Permit Coordination Study (Working Paper)

Author(s): Buchsbaum, Peter A., Daniel Mandelker and Arianne Michalek Aughey
Publication Date: January 2003

60 pages; Inventory ID WP03PB1; English


Permit Coordination Study	286 KB

Abstract

Note: This paper has been published in Urban Lawyer, volume 36 (Winter 2004).

This paper studies coordination of land use regulatory programs. It consists of an introduction and general observations, a review of current and recent literature, and two case analyses.

The introductory section describes the need for coordination of land use permitting programs in the more complex regulatory environment engendered by recently enhanced federal land use requirements affecting wetlands, endangered species, telecommunications, fair housing and historic preservation. These programs regulate specific environmental features and other activities nationwide. In contrast, local land use controls are broad in regulatory scope, but limited in geographic range. We then suggest that programs for coordinating disparate land use and environmental programs can be regarded as successful if they provide more regulatory certainty for landowners, a greater degree of environmental protection and increased public participation. We suggest that aside from habitat conservation plans there are rather few examples of such coordination now, and that there be a further analysis of the federal wetlands program, which has largely functioned independently of other land use regulations.

The Bibliography covers some 39 articles analyzing the effects of administration of separate land use programs. These articles suggest that the one primary focus of federal-state local permit coordination has occurred with habitat conservation plans developed pursuant to the federal Endangered Species Act. The merits of such plans are discussed at some length along with other approaches to land use regulation directed at ecosystems rather than at specific environmental features or particular jurisdictional limits.

The two case studies analyze state land use coordination programs in Long Branch, New Jersey and Cape Cod, Massachusetts.

The first case study, concerning Long Branch, New Jersey, describes a special state regulation adopted for the New Jersey Coastal Zone covering the Long Branch waterfront. In this regulation, the New Jersey coastal zone agency incorporated Long Branch’s municipal design standards in the New Jersey Coastal Zone rules and provided for a unified permit to be granted by the City. That case study describes how the permit has been working to provide greater regulatory certainty and environmental protection.

The second case analysis involves the Cape Cod Commission’s joint review program with the Massachusetts Environmental Protection Act process administered by the State Secretary of Environmental Affairs. After ten years, it appears that this process has enhanced public participation in environmental reviews. The Commission combines environmental impact and substantive review of the merits of projects when it conducts public hearings to determine the scope and contents of environmental impact reports. This joint process, in which both the environmental report and substantive aspects of the project are considered together by a single agency, has increased public input into the environmental analyses. Thus, as with Long Branch, this case study suggests that joint permitting procedures can improve land use processes.