WHY GOVERNMENT POLICIES ENCOURAGE URBAN..., 13-SPG Kan. J.L. &...
13-SPG Kan. J.L. & Pub. Pol’y 391
Kansas Journal of Law & Public Policy
WHY GOVERNMENT POLICIES ENCOURAGE URBAN SPRAWL AND THE ALTERNATIVES OFFERED BY NEW URBANISM
Copyright © 2004 by Kansas Journal of Law and Public Policy; Chad Lamer
This article is an examination of urban sprawl, and the political forces and policy decisions that led to its prevalence in most cities throughout the United States. The article argues that current zoning regulations contribute to urban sprawl by limiting the ability of developers to design communities that mix commercial, office, and residential land-uses. A central tenet of the article is that allowing developers to mix land-uses decreases urban sprawl by reducing the amount of roads necessary to connect separated land-uses and by increasing the overall density of neighborhoods.
The article defines zoning, examines the history behind its implementation, and discusses zoning’s success in protecting the health of citizens. The article then focuses on the unintentional consequences of adopting zoning policies that separate all land-uses, which is a primary cause of sprawl. Furthermore, the article discusses recent studies concerning the harmful effects associated with sprawl and offers the concept of “New Urbanism” as an alternative to the current method of development.
This article does not contend that mixed-use zoning (the idea that residential, commercial, office, and retail land-uses can be blended together) is appropriate in all areas of a city. Nor does it argue that local governments should mandate how every neighborhood within a community is designed. Instead, the article proposes that the consumer should have a choice between purchasing a home in a sprawling subdivision or purchasing a home in a mixed-use neighborhood. Currently purchasing a new home in a mixed-use neighborhood is often not an option for consumers because under most zoning ordinances mixed-use development requires a developer to obtain special permits from the city and in some instances mixed-use development is illegal under the zoning code. The argument presented in this article is that local governments should rewrite their zoning ordinances so that mixed-use neighborhoods are permitted to compete in a free market against single-use residential neighborhoods.
II. ZONING FOR SEPARATE LAND-USES
The following section provides a brief overview of zoning in the United States. It defines zoning and discusses how it functions in most cities. Additionally, it examines the history of zoning, its implementation in the United States and the early *392 case law that validated zoning as a form of land-use control. This section is intended to provide informational background on the current state of zoning in the United States.
Zoning is “a police power measure enacted by units of local government under permissive state legislation.”1 The term “police power” is used to describe a state’s power to enact laws that protect the health, safety, welfare and morals of its citizens.2 A local government is often described as a “creature of the state.”3 What this means for zoning purposes is that a local municipal government does not have the power to enact zoning laws unless the state has granted the local government such power.4 Under “Dillon’s Rule,” which outlines a state’s role in delegating authority to a local government, any actions taken by a municipal government:
(1) must be expressly authorized by the state legislature - it must be authorized in words in a state statute; or (2) it must be reasonably necessary to the achievement of an activity that is expressly authorized - it must be incidental to an express authorization; or (3) it must be essential to the declared objects and purposes of the municipality.5
In states that follow Dillon’s Rule, a local government will only have those powers specifically granted to it by the state.6
Not all states follow Dillon’s Rule.7 The majority of state constitutions provide for “municipal home rule” which allows local governments to enact ordinances “without [specific] statutory authority” from the state.8 There are usually some restrictions placed on the type of ordinances a local government may enact using home rule powers but generally as long as the state has not preempted the field of legislation, a local government may enact an ordinance of local concern without specific state authorization.9 Home rule power is advantageous to local governments making land-use decisions because they will not have to wait for specific state legislation before enacting land-use controls.10
Zoning operates by designating different types of allowable land-uses in specific districts of a city or county.11 The local government designates the permitted land-uses within a district before a development application is submitted to the local government for approval.12 Most zoning ordinances adopt three or four broad land-use categories.13 These categories include agricultural, commercial, industrial, and residential districts.14 Each of these categories can in turn be further divided with increasing restrictions on the type of development allowed.15 For example, a zone designated as residential could be further divided into single-family attached, single-family detached and multifamily zones.16 Within the single-family detached zone, only single-family detached homes would be permitted.17 Currently most cities in the United States handle land-use decisions through some type of zoning ordinance.
*393 A. History of Zoning
Zoning and the current separation of land-uses came about from a desire to improve the quality of life in Europe’s major cities.18 During the 19th century, city planners in Europe began to separate factories and industrial centers from residential development.19 London and Paris were two European cities that suffered from the ill effects of industry.20 The separation of residential uses from industrial land-uses proved very successful in improving the quality of life for urban residents and in increasing their life span.21
In 1916, New York City became the first city in the United States to adopt a comprehensive zoning plan.22 The plan was comprehensive in that it covered the entire city.23 The plan operated by dividing the city into “residence, business, and unrestricted use districts.”24 In addition to these districts, the plan created height and bulk restrictions on buildings.25 The New York City zoning ordinance of 1916 was implemented due to concerns over tenement houses and the possibility of fire spreading throughout closely situated buildings.26 Further, the lack of light and air in many of the tenement buildings was a major health concern for public officials.27 Zoning addressed these safety issues by mandating building height restrictions, window access, and setbacks for buildings.28 While zoning focused on health and safety issues, it also addressed the economic concerns of property owners.29 Merchants were concerned with the ability of customers to shop in a safe environment and zoning was looked upon as a means to achieve this goal.30
B. Other Reasons for the Implementation of Zoning
In the early 20th century, the “city beautiful” and the “garden city” movements helped give rise to the concept of zoning in America.31 The city beautiful movement gained momentum because of the Chicago World’s Fair of 1893 and the American public’s reaction to the Fair’s neo-classical “White City” exhibit.32 The city beautiful movement facilitated the adoption of zoning practices because it encouraged designers, planners, architects, and city officials to make their cities more aesthetically appealing.33
The garden city movement focused on separating neighborhoods from factories through the use of green belts, open spaces, and cul-de-sac street designs.34 The movement started in Europe in the late 19th century and came to the United States where leading planners of the time championed its objectives.35 These planners were able to build a few suburbs and towns that adopted the garden city principles.36 The most notable of these developments was Radburn, New Jersey.37 The essential point concerning the Garden City and City Beautiful movements is that they focused the *394 attention of powerful people on the problems associated with cities. In essence, this attention helped zoning become a reality in the United States.
Zoning in the United States did not really begin to develop until the early 1920s.38 In 1922, the U.S. Department of Commerce developed a model law by which states could empower local governments with the authority to zone.39 The U.S. Department of Commerce appointed an Advisory Committee on Zoning, which developed the Standard Zoning Enabling Act (“SZEA”).40 The SZEA was eventually adopted by all 50 states, although some states chose to modify the model law.41
The SZEA gave local governments the power to regulate “the density of the population, the location and use of buildings, structures, and land for trade, residence or other purposes.”42 The purpose of zoning is outlined in section 3 of the SZEA:
[S]ecure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation ... with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.43
In 1926, the Supreme Court upheld the constitutionality of zoning and the separation of land-uses in Village of Euclid v. Ambler Realty Co.44 The Village of Euclid, Ohio enacted a zoning ordinance that excluded apartments, hotels, and retail establishments from residential districts.45 Additionally, the ordinance put restrictions on the height and size of buildings.46 Under the Due Process Clause of the 14th Amendment, Amber Reality challenged the ordinance.47
Within the opinion, the Court examined a myriad of reasons why different land-uses should be separated from residential development.48 These reasons included preventing fires, promoting safety and security within the home, reducing traffic and establishing a safer environment to rear children.49 The Court in reviewing the ordinance used substantive due process analysis to determine its constitutionality.50 The Court concluded that as long as the zoning ordinance had a substantial relationship to the “health, safety, morals or general welfare” of the public then it would be construed as constitutional.51
Substantive due process analysis means that the court will look for a rational basis between the purpose of the ordinance and its provisions.52 The Court in Euclid was able to dismiss the case because the restrictions outlined in the ordinance were not “clearly arbitrary and unreasonable” and therefore the ordinance did not interfere with the Due Process Clause of the 14th Amendment.53
Euclid is important in any discussion of the history of zoning because it established the groundwork for current zoning law in the United States. After Euclid, *395 most zoning ordinances were presumed to be a valid exercise of a state’s police powers.54
Many communities adopted a zoning theory that established a hierarchy of land-uses.55 This type of zoning, called Euclidian, “pyramid” or “cumulative” zoning, placed residential land-uses at the top of the pyramid.56 The residential district was the most restrictive district and only residential land-uses were permitted within this zone.57 Single-family residential districts were placed at the top of the pyramid because they were thought of as the “highest and best use” of the property in the sense that they were less dense than other types of land-uses.58 Below single-family residential districts, the pyramid placed other residential districts that provided for the establishment of duplexes, town homes, and multi-family dwellings.59 Below these residential districts, the pyramid placed commercial and industrial uses with commercial ranking above industrial type uses.60
In communities that adopted cumulative zoning, land-uses placed at the top of the pyramid were permitted as of right in any zone with a lower rank.61 However, land-uses that were lower on the pyramid could not occupy a higher zone. For instance, residential uses were allowed in commercial zones and commercial uses were allowed in industrial zones but a commercial use could not occupy a residential zone nor could an industrial use occupy a commercial zone.62
Today most cities do not have truly cumulative zoning ordinances.63 Many cities’ zoning ordinances are exclusive in that they only allow for specifically permitted types of land-use within a given zone.64 Most communities that still use cumulative zoning only apply it within single zones.65 In these communities, residential uses are not permitted in commercial or industrial zones as of right but there is still a hierarchy of uses.66 For example, in a residential zone, single-family residential dwellings are ranked higher than multi-family dwellings.67 Because single-family dwellings enjoy a higher ranking, they can be sited anywhere a multi-family dwelling is permitted.68 Conversely, multi-family dwellings are only permitted in areas specifically zoned for multi-family development.69
Exclusive zoning by district and cumulative zoning within an individual zone only serve to increase the separation of land-uses within the city. Because these zoning policies increase distances between different land-uses, they require the use of an automobile for nearly every trip taken.70 What started out as a noble intention to protect the health of citizens and improve the quality of life in the urban environment may have done just the opposite by fostering the sprawling pattern of today’s cities.71
*396 III. WHAT IS SPRAWL?
Sprawl can be defined as “the process in which the spread of development across the landscape far outpaces population growth.”72 It is found in most American cities in the “form of low density, single use development, married with strip and auto-orientated commercial land-uses, at the very edges or beyond the fringes of existing urbanization.”73 There are many definitions of sprawl but most include words such as leapfrog development, low-density, strip-development, and separated land-uses.74 Sprawl occurs on the fringes of our cities and is the generic land-use pattern we have come to associate with the suburbs. However, sprawl is not just the suburbs. It is the result of planners, developers, and policy makers deciding to locate all facets of our daily lives in different locations within the city.75
Sprawl consists of five different components that can be found in most North America cities.76 The first element of sprawl is often referred to as “cluster” or “pod” development.77
This first element of sprawl can aptly be described as “res-identical” development. Res-identical development consists of single-family residential homes that all look the same and can be found in any city in the United States. These are subdivisions where the same street can run North, South, East, and West.78 Typical res-identical development is separated from all other land-uses.79 Within this component of sprawl, the use of an automobile is almost a necessity because daily needs are outside of walking or biking distance.80 Additionally, these developments have low population densities with average housing units at five or less per acre.81 The low population density makes the neighborhoods very difficult to serve with public transportation.82 Public transportation is not a viable option in these neighborhoods because a transit system generally needs a fixed number of riders to make timely service economically feasible.83
Malls, strip commercial developments, and convenience stores provide the second component of sprawl.84 These are shopping destinations where the consumer will likely need an automobile.85 Seas of parking surround these institutions, and they are bordered by major arterial roads, all of which make walking difficult and dangerous.86
Office parks and scattered civic institutions are the third and fourth elements of sprawl.87 Like the shopping center component, these land-uses are generally only accessible with an automobile.88 These institutions by themselves are not responsible for sprawl. Instead, it is the way these institutions are placed within the urban landscape that facilitates sprawling development.89 At one time, all these institutions were located in a city’s downtown but they have moved out to the suburbs and consequently are separated from where people live.90
*397 “The fifth component of sprawl” is roadways.91 Because all the other elements of sprawl are separated by Euclidian zoning techniques, an extensive system of roadways is necessary to connect the separate land-uses.92 However, because the roadways are not connected in a grid or modified grid system, traffic from residential neighborhoods must funnel out onto collector roads.93 These single collector roads then feed into arterials and highways.94 What this means is that generally there is only one road feeding an entire subdivision which makes the whole system susceptible to traffic congestion.95 Additionally, because busy arterials separate each component of the city, it is dangerous for people to walk or bike anywhere outside of their subdivision.96 Crossing an arterial as a pedestrian or cyclist to go to work, school, or the grocery store is a dangerous activity that most people living in sprawl wish to avoid.97 The result is that people opt to drive everywhere instead of walking or cycling, which causes a steady increase in traffic on the arterial streets.98
IV. ECONOMIC AND LEGISLATIVE FORCES THAT CONTRIBUTE TO SPRAWL
Planners, politicians, developers, lending institutions, and the federal government may not have intentionally set out to design the current system that facilitates sprawl. Yet, through a combination of judicial decisions, local and federal governmental policies, new developments in building technology, and the practices of lending institutions, this country has created a system that encourages sprawling growth.99
Two of the main legislative forces that contributed to the growth of sprawl after World War II were the loans provided by the Federal Housing Administration (FHA) and the Veterans Administration (VA).100 These programs helped post-World War II Americans purchase an estimated 11 million new homes, most of which were single-family detached dwellings.101 The new loan programs actually made it less expensive for families to own their own home than to rent.102
One of the ways the FHA loan program contributed to sprawl is that it was less expensive to borrow money to purchase a single-family home than to borrow money to purchase a home in a multi-family housing development.103 Additionally, the FHA loans for the repair of older homes were smaller than those available for the purchase of new homes.104 Therefore, families opted to leave their older homes within the central city and move to new homes in the suburbs.105 They bought new homes instead of repairing older ones and opted for single-family dwellings instead of multifamily dwellings.106
After World War II, Alfred and William Levitt helped Americans move to the suburbs by developing a revolutionary new method of constructing houses.107 The Levitt brothers modernized housing construction by applying assembly line techniques to the construction of entire subdivisions.108 Called Levittowns,109 the first of such *398 developments was constructed in 1947 and consisted of basically three different styles of homes whose construction style was repeated throughout the subdivision.110 Using economies of scale Levittowns addressed a housing shortage in the post-World War II years and provided the returning GIs with an affordable house that could be expanded as their families grew.111 Levittown proved to be an economic success that was emulated across the United States in the design of subdivisions.112 Unfortunately, such a model was perfect in facilitating the growth of sprawl because it provided the construction of large single-use districts that were separate from all other land-uses.
The new suburbanites needed a method of commuting to their jobs within the inner city. The Interstate Highway Act of 1956 added an additional 41,000 miles to our highway systems.113 Before the creation of these new highways, most suburbs were fairly close to the central city.114 These new highways helped further sprawl by providing an easy commute into the city for the residents of the suburbs.115 The highways fostered the development of industries and services outward along the newly created roadways.116 The creation of highways not only took citizens out of the central city but also led to office parks, shopping centers, and even industry leaving the city in favor of the suburbs.117 With the creation of new highways, citizens could buy a home outside of the central city and easily commute either back into the city for work or to a suburban office park.118
Other policies that currently contribute to sprawl include tax policies that favor home ownership and infrastructure grants by the United States Department of Housing and Urban Development (HUD).119 On a Federal level, tax policies allow home loan mortgage “points” and home loan interest to count towards a deduction from a person’s total taxable income.120 Additionally, current tax policy allows homeowners to shelter any profits they make off the sale of their home as long as they use those profits to buy a more expensive home.121 These policies encourage individuals to sell their homes and move further out into the suburbs.122
The reason people move further out into the suburbs is that newer and better housing is usually created on the fringes of cities.123 In the minds of many people, the fringe has better housing opportunities because of the larger lot sizes and the semi-rural landscape.124 Unfortunately, the semi-rural landscape that attracts residents to the rural fringe only lasts until suburbia encroaches and then the whole cycle repeats itself. It is in this manner that housing preferences and federal tax policies drive sprawl.
The Department of Housing and Urban Development typically provides grants to cities to extend sewer and waterlines into the fringe areas of suburbia.125 Once the water, sewage, and utility lines are established outside of the city, housing and other developments follow.126 The HUD grants act as a subsidy for the construction of new housing developments that in turn contribute to sprawl.127