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Ifregulatifins gt nerally
<br />jse lists, limited to
<br />niizt* the ini[>act of
<br />i |2| restrictions on
<br />in their intensity. In
<br />ely prohibited. For
<br />)rdinance. says “No
<br />ion, or construction
<br />Main and Wetlands
<br />utling, adjoining, or
<br />upon those adjacent
<br />ies c.\prcssed in this
<br />osc wetlands in their
<br />ordinances use a per*
<br />'at ion ordinances. In
<br />ce, it is unlawful to
<br />written permit.*’ The
<br />information on the
<br />>l>erations, the exact
<br />me. Tlien, through a
<br />ie Itorough Council,
<br />loard, and the Con-
<br />iKidc.
<br />specific about other
<br />lie Oronu statement,
<br />tijoining lands that
<br />area. Mo.st include
<br />•If.
<br />s of most wetlands
<br />rictly focu.sed on the
<br />finilion in the Coon
<br />rates this point:
<br />ea are intended to
<br />», or other wetland
<br />laik delineating the
<br />maintained for a
<br />•videnre up<»n the
<br />it point where the
<br />linaiitly aquatic to
<br />me»;s, such as that
<br />Act, identify the
<br />1 the confusion of
<br />bat is not, but in
<br />ndes the wetl.nnds
<br />an.
<br />districts prt*scnt a
<br />nces. As noted in
<br />e.s of wefland.s are
<br />e depeiuling on
<br />disturb.mces. The
<br />ale and satellite
<br />al wet lands), but
<br />JW-altitucle aeri.il
<br />rjetht>d, ho'A'eve.',
<br />Dane County,
<br />*1, have* to
<br />\i\Av infonnotion
<br />.1
<br />\
<br />* f
<br />,
<br />I:
<br />In lh*u of this promhire, ronmiunit ies have taken one of
<br />, Iwt* lactic.s. 'I’hey haveeilher placetl the wetland ordinance
<br />outside the usual zoning ordinance and left it unmapped,
<br />or they have set up tentative mapping procedures with
<br />mechanisms for adjustment. The Open Space institute’s
<br />model ordinance takes the first method. In this case, the
<br />community relies on the definition section of the ordinance
<br />to establish what is controlled and what is not. 'Fhe model
<br />ordinance develops both a scientific de.scription and a legal
<br />definition of marshes based on watertabic or flooding and
<br />definitive plant species. However, most coininunitics rely
<br />on more.vague definitions, such as this from North Castle,
<br />New York: “Wetlands: Thoje geographical areas covered
<br />with shallow and sometimes tcmporaiy or intermittent
<br />waters (commonly referred to as marshes, swamps, and
<br />bogs). ’ There may be serious administrative problems
<br />with these more general definitions.
<br />Because of the difficulty and ambiguity in the definition
<br />of wetlands, most communities have adopted mapping
<br />procedures instead. In this case, the wetland ordinance
<br />has been placed in their zoning ordinances as a mapped
<br />district. Until they have the time and money for a more
<br />extensive field inventory, Orono, Minne.sota, has used the
<br />uses maps. The maps are reviewed by field investigation
<br />on a ca.se-by-case basis when the boundaries are questiomil
<br />by a landowner. Farmington, Connecticut, has a similar
<br />procedure using the National Cooperative Soils Survey;
<br />“'fo prove himself exempt from these regulations the
<br />applicant must present documentation by a soil scientist
<br />that the land in question, or a portion of it, does not have a
<br />soil type classified by the National Cooperative Soils
<br />Survey as poorly drained, very poorly drained, alluvial, nr
<br />floodplain.” This mapping procedure was recommended
<br />by the Connecticut Inland Wetlands Project.
<br />Defining Use Lists for Wetlands
<br />Besides the problem of defining wetlands and the
<br />associated problems of the scale of regulation, the
<br />wetlands ordinances have other proldems as yet
<br />unresolved. The most serious is designing the permitted
<br />acts which allow a landholder to obtain just return of his
<br />investment. The model wetlands ordinance design for the
<br />Open Space Institute lists the typical permitted acts:
<br />1. Conservation of soil, vegetation, water, fish,
<br />shellfish, and wildlife.
<br />2. Outdoor recreation, including play and sporting
<br />areas, field trials, nature study, hiking, horseback riding,
<br />swimming, skin diving, camping, boating, waterskiing,
<br />trapping, hunting, fishing, and shellfishing whetre
<br />otherwise legally permitted.
<br />3. Operation of dams and other water-control duvice.s,
<br />including temporary alteration or diversitm of water levels
<br />or circulation for emergency, maintenance, or aqnaniliure
<br />purposes.
<br />4. Grazing, farming, nurseries, gardening, and
<br />harvesting of crops.
<br />5. Boat anchorage or mooring.
<br />6. Uses accessory to residential or other permitted
<br />primary use.s of adjoining lands or waters provided they
<br />are consistent with the intent and objtx'tives of this law.
<br />Other ordinances include additional uses. The Lincoln,
<br />Massachusetts, Wetland District jdso permits “dams,
<br />4ti
<br />excavations. changes in water courses to creute ponds
<br />for swimming, fishing, or other recreational or other
<br />agricultural use, scenic feature.s. or for d.^^ainage
<br />improvements. ” Presumably this would allow for nioro
<br />c(»mmercinl recreational development in the district, thus
<br />yielding a greati r return on the land.
<br />'riiediffieiilty with u.se lists is that those uses whit .h are
<br />designed for allowing return on the land, such a farming or
<br />uiiificial iinpoundmonl of waters, may cause severe
<br />damage to wetland functions. It is easy to imagine that a
<br />house resting on stilts above the wetland edge will have
<br />less effect tin the wetlands than a herd of cows or a sod
<br />farm. Because peat oxidizes at a slow rate, any
<br />ngricultural production will have to reply on the heavy use
<br />of fertilizers, and grazing animals will trample and destroy
<br />the vegetation during periods of low water. Consequently,
<br />the.se traditional light uses may be more damaging than
<br />some higher-intensity land uses.
<br />Such conflicts are hard to restore. With the present
<br />methods of land-use regulation it is impossible to allow
<br />residential or other developments as permitted uses in
<br />the.se area.s berau.se traditional construction techniques
<br />make them incompatible. On the other hand, it is uncieiir
<br />if the courts will permit the .severe restrictions that must
<br />be iinpo.sed. As the authors of The Tahinfi Issue note, the
<br />legal iMisition of the regulation for the proti-ction of
<br />wetlands and estuarine areas in ch.anging." In 1%3, the
<br />New Jersey Supreme Court rejected an ordinance which
<br />created a Meadows Development Zone.*’ 'I’lie ngulalion
<br />allowed a variety of ugricullurul uses, limited recreation
<br />uses, public utility transmission lines, and sewage and
<br />water facilities. It also allowed olliCT uses Ihro'jgh a
<br />special permit .sy.stem. 'I’he Massachu.setts 5 upreme
<br />Judici.’il (’oiui reached a similar conclusiuii in MccGiibon
<br />a. Hviml of Appeals of Duxbury: “The preservation of
<br />privately owned land in its natural, unspoiled state for the
<br />enjoyment and benefit of the. public by preventing the
<br />owner from using it for any practical purpose is not withiii
<br />the scope j.iul limits of any power or authority delegated to
<br />nmnicifialities under the Zoning Enabling Act.’’**
<br />The Massachusetts court, however, liminished tliis
<br />decision a year later in Golden v. Hoard of Selectmen of
<br />Falrnnuth when it found that “protecting the town ’s
<br />natural resourees along its coa.stui arear.” through a permit
<br />system was ;i legitimate exercise of local zoning powers.
<br />Only when permit denial was “based on a leg.'illy
<br />untenable ground, or (wasj unreasonable, whimsical,
<br />capricious, or arbitrary,” would there be grounds for court
<br />iiitervent ion.
<br />'I'he change in the Courts' handling of these wetland
<br />cases had continued with an appell iie court of California
<br />sustaining an order of the San Francisco Bay
<br />Conservation and Development ('onimission prohibiting
<br />filling of the Bay; nml the Wisconsin .Supreme Court
<br />decision in Just v. Marinette County*^ gave apjiroval to
<br />shoreline regulation, including wetlands protection which
<br />was lieyniul the “single objettive ” regulations of flood
<br />ha/anis. In liis article on open-sji.ice zoiiiug, ,Ion Kusler
<br />points out. however, that the eoiirls lradilior.;inv hive
<br />given great weight to regulation.- de.signei! to prousrt
<br />public s;ifety or prevent nuisances, while iiesth-.-tic,
<br />wildlife, iiiul recreation Viilues li:ive bet:n g:\e:i less
<br />4 . m
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