By: Iyadeh Davies
The U.S. Constitution does not grant the federal government authority to regulate land.[1] This authority has been left with the states, who generally allow local governments to control land use regulation,[2] resulting in more than 25,000 local jurisdictions with the power to enact land use regulations.[3] Land use regulations are a valuable tool that local governments use to achieve a plethora of policy goals and social purposes including protecting property owners from expropriation of value, reducing the large-scale economic risk associated with natural disasters, improving the environment, managing the growth of cities in a way that reduces costs to society,[4] minimizing negative externalities, ensuring local revenue streams, and increasing long term focus on growth.[5]
Zoning regulations determine how and where new growth occurs by controlling land use, density requirements, and other building specifications within a specific jurisdiction.[6] Zoning is considered the most impactful regulation method implemented by local governments.[7] Municipal zoning laws gained much of their legal basis from the landmark U.S. Supreme Court case Village of Euclid v. Ambler Realty Company.[8] Here the Court explained that zoning regulations will generally be upheld as constitutional as long as there is some connection to the public welfare.[9]
An overwhelming majority of the U.S. population lives in zoned communities.[10] Although local governments derive their regulatory authority from all fifty state constitutions and state legislative bodies, zoning laws remain similar from state to state due to the Standard State Zoning Enabling Act promulgated in 1928 by the U.S. Commerce Department.[11] In the U.S., over 25,000 local jurisdictions have the power to implement zoning laws, with most states allowing considerable latitude to local authorities.[12] Local governments may elect to cast their regulatory net through zoning restrictions on area per lot, restricting its type of use (e.g., agricultural, residential, commercial, or industrial), regulating the height of buildings or number of units that can be placed on the lot, establishing setbacks for a building from its neighbors and the street, and even regulating off-street parking.[13]
Zoning regulations also take the form of what many refer to as “urban growth boundaries.”[14] Essentially, local governments draw an outer limit around the city—disallowing any urban development outside of this artificial boundary.[15] These greenbelt zones can constrict the grown of cites and ultimately increase housing prices.[16] Although Oregon often gets credit for starting the greenbelt trend, it was Lexington, Kentucky that adopted the first urban grown boundary in 1958 in order to protect its iconic horse industry.[17] However, Lexington has changed dramatically over the last sixty years going from a small town of about 60,000 to an emerging city of nearly 350,000.[18] The “Horse Capital of the World” now has a diverse economy fueled by healthcare, education, and advanced manufacturing.[19] This transition has led to a recent revisiting of the issue by the Lexington Planning Commission and the Lexington City Counsel.[20]
New Urbanism is a movement in architecture, planning and urban design that puts an emphasis on a particular set of design principles, including pedestrian-and transit-oriented neighborhood design and a mix of land uses, as a means of creating more cohesive communities.[21] At its core, New Urbanism is the process of reintegrating the components of modern life, including housing, workplace, shopping, and recreation, into compact, mixed-use neighborhoods linked by transit and set in a larger regional open space framework. These principles can be applied successfully to infill and redevelop sites within existing urbanized areas, or spur new developments in the suburbs.[22] The overarching goals of the New Urbanism movement aim to create a greater sense of community by accommodating more diversity of land uses and social interaction in neighborhoods and by rethinking the “public realm,” especially public spaces and the typical streetscape.[23]
With policy goals such as minimizing traffic and negative environmental effects, the movement strives to reorient the typical community toward a pedestrian and transit friendly environment.[24] New Urbanists provide local governments a set of guidelines that should be implemented at the planning stage when designing new comminutes. First, all planning should integrate a plethora of uses essential to the daily life from housing to schools, parks, civic facilities and even workplaces. [25] Next, the size of the community should be designed to allow access to housing, jobs, and other daily needs within walking distance or short transit options.[26] The community should contain a diversity of housing options, making it attractive for individuals at all income levels, age groups, and ethnic backgrounds. Finally, the location of the community should conform to the larger transit network while also providing pedestrian and bike paths that contribute to a system of fully connected and intersecting routes leading to all destinations.[27] The key here is to design a community that will encourage pedestrian and bicycle use. Keeping in mind the importance of the environment, New Urbanists teach that whenever possible the “natural terrain, drainage, and vegetation of the community should be preserved”.[28] Communities should deliver efficient water use by implementing natural drainage systems and drought tolerant landscaping.
Mixed land uses bring more people to a neighborhood at a variety of times of day, which can support businesses, improve safety, and enhance the vitality of an area. Mixing land uses also makes it possible for people to live closer to where they work or run errands, meaning they less need to drive their cars.[29] Municipalities interested in encouraging smart growth development can and should examine their regulations and streamline the project permitting and approval process so that development decisions are more timely, cost-effective, and predictable for developers. By creating a supportive environment for development of innovative, pedestrian-oriented, mixed-use projects, government can provide smart growth leadership for the private sector.[30]
Developing within existing communities, as opposed to building on previously undeveloped land, makes the most of the investments we’ve already made in roads, bridges, water pipes, and other infrastructure, while strengthening local tax bases and protecting open space. Regulations, zoning, and other public policies sometimes make this approach unnecessarily difficult for developers, however. Local leaders can and should change policy to encourage development within existing neighborhoods.[31]
I believe that it is time for state legislative bodies to step in and monitor local land use regulations in order to ensure their economies remain attractive to both private individuals and businesses. In order to achieve this restructuring of policy, legislators and planners must develop comprehensive plans that address a wide range of issues. However, in order to do that, legislators need a more dynamic approach that focuses on mixed land uses that are conducive to the geographic area and the unique needs of the citizenry that is involved.
[1] Joseph Gyourko and Raven Molloy, Regulation and Housing Supply, National Bureau of Economic Research, (October 2014) https://www.nber.org/papers/w20536 [https://perma.cc/LQ7B-KNBZ].
[2] Id.
[3] William Fischel, Zoning and Land Use Regulation, 2200 Dartmouth C. 403, 404 (1999).
[4] Id.
[5] Land Use Restrictions as Barriers to Entry, OECD (2008) http://www.oecd.org/regreform/sectors/41763060.pdf [https://perma.cc/2XAC-5ZCA].
[6] Id.
[7] Id.
[8] Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
[9] Id. at 387.
[10] Jan K. Brueckner, Urban Land Markets 3-23 (S.V. Lall et al. eds., 1st ed. 2009).
[11] Id.
[12] Supra note 5.
[13] Id.
[14] Nolan Gray, America’s First Greenbelt may be in Jeopardy, Bloomberg CityLab, (May 16, 2019, 8:00 AM), https://www.bloomberg.com/news/articles/2019-05-16/lexington-debates-the-future-of-its-greenbelt [https://perma.cc/F7QG-5N6Y].
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Gray, supra note xiv.
[21] What is Smart Growth?, Smart Growth America, https://smartgrowthamerica.org/our-vision/what-is-smart-growth/ [https://perma.cc/3A26-GCFV] (last visited November 6, 2020).
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Supra note xxi.
[28] Id.
[29] Id.
[30] Id.
[31] Id.