HOME HELP FEEDBACK SUBSCRIPTIONS ARCHIVE SEARCH TABLE OF CONTENTS		QUICK SEARCH:   [advanced] Author: Keyword(s): Year:  Vol:  Page:

This Article Abstract Full Text (PDF) An erratum has been published Submit a response Purchase Article View Shopping Cart Alert me when this article is cited Alert me when eLetters are posted Alert me if a correction is posted Services Similar articles in this journal Similar articles in ISI Web of Science Similar articles in PubMed Alert me to new issues of the journal Download to citation manager Citing Articles Citing Articles via HighWire Citing Articles via ISI Web of Science (7) Citing Articles via Google Scholar Google Scholar Articles by Buzbee, W. W. Search for Related Content PubMed PubMed Citation Articles by Buzbee, W. W. Related Collections Exercise/Physical Activity Other Environment Health Law Health Policy Government Urban Health

William W. Buzbee, JD

Correspondence: Requests for reprints should be sent to William W. Buzbee, JD, Emory Law School, Atlanta, GA 30322 (e-mail: wbuzbee{at}law.emory.edu).

	ABSTRACT

TOP ABSTRACT INTRODUCTION URBAN FORM AND COMPLEX... THE LAW’S CONTRIBUTION TO... THE LAW’S PROMISE IN... CONCLUSION References

 

Urban form, the law, and health are undoubtedly linked. However, nonlegal factors such as 20th-century reliance on the automobile as well as associated governmental actions and private investment choices have greatly influenced urban form, especially urban sprawl.

The American system of federalism, with its traditional allocation of land-use legal authority to local governments, and resulting fragmented legal authority over causes and effects of urban sprawl, renders difficult legal efforts to reshape urban form. Legal frameworks and the dynamics and effects of urban sprawl are largely mismatched.

Still, existing legal frameworks and modest legal reforms provide means to encourage or at least allow urban forms that are more conducive to health. However, the law will not easily transform urban form and deter urban sprawl.

	INTRODUCTION

TOP ABSTRACT INTRODUCTION URBAN FORM AND COMPLEX... THE LAW’S CONTRIBUTION TO... THE LAW’S PROMISE IN... CONCLUSION References

 
IF A PUBLIC HEALTH EXPERT could design America’s urban areas, several attractive features would be found. Residences would be within walking or bicycling distance of mass transit options, retail stores, and amenities such as restaurants. Rather than a denuded landscape, trees and green spaces would be preserved. In this idyllic setting, sidewalks would provide safety and encourage walking and associated physical fitness. Workplaces and homes would be in closer proximity, thereby reducing stress, traffic jams, and air pollution linked to long singleoccupant automobile commutes. In short, the public health ideal city might look like a cross of Park Slope, Brooklyn, and London, albeit with cleaner air.

Anyone even casually examining urban form in America today, particularly in metropolitan areas that have exploded in size and population during the 20th century, finds a far less appealing picture, as Duany et al. have discussed.¹ Shopping centers have replaced villages within short distances of homes. Sidewalks are often utterly lacking. Sprawling subdivision construction frequently starts with clearing of the land before isolated residential areas replace either agricultural lands or less dense forms of suburbia. Serpentine suburban roads end in cul-de-sacs and often provide no safe access to commercial areas except by automobile on multiple-lane, pedestrian-hostile roads. Previously vital urban centers are often depleted of stable residents and businesses as malls, distant suburban housing, and sometimes better government services beckon and are made readily accessible with yet more highway construction. Abandoned, decaying, and often contaminated industrial sites referred to as brownfields often sit empty and deter urban reinvestment.² Mass transit investments lag and seldom provide a practical alternative to automobile use. The ideal and the real stand in marked contrast, especially from a public health viewpoint.

This article explores the law’s role in shaping urban form, particularly pervasive sprawling patterns of development, and illuminates legal links between the law, urban form, and health. Our legal system and current array of laws surely influence urban form. However, the law is far from the most significant contributor to contemporary urban shape and, concomitantly, will not offer a miraculous cure. To discern law’s responsibility and promise for urban form in America requires attention to the dynamics shaping urban areas.^3–6 Much as treating an illness requires understanding of underlying causes, no regulatory intervention will succeed without tailoring of remedial legal steps to the causative factors. The combination of market choices, technological change, and historical allocations of regulatory authority under the US federalist system make the ills associated with urban sprawl difficult to prevent or remedy. Nevertheless, legal improvements, reform, and more effective use of current legal structures could alleviate some of urban sprawl’s ills, even if larger urban sprawl trends remain difficult to combat.

	URBAN FORM AND COMPLEX CONTRIBUTING DYNAMICS

TOP ABSTRACT INTRODUCTION URBAN FORM AND COMPLEX... THE LAW’S CONTRIBUTION TO... THE LAW’S PROMISE IN... CONCLUSION References

 
Before delving into the US legal system’s influence on urban form, one should first acknowledge contributors to urban form not directly attributable to legal frameworks. Most significant is increased reliance on the automobile. Cities that experienced their metropolitan boom during the 19th century or earlier tend to offer significant mass transit, particularly rail, as well as urban parks and designs accommodating pedestrian traffic.⁷ In the era before automobiles, parks were necessary to provide residents access to green space and trains were the primary means to provide access to and from more distant metropolitan areas. Not surprisingly, the cities viewed as most functional by new urbanists, and perhaps a public health ideal, tend to be pre-20thcentury cities. Similarly, the European cities lauded by new urbanist advocates, such as James Howard Kunstler, developed much of their densely intertwined and vibrant urban fabric long before automobiles offered easy access to dispersed urban regions.⁸

In contrast, when one looks at the metropolitan areas that boomed during the latter half of the 20th century to the present, one finds radically different urban shapes and relatively paltry investments in parks, rail transit, and pedestrian-friendly design. Instead, highway construction became the norm, and individual reliance on the automobile replaced widespread rail investment and usage.⁹ Many of urban sprawl’s most pernicious attributes from a public health perspective—fragmented and widely dispersed neighborhoods; minimal planning to accommodate or encourage walking, bicycling, and mass transit; chronic air pollution; and great distances between work, retail centers, and homes—flow from an automobile-dependent culture.

However, Americans have not been dragged kicking and screaming to their suburban homes. Americans’ love affair with single-family suburban homes, although criticized by many for their insularity and side effects, should not be underestimated in assessing the dynamics contributing to sprawling urban forms. Citizens continue to acquire new homes in yet-moredistant suburban enclaves, often for less money than in urban centers. Small parks and recreational areas are sometimes found in these more suburban metropolitan areas, but often not within bicycling or walking distance of residential areas. The urban exodus is at least partly attributable to racial tensions and deteriorating urban centers. Market incentives remain strong for developers to develop distant areas. Furthermore, once cities develop dispersed residential patterns and are reliant on huge retail stores and malls, they are difficult to reshape after the fact. These private market choices to rely on the automobile and single-family homes have led some critics of anti-sprawl policies to decry any legal policy shift from the status quo as akin to un-American central planning and a threat to freedom.¹⁰

	THE LAW’S CONTRIBUTION TO URBAN FORM DYSFUNCTION

TOP ABSTRACT INTRODUCTION URBAN FORM AND COMPLEX... THE LAW’S CONTRIBUTION TO... THE LAW’S PROMISE IN... CONCLUSION References

 
Although I acknowledge the important linkages of individual choice, the automobile and the flight to suburbia should not obscure the many ways in which the US legal system has shaped and facilitated these trends.

US Federalism
The US federalist system of governance renders difficult any efforts to combat sprawl’s harms. By federalist system, I refer to the division of regulatory authority among local, state, and federal levels of government, with a federal government of limited power. Sprawl’s dynamics and effects and historical allocations of legal authority are mismatched. The lack of a matching level of government creates predictable political–economic hurdles for citizens and public health and environmental advocates seeking to reshape urban form. Not only must laws and regulations change, but new forms of governance also may need to be created.

For instance, sprawl and its underlying dynamics tend be regional or broader in cause and effect. Federal and state agencies underwrite most highway construction but have a limited programmatic charge, generally overseeing highway construction but dealing little with associated harms and ripple effects of projects facilitating yet more sprawl. Indeed, such agencies frequently are a source of patronage projects that are undertaken with little evidence of public benefit. New highway construction does, however, create substantial immediate benefits for agency clout and budgets, for businesses linked to such infrastructure projects, and for adjacent real estate owners who suddenly hold land of great value. Government officials seldom have incentives to oppose highway construction. Furthermore, federal mortgage deductions and mortgage qualification policies for many years created a federally financed incentive for the acquisition of single-family homes. Many urban dwellers, especially renters in apartment settings, benefited from no similar federal financial inducements.

Historically, land-use planning and governance has been a local governmental duty, under broad state law authorizations. Even if a local government concluded that a metropolitan area’s dysfunctions were attributable to its dispersed forms, that local government would have limited capacity to derive a legal remedy. Central city officials seek private, federal, or state investment in the urban core. They hope to deter the suffering that follows business and residential shifts to distant localities happy to attract new investment. However, lacking power over other local governments seeking new investment, central-city constituencies, environmentalists, and health advocates lack a political venue in which to focus their efforts. Intergovernmental competition for business and new development thus continues, creating yet more population dispersion, air pollution, and traffic. Local governments can, and occasionally do, cooperate on regional issues, but ongoing institutions to implement those cooperative goals remain scarce.¹¹

Local Governmental Planning Traditions and New Urbanist Barriers
Many of the dysfunctional urban microenvironment attributes—lack of sidewalks, dead-end neighborhoods, and great distances between residences and recreational and commercial amenities—result not from the US federalist form of government but from lack of local political will and land use traditions of separating different land uses. Early "Euclidean" zoning had its roots in efforts to separate noxious land uses and residences, thereby protecting citizens from health and property devaluation threats posed by potentially adjacent factories and commerce.^12,13 Overly rigid adherence to these zoning separations by use, however, can preclude mixed-use neighborhoods that would foster more health-conducive modes of development and transportation. Abandoning such protections and separations is politically difficult once an area has been developed. Suburban home residents have a strong property value stake in fighting new nearby adjacent commercial and transportation uses. Furthermore, once real estate investments have been made, substantial governmental changes in permitted land uses can give rise to constitutional "takings" claims seeking governmental compensation.^14,15

Still, in most newly developing neighborhoods, little other than tradition requires rigid use separations.¹⁶ Even where Euclidean separations by use remain the norm, land use law is changeable, offering numerous means to escape initially applicable constraints. In addition, local governments retain power to require developers to preserve green space and tree cover and provide sidewalks. In most jurisdictions, newly developed areas can allow or even mandate new urbanist land-use forms. Lack of political will to insist on them and interest group pressure against them typically explain the lack of such amenities. It remains an open question if, when given a choice, home purchasers and developers of commercial and residential areas will choose to invest in mixed-use forms over yet more single-family automobile-dependent homes.

	THE LAW’S PROMISE IN ALLEVIATING URBAN FORM HEALTH ILLS

TOP ABSTRACT INTRODUCTION URBAN FORM AND COMPLEX... THE LAW’S CONTRIBUTION TO... THE LAW’S PROMISE IN... CONCLUSION References

 
In addition to local and state land use traditions and opportunities discussed earlier, current laws provide several additional levers for improving urban form. Additional innovative legal reforms could further discourage sprawl or alleviate associated harms.

Current Laws and Improved Urban Form
Probably the foremost federal law creating disincentives for unbridled sprawl is the federal Clean Air Act.¹⁷ The Clean Air Act requires federal setting of National Ambient Air Quality Standards to protect public health "with an adequate margin of safety" for pervasive pollutants such as ground-level ozone, particulates, and carbon monoxide. This law creates incentives for urban designs that are less automobile-dependent by obligating state and local governments to derive State Implementation Plans to attain the National Ambient Air Quality Standards.¹⁸ For the many nonattainment areas for ozone, for example, strategies to reduce single-passenger automobile use, traffic congestion, and multiple short trips a day would reduce automobiles’ substantial contribution to ozone pollution. Local measures to encourage such behavioral changes, if able to create quantifiable air quality improvements, could avoid the imposition of more costly pollution control methods. The main statutory hammer—cutoffs of federal highway funds for areas failing to address their nonattainment problems—directly links one of the chief contributors to sprawl to clean air woes.

Most major federal or state infrastructure projects, such as new highway construction, will potentially require analysis of environmental impacts under the National Environmental Policy Act¹⁹ or analogous state and local laws. As public health experts create a body of data linking health harms to urban sprawl, pedestrian-unfriendly design, destruction of green spaces, and lack of sidewalks, such information can be plowed into the environmental impact statement analysis process. This information, combined with analysis of other effects on the human environment, might lead more informed government officials to embrace less harmful alternatives and mitigation measures. The National Environmental Policy Act does not mandate the adoption of mitigation measures or least harmful alternatives. However, some state and local analogues do mandate the implementation of measures to reduce environmental harms.

Relatedly, recent changes in federal transportation funding evident in the Transportation Equity Act-21 law and its predecessors now allow more flexible uses of dollars previously dedicated to highway building.²⁰ Because of newly required more open local and state political planning processes, federal monetary incentives for alternative transportation modes are available. Linked provisions in transportation laws and the Clean Air Act create enhanced incentives for local governments to come up with measures to reduce automobile pollution.²¹ Longexisting provisions in federal transportation laws prohibit the release of federal money for projects that would destroy green spaces such as parks where a "feasible and prudent alternative" exists.

An executive order signed by President Clinton requires federal agencies to avoid taking actions that would exacerbate environmental discomforts disproportionately borne by poor and minority communities.²² Although the order is not judicially enforceable, advocates can use it to prod reluctant federal agencies to consider broader repercussions of actions such as funding or approving transportation projects that might exacerbate injustice by harming urban centers and contributing to sprawl.

Legal Reforms
Arrayed against the powerful forces that have created the contemporary sprawlscape, current legal frameworks offer reason only for moderate optimism. A number of reform measures, some under way and some only occasionally found, could further encourage urban forms more conducive to health. As discussed earlier, modifying state and local laws to permit mixed-use development is an essential first step all jurisdictions should consider. Other ideas follow.

State creation of regional governing entities that could oversee transportation and infrastructure projects with a regional impact are a necessary step that several states have adopted to deal with transportation and dispersed growth dysfunctions. These entities are often created as "public authorities" with minimal democratic accountability but can offer a governing apparatus that better matches and addresses the dynamics and harms associated with sprawl.²³

The Portland, Ore, metropolitan area, for example, has created a regional governance entity to oversee growth boundary constraints designed to reduce urban dispersion.²⁴ Growth constraints, however, pose a risk of distributional harms if without compensation they abruptly deny some landowners the ability to sell or develop their land consistent with area trends. Furthermore, such constraints pose a risk of serving as cover for exclusionary practices that may price poorer residents out of a region. The creation of authorities to assess and avoid exacerbating sprawl harms remains an important reform, but these blunter growth constraints can engender fierce opposition if not tailored to avoid harsh or exclusionary results.

Federal transportation dollars have slowly shifted from a highway-funding obsession to allowing increased use of federal dollars for nonhighway transportation enhancements. Even more targeted conditional spending incentives for green-space preservation, the provision of greenways or rail-to-trail paths, or the provision of viable mass transit alternatives could alleviate the tendency to build more highways. Greater monetary incentives for the creation of nodal developments built close to mass transit facilities might also shift incentives in a publicly beneficial manner. The imposition of commuting taxes either as part of mass transit fares to and from central urban areas, or through modern automobile tollbooth scanning technology, could also discourage distant commuters and force them to perceive some of the costs of sprawl. Such measures could also backfire, however, if they created even more incentives for suburban business parks and abandonment of urban centers.

Federal hazardous waste law recently was amended to reduce liability fears associated with new investments in brownfields sites, but federal subsidies to encourage brownfields reinvestment remain paltry.²⁵ Given the beneficial ripple effect of brownfields revitalization, greater subsidization, coupled with private sector matches to ensure that a project is actually prudent, would be a valuable further legal innovation.

Although taxes to discourage environmentally harmful measures are many economists’ favorite strategy, they are among the least utilized of regulatory strategies in environmental law.²² Still, local governments seeking to deter land clearing before subdivision development should consider land use law reforms that would impose a tax on the destruction of significant trees and require compensatory planting. In most jurisdictions, tree cuts associated with development are subject to few regulatory constraints.

	CONCLUSION

TOP ABSTRACT INTRODUCTION URBAN FORM AND COMPLEX... THE LAW’S CONTRIBUTION TO... THE LAW’S PROMISE IN... CONCLUSION References

 
Because of our fragmented federalism and associated layers of law, legal reform is unlikely to cause a radical change in urban forms that lead to health harms. The law can, however, change incentives and deter egregious and often unnecessarily harmful practices. As environmental activists and champions of city life have found before, public health advocates must acknowledge that regional growth trends and market choices are influenced but not controlled by legal frameworks. New urbanism advocates have sought to explain the benefits of urban environments that encourage walking and mixed uses in close proximity. Health advocates illuminating the urban form–health linkages can perhaps similarly influence lawmakers and citizens to think twice before supporting yet more highway building or distant subdivisions. Such legal and political battles, however, will need to be pursued at the local, regional, state, and federal levels of government.

	Footnotes

 
Peer Reviewed

Accepted for publication April 3, 2003.

	References

TOP ABSTRACT INTRODUCTION URBAN FORM AND COMPLEX... THE LAW’S CONTRIBUTION TO... THE LAW’S PROMISE IN... CONCLUSION References

 
1. Duany A, Plater-Zyberk E, Speck J. Suburban Nation: The Rise of Sprawl and the Decline of the American Dream. New York: North Point Press; 2000.

2. Michael Gerrard, ed. Brownfields Law & Practice. New York, NY: Lexis Publishing; 2002.

3. Buzbee W. W. Smart growth micro-incentives and the tree-cut tax case. Georgia State Law Rev.2001;17:999–1012.

4. Buzbee W. W. Sprawl’s dynamics: a comparative institutional analysis critique. Wake Forest Law Rev.2000;35:509–537.

5. Buzbee W. W. Sprawl’s political-economy and the case for a metropolitan green space initiative. Urban Lawyer. 2000;32:367–390.

6. Buzbee W. W. Urban sprawl, federalism, and the problem of institutional complexity. Fordham Law Rev.1999;68:57–136.

7. Foglesong RE. Planning the Capitalist City: The Colonial Era to the 1920s. Princeton, NJ: Princeton University Press; 1986.

8. Kunstler JH. The City in Mind: Notes on the Urban Condition. New York, NY: The Free Press; 2001.

9. Kay JH. Asphalt Nation: How the Automobile Took Over America and How We Can Take It Back. Berkeley, Calif: University of California Press; 1997.

10. Bolick C. Subverting the American dream: government dictated "smart growth" is unwise and unconstitutional. U Pennsylvania Law Rev.2000;148:859–872.

11. Gillette CP. Regionalization and interlocal bargains. NYU Law Rev.2001;76:190–271.

12. Ellickson RC, Been VL. Land Use Controls. 2nd ed. New York, NY: Aspen Law & Business; 2000:85–107.

13. Karkkainen BC. Zoning: a reply to the critics. J Land Use Environmental Law.1994;10:45–89.

14. Haar CM, Wolf MA. Euclid lives: the survival of progressive jurisprudence. Harvard Law Rev.2002;115:2158–2203.

15. Wolf MA. Fruits of the "impenetrable jungle": navigating the boundary between land-use planning and environmental law. J Urban Contemporary Law.1996;50:5–93.

16. Freilich RH. From Sprawl to Smart Growth. Chicago, Ill: The American Bar Association; 1999.

17. 42 USC 7401–7671 (1995 and supp. 2003).

18. 42 USC 7410 (1995 and supp. 2003).

19. 42 USC 4321–4370f (1995 and supp. 2003).

20. Transportation Equity Act for the 21st Century, Public L No. 105–178, 112 Stat 107 (1998).

21. 23 USC 109(j), 134(l) (1995 and Supp 2003).

22. Executive Order 12 898, 59 Federal Register 7629 (1994).

23. Gillette CP, Baker LA. Local Government Law. 2nd ed. New York, NY: Aspen Law & Business; 1999:639–643, 803–816.

24. Nelson AC, Duncan JB. Growth Management Principles and Practices. Chicago, Ill: Planners Press, American Planning Association; 1995.

25. Keohane NO, Revesz RL, Stavins RN. The choice of regulatory instruments in environmental policy. Harvard Environmental Law Rev. 1998;22:313–367.

This article has been cited by other articles:

				C. Jackson-Elmoore Self-perceived weight status and exercise adequacy Health Educ. Res., August 1, 2007; 22(4): 588 - 598. [Abstract] [Full Text] [PDF]

				K. D. Reynolds and D. Spruijt-Metz Translational research in childhood obesity prevention. Eval Health Prof, June 1, 2006; 29(2): 219 - 245. [Abstract] [PDF]

This Article Abstract Full Text (PDF) An erratum has been published Submit a response Purchase Article View Shopping Cart Alert me when this article is cited Alert me when eLetters are posted Alert me if a correction is posted Services Similar articles in this journal Similar articles in ISI Web of Science Similar articles in PubMed Alert me to new issues of the journal Download to citation manager Citing Articles Citing Articles via HighWire Citing Articles via ISI Web of Science (7) Citing Articles via Google Scholar Google Scholar Articles by Buzbee, W. W. Search for Related Content PubMed PubMed Citation Articles by Buzbee, W. W. Related Collections Exercise/Physical Activity Other Environment Health Law Health Policy Government Urban Health