APPENDIX 3.1: ISSUES SURROUNDING EXERCTSE OF REGULATORY 

 CONTROL 



Introduction 



In spite of the constraints imposed by the lack of comprehensive zoning enabling 

 legislation in Rhode Island, local zoning and land and water management controls are 

 critically important in preventing groundwater pollution, protecting estuarine water quality, 

 targeting growth toward resource areas capable of sustaining development, and preserving 

 the unique amenity qualities of the Bay watershed system. 



Numerous interviews conducted during the course of this research effort indicate that 

 there may be widespread misunderstanding, particularly at the local level, regarding the 

 legitimate exercise of government authority as that authority potentially affects land use. 



Rhode Islanders recenUy amended the State Constitution to require that the state's 

 "takings" clause be construed in a manner as favorable to the environment and to the police 

 powers of government as the U.S. Constitution permits. Nevertheless, a prevailing 

 atmosphere of extreme regulatory caution has manifested itself in reluctance to embark on 

 local regulatory efforts, in disinclination to deny or properly condition development 

 permits, and in delay of action on key legislative initiatives affecting local authority. 

 Apparendy, the myth that the "takings" clause allows landowners to do as they please with 

 their land or be compensated remains "more powerful than the clause itself (Bosselman et 

 al., 1973). 



Because much of the concern may be based upon concerns regarding recent judicial 

 decisions, it is important to clarify some of the key issues. The following sections outline 

 the factors which constrain and foster application of strong local controls, and suggest 

 ways in which local initiative is affected, both positively and negatively, by the larger 

 planning, regulatory, and judicial environment. Further, methods and strategies are 

 suggested by which governments can structure strong policy instruments so as to avoid 

 allegations of regulatory infringement, and can refute such charges if brought 



Fundamentally, positive actions need to be undertaken by state regulatory and planning 

 bodies to foster and support strong local water quality protection initiatives, given existing 

 concern regarding these issues. 



Powers Available to Local Communities 



Powers generally vested in a community which may be important in implementing non- 

 point source controls include: 



• Regulatory powers; widely used, consisting primarily of zoning, subdivision 

 regulations, building code provisions, and disclosure laws. 



• Taxing powers; providing for the use of strategies involving tax incentives and 

 disincentives and special resource area assessments 



• Spending powers; enabling towns to undertake expenditures for resource 

 evaluation, water supply protection, hazard mitigation, structural and non- structural 



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