are unsuitable for cultivation, and
        are valuable for commerce, navigation, and fishing, title and
        dominion of these lands were **vested in the King** for the
        **benefit of the nation**.

    -   When the **American colonies** and later the **states** acquired
        title to these lands held in trust on American soil, the public
        continued to have vested rights in their use (Schwab and
        Brower).

# Geographic Scope of the Public Trust Doctrine

-   Lands held in the public trust include **tidelands below the
    high-water mark** of navigable waters (the *foreshore*), as well as
    lands submerged beneath navigable waters.

-   At first, navigable waters were defined as those **waters subject to
    the ebb and flow of the tide**, which includes the beds of rivers to
    the reach of tidal influence.

    -   Later, it came to be recognized that lands under **navigable
        fresh water** in the **Great Lakes** and other substantial lakes
        and rivers are under the Public Trust (Schwab and Brower).

> **\[PowerPoint 27.8** **Extent of the Public Trust Doctrine in the
> U.S.\]**

-   In the United States the Public Trust Doctrine applies to:

    -   79,481 square miles of inland navigable waters,

    -   74,364 square miles of coastal waters, and

    -   an estimated 37,500 square miles of ocean waters within the
        jurisdiction of the coastal states.

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    -   This totals approximately **191,000 square miles** of navigable
        waters within the boundaries of the states -- roughly equal in
        size to Maryland, Virginia, North Carolina, South Carolina, and
        Georgia combined -- all of which is subject to the Public Trust
        Doctrine.

        -   Further, there are 88,633 miles of tidelands and

        -   10,031 miles of Great Lakes shoreline,

        -   for a total of **98,664 miles of trust shoreland**.

# Rights Protected Under the Public Trust Doctrine

-   The title held by the State in trust for the public establishes the
    **right of the public to use and enjoy these trust waters, land and
    resources** for a variety of recognized public uses.

    -   Most states have recognized the concept of the Public Trust as
        **open-ended**, thereby encompassing extant water uses.

## \[PowerPoint 27.9 Rights Protected Under the Public Trust Doctrine\]

-   **Traditional public trust purposes** include:

    -   fishing

    -   commerce

    -   travel

-   As the law has progressed, state courts and legislatures have
    recognized **new uses**, including:

    -   swimming,

    -   hunting,

    -   recreational fishing

    -   boating.

-   Some states have also extended the Public Trust Doctrine to provide
    perpendicular **public access** over upland areas to reach the areas
    covered by the doctrine itself (Schwab and Brower).

    -   This is most often accomplished through state **constitutional
        provisions** that in effect codify the Public Trust Doctrine
        with regard to public access.

# Establishing the Boundary of the Public Trust Doctrine

-   To apply the Public Trust Doctrine, one must first determine whether
    the land, water or living resources in question are indeed within
    the geographic scope of the doctrine. Generally speaking, **all
    "navigable waters,"** **the lands beneath** these waters and the
    **living resources** inhabiting them are subject to the Public Trust
    Doctrine.

-   What is meant by the term "**navigable waters**" has been the source
    of confusion for centuries in both State and Federal courts. In
    general, the term encompasses lands subject to **the ebb and flow of
    the tides**, up to the **high water mark**.

> **\[PowerPoint 27.10 State Law Determines the Boundary of Public Trust
> Lands\]**

-   The boundary line between public trust lands and private uplands is
    **established by state law,** and accordingly there is much
    variation in the methods employed to determine the high-water mark.

    -   States bordering the **Atlantic** and **Pacific** Oceans and the
        **Gulf of Mexico** define coastal boundaries by **vertical
        datums**, which are planes of reference for elevations based on
        the average rise and fall of the tide.

    -   In the **Great Lakes states**, the ordinary high water mark is
        generally set by statute, often by means of **vegetation**, but
        there is no precise method for determining where along the
        shoreline this mark lies (Schwab and Brower).

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-   The nature of the Public Trust Doctrine is further complicated by
    the **nature of its ownership.**

> **\[PowerPoint 27.11** **Public Trust Lands:** **Vested With Two
> Titles\]**

-   Public Trust lands is **vested with two titles**:

    -   the ***jus publicum*** -- the collective rights of the public to
        fully use and enjoy trust lands and waters for commerce,
        navigation, fishing, bathing, etc.

    -   the ***jus privatum*** -- the private proprietary rights in the
        use and possession of trust lands.

    -   Whether public trust lands are publicly or privately owned, the
        State retains and holds in trust the public's *jus publicum*
        interest.

# State Exercise of its Public Trust Authority

-   Authority vested in the State through the Public Trust Doctrine is
    based upon its **power over State property**, rather than a State's
    regulatory powers through its sovereign "police powers." This is an
    important distinction for managers of coastal areas.

    -   Thus, if the lands, waters, and living resources are within the
        scope of the doctrine, then **the State can govern and manage
        them as its own property**.

    -   This is in sharp **contrast** to a State regulating a citizen's
        private property through its **police powers**.

    -   Because the doctrine is property based -- in contrast to
        regulatory police powers -- the **Public Trust Doctrine gives a
        state authority to** not only **manage trust resources**, but
        also protects the **public's** **fundamental rights** in these
        resources.

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-   At the same time, whenever a State exercises its public trust
    authority, it does so immediately adjacent to some of the **most
    expensive real estate** in America -- waterfront property.
    Waterfront property owners hold extremely strong property interests,
    especially if they also own the *jus privatum* rights in the
    adjacent public trust land.

    -   Usually, a private *jus privatum* owner of public trust land
        pays **property taxes on the trust lands**. It is also very
        common for a commercial upland owner, such as a resort or marina
        owners, to have a **strong economic interest** in the use of
        adjacent publicly owned trust lands and waters.

    -   Given the strong property interests of private upland owners,
        coupled with the confusion over the distinction of the *jus
        publicum* and *jus privatum* in trust lands and how the Public
        Trust Doctrine applies, **coastal managers need to be keenly
        aware** that their actions under the doctrine may be met with
        **strong resistance**. Claims of "takings" and charges of
        government interference in private property rights should be
        expected.

# The Public Trust Doctrine as a Tool for Coastal Resource Management

> **\[PowerPoint 27.12Coastal Resource Management Issues That Can Be
> Addressed by the Public Trust Doctrine\]**

-   The Public Trust Doctrine is tremendously **versatile**. It can be
    used to address problems as diverse as:

    -   public access to coastal areas

    -   oil and gas production

    -   environmental quality

    -   erosion control

        -   In short, the Public Trust Doctrine is **applicable**
            whenever navigable waters or the lands beneath are
            **altered, developed, conveyed**, or otherwise **managed**
            or **preserved.**

            -   It applies whether the trust lands are **publicly or
                privately owned**.

            -   The doctrine articulates not only the public rights in
                these lands and waters. It also **sets limitations** on
                the States, the public, and private owners, as well as
                **establishing duties and responsibilities** of the
                States when managing these public trust assets.

# The Use of the Public Trust Doctrine in State Coastal Management Programs

> **\[PowerPoint 27.13 Use of the Public Trust Doctrine in State Coastal
> Management Programs\]**

-   The **Coastal Zone Management Act** (CZMA) comprehensively addresses
    coastal resource management. As we will learn in later sessions,
    states with federally-approved CZM programs have a wide range of
    tools at their disposal to protect, manage, and regulate activities
    in the coastal zone, including management of development to reduce
    the impacts of natural hazards.

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-   The use of **public trust principles** in **coastal management** is
    neither new nor infrequent.

    -   Some state coastal management programs **explicitly
        incorporate** and use public trust principles effectively.

    -   Other state programs characterize **management**
        responsibilities in terms that are **similar to public trust
        principles**.

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    <!-- -->
    ```
    -   In particular, some sates have used **special area
        designations**, or areas of particular concern to protect
        valuable public trust lands and resources.

        -   Typically, **development is limited or prohibited** in
            special protection zones for areas of particular ecological
            interest.

        -   Other states **classify** large sections of public trust
            lands and waters within different **use categories**,
            subject to different regulatory controls.

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    ```
    -   For example, ***North Carolina*** has designated large areas of
        its public trust lands and resources as **Areas of Environmental
        Concern** (AECs) within which coastal permits are required for
        development activities.

    -   While North Carolina groups all its coastal areas into broad
        management categories, **Rhode Island**, whose program includes
        public-trust like principles, **divides all state waters into
        six management categories** designed to help maintain a high
        quality of coastal environment for future generations of Rhode
        Islanders.

        -   Another coastal management technique sometimes based on
            public trust principles is the **creation of management
            authorities** for large, well-delineated bodies of water or
            public trust regions.

        -   Another technique is to **set priorities for public trust
            uses**, which allows certain uses while limiting or
            prohibiting others within a specific area. Uses that are
            detrimental to the trust can be curtailed, and permissible
            uses can be ranked in priority of protection.

**Objective 27.3 Consider a brief overview of constitutional issues in
coastal management, including the 5^th^ Amendment Takings Clause.**

**Requirements:**

The content should be presented as lecture, supported by PowerPoint
slides. Class discussion should be encouraged.

The following PowerPoint slides will be used during this Objective:

**PowerPoint 27.14** U.S. Constitution: 5^th^ Amendment

**PowerPoint 27.15** Pennsylvania Coal v. Mahon (1922)

**PowerPoint 27.16** Takings Cases: First English Evangelical Lutheran
Church

**PowerPoint 27.17** Takings Cases: Nollan

**PowerPoint 27.18** Takings Cases: Dolan

**PowerPoint 27.19** Takings Cases: Lucas

**PowerPoint 27.20** Wild Dunes Resort

**PowerPoint 27.21** Lucas Lots, I

**PowerPoint 27.22** Lucas Lots, II

**PowerPoint 27.23** Lucas Lots, III

### PowerPoint 27.24 Lucas Lots Revisited, I {#powerpoint-27.24-lucas-lots-revisited-i-1 .unnumbered}

**PowerPoint 27.25** Lucas Lots Revisited, II

### PowerPoint 27.26 A Summary of Takings Cases Rules {#powerpoint-27.26-a-summary-of-takings-cases-rules-1 .unnumbered}

**PowerPoint 27.27** A Summary of Takings Cases Rules (continued)

**Remarks:**

# Balancing Private Property Rights with Public Policy Objectives

-   One of the most **significant policy dilemmas** in contemporary
    coastal management is determining the **appropriate balance**
    between government **police power regulations** of coastal lands and
    the **sanctity of private property**.

    -   Coastal property owners affected by coastal regulations (e.g.,
        coastal setbacks, restrictions on filling wetlands) often claim
        that such regulations violate the Fifth Amendment to the US
        Constitution, as well as similar provisions in state
        constitutions (Beatley, et al).

-   It is often more complicated than a straightforward application of
    the law to a particular set of facts. Not only is takings law
    confusing and complex, "Issues surrounding individual owners' rights
    on coastal properties are **controversial**, **emotional,** and
    frequently **highly politicized**" (Environmental Health Center).

# The Fifth Amendment

> **\[PowerPoint 27.14 U.S. Constitution: 5^th^ Amendment\]**

-   The Fifth Amendment to the United States Constitution, applicable to
    the states as well as to the federal government through the
    Fourteenth Amendment, states:

**No person shall be ... deprived of life, liberty or property, without
due process of law; nor shall private property be taken for public use
without just compensation.**

-   It has always been clear that the Fifth Amendment requires the
    government to pay just compensation when private property is taken
    -- that is, physically taken -- for public use through **eminent
    domain** proceedings.

-   The takings clause was first held to **constrain government
    regulatory** action in *Pennsylvania Coal v. Mahon* (1922). The
    oft-cited rule from that case has opened up many a challenge by
    property owners against public land use regulations:

**\[PowerPoint 27.15 Pennsylvania Coal v. Mahon (1922)\]**

**The general rule at least is, that while property may be regulated to
a certain extent, if regulation goes too far, it will be recognized as a
taking.**

-   In *First English Evangelical Lutheran Church of Glendale v. County
    of Los Angeles* (1987), the US Supreme Court held that compensation
    can be awarded for damages for even a **temporary taking**. The
    regulation at issue in *First English* involved a prohibition
    against construction of buildings within a flood protection area.

> **\[PowerPoint 27.16 Takings Cases: First English Evangelical Lutheran
> Church\]**

-   The First English Evangelical Lutheran Church owned some land along
    the banks of a creek which was the natural drainage channel for a
    watershed area. A church camp was operated there. A forest fire
    denuded large amounts of acreage upstream and produced a serious
    flood hazard, and a heavy rain destroyed the camp. Los Angeles
    County adopted an ordinance prohibiting structures within the flood
    protection area, including the campsite. The Supreme Court held that
    if the ordinance had denied the church "all use of its property" for
    a period of years without compensation, interim damages for a
    temporary taking could be awarded.

-   **[First English Follow-Up]{.underline}**: It is interesting to note
    that when the US Supreme Court returned the case to the California
    courts (a process called remand), the California Court of Appeals
    found that the ordinance advanced a "preeminent state interest in
    public safety and did not deny \[the church\] all use of its
    property." The Court of Appeals further found that the ordinance was
    a "reasonable moratorium for a reasonable period of time." (*First
    English Evangelical Lutheran Church of Glendale v. County of Los
    Angeles* (1989)). Despite the later resolution of this case upon
    remand to the California court, the rule of *First English* still
    holds: compensation is due for the period of time that a regulation
    was in effect if that regulation is found to be a taking.

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-   In ***Nollan** v. California Coastal Commission* (1987), the US
    Supreme Court held that the Takings Clause of the Constitution
    **limits the types of conditions** that government may impose on
    private land use, requiring a rational nexus between a condition and
    the public benefit conferred.

> **\[PowerPoint 27.17 Takings Cases: Nollan\]**

-   A California couple applied for a permit to tear down the house on
    their ocean-front property and build a new one. The California
    Coastal Commission would only issue the permit if the couple granted
    a public easement that would allow people to traverse across the
    beach in front of their house. Because there was **no rational
    nexus** between the **condition** (that a public easement be
    granted) and a **valid public purpose** related to that
    condition**,** the US Supreme Court found a taking.

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```
-   In ***Dolan** v. City of Tigard* (1994), the Supreme Court further
    defined the doctrine of unconstitutional conditions under the
    Takings Clause, reinforcing the notion of a **rough
    proportionality** between **the required dedication** and the
    **impact of the proposed development**.

> **\[PowerPoint 27.18 Takings Cases: Dolan\]**

-   A hardware store owner in a small Oregon city sought a building
    permit to expand her store and pave a parking lot on her property.
    The city said it would grant the permit if the landowner would
    dedicate part of her property for flood control and traffic
    improvements. The city demanded a dedication of land for a portion
    of a proposed bikeway and for a public greenway along the creek.

-   Could the landowner be forced to choose between the building permit
    and her constitutional right to just compensation? The Court struck
    down the condition: \[T\]he government may not require a person to
    give up a constitutional right -- here the right to receive just
    compensation when property is taken for public use -- in exchange
    for a discretionary benefit conferred by the government where the
    property sought has little or no relationship to the benefit"
    (Barron and Dienes). The Court also said "the city must make some
    sort of individualized determination that the required dedication is
    related both in nature and extent to the impact of the proposed
    development."

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```
-   In *Lucas v. South Carolina* (1992), the US Supreme Court issued the
    ruling that a **regulation** that **deprives** a landowner of **all
    economically beneficial or productive use** of land is a taking.

> **\[PowerPoint 27.19 Takings Cases: Lucas\]**

-   In the Lucas case, David Lucas was the owner of two beachfront lots
    in the Wild Dunes subdivision on Isle of Palms, an extensively
    developed stretch of beach located on a barrier island. After Lucas
    acquired the lots, the South Carolina legislature enacted the
    Beachfront Management Act, which created a "dead zone" landward of a
    baseline at the crest of the primary dune. The Act prohibited
    construction of both of the Lucas lots.

> **\[PowerPoint 27.20 Wild Dunes Resort\]**
>
> **\[PowerPoint 27.21 Lucas Lots, I\]**
>
> **\[PowerPoint 27.22 Lucas Lots, II\]**
>
> **\[PowerPoint 27.23 Lucas Lots, III\]**

-   Lucas made a takings claim in the South Carolina **trial court**,
    and was awarded \$1.2 million dollars because the regulation had
    rendered the Lucas property **"valueless."** Lucas did not challenge
    the validity of the Beachfront Management Act per se, but claimed
    that its application to his lots destroyed all of their value.

-   The **South Carolina Supreme Court** reversed the trial court
    decision, holding that the **Act was intended to prevent a serious
    public harm** and **required no compensation** regardless of the
    effect on property value.

-   Lucas appealed to the **US Supreme Court**, which reversed the South
    Carolina Supreme Court, stating that a **taking had occurred**,
    since the **landowner had been deprived of all economically
    beneficial use of the land** because he could not build permanent
    structures there. The US Supreme Court did leave open a door for
    other cases, however, saying that if a regulation is part of common
    law doctrine, such as nuisance or property law, then no compensation
    would be required.

-   On remand, the South Carolina Supreme Court held that the Beachfront
    Management Act did not fall under the exceptions of nuisance or
    property law, and that Mr. Lucas should be compensated for the
    period during which his land was restricted.

> **\[PowerPoint 27.24 Lucas Lots Revisited, I\]**
>
> **\[PowerPoint 27.25 Lucas Lots Revisited, II\]**

-   **[Lucas Follow-up]{.underline}**: After all the legal wrangling in
    the *Lucas* case, the ultimate disposition of the lots owned by Mr.
    Lucas took an interesting turn. Following the conclusion of the
    appeals process, the State of South Carolina compensated Mr. Lucas
    for the two lots that had been judged as "taken" by the setback
    regulation. In order to recoup its expenses, the State of South
    Carolina sold the Lucas lots to a developer. A large home has since
    been constructed on one of the lots, which in 1996 was threatened by
    renewed erosion! (Burby).

# A Summary of Takings Cases Rules

-   Despite the confusing history and seemingly conflicting decisions
    made by the US Supreme Court and various state courts, there do
    appear to be some fairly **definitive rules** that derive from
    takings cases that coastal managers must be aware of:

> **\[PowerPoint 27.26 A Summary of Takings Cases Rules\]**

1)  The physical occupation of private land by a unit of government,
    except under extreme circumstances, is a taking.

2)  A regulation that "goes too far" is a taking *(Pennsylvania Coal).*

3)  Even a "temporary" loss of use of private property will constitute a
    taking requiring compensation for the period during which use of the
    property was denied (*First English*).

> **\[PowerPoint 27.27 A Summary of Takings Cases Rules (continued)\]**

4)  If the regulation exacts a property right as a condition for a
    permit with no rational connection to a valid public purpose then
    the regulation goes "too far" and is a taking *(Nollan).*

5)  The *Lucas v. South Carolina Coastal Council* decision holds that a
    total deprivation of economic use will amount to a taking for which
    damages may be awarded.

## 

### Appendix A

### Handout 27.1

## Land Use and Constitutional Law Definitions

> **Accretion**: The gradual and imperceptible accumulation of alluvion
> (soil) by natural causes. This may result from a deposit of alluvion
> upon the shore, or by a recession of the water from the shore.
> Accretion is the act, while alluvion is the deposit itself.
>
> **Avulsion:** The loss of lands bordering on the seashore by sudden or
> violent action of the elements, perceptible while in progress; a
> sudden and rapid change in the course and channel of a boundary water.
>
> **Bottomlands**: Land below navigable freshwater bodies.
>
> **Custom Doctrine:** The long-standing customary use of land (such as
> beaches) by the public as a recreational area, resulting in a right to
> use the land. The custom doctrine requires certain elements to be
> met: 1) antiquity of use; 2) without interruption; 3) reasonable and
> peaceful use; 4) certainty as to the boundaries; 5) obligatory upon
> all landowners; and 6) not inconsistent with other customs or other
> law (Wright and Gitelman).
>
> **Dry Sand Beach**: Sandy area above the mean high tide line and the
> vegetation line.
>
> **Eminent Domain**: The power of government to condemn or take
> property for public use, an attribute of sovereignty.
>
> **Erosion**: The gradual and imperceptible washing away of the land by
> natural causes.
>
> **Foreshore:** The strip of land between the ordinary high and low
> water marks that is alternately covered and uncovered by the flow of
> the tide. Often used synonymously with "wet sand beach."
>
> **Freshwaters:** Waters that do not ebb and flow with the tide. The
> determinative factor is that the water body does not ebb and flow with
> the tide, not the salt content of the water.
>
> ***Jus Privatum***: The proprietary rights in the use and possession
> of land beneath tidal waters and navigable freshwaters. The *jus
> privatum* interest is often held by the State in tandem with the *jus
> publicum* interest, but may be conveyed to a private individual or
> entity (see Public Trust Doctrine).
>
> ***Jus Publicum***: The collective rights of the public to fully use
> and enjoy trust lands and waters for commerce, navigation, fishing,
> bathing, and other related public purposes. A State cannot convey the
> *jus publicum* interest into private ownership, nor can it abdicate
> its trust responsibilities(see Public Trust Doctrine).
>
> **Littoral Land**: Land that borders a lake or ocean.
>
> **Mean High Tide:** The mean average of all the high tides (high high
> tides and low high tides) occurring over a certain period of time
> (e.g., of 18.6 years).
>
> **Mean Low Tide**: The mean average of all the low tides (high low
> tides and low low tides) occurring over a certain period of time
> (e.g., of 18.6 years).
>
> **Navigable Waters:** Waters that are subject to commercial use; may
> also be to encompass recreational use
>
> **Nuisance Law:** The basis of a nuisance suit is the maxim: *sic
> utere tuo ut alienum non laedas*, which means that no one may use his
> property in such a way as to injure his neighbor (or neighbors in the
> area generally). A public nuisance is a use of land that results in an
> adverse effect on the health, morals, safety, welfare, comfort, or
> convenience of the public in general. Water pollution, air pollution,
> storage of explosives, a house of prostitution, emission of loud
> noises or bad odors, obstruction of public ways are all examples of
> nuisance.
>
> **Ordinary High Water Mark**: The line to which high water normally
> reaches under natural conditions, but not including floods, storms, or
> severe meteorological conditions.
>
> **Ordinary Low Water Mark**: The line to which low water normally
> reaches under natural conditions, but not including droughts, or
> severe meteorological conditions.
>
> **Police Power:** A shorthand term for the legislative or
> policy-making power that resides in each state to establish laws and
> ordinances to preserve public order and tranquility and to promote the
> public health, safety, and morals and other aspects of the general
> welfare.
>
> **Procedural** **Due Process:** The term due process or, more
> accurately, due process of law, refers to the constitutional
> protections given to persons to ensure that laws are not unreasonable,
> arbitrary or capricious. When such laws affect individuals' lives,
> liberty, and property, due process requires that they have sufficient
> notice and opportunity to be heard in an orderly proceeding suited to
> the nature of the matter at issue, whether a court of law or a zoning
> board of appeals. In a word, due process means fairness. (Blaesser).
> Due Process of Law is required by the 5^th^ and 14^th^ Amendments to
> the US Constitution and similar provisions in state constitutions.
>
> **Public Trust Doctrine**: The Public Trust Doctrine derives from the
> English principle that the land covered by tidal waters is held by the
> sovereign for the common use of all the people.
>
> **Riparian Land**: Land that borders running waters (contiguous to a
> stream or river)
>
> **Riparian Rights**: The rights of an owner of land contiguous to a
> navigable body of water, including principally the right of access to
> the water, the right to accretions and relictions, and the right to
> other improvements.
>
> **Shorelands:** General term including tidelands and navigable
> freshwater shores below the ordinary high water mark.
>
> **Submerged Land**: Land lying below tidal waters, seaward of the
> ordinary low water mark, including bays, inlets, and other arms of the
> sea, out to the seaward boundary of the State.
>
> **Substantive Due Process**: In addition to imposing procedural
> requirements on land use decision-making, the due process clause of
> the US Constitution also imposes substantive requirements, for
> example, the requirement that land use controls further legitimate
> governmental purposes. There is a presumption of constitutionality in
> favor of a government regulation. A court may invalidate a regulation
> if it is found arbitrary and capricious, meaning that the regulation
> has no substantial relation to the public health, safety, morals, or
> general welfare (Blaesser).
>
> **Taking**: Government appropriation of private land, either directly
> through eminent domain, or indirectly, through the restrictive effect
> of its regulations, is termed a taking of property. The latter is
> termed a **regulatory taking**. The Fifth Amendment limits the
> government's power by requiring that government pay just compensation
> when it takes private property. The term **just compensation** means
> that the owner is entitled to the fair market value of the property at
> the time of the taking.
>
> **Tideland**: Land that is covered and uncovered by the daily rise and
> fall of the ordinary tides. More specifically, it is the zone between
> the "ordinary high water mark" and the "ordinary low watermark."
>
> **Tidewaters**: Waters that markedly and regularly ebb and flow in
> response to the gravitational forces of the moon and sun.
>
> **Upland**: Land lying above the "ordinary high water mark."
>
> **Wet Sand Beach**: Area between the mean high tide and the mean low
> tide lines.

**Course Developer References:**

Barron, Jerome A. and C. Thomas Diens. 2003. *Constitutional Law in a
Nutshell*, 5^th^ edition. St. Paul, MN: West Publishing.

Beatley, Timothy, et al. 2002. *An Introduction to Coastal Zone
Management*. Washington, D.C.: Island Press.

Blaesser, Brian W. and Alan C. Weinstein, Eds. 1989. *Land Use and the
Constitution: Principles for Planning Practice.* Chicago: Planners
Press.

Burby, Raymond J., ed. 1998. *Cooperating With Nature: Confronting
Natural Hazards With Land-Use Planning for Sustainable Communities*.
Washington, D.C.: Joseph Henry Press.

Christie, Donna R. and Richard G. Hildreth. 1999. *Coastal and Ocean
Management Law in a Nutshell,* 2^nd^ edition. St. Paul, MN: West
Publishing.

Jansuijwicz, Jessica Spelke. 1999. "Property Rights Organizations:
Backlash Against Regulation" in Rutherford H. Platt, ed. *Disasters and
Democracy: The Politics of Extreme Natural Events*. Washington, D.C.:
Island Press.

Fischel, William A. 1995. *Regulatory Takings: Law, Economics and
Politics*. Cambridge: Harvard University Press.

National Safety Council's Environmental Health Center. 2000. *Coastal
Challenges: A Guide to Coastal and Marine Issues*. Washington, D.C.:
Environmental Health Center.

Platt, Rutherford H. 1991. *Land Use Control: Geography, Law, and Public
Policy*. Englewood Cliffs, NJ: Prentice Hall.

Platt, Rutherford H. 1996. *Land Use and Society: Geography, Law and
Public Policy*. Washington, D.C: Island Press.

Platt, Rutherford H. and Alexandra D. Dawson. 1999. "The Takings Issue
and the Regulation of Hazardous Areas" in Rutherford H. Platt, ed.
*Disasters and Democracy: The Politics of Extreme Natural Events.*
Washington, D.C.: Island Press.

Platt, Rutherford H. 1998. "Planning and Land Use Adjustments in
Historical Perspective" in Raymond J. Burby, ed. *Cooperating with
Nature: Confronting Natural Hazards with Land Use Planning for
Sustainable Communities*. Washington, D.C.: Joseph Henry Press.

Schwab, Anna K. and David J. Brower. *An Introduction to Law for
Planners*. Chicago: Planners Press (in process).

Slade, David C., Ed. 1990. *Putting the Public Trust Doctrine to Work:
The Application of the Public Trust Doctrine to the Management of Lands,
Waters and Living Resources of the Coastal States*. Connecticut
Department of Environmental Protection, Coastal Resources Management
Division.

Wright, Robert R. and Morton Gitelman. 2000. *Land Use in a Nutshell*,
4^th^ edition. St. Paul, MN: West Publishing.