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<br />«vi)*.hl .♦" 'I'lu* f4»iirts also lcH*k unfavorably on zoning
<br />ivj-ulalions which css«'nlmUy pwvulc only uses of public
<br />benefit amf do not give the options of mtnotnic gains from
<br />private use.
<br />There is m* doubt that the wetlands ordinaucus are
<br />highly restrictive and may bo challenged on that ground.
<br />The «>no private economic use- - farming and grazing - may
<br />n<it Im* enough to satisfy a court that then* has not been a
<br />taking without just compensation. At present, however, it
<br />|iM)ks as though communities need additional support for
<br />their actions. They cannot rely simply on aesthetics: they
<br />must base their regulation on those functional qualities of
<br />niarshes which relate to public safety and the prevention
<br />of nuisance-like uses of land.
<br />Most of the communities with wetlands ordinances have
<br />not run into legal difnculty, in part because they ore
<br />building in as much flexibility as possible. Also, because
<br />many wetlands tend to be small areas strung out along
<br />stream courses or ;facial moraim the- restrictions have
<br />not prevented landowners from using their uplands.
<br />DEVELOPING AND STRENGTHENING LOCAL
<br />WETLAND PROGRAMS
<br />W'hile wetlands regulations surmount many of the
<br />difficulties associated with the sole reliance upon
<br />acquisition, there have been serious internal problems.
<br />The most important of these are: (1) the restrictive use
<br />li.st, (2) controlling development in areas adjacent to
<br />wetlands, and (3| controlling key natural processes in the
<br />attendant watershed. The resolution of the.se issues would
<br />go a long way to maintaining the quality of wetlands.
<br />Maintaining Use-List Flexibility
<br />Since a highly restrictive use list strikes at the legal
<br />force of the regulation, it is impoit'ant to instill some
<br />flexibility. Furthe»*. since some of the traditional “light"
<br />uses arc clearly detrimental to the wetland resource,
<br />flexibility is also advisable on environmental grounds.
<br />The key property of a more flexible use list would be Its
<br />emphasis on the performance of the use vis-a-vis the
<br />wetland resource. So long as the development proponent
<br />"»n show that the use will be compatible with the
<br />functions of the wetland, the use would be permitted. An
<br />example of this performance-oriented approach is taken
<br />from the Coon Rapids, Minnesota, Wetlands Conservancy
<br />Di.strict. In this district, a special-use category allows for
<br />development when it is “compatible and harmonious with
<br />the natural amenities of the Conservancy District”:
<br />"Special Uses. If through good rite and engineering
<br />designs a development can be created which is compatible
<br />and harmonious with the natural amenities of the
<br />Conservancy District area and with surrounding land
<br />uses, then a request for a Special-Use Permit for such
<br />development may be submitted. Such requests shall he
<br />accompanied by an overall plan of the entire site showing
<br />roads, parking areas, lot lines, easements, the location of
<br />tree cover, including the designation of individual trees of
<br />15 inches in diameter or more, the location of other natural
<br />and biological features such as wetlands and areas of valu
<br />able wildlife habitat, the location of propo.scd structures,
<br />existing contours and proposed grading, drainage,
<br />utililie.s, a< •! landscaping in such details as the City
<br />Planner and (*ily Engineer shall require hefu.*-e it may be
<br />reviewinl by ilu- Planning Commission. 'I ho approval of
<br />such request by the City Council shall require a finding
<br />that;
<br />(U The development will not chtrimenially affect or
<br />destroy natural features such as ponds, streams,
<br />wetlands, and fore.st«! areas, hut will preserve and
<br />incorporate .such features into the tlevelopnjcnt’s site
<br />design.
<br />(2) 'I'he location of natural features and the site's
<br />topography have been considered in the designing and
<br />siting of all physical improvement.
<br />(3) Adequate assurances have been received so that the
<br />clearing of the site of top soil, trees, and other natural
<br />features before the commencement of building operations
<br />will occur. Only those areas approved for the placement of
<br />physical imjirovuments may l)e cleared.
<br />(4) 'I’he development will not substantially reduce the
<br />natural retention storage capacity of any v/atercourse,
<br />thereby increasing the magnitude and volume of flwid at
<br />other locations.
<br />(5) 'I he soil and subsoil conditions are suitable for
<br />excavation and site preparation and the drainage is
<br />designed to prevent erosion and environmentally
<br />deleterious surface ru.noff.
<br />(61 The development will he free from offensive noise,
<br />vibration, smoke, dust, and other particulate matter,
<br />odorous matter, fumes, water pollution, and other
<br />objoctionahle influenco.s.
<br />(71 Th«‘ petitioner will be .substantially damaged by
<br />being rc(|uin'd to place the intended development outside
<br />the (conservancy) District."
<br />This .special-use statement reeognizc.s that there may be
<br />developments which fit with the natural environment and
<br />should not he e.xcluded. It cinphasi/es the reasonableness
<br />of the C4»mniunity to consider alternatives to the use
<br />categoriers they have specified and .sets mil some general
<br />guidelines for accepting or rej«*cting the prfiposal. This
<br />clearly provides the landowner a potential use of his land
<br />Den.sily transfers are another technique for providing
<br />flexibility in luml-u.se restrictions. They allow landowners
<br />to shift their development rights from one part of their
<br />land to another. Density transfers ore similar to
<br />development rights transfersc.xcept that they are not sold
<br />on an ojien inurket.. Tlwy Wfirk by a formula which relates
<br />developabh- land to wetlands. The Orono ordinance allows
<br />the <leveh)p«M to count an <*qn.*d portion of the wetlands as
<br />he has develi»pable land:
<br />When lav.d to he developed is connected to a public
<br />sanitary .sewer line and includes land within the Flood
<br />IMain and Wetland Conservation Area, the own«m or
<br />developer thereof will be credited with an amount of this
<br />land within the Mood Plain and Wetlands Conservation
<br />Area equal to hut not exci*eding the amount of his
<br />adjacent land which otherwise t|ualifies for develoj»ment
<br />under these ordinances for pu.'^iosos of complying with the
<br />land-use density, open-space, builcling-unit-to-Iaml area
<br />ratios, or other similar requirements (*f the larul
<br />development and zoninj' ordinances of the Village except
<br />for reijuirements for n-creational us"s."
<br />Palatine, Illinois, also uses this tcchniijuc* in its
<br />floodjiliiin ordinaiiee, b.'ised on a {^liding-scato foi'iuula; the
<br />47
<br />griMflT the perc
<br />the less the pen
<br />calculate deiisi
<br />remainder of ti
<br />provision which
<br />than r-ve acres t'
<br />to develop a unil
<br />integrated land
<br />this excerpt froi
<br />'Density Trat
<br />the floor area or
<br />(hereinafter refer
<br />with the followir
<br />(D Density tr
<br />land less than fiv
<br />two or more tra<
<br />such tracts consi
<br />for density trans
<br />(2) A plat
<br />application foi
<br />certification by
<br />State of Illinois
<br />which covers ti
<br />locat ion of the f
<br />map at a contou
<br />(3) The max
<br />transferred sha
<br />following table:
<br />Percentage of 'I*
<br />in Floodp
<br />Ixiss than 25%
<br />25% to 50%
<br />50% to 75%
<br />75% or more
<br />(4) 'I'he Presif
<br />such other rei
<br />restrictions upor
<br />the interests of
<br />comfort, and wel
<br />Similar techn
<br />wetlands to coui
<br />requirements in
<br />developments.
<br />The courts ha>
<br />which continue t<
<br />developed use. T
<br />and still conlinu
<br />assume that a lai
<br />have attempted
<br />developing specii
<br />difficult to do th
<br />against the unif
<br />provisions in mai
<br />land will decline
<br />ri'sfrict ive rc^^ula
<br />purchaser will he *
<br />pe-rinil or throt
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