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Sprawl and the New Urbanist Solution

Author(s): Jeremy R. MeredithSource: Virginia Law Review, Vol. 89, No. 2 (Apr., 2003), pp. 447-503Published by: Virginia Law ReviewStable URL: http://www.jstor.org/stable/3202437

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NOTE

SPRAWL AND THE NEW URBANIST SOLUTION

JeremyR. Meredith*

INTRODUCTION..................................................................................448

I. THEPROBLEMSOFURBANSPRAWL..................................... 452

A. Economic Problems................................................................4521. Increased Economic Burden on SuburbanMunicipalities .............................................................................453

2. TheDecline of American Cities ............................................ 55B. Social Problem .........................................................................4571. Economic and Racial Segregation........................................ 582. Destructionof Community....................................... 461

C. EnvironmentalProblems .......................................................4631. TheEffectsof DirectDisplacement.......................................4632. The IndirectEffects of Sprawl...............................................464

II. THE CAUSES OFURBAN SPRAWL ...............................................466

A. Preferencesas the Causeof UrbanSprawl ............................466

1. Economic PreferencesthatEncourageSprawl....................4672. Social PreferencesthatEncourageSprawl...........................4683. Political PreferencesthatEncourage Sprawl........................ 71

B. BehavioralInfluencesthat Cause UrbanSprawl ...................4721. Heuristic Biases thatEncourageSprawl .............................. 732. GovernmentPolicies thatEncourageSprawl....................... 74

III. THE NEW URBANIST SOLUTION ............................................478

A. Tenetsof The New Urbanism..................................................78B. Scales of the New UrbanistActivity.........................................82

IV. EVALUATION OF THE NEW URBANIST SOLUTION ................... 487

A. Limitsof the New UrbanistVision ..................................... 487B. Shortcomingsof theNew Urbanism n Practice ....................490

*J.D. Candidate,2003,Universityof VirginiaSchool of Law.I wouldlike to thankProfessorJuliaMahoneyfor her guidanceand supportwhile servingas advisor forthis Note. I am alsograteful or the valuablecommentsof ProfessorJamesRyan,Pro-fessorKennethSchwartz,RaphaelRabalais,KarenMeredith,and SarahZinnand therest of the Virginia Law Review Notes Department.

447



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V. THE ROLE OF REGIONAL GOVERNMENTS IN SOLVING

URBAN SPRAWL........4............. .......................................... 495CONCLUSION............................................. ....................499

INTRODUCTION

RBAN sprawlhas been developingover the past fifty years,yet only recently have lawmakers begun attempts to craft a

solution to its inherent problems. As the United States entered theindustrialrevolution, its population migrated into the cities; sinceWorld War II, Americans have left urbanareas and have settled intheir

expandingoutskirts.1Suburbs have

rapidly spread outward,with acre after acre cleared to make room for suburban-tracthous-

ing and big-box retailers.2As greaterdistancesseparateAmericans,we have become increasinglydependent on using cars to traversethese ever-growingsuburbs and have lost opportunities to interact

personally with one another. At the same time, many cities havebeen left with a shrinkingtax base and disappearingemploymentopportunities.As a result of this void, cities must manage problemsrelated to economic and social disenfranchisement.

The harms of urbansprawl are being articulatedwith increasing

clarity,yet "sprawl"evades a precise definition or a clear solution.Since some amount of growth on the outskirts of cities occurs al-most inevitably as population expands, sprawl must be distin-

'In 1950, 23.3% of Americans lived in the suburbs. By 1990, this figure grew to46.1%. Peter Dreier, America's Urban Crisis: Symptoms, Causes, Solutions, 71 N.C.L. Rev. 1351, 1378 (1993) (citing William H. Frey & Alden Speare, Jr., Univ. of Mich.,U.S. Metropolitan Area Population Growth 1960-1990: Census Trends and Explana-tions (1991); Bureau of the Census, U.S. Dep't of Commerce, 1990 Census Profile No.

3,Metropolitan

Areas and Cities(1991)).2From 1950 to 1990, America's population density fell by fifty percent. David Rusk,

Cities Without Suburbs 8 (1993) [hereinafter Cities Without Suburbs] (citing U. S.Census figures that overall population density dropped from 5873 to 2937 people persquare mile). As a result, land consumption outpaces population at a rate of nearlythree-to-one. David Rusk, Growth Management: The Core Regional Issue, in Reflec-tions on Regionalism 78, 78 (Bruce Katz ed., 2000). For example, during the 1970sand 1980s, Chicago's population grew by four percent, while its rate of land consump-tion increased by fifty-five percent. John Chihak et al., Developing Brownfields, 19Hamline J. Pub. L. & Pol'y 254, 298 (Patricia L. Delk ed., 1997). From the 1970s tothe 1990s, New York City consumed land at an even greater pace, with a populationgrowth of five percent and an increase in rate of land consumption growth of sixty-one percent. Id.

448



Sprawland the New UrbanistSolution

guished from the larger category of "suburban growth." Somescholars have likened

sprawlto Justice Potter Stewart's

descriptionof pornography:"I know it when I see it."3 Other commentatorshave taken a more scientific approach.These analysts usually de-fine sprawlin light of its accompanyingproblems.

From the current literature, Professor Robert W. Burchell andNaveed A. Shad have identified six characteristicscommonly in-cluded in working definitions of sprawl.4First, sprawl has a lowrelative density.5Second, it consists of unlimited and noncontigu-ous or "leapfrog"development.6In residential areas, this type of

development primarilyincludes single-family tract housing. Third,

under sprawled conditions, different types of land uses tend to besegregated.7In these areas, municipal zoning ordinances only per-mit one use in each district.Fourth, sprawlconsumes large quanti-ties of exurban agricultural and other fragile lands.8 Fifth, in

sprawledareas, people must rely on automobiles to access individ-ual land uses.9Finally, some commentators include the lack of inte-

grated land-use planning as a component of urban sprawl.10Theyclaim that sprawl occurs in areas in which the land-use frameworkhas been fragmented among numerous municipalitiesand develop-ers.11

3Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). For one ex-

ample of this characterization, see Timothy J. Dowling, Reflections on Urban Sprawl,Smart Growth, and the Fifth Amendment, 148 U. Pa. L. Rev. 873, 874 (2000).4

Robert W. Burchell & Naveed A. Shad, The Evolution of the Sprawl Debate inthe United States, 5 Hastings W.-Nw. J. Envtl. L. & Pol'y 137, 140-42 (1999); see alsoReid Ewing,Counterpoint:s Los Angeles-StyleSprawlDesirable?,63 J. Am. Plan.Ass'n 107, 107-09 (identifyingcommonalitiesamong analysts'descriptionsof urban

sprawl, ncluding"(1) leapfrogor scattered

development, 2)commercial

tripdevel-

opment,or (3) largeexpansesof low-densityorsingle-usedevelopment").Professor Burchell and Shad note that average populationdensity varies and,

therefore, he conceptof low densitydiffersbetween nations.Forexample,density nWesternEuropeancountries s higher hanin the UnitedStates,butonlya fractionofthe densities n Hong Kongandin Indonesia.Burchell& Shad,supranote 4, at 140-41.

6Id. at 141.

7Id.8Id.9Id.10

Id."Id.

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Academics warned of the dangers of sprawl as early as the late

1950s,12ut it did not receive

significantnotice from national lead-

ers and the media until the late 1990s.13 s public awareness has in-

creased, many localities and states have initiated legislation tocombat the problems associated with urbansprawl.In 1998, thirty-one states proposed over 240 ballot measures regardingconserva-

tion, parklands,and smart growth issues. Over seventy percent ofthese measures passed, allocating more than $7.5 billion of addi-tional state and local spendingfor sprawl-related ssues.14 nitiativesin 2000 received mixed results-measures limiting regional growthmet greater resistance while those providing public funding for

green space succeeded more easily.15Despite widespread passage of ballot measures, accompanying

success in containing sprawl has been difficult to achieve. Thesemeasures often permit significant exceptions, do not get fully im-

plemented, or are enforced inadequately.16 hese shortcomings begthe question whether Americans are fully committed to ending ur-

12See, e.g., Ian L. McHarg, Design With Nature (1969) (encouraging ecological

planning as an alternative to sprawl); William H. Whyte, Jr., Urban Sprawl, in The

Exploding Metropolis 133, 133-36 (Fortune ed., 1958) (describing the problems andcauses of sprawl as well as supporting action against sprawled development).13See, e.g., Jodie T. Allen, Sprawl, From Here to Eternity, U.S. News & World

Rep., Sept. 6, 1999, at 22 (exploring sprawl's causes and proposed government solu-

tions); Judith Havemann, Gore Calls For 'Smart' Growth: Sprawl's Threat To Farm-land Cited, Wash. Post, Sept. 3, 1998, at A17 (quoting the then Vice-President that

sprawl has created "'a vacuum in the cities and suburbs which sucks away jobs...homes and hope"' and that "'as people stop walking in downtown areas, the vacuumis filled up fast with crime, drugs and danger"'); Haya El Nasser & Paul Overberg,What you don't know about sprawl: Controlling development a big concern, but

analysis has unexpected findings, USA Today, Feb. 22, 2001, at 1A (ranking and ana-

lyzing metropolitan areas based on a "sprawl index"); Michael Pollan, Land of theFree Market, N.Y. Times, July 11, 1999, ? 6 (Magazine), at 11 (writing about the poli-tics of sprawl); Todd S. Purdum, Suburban 'Sprawl' Takes Its Place on the Political

Landscape, N.Y. Times, Feb. 6, 1999, at Al (discussing sprawl's role in national andstate politics); Matthew Vita, Sprawl Emerges As Hot Issue in Swing Districts, Wash.

Post, Sept. 24, 2000, at A12 (reporting that sprawl has become a major issue in con-

gressional campaigns).14 Oliver A. Pollard, III, Smart Growth: The Promise, Politics, and Potential Pitfalls

of Emerging Growth Management Strategies, 19 Va. Envtl. L.J. 247, 251 (2000).Nicole Stelle Garnett, Trouble Preserving Paradise?, 87 Cornell L. Rev. 158, 183

(2001).16 See Sierra Club, 1999 Sierra Club Sprawl Report, Solving Sprawl: The Sierra Club

Rates the States (1999), http://www.sierraclub.org/sprawl/report99/index.asp (last vis-ited Feb. 6, 2002) (on file with the Virginia Law Review Association).

450



Sprawland theNew UrbanistSolution

ban sprawl.Many Americans complain about sprawl, yet continue

to move outwardinto

low-density development, seemingly expect-ing that growthin the area will suddenlycease 17

While lawmakers have struggled to create successful policiescombatting sprawl, planners, architects, and developers have for-mulated their own alternatives,most notably New Urbanism. Thisvision responds to the problems of sprawl by creating distinct, in-terconnected neighborhoods that minimize automobile use and

promote public interaction. The movement focuses primarily on

spatial solutions to urban sprawl at the regional, neighborhood,and block level. Throughthe movement's principles, proponents of

New Urbanism aim to increase the diversity of communities, de-sign cities primarilyfor use by transitsystems and pedestrians,cre-ate universally accessible public spaces that define towns, andframe architectureby unique local characteristics.18

New Urbanism has not gone completely unnoticed in legal lit-

erature; however, references to it as a potential solution have been

apologetically brief.19This Note will examine New Urbanism andits potential to alleviate the problems caused by sprawl.Part I will

identify the most widely accepted problems of urbansprawl.Manysocietal ills have been attributed to

sprawl,20ut this Part will ad-

17 See, e.g., Sean Clancy, The Problem in Our Own Backyards, Newsweek, Jan. 21,2002, at 10, 10 (complaining about increased development in an area to which he

moved one year earlier).18 Cong. for the New Urbanism, Charter of the New Urbanism 1 (1998),

http://www.cnu.org/cnu_reports/Charter.pdf (last visited Feb. 6, 2003) (on file with the

Virginia Law Review Association).19See, e.g., William W. Buzbee, Urban Sprawl, Federalism, and the Problem of In-

stitutional Complexity, 68 Fordham L. Rev. 57, 76-77 (1999) (discussing the theoreti-cal benefits of New Urbanism in two

paragraphs); Jerry Frug,The

Geographyof

Community, 48 Stan. L. Rev. 1047, 1089-94 (1996). Professor Frug acknowledges that

"[t]his brief summary of new urbanists' ideas does not begin to capture the vividnessand complexity represented in their current projects and designs." Id. at 1092.

20 Some of these proposed ills include obesity, see, for example, Lawrence D. Frank& Peter Engelke, How Land Use and Transportation Systems Impact Public Health:A Literature Review of the Relationship Between Physical Activity and Built Form

(Ctr. for Disease Control, Active Community Environments Working Paper No. 1,

2000), http://www.cdc.gov/nccdphp/dnpa/pdf/aces-workingpaperl.pdf (last updatedMar. 16, 2001) (linking land-use patterns like sprawl to decreased activity, and thus

obesity), psychic costs, see, for example, Ewing, supra note 4, at 117 (noting studies ofthe effect of social and environmental deprivation caused by sprawl), and a generaldecrease in quality of life, see generally, for example, James Howard Kunstler, The

2003] 451



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dress those that have the greatest support among scientists, legal

academics, political scientists,and other scholars. Part II will

dis-cuss the forces that create sprawl.Americans possess economic, so-cial, and political preferences that encourage sprawled develop-ment. Despite these preferences, people often claim that theywould rathernot live in the suburbs.This Note will argue that be-havioral influences in the form of heuristicbiases and governmentpolicies distort these stated preferences and contribute to the de-

velopment of urban sprawl.Part III will describe the tenets of theNew Urbanists' proposed solution to sprawl and the levels onwhich they must be implemented. Part IV will evaluate New Ur-

banism'sabilityto cure the problemscreatedby sprawl.This Note will argue that New Urbanism falls short of its ideals

in practice because it does not address all of the causes of sprawl.Although New Urbanists have proposed detailed spatial guides tocombat sprawl, they fail to articulate a clear plan at the regionallevel. As a result, New Urbanist communities suffer from many ofthe same problems as traditionalsprawleddevelopment. In PartV,this Note will argue that even though the legal literatureseems tobe reachinga consensus on regional governments as the solution to

sprawl, regional governmentsthat

successfullyavoid the

problemsassociated with sprawl have been difficult to create. Legal solu-tions, like those proposed by New Urbanists,do not effectively ac-count for all of the causes of sprawland therefore fail to prevent it.In conclusion, this Note will advocate an interdisciplinarystudy ofthe law. Neither the legal nor the New Urbanistproposal has cured

sprawl on its own, but if they were to look to each other, theywould be more likely to find successfulsolutions.

I. THE PROBLEMS OFURBAN SPRAWL

A. Economic Problems

Although environmentalistshave been among the most outspo-ken advocates of anti-sprawl legislation, sprawl also has distincteconomic consequences on American cities and municipal gov-ernments.As urbansprawl develops, its inefficient form creates an

Geography of Nowhere: The Rise and Decline of America's Man-Made Landscape(1993) (giving an acerbic portrayal of sprawl's impact on life in America).

452 [Vol. 89:447



2003] Sprawl and the New Urbanist Solution 453

economic burden on growing municipalities by increasingthe cost

of providing services. In the meantime, the exodus of a strong taxbase from urban areashas contributed to the deterioration of manycities.

1. IncreasedEconomic Burden on SuburbanMunicipalities

Most commentators agree that sprawledcommunities cost moreto service than moderate-density development, but some debatethe extent of this increasedburden. A number of states and locali-ties have sponsored studies to assess the impact of sprawl on mu-

nicipal governments, and each has found that sprawl increases thecost of service provision.2At the same time, extremely high densitymay not provide a better alternative. Instead, it seems that me-

dium-density communities impose the smallest burden on munici-

pal budgets.2Some of the debate over the costs of service production may be

due to sprawl'sdifferential effect on each type of service. Sprawleddevelopment has been seen to increase the cost of many municipalservices, including the costs to build and maintain roads, sewers,schools, areas of police and fire protection, and other public facili-

ties, but the extent of this increased burden varies with each of

21See, e.g., Robert W. Burchell, Economic and Fiscal Costs (and Benefits) of

Sprawl, 29 Urb. Law. 159, 165 & nn.9 & 16 (1997) [hereinafter Economic and Fiscal

Costs] (citing James Duncan & Associates et al., Fla. Dep't of Cmty. Affairs, TheSearch for Efficient Urban Growth Patterns: A Study of the Fiscal Impacts of Devel-

opment in Florida (1989) and Virginia Beach (VA) Growth Management Study,Crossroads: Two Growth Alternatives for Virginia Beach (1989)); David H. Ciscel,The Economics of Urban Sprawl: Inefficiency as a Core Feature of MetropolitanGrowth, 35 J. Econ. Issues 405 (2001) (studying the costs of sprawl in the Memphis

area);Robert W. Burchell et

al.,N.J. Office of State

Planning, ImpactAssessment of

the New Jersey Interim State Development and Redevelopment Plan, Report III:

Supplemental Amended Interim Plan Assessment (Apr. 30, 1992), http://www.state.nj.us/osp/ospimpac.htm; Robert W. Burchell et al., N.J. Office of State Planning, ImpactAssessment of the New Jersey Interim State Development and RedevelopmentPlan, Report II: Research Findings (Feb. 28, 1992), http://www.state.nj.us/osp/ospimpac.htm [hereinafter N.J. Report II].

According to a regression analysis by Professor Helen F. Ladd, the costs of mu-

nicipal services form a U-shaped curve when compared to density. She found that, at

high-density extremes, high-rise structures have special needs that actually increase

public expenditures to a level above those required by medium-density communities.Helen F. Ladd, Population Growth, Density and the Costs of Providing Public Ser-

vices, 29 Urb. Stud. 273, 273 (1992).



Virginia Law Review

these services. Among these costs, sprawl's impact on the cost ofschools is the most controversial.23While

currentlythere is no con-

sensus regardingthe implicationsfor school costs, most commenta-tors agree that sprawl increases the cost of building and maintain-

ing infrastructure, uch as transportationand water systems.24Urban sprawlcauses the cost of municipalservices to increase in

a number of ways. In a study for the Lincoln Institute of Land Pol-

icy, Robert Burchell and David Listokin examine the currentbodyof literature relating to municipal expenditures.25Their researchreveals that the costs of providing municipal services are higher in

sprawled areas for three primaryreasons:need, distance, and effi-

ciency.First, sprawlinggrowthincreases the need for services because it

tends to develop areas where services are not currently provided.26Therefore, recently developed areas need new sources for servicessuch as schools, roads, and police protection. These greenfield de-

velopments create new needs for infrastructure,even though pock-ets of existing capacity alreadyexist. 27 Therefore, rather than usingavailable service facilities, leapfrog development requires munici-

palities to create new capacity.

Second,the distance between

developmentsin

sprawledareas

increases the costs of municipal services. Costs of capital improve-ments for lower-density developments are greater than those of

higher-density equivalents, because sprawled development re-

quires more miles of roads, water pipes, sewer lines, and other in-frastructure o serve the same number of people.28

23See, e.g., Anthony Downs, Opening Up the Suburbs: An Urban Strategy for

America 53-55 (1973) (arguing that sprawl significantly increases the cost of provid-

ing public schooling);Robert W. Burchell et al., The Costs of

Sprawl-Revisited51-

52 (Transp. Research Bd., Transit Cooperative Research Program Report No. 39,1998) [hereinafter Costs of Sprawl-Revisited] (citing Robert W. Burchell & David

Listokin, Determinants of Municipal and School District Costs (1996)) (proposingthat the wealth of local residents has a greater impact, because wealthier residentsdemand higher services from schools, thus increasing the cost per pupil).

24 Costs of Sprawl-Revisited, supra note 23, at 46-50.25 Robert W. Burchell & David Listokin, Lincoln Inst. of Land Policy, Land, Infra-

structure, Housing Costs and Fiscal Impacts Associated with Growth: The Literatureon the Impacts of Sprawl versus Managed Growth (1995).26

Id. at 8.27

Id.28Id. at 9.

454 [Vol. 89:447




Finally, sprawled development increases the cost of municipal

services because communities cannot take full advantage of effi-ciencies resulting from economies of scale.29Compact develop-ments use fewer, largerfacilities, while sprawled developments re-

quire more, smaller facilities to meet the needs of a dispersedpopulation. For example, a largercentral sewage treatment facilitycosts less to build and operate than smaller, individualplants thatwould service the same number of people.30

While most agree that sprawl affects the cost of municipal ser-

vices, its net impact on budgets depends largely on municipalities'abilities to take advantage of existing capacity and willingness to

impose exactions. On the cost side, municipalities will be morelikely to have a neutral or positive net outcome if they are able to

prevent pockets of excess capacity.When municipalitiesare able todraw upon existing operating capacity to provide services to newlydeveloped areas, they are able to contain costly outlays for addi-tional services.31On the income side, municipalitieshave the optionto pay for the increased burden on the municipalitythrough exac-tions.32Today, exactions have gained virtuallyuniversalacceptanceas developers and new residents share some of the economic bur-den of new

growth througha one-time fee that

paysfor the crea-

tion and maintenance of municipalservices.33

2. The Decline of American Cities

As cities sprawloutward,new growth not only burdens exurban

communities, it often leaves behind an economic void in core ur-

29d.

30Id.31 N.J. Report II, supra note 21, at 13-14.32

The use of exactions has been upheld by the United States Supreme Court whenthere is an essential nexus between a legitimate state interest and the exaction andwhen the amount of the exaction is roughly proportional to the impact of the pro-posed development. Dolan v. City of Tigard, 512 U.S. 374, 386, 391 (1994). For a more

complete discussion of the use of exactions by municipalities, see Development Im-

pact Fees: Policy Rationale, Practice, Theory, and Issues (Arthur C. Nelson ed.,1988); Exactions, Impact Fees and Dedications: Shaping Land-use Development and

Funding Infrastructure in the Dolan Era (Robert H. Freilich & David W. Bushekeds., 1995).

33Robert H. Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, 29 Urb. Law.

183, 188 (1997).

2003] 455



Virginia Law Review

ban areas.34 uburbanization started in the early- to mid-twentieth

century,but the move of

population, income,and

jobsfrom the cit-

ies to the suburbsaccelerated in the 1970s.35 his abandonment ofthe urban core has had a profound impact on cities' well-being.With the flight of jobs and people from urban areas, city tax baseshave deteriorated, and cities have lost a primary source of fiscal

stabilityto the surroundingsuburbs.36In the meantime, city governments have been called upon to

spend more on municipal services. Many wealthy residents haveexited the city and those residents who remain in the city oftenhave higher relative demands for health care and social welfare

programs,but a decreased ability to pay for them.37Therefore, thecity is left with a smaller tax base to meet a relatively higher de-mand for services. At the same time, cities must provide services tocommuters and tourists who do not pay municipal taxes.38Addi-

tionally, the fiscal crises of cities have worsened with large cuts inthe financial assistance once provided by federal and state govern-ments.39

Competition between municipalities for development only ag-gravates this problem.40Cities and suburbs often vie for wealthyresidents and businesses as a source of tax revenue. As wealthmoves to the suburbs, cities must raise taxes to replace lost in-come.41This response creates a feedback effect by encouragingde-

velopment in surroundingsuburbs, which usually offer lower taxrates. In essence, the movement of jobs and residents to the sub-

34Economic and Fiscal Costs, supra note 21, at 168.35U.S. Dep't of Housing & Urb. Dev., The Urban Fiscal Crisis: Fact or Fantasy? (A

Reply), in Cities Under Stress 147, 152-55 (Robert W. Burchell & David Listokin

eds.,1981).36 In 1960, the per capita income of American cities was five percent greater than

their suburbs; by 1980, cities were earning eighty-nine percent less than their suburbs.

Dreier, supra note 1, at 1379. For a discussion of the policy implications and fiscal

consequences of this exodus, see Cities Under Stress (Robert W. Burchell and DavidListokin eds., 1981).

37Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the UnitedStates 284-85 (1985).

38 Dreier, supra note 1, at 1371.39Id. at 1372.40 Buzbee, supra note 19, at 71.41

Michael E. Lewyn, Suburban Sprawl: Not Just an Environmental Issue, 84 Marq.L. Rev. 301, 353-54 (2000).

456 [Vol. 89:447




urbs creates a "Catch-22" or cities-raise taxes and risk the flightof

wealthyresidents or

providefewer services and face the

possibil-ity of the same result.42In his study, Cities WithoutSuburbs,43 avid Rusk examines the

ability of cities to adapt to urban sprawl by creating an index of

elasticity that measures the ability of cities to capture growththrough annexation and infill development.44Using this quantifica-tion, Rusk finds that the greater the ability of cities to capturegrowth, the better they perform with respect to economic devel-

opment, fiscal stability, income distribution, and racial integra-tion.45

When cities cannot capture growth, they face many of the prob-lems associated with the contemporary city. As wealth and livingstandardsin suburbs have increased, cities are becoming home to

problems such as concentrated poverty, homelessness, violentcrime, infant mortality,and crumblinginfrastructure.46espite im-

proving conditions, suburbs may not be immune from the declineof urban areas. Several recent studies demonstrate that the healthof suburbs is linked to their cities, and that the decline of innersuburbs follows the deterioration of a city.47

B. Social Problems

Complementing the economic problems discussed above, urban

sprawl has created a physical gulf between races and socioeco-nomic classes. Additionally, the spread-outnature of sprawlinhib-its a sense of community between people, making what ProfessorGeraldFrugrefers to as "citylife" a rarityin American society.

42 Dreier, supra note 1, at 1372.43 Cities Without Suburbs, supra note 2.44Id. at 9-11.45 Id. at 29-31, 40-44.46 Dreier, supra note 1, at 1362-72.47 See, e.g., Joseph Persky et al., Does America Need Cities? An Urban Investment

Strategy for National Prosperity (1991); Lee R. Epstein, Where Yards Are Wide:Have Land Use Planning and Law Gone Astray?, 21 Wm. & Mary Envtl. L. & Pol'yRev. 345, 350 & n.17 (1997); Ewing, supra note 4, at 117 (citing John P. Blair &

Zhongcai Zhang, "Ties that Bind" Reexamined, 4 Econ. Dev. Q. 373 (1994) andRichard Voith, Do Suburbs Need Cities? (Fed. Reserve Bank of Phila., Working Pa-

per No. 93-27/R, 1994)).

2003] 457




1. Economic and RacialSegregation

The shift of jobs from the city to the suburbs affects not only citygovernments, but also city residents. As jobs move away from theurban core, areas of concentrated poverty grow. Since the mid-

1960s, the movement of jobs from downtown business districts hasbeen "stark and universal."48n response to government policiesand changing preferences, residents began an exodus from cities totheir suburbs.49While metropolitan areas have grown as a percent-age of the nation's population, the suburbshave received most ofthis development, with some cities losing large portions of their

population.50Factories and offices, once thought to be the core of

American cities, followed the exodus of people to suburbia.51 or

example, duringthe 1980s, the suburbsreceived 95% of new office

jobs and 120% of net manufacturing ob growth.52At the same time, a shift in the American economy worsened

employment problems for city residents. As Professor WilliamJulius Wilson describes in The Truly Disadvantaged,the American

economy moved from a goods-producing to a service-producingindustry.5 In making this transformation, urban centers shiftedfrom "centers of production and distribution of material goods to

centers of administration,information exchange, and higher-orderservice provision."54As a result, jobs remaining in the downtowncore require higher levels of education, which many city residents

55

do not possess.5An automobile-centered transportation system makes it even

more difficult for city residents to take advantageof job opportuni-ties. The expenses of car ownership cause automobile travel to be

48James A. Kushner, Growth Management and the City, 12 Yale L. & Pol'y Rev.

68,78 (1994).49For a more complete examination of the causes of this move to the suburbs, see

discussion infra Part II.50Dreier, supra note 1, at 1376-78.51 Jackson, supra note 37, at 266-71.52

Lewyn, supra note 41, at 302. The latter number exceeds 100% because cities suf-fered a net loss of manufacturing jobs while suburbs gained them. Id. at 302 n.13.

53William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass,

and Public Policy 39 (1987).54Id. (internal quotation marks omitted) (quoting John D. Kasarda, Urban Change

and Minority Opportunities, in The New Urban Reality 33 (Paul E. Peterson ed.,1985)).

55Id. at 39-41.

458




out of reach for many lower-income households.56Therefore, the

absence of car ownershipand the

inadequacyof

publictransit

sys-tems combine to create a scenario where city residents find it diffi-cult to gain access to employment.57

With their residents unable to reach suburbanjobs, urban areashave become home to areas of concentratedpoverty.58n 1960,cen-tral cities housed one-third of the poor people in America;by 1990,this share had increased to one-half.59n addition to creatinga self-

perpetuating effect, concentrations of low-income residents mayaggravate problems associated with poverty such as high crime

rates,welfare dependency, slum housing, and druguse.60

The decline of inner cities has had a disproportionate effect onracial and ethnic minorities. Although suburbanizationdoes not

necessarily require it, racial segregation has accompanied sprawl.As people moved to the suburbs,government policies in the formof exclusionary zoning, enforcement of restrictive covenants, andfederal housing policies restricted minorities to urban areas,61eav-

ing the well-being of minority groups intertwined with the status ofAmerica's cities.62n effect, as city residents have become poorer,so have minorities. During the 1970s, the number of people livingin "extreme

poverty"areas in the five

largestAmerican cities

grew182%.63While the population of whites in these areas grew by only45%, the black population in extreme poverty areas rose by148%.64

56The average American family spends about $6,000 per year to operate a singlecar. Robert D. Bullard et

al.,The Routes of American

Apartheid,F. for

AppliedRes.

& Pub. Pol'y, Fall 2000, at 66.57Kushner, supra note 48, at 75-76.58Wilson, supra note 53, at 46-62.

9Lewyn, supra note 41, at 302. Of America's thirty-seven largest cities, thirty-onehad poverty rates above the national average. Id.

60Dreier, supra note 1, at 1364.

61 Richard Thompson Ford, The Boundaries of Race: Political Geography in LegalAnalysis, 107 Harv. L. Rev. 1841, 1847-49, 1870-74 (1994).

62 Cities Without Suburbs, supra note 2, at 7.63

Wilson, supra note 53, at 46.64 d. For more information on how government policies have contributed to the

concentration of poverty, see discussion infra Section II.B.2.

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Virginia Law Review

Professor John Kain has labeled the especially pernicious effectof this

phenomenonon minorities as

"spatialmismatch."65He ar-

gues that housing discriminationlimits blacks to inner cities, thuspreventing them from accessing employment opportunities in thesuburbs.While some scholarshave challenged Kain's hypothesis, agrowing body of evidence suggests that because of segregation,race "affects which residents are poor" even though it "has no ef-fect on the proportionor number of personswho are poor."66

Among all other minorities, it appears that blacks are affectedthe most by spatial mismatch. In their book American Apartheid,Professors Douglas Massey and Nancy Denton observe that mid-

dle-class households have always tried to move away from thepoor, but that blacks suffer more from discrimination, makingthem a greatervictim of concentratedpoverty.67While the underly-ing mechanisms are still debated, empirical data support the factthat blacks have more difficulty in overcoming spatial mismatchthan other minorities.68

In addition to continued discrimination, the concentration ofpoor minorities persists in part due to self-perpetuation. Masseyand Denton argue that "segregationconcentrates poverty to builda set of

mutuallyreinforcingand

self-feeding spiralsof decline into

black neighborhoods."69They claim that a collective action prob-lem exists:people look to their neighbors when making behavioral

65John F. Kain, The Spatial Mismatch Hypothesis: Three Decades Later, 3 Housing

Pol'y Debate 371, 374-75 (1992); see also John F. Kain, Housing Segregation, NegroEmployment, and Metropolitan Decentralization, 82 Q.J. Econ. 175 (1968) (using aneconometric model to initially develop the hypothesis).

66Janice F. Madden, Do Racial Composition and Segregation Affect EconomicOutcomes in Metropolitan Areas?, in Problem of the Century: Racial Stratification inthe United States 290, 315 (Elijah Anderson & Douglas S. Massey eds., 2001).

67

Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation andthe Makingof the Underclass9, 150-60(1993).

68E.g., Camille Zubrinsky Charles, Socioeconomic Status and Segregation: AfricanAmericans, Hispanics, and Asians in Los Angeles, in Problem of the Century: RacialStratification in the United States, supra note 66, at 271, 283-86 (concluding that spa-tial mismatch has a large impact on income differentials between whites and blacks, asmall impact on Hispanics, and no significant impact on Asians); Michael A. Stoll &Steven Raphael, Racial Differences in Spatial Job Search Patterns: Exploring theCauses and Consequences, 76 Econ. Geography 201, 203 (2000) (finding that spatialmismatch explains employment differences between blacks and whites, but not Lati-nos, in Los Angeles).

69 Massey & Denton, supra note 67, at 2.

460 [Vol. 89:447




decisions, so concentrated poverty decreases the chances that indi-viduals will make

positiveinvestments in their

communityand in-

creases the likelihood of anti-social behavior.70Professor Wilsonobserves a similar phenomenon. He claims that, in ghettos, a cul-ture of poverty exists and that the concentration of poverty propa-gates itself through the socio-economic environment.71These

neighborhoods lack positive role models and networks to relayemployment information, so youth in these areas possess limited

examples and opportunitiesto escape poverty.72

2. Destructionof Community

Related to economic and racial segregation, sprawlalso destroysa sense of community on a larger scale. In his article, "The Geog-raphy of Community,"Professor Gerald Frug calls this a loss of

"citylife."73 rugborrowspolitical scientist IrisYoung's conceptionof "city life" as "the being together of strangers."74While this

togetherness does not breed a communitywith common final endsand mutual identification, it does create some overlap in shared

problems and interests.75

Young identifies four ideals gained from this city life. First, so-

cial differentiationpromotes intermingling among different groupaffinities. Second, varietycreates a mix of activities that generates adistinct sense of place within each neighborhood. Third, eroticism

emphasizes a sense of excitement from the unusual and the strangethrough both people-watching and architecturaldiversity. Finally,publicity, through the availabilityof public spaces, exposes peopleto opinions and cultures different from their own.76

By dividing people based on ethnicity and socioeconomic class,sprawl prevents these ideals from being realized and undermines"the ability of metropolitan residents even to understand each

70Id. at 12-13.71

Wilson, supra note 53, at 56-57.72Id.73Frug, supra note 19, at 1048.74Id. (citing Iris Marion Young, Justice and the Politics of Difference 237-38

(1990)).75For an interesting examination of the interplay between individualism and the

community in American life, see David L. Kirp, Almost Home: America's Love-Hate

Relationship with Community (2000).76 ris Marion Young, Justice and the Politics of Difference 238-40 (1990).

2003] 461



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other, let alone work together on the region's problems."77Al-

thoughsuburbs are

growingin

diversity,78heydo not offer the de-

gree of interaction between strangersthat cities create.79Throughthe hallmarks of sprawleddevelopment, such as large distances be-tween uses and cul-de-sacs,suburbsprevent both social and spatialconnections.80With few areas for the general public to informallygather, suburban Americans have few other alternatives than to"retreat nto the sanctuaryof their familyrooms."81

The destruction of community has other negative effects onAmerican society. For example, it hampers exposure to culturalac-tivities. Due to spatial and social barriers, suburbanites are less

likely to avail themselves of concerts, museums, and other culturalactivities offered by the city.82t also prevents some positive exter-

nalities, referred to as "intellectual spillovers,"that some scholarsconsider essential to economic growth.83 hrough spatial proximityin cities, "non-marketinteractions," which provide opportunitiesfor intellectual spillover,are easier to create and maintain.84 here-

fore, throughthese relationships,city life encourages the "borrow-

ing of information,the transferof values, and the formation of net-works," which in turn, spur economic growth.85n suburbs, these"non-market nteractions"are much less

likelyto occur.

By contrast,urbandwelling offers the ideals of city life and pro-motes interaction with the unknown. Professor Frug explains that

77Frug, supra note 19, at 1048.

78 Mark Baldassare, Trouble in Paradise: The Suburban Transformation in America169-75 (1986); Sheryll D. Cashin, Middle-Class Black Suburbs and the State of Inte-

gration: A Post-Integrationist Vision for Metropolitan America, 86 Cornell L. Rev.

729, 730 (2001) (arguing that while more blacks are moving into the suburbs, segre-gated residential living persists in part due to the creation of all-black suburban en-

claves).79 Frug, supra note 19, at 1050-51.80 Richard Moe & Carter Wilkie, Preface to Changing Places: Rebuilding Commu-

nity in the Age of Sprawl, at ix, x (1997).Id. at 73.

82Kenneth T. Jackson, The Effect of Suburbanization on the Cities, in Suburbia:The American Dream and Dilemma 103-04 (Phillip C. Dolce ed., 1976).

83Edward L. Glaeser, The Future of Urban Research: Non-Market Interactions 2

(Sept. 9, 1999), http://post.economics.harvard.edu/faculty/glaeser/papers.html. Glaeserdefines intellectual spillovers as "idea flows between individuals that are not mediated

by the market." Id.4Id. at 3.

85 d. at 39.

462 [Vol. 89:447




living in a heterogeneous community provides two benefits. First, it

encouragestolerance for social and cultural

diversity.86Tolerancedoes not guarantee that others will approve of or accept differ-

ences, but it suggests a "live-and-let-liveattitude."87 hough toler-ance will ultimately reach its limits, city life tends to extend theseboundaries throughcontinued exposure to differences. Second, liv-

ing in a heterogeneous environment affords people a broader

range of life experiences.88Because people in cities generally have

higher exposure to and tolerance for differences, city life promotesthe formation and intensification of subcultures. In turn,these sub-cultures create more opportunity for individual "learning,creativ-

ity, experimentation,and growth."89

C. EnvironmentalProblems

Despite the existence of distinct social and economic problems,the direct link between environmental harms and urban sprawl iseasier to observe. Perhaps for this reason, environmentalists havebeen among the most outspoken critics of sprawl.90Through the

rapidconsumption of land, sprawlnot only directly impacts the en-vironment by displacingnaturalhabitats,but also has more subtle,

indirecteffects on the environment.

1. TheEffects of Direct Displacement

The direct displacementof undeveloped land illustrates the mostobvious result of urban sprawl. The pace of urbanizationis rapidand accelerating in the United States.91Agricultural and environ-

mentally fragile lands are particularlyat risk because these lands

86 Frug, supra note 19, at 1061.87Id.88 d. at 1062.89 Id.90See, e.g., Sierra Club, stop sprawl: Sprawl Factsheet, at http://www.sierraclub.org/

sprawl/factsheet.asp (last visited Feb. 7, 2003) (on file with the Virginia Law Review

Association) (highlighting the major problems of sprawl and discussing possible solu-tions to it).

91 "[I]n the 5-year period between 1992 and 1997, the pace of development (2.2 mil-lion acres a year) was more than 1-1/2 times that of the previous 10-year period (1.4million acres a year), 1982-92." U.S. Dep't of Agric., 1997 National Resources Inven-

tory: Highlights 1, at 1 (rev. ed. 2001).

2003] 463




tend to be the cheapest availablefor exurbandevelopment and are

typicallypartof otherwise

developabletracts.92

Urban sprawl poses one of its greatest threats by destroyingnatural habitats. Most experts recognize development as the pri-mary factor in the destruction of natural habitats and the loss ofterrestrial species and ecosystems.93Sprawl creates a danger towildlife through direct displacement and through fragmentationofhabitats by leaving "islands" of undisturbed land.94While some

species can survive in these smaller habitats,many species, such asthe black bear, require larger tracts of undeveloped land to sur-vive.95

2. The IndirectEffectsof Sprawl

While not as readily observed, sprawlalso has indirect effects onthe environment in the form of air and water pollution, soil ero-

sion, and increased energy consumption.96Sprawl is inextricablylinked with automobile travel, which contributes to each of theseenvironmental harms. Though the density of development influ-

92

Burchell & Shad, supra note 4, at 141. Since 1982, sixty percent of developed landhas been at the expense of forest land and cultivated cropland. U.S. Dep't of Agric.,supra note 91, at 1.

Bradley C. Karkkainen, Biodiversity and Land, 83 Cornell L. Rev. 1, 7 & n.24

(1997).94 Economic and Fiscal Costs, supra note 21, at 168-69; Ewing, supra note 4, at 115-

17.95Real Estate Research Corp., The Costs of Sprawl: Detailed Cost Analysis 142

(1974).96 Increased automobile use has other costs such as the economic inefficiency caused

by traffic congestion. A study by the Texas Transportation Institute found that in

2000, traffic congestion cost Americans over $67 billion in delay costs and wasted fuel.This includes over 3.6 billion

person-hoursof

delayin traffic. Tex.

Transp.Inst., 2002

Urban Mobility Study (2002), http://mobility.tamu.edu/ums/study/issues_measures/congestion_cost.stm (last visited Jan. 13, 2003) (on file with the Virginia Law Review

Association).The social harms of driving are exacerbated by the fact that drivers internalize rela-

tively few of the costs of driving. In a recent study, Clifford Cobb found that drivers

only internalize $66 billion of a total $125 billion in social costs every year. Clifford W.

Cobb, Redefining Progress, The Roads Aren't Free: Executive Summary (1998),available at http://www.rprogress.org/publications/wpts3/wpts3_execsum.html (lastvisited Jan. 24, 2003) (on file with the Virginia Law Review Association).

For demand and supply-side proposals to decrease congestion and force drivers tointernalize their costs, see Anthony Downs, Stuck in Traffic: Coping with Peak-HourTraffic Congestion (1992).

464




ences the amount of automobile use, the separation of land uses

anda

transportationinfrastructure based on collector roads

playmuch more significant roles.97Residents must rely on automobiletravel for even the simplest trips, because sprawled developmentcreates large distances between residential and commercial areasand hinders accessibility by requiringbuffers between uses.98Fur-

thermore, with leapfrog development, people often live far fromwhere they work, increasingthe amount they must drive everyday.From 1960 to 1990, the number of people with jobs outside theircounties of residence grew over 200% to 27.5 million.9

Air pollution is one of the best documented environmental

harms caused by intense automobile use. Professor Craig Orensummarizes the impact of auto emissions on air quality.'??Theharmfulcomponents of auto emissions consist primarilyof carbon

monoxide, hydrocarbons, and nitrogen oxides.10'Although gov-ernment regulations have been partially successful in reducingthem, auto emissions continue to impose serious social costs.102 ne

studyestimates that health costs resultingfrom airpollution exceed$56 billion each year within the United States.103 t particularriskare the elderly, the young, and those who alreadyhave respiratory

disease.'1In addition to

respiratoryproblems,air

pollutioncauses

nonhealth effects, such as smog, damage to crop yields, and harm-ful changes to forest compositions.105

Environmentaldamage from auto emissions is not limited to theair. Nitrogen oxide emissions also create acid rain.06Furthermore,auto emissions threaten aquaticlife by causing nitrogen loadings in

97Ewing, supra note 4, at 113.98Andres Duany et al., Suburban Nation: The Rise of Sprawl and the Decline of the

American Dream 24-25(2000).9Fed. Highway Admin., U.S. Dep't of Transp., Journey to Work Trends in the

United States and its Major Metropolitan Areas, 1960-1990, at ES-2 (1993). Thesecommutes have led metropolitan drivers to spend an average of nearly an hour intheir car each day, just to drive to and from work. Id. at 2-6.

100Craig N. Oren, Getting Commuters Out of Their Cars: What Went Wrong?, 17Stan. Envtl. L.J. 141,151-57 (1998).101

Id.102d.103

Cobb,supranote 96.104Buzbee, supra note 19, at 73.105Oren, supra note 102, at 156.106

Id. at 154.

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VirginiaLaw Review

surface water.107 ne recent study suggests that traffic congestionassociated with urban

sprawlcauses water

pollutionin the form of

polycyclic aromatichydrocarbons ("PAHs"), which are the largestclass of suspected carcinogens.108his studyfinds that the increasedvehicle traffic associated with urban sprawlcauses the emission of

PAHs, which eventually deposit carcinogenic sediment in water-sheds.109 s greater areas of land are paved over, sprawl also con-tributes to water pollution through chemical runoff110nd soil ero-sion or siltation.11

Finally, urban sprawl harms the environment by increasing en-

ergy consumptionin two primaryways. First, studies have demon-

strated that energy consumption varies greatly by housing type.112Of all housing types, the single-familyresidences characteristicof

sprawl development require the greatest amount of power."3Sec-

ond, sprawl requires greater use of the automobile by making thecentral city less accessible11and by inhibiting the creation of suc-cessful mass transit.11 The Texas Transportation Institute foundthat in 2000, Americans wasted nearly six billion gallons of fuel intrafficdelays alone, without even consideringthe additionalenergyconsumed by increasedcommutingdistances.116

II. THE CAUSES OF URBAN SPRAWL

A. Preferencesas the Causeof UrbanSprawl

Sprawl occurs one household at a time. In this regard, peoplemake the choice as individuals to move into the suburbs. Onlywhen these decisions reach a certain aggregatelevel do they revealthemselves as urbansprawl.Three broad categories of preferences

107Id.08Peter C. Van Metre et al., Urban Sprawl Leaves Its PAH Signature, 34 Envtl. Sci.

& Tech. 4064 (2000).09

Id. at 4069."0Epstein, supra note 47, at 349 n.15."' Real Estate Research Corp., The Costs of Sprawl: Literature Review and Bibli-

ography 49-50 (1974) [hereinafter Literature Review].12

Id. at 45.13See id.114

Ewing,supranote4, at 113.15

See Literature Review, supra note 111, at 46.16Tex. Transp. Inst., supra note 96.

466 [Vol. 89:447



Sprawl and the New UrbanistSolution

motivate individuals to leave the city for the suburbs:economic,

social, and political. Economic preferencesinvolve a belief that the

suburbsoffer better and more appropriatelypriced services. Social

preferences include a desire to feel safer,both by being surrounded

by similarpeople and by escaping what is perceived to be the morechaotic living environment of the city. Finally, political preferencesconsist of a perception that suburbs offer a better opportunity toexercise one's political voice.

1. Economic PreferencesthatEncourageSprawl

Professor Charles Tiebout provides an economic model that

helps explain how individual preferences have led to an exodusfrom the city. Making assumptionslike perfect mobility, he arguesthat people will move to the locality whose revenue-expenditurepatterns match their preferences.117While his argumentmay be aslimited as its assumptions, empirical data demonstrate that manypeople make the decision to leave the city for the suburbs to cap-ture a desired economic bundle.18

School services and taxes are probably the two most importantcomponents of this bundle.19With respect to schools, many people

choose the suburbsover cities in search of a higher level of educa-tional quality.120When compared to students in suburbanschools,urban students generally have much lower standardizedtest scoresand significantly higher dropout rates.12Differentiation in school

performance occurs largely because suburbs have a greater tax

117 Charles M. Tiebout, A PureTheory

of LocalExpenditures,

64 J. Pol. Econ. 416,424 (1956).

118Georgette C. Poindexter, Collective Individualism, Deconstructing the Legal

City, 145 U. Pa. L. Rev. 607, 615 (1997); see also Vicki Been, Comment on Professor

Jerry Frug's The Geography of Community, 48 Stan. L. Rev. 1109,1110 (1996) (claim-

ing that people move to the suburbs to prevent a redistribution of their income and to

receive a higher level of services).19Poindexter, supra note 118, at 615-16.

120Jeffrey R. Henig & Stephen D. Sugarman, The Nature and Extent of School

Choice, in School Choice and Social Controversy 13, 14 (Stephen D. Sugarman &Frank R. Kemerer eds., 1999) (noting that education plays a large role in people's de-

cision to move to the suburbs).121

James E. Ryan, Schools, Race, and Money, 109 Yale L.J. 249, 274-75 (1999).

2003] 467




base to fund schools122nd because schools in areas of concentrated

povertycreate an environment with lower

expectations.123Some commentators posit a more invidious motive behind themove toward suburbanschools, arguingthat people leave cities toavoid racialintegration.124heir argumentcontends that the UnitedStates Supreme Court's decision in Milliken v. Bradley12 olidified

flight by middle-class whites into the suburbs. In Milliken, theCourt found that past de jure segregation by a city school districtcould not validate a remedy that included surroundingsuburbandistricts.126With this decision, whites who desire a racially segre-gated educational system may simply move into the suburbs,leav-

ing the courts without a remedy.127

2. Social PreferencesthatEncourageSprawl

The arguments about white flight in schools suggest a secondreason for preferences that developed into sprawl:social comfort.

Manypeople move into the suburbsin search of a place where theyfeel socially comfortable.128ociologist Richard Sennett describesthis as a need for "purified community."129e finds the origins ofthis search for purity in adolescence.130 uring adolescence, people

are confronted by an increasingly complex and uncertain world. Inresponse, most adolescents seek a set of circumstances void of sur-

prises.This defensive patterncreates a desire to "buildan image or

identity that coheres, is unified, and filters out threats in social ex-

perience."'1L dolescents extend this need for self-purification to

122Id. at 285. This problem is aggravated by the fact that "[s]tudents from lower so-

cioeconomic backgrounds come to school with greater needs than their more advan-

taged peers," and in turn, cost more to educate. Id.

3Massey & Denton, supra note 67, at 141.124 Michael E. Lewyn, The Urban Crisis: Made in Washington, 4 J.L. & Pol'y 513,

528-29 (1996); J. Peter Byrne, Are Suburbs Unconstitutional?, 85 Geo. L.J. 2265,2269 (1997) (reviewing Charles M. Haar, Suburbs Under Siege: Race, Space and Au-dacious Judges (1996) and David L. Kirp et al., Our Town: Race, Housing, and theSoul of Suburbia (1995)).

125418 U.S. 717 (1974).26Id. at 744-45.

127

Byrne, supra note 124, at 2269.128 Poindexter, supra note 118, at 619-20.129 Richard Sennett, The Uses of Disorder: Personal Identity & City Life 27 (1970).130

Id. at 12.131Id. at 9.

468




their surrounding environment.132ennett claims that this searchfor

purity sometimes extends into adulthood and explains subur-banization better than economic rationales.133e arguesthat "[i]tisthe simplificationof the social environment in the suburbs that ac-counts for the belief that [purityrelated to a] close family life willbe more possible there than in the confusion of the city."'34

Professor Frug categorizes these uncertainties into two common

complaints about the city: "the city's physical conditions... andthe kind of people who live there."135 e goes on to claim that thesuburbs do not provide an adequate shield against the physicalconditions lamented in the city, assertingthat "the city/suburbline

does not separate noise from quiet, dirt from cleanliness, smellsfrom fresh air."136ennett's hypothesis suggests a self-perpetuatingeffect that may explain why people remain in the suburbs despitetheir inabilityto shield themselves from the city. People see the fu-ture as an intolerable uncertainty, so they form bonds to currentfeatures of their life, makingthem resistant to change.137

While Professor Frug does not dispute the suburbs' ability toshield people from others unlike themselves, he arguesthat peopleundervalue the benefits of city life celebrated by commentatorslike Jane Jacobs.138

houghProfessor

Frugsees this as an underrat-

ing of the city, it may simplymean that people prefer being aroundthose similar to them over availing themselves of the benefits ofthe city. This could be the case, for as philosopher David Hume

remarks,"[m]enhave such a propensityto divide into personal fac-tions that the smallest appearance of real difference will producethem."'39Unfortunately, a desire to find a simplified (or purified)environment, combined with an inclination to divide among eventhe smallest perception of difference, could bring back exclusion-

132Id. at 3-30.

133Id. at 70.

134Id.

135Frug, supra note 19, at 1056.136

Id. at 1057.137 Sennett, supra note 129, at 8.138

Frug, supra note 19, at 1057. Jacobs praises good cities for their qualities like di-

versity, community, and vibrancy. See generally Jane Jacobs, The Death and Life ofGreat American Cities (1961).

139 Poindexter, supra note 118, at 619 (quoting 1 David Hume, Essays: Moral, Politi-

cal, and Literary 128 (T.H. Green & T.H. Grose eds., 1875)).

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ary zoning or other mechanisms of white flight as a leading causefor urban

sprawl.Whether due to racial divides or not, many observers supportthe view that people move to the suburbs to seek a higher level ofcomfort.140 ather than explaining the move to the suburbs as asearch for a preferredlevel of services, some sociologists claim thatfear motivates people.141 eople move to the suburbs to flee fromthreats they perceive in the city, such as the poor, disease, crime,rudeness, and minorities. Again, these fears fall into the categoriesof those posed by the city's physical environment and those posedby its residents.'42

The availability of the suburbs as a means of escape has beenpropagated by American intellectual history. In The IntellectualVersusthe City, Lucia and Morton White chronicle the anti-urbansentiment that has existed in American intellectual tradition sincethe time of the Founders.'43They document how the American

Founding Fathers,Jefferson and Franklin;American philosophers,Emerson and Thoreau; American writers, Hawthorne and Mel-

ville; American architects,Louis Sullivanand Frank Lloyd Wright;and other American intellectual icons have all spoken in unison

againstthe

city.44These

figures representthe basis of America's in-

tellectual tradition, which affects how many Americans view the

140 For a discussion of whether this comfort is created by racism, classism, or simply adesire for an increased quality of life, see David Rusk, Inside Game Outside Game:

Winning Strategies for Saving Urban America 316-24 (1999).141

Id. at 99 (citing one commentator as explaining that "the underlying reason forthe growth of [suburban areas] is undoubtedly fear").

142 See Byrne, supra note 124, at 2267-68.143Morton White & Lucia White, The Intellectual Versus the City: From Thomas

Jefferson to Frank Lloyd Wright 1-2 (1962). An examination of our more recent in-tellectual history may signal a shift in preferences for the city or, at the very least, a

rivalry between the city and the suburbs. Writers (John Keats, Vance Packard, John

Cheever), social critics (Lewis Mumford, Betty Friedan), and historians (FrederickLewis Allen) have been among those who have criticized the suburbs as lowbrow, ar-

tificial, and conformist. See Rosalyn Baxandall & Elizabeth Ewen, Picture Windows:How the Suburbs Happened, at xviii-xx (2000); White & White, supra, at 1.

144White & White, supra note 143, at 3. For more discussion on the existence of thisintellectual tradition, see Leo Marx, The Machine in the Garden: Technology and thePastoral Ideal in America (1964); Gregory S. Alexander, Dilemmas of Group Auton-

omy: Residential Associations and Community, 75 Cornell L. Rev. 1, 7-10 (1989).

470 [Vol. 89:447




city today. The Whites explain that people look to our intellectual

role models and sharetheir fear of the

city.145The abilityof the suburbsto act as a safe haven has also been re-inforced by the Supreme Court. In the seminal zoning power case,Villageof Euclid v. Ambler Realty Co., the Court upheld the use ofthe state's police power to separate residential uses from commer-cial and industrial uses.146 ustice Sutherland reasoned that this

separationof uses bore a rational relation to health and safety, be-cause residential districts protect people against "fire, contagionand disorder which in greater or less degree attach to the locationof stores, shops and factories."'47He argued that dense residential

districts might fail to provide this safeguard, as higher-densityapartmentsfailed to shield people from "disturbingnoises incidentto increased traffic and business, and the occupation, by means of

moving and parked automobiles, of larger portions of the streets,thus detracting from their safety and depriving children of the

privilege of quiet and open spaces for play, enjoyed by those inmore favored localities."'48

Justice Douglas's opinion in a more recent zoning case continuesto recognize the suburbs as a location preferable to the city. In Vil-

lage ofBelle Terrev.

Boraas,the

SupremeCourt

upheldthe use of

the zoning power to restrict residences to single-family dwellings.'49Justice Douglas supported this decision by claiming that this typeof suburbandevelopment created "[a] quiet place where yards are

wide, people few, and motor vehicles restricted.""50 e continuedhis praise for the suburbs as a place where "familyvalues, youthvalues, and the blessings of quiet seclusion and clean air make thearea a sanctuaryfor people."'15

3. Political PreferencesthatEncourageSprawl

Finally, people prefer the suburbs over the city because peopleare motivated by the desire for political participation. According to

145White & White, supra note 143, at 200-08.146

272 U.S. 365 (1926).47Id. at 391.

148Id. at 394.

149416 U.S. 1 (1974).50Id. at 9.

51Id.

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this theory, people seek a local government receptive to their po-litical voice. Due to

diversitywithin the

city, peoplebelieve their

voice will be lost among numerous opposing opinions.152 s a reac-

tion, people exit the city for the suburbs. The homogeneity of thesuburbs allows people to live among other like-minded people, re-

sulting in a local government where their voice is heard.'53Also,small suburban local governments often represent a stark contrastfrom the massive bureaucracies of some city governments.This dif-ference in functional structure demonstrates another reason whypeople may feel that the suburbsprovide more opportunityto par-ticipate in governmentat the local level.54

B. BehavioralInfluencesthat Cause UrbanSprawl

Despite economic, social, and political motivations for urban

sprawl, some evidence indicates that people may not actually pre-fer suburbs.According to a 1988 survey by the Center for Public

Interest, the suburban ifestyle rankedfourth behind that of a small

town, a village, and a rural setting as a desired residential loca-tion.155Other studies show that people do not necessarily prefer a

separation of uses over mixed-use communities, nor low-density

over medium- or high-density residences.56With respect to retailareas, consumers strongly prefer compact centers to strip malls,finding them more convenient, safer, and more aesthetically pleas-ing.157f these surveys are accurate,however, why do people con-tinue to move to and live in the suburbs?

Urban sprawl may continue due to two influences that distort

people's behavior:heuristic biases and government policies. Ratherthan being motivated by a true preference for the suburbs,people

152 For more on the fear of diversity leading to a loss of political voice, please see thediscussion infra Part V.

153Poindexter, supra note 118, at 617.

154Id.at618.155 obert G. Shibley, The Complete New Urbanism and the Partial Practices of

Placemaking, 9 Utopian Stud. 80, 82 (1998).56 Ewing, supra note 4, at 111. While people divide evenly in this regard,

they strongly prefer a single-family house with a yard on all sides over otherforms of housing. Fannie Mae, 1996 National Housing Survey 27 (1996),http://www.fanniemae.com/media/survey/index.jhtml?p=Media (last visited Feb. 7,2003) (on file with the Virginia Law Review Association).

157 Ewing, supra note 4, at 111.

472 [Vol. 89:447




may move awayfrom the city because they are using heuristics thatdo not result in rational or consistent behavior. Government

poli-cies may further distort people's behavior by providing subsidiesand restrictionsthat pull them away from the city and into the sub-urbs.

1. HeuristicBiases thatEncourageSprawl

Behavioral law and economics may help explain the occurrenceof sprawl. Incorporating learning from social sciences, behaviorallaw and economics attemptsto explain why traditional models thatassume the rationality of people often fail to explain their behav-

ior.'58These theories posit that people, who are confronted withlarge amounts of information on a daily basis, use heuristics, ormental shortcuts, to make decisions.159everal of these heuristics

may be responsible for perpetuating sprawl.One of these heuristicsis mental accounting. Under mental accounting, people distributetheir resources into different accounts.Although similar resourcesshould be considered fungible, people place different values onthese resources depending on their "mental account.""'6herefore,a dollar spent from a "vacation account" differs from one spent

from an account set aside for college tuition or retirement.'16In the same respect, people may make mental accounts of theirtime. The average American spends nearly an hour commuting toand from work each day.162urther,the single-familyhouses foundin suburbs require more time spent on maintenance than otherforms of housing.163ather than valuing their leisure time less than

city-dwellers, suburbanitesmay place commuting and housekeep-ing time in an account that does not influence the amount of timeavailable for other activities. The difficultyin valuingtime may also

amplify the effect of this bias. Though people may move to the

158For a description of the basic elements of behavioral law and its application toother problems, see generally Behavioral Law and Economics (Cass R. Sunstein ed.,

2000).159ee Cass R. Sunstein, Introduction to Behavior Law and Economics, supra note

158, at 1, 3."60Christine Jolls, Behavioral Economic Analysis of Redisributive Legal Rules, in

Behavioral Law and Economics, supra note 158, at 288, 294-95.161 Sunstein, supra note 159, at 6-7.162 See Fed. Highway Admin., U.S. Dep't. of Transp., supra note 99, at 2-6.163

Real Estate Research Corp., supra note 95, at 76-77.

2003] 473



VirginiaLaw Review

suburbsfor economic reasons, they may not be accountingfor thevalue of the increased time

theymust

spendto maintainthe subur-

ban lifestyle.The availability heuristic is another mental shortcut that may

help explain the behavior that forms sprawl.The availabilityheu-ristic suggests that people often estimate the likelihood of an eventbased on how readily they can recall pertinent examples. There-

fore, people will perceive a higher risk of those events that aremost easily called to mind.'64 arlier,personal safety was identifiedas one motivation for moving to the suburbs.Despite this prefer-ence, suburbs may not actually be safer than cities when all the

risks are taken into account. For example, one study found thatwhen accountingfor deaths by trafficaccidentsand homicides by a

stranger,people are more likely to be killed in the suburbsthan inthe city.'65These phenomena occur because, for example, suburbs

require increased commute times at higher speeds, which in turn

greatly increases the likelihood of dying in an automobile acci-dent.'66People may have this mistaken conception of safety be-cause local news sources give greater attention to violent crimethan to trafficaccidents,thus increasingthe ease of recallingexam-

plesof violent crime.

2. GovernmentPolicies thatEncourage Sprawl

While the decision to escape the city is typicallymade on the in-dividual level, government policies can profoundly influence thesedecisions. Through direct subsidies and taxes, the government can

encourage one behavior over another. At the same time, legal re-strictions can prohibit the availability of certain behaviors. When

examiningwhether government policies help contribute to sprawl,one finds that several government actions stand out as means of ei-

ther pushing people from the cities or drawingthem into the sub-urbs.167

64Timur Kuran & Cass R. Sunstein, Controlling Availability Cascades, in Behav-ioral Law and Economics, supra note 158, at 374, 374.

65 William H. Lucy, Watch Out: It's Dangerous in Exurbia, Plan., Nov. 2000, at 14,15.

166Id.

167For an excellent account of how government policies contribute to sprawl, see

Jackson, supra note 37.

474 [Vol. 89:447




First, the federal government's transportationpolicy contributesto

sprawl by encouragingautomobile travel over

mass transit.168The government encourages sprawl both directly, through subsi-

dies, and indirectly, by failing to make commuters responsible forthe full costs of drivingto work. Since the passage of the HighwayTrust Fund169n 1956,the highway system has thrivedbecause it hasbeen considered a public good by the government.'70At the same

time, mass transit has struggled, in part because the governmentdecided to treat it as a private investment that should not draw

upon common taxpayer money.'17Meanwhile, highway programshave transformed once inaccessible land into areas prime for de-

velopment.172 nce highwaysare constructed,commercial and resi-dential centers quickly develop around them.73 The highway sub-

sidy continues today in the form of the Intermodal Surface

Transportation Efficiency Act ("ISTEA"),174 hich granted $108billion of federal aid to highways over six years,175nd the Trans-

portation Equity Act for the 21st Century ("TEA-21"),176 hich

provides over $171 billion to federal highway programs over four

years.'77Government transportationpolicies also encourage sprawlbecause they do not force drivers to internalize their costs on soci-

ety.These costs include those

relatingto traffic

accidents,routine

street maintenance, air pollution, the strategic petroleum reserve,

168Epstein, supra note 47, at 364. Federal, state, and local governments also encour-

age sprawl through subsidizing other infrastructure elements such as sewers, water,utilities, and local roads. Id.

169 Highway Revenue Act of 1956, ch. 462, ? 209, 70 Stat. 387, 397-401 (1956) (codi-fied as amended at I.R.C. ? 9503 (2000)).

170 Only sixty percent of federal highway construction is paid for by gasoline tax

revenues, leaving the other forty percent to be funded by general tax revenues.

Lewyn, supra note 124, at 541.171

Jackson,upra

note37, at 168-71.172 Id.at 163-68.173

Lewyn,supranote 124,at536-38.174

Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240,105 Stat. 1914 (1991) (codified as amended in scattered sections of 49 U.S.C. (2000)).

175Liam A. McCann, Note, TEA-21: Paving Over Efforts to Stem Urban Sprawl and

Reduce America's Dependence on the Automobile, 23 Wm. & Mary Envtl. L. &

Pol'y Rev. 857, 860 (1999).17"Transportation Equity Act for the 21st Century (TEA-21), Pub. L. No. 105-178,

112 Stat. 107 (1998) (codified as amended in scattered sections of 23 & 49 U.S.C.

(2000)).177

McCann, supra note 175, at 860. The author argues that federal policies slight themass transit system in favor of highways. Id. at 867-80.

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476 Virginia Law Review [Vol. 89:447

and military costs associated with serving gasoline-based interestsin the Persian Gulf.178

Second, federal housing policies have also encouraged the de-

velopment of sprawl in the United States. The Federal HousingAdministration ("FHA") has contributed to the spread of low-

density housing through its selective insurance of home mortgagesand its preference for home construction over home repair.Fromits inception in the 1930s to the 1960s, the program's anti-urban

policies and administrationmade residential development cheaperin the suburbsand, in some cases, the only option available.179ed-eral tax regulationsalso contribute to sprawl through policies such

as, "accelerateddepreciation;five-year amortization;and deducti-bility of 'passive' real estate losses," that make suburbandevelop-ment cheaper than urban development and building new houses

cheaperthan repairingold ones.180These policies also contributed to the racial segregation seen in

urban sprawl. During the early years of federal insurance, mort-

gages often required racially restrictive covenants, prohibitingblacks from taking advantage of these subsidies.'8'Not only did theFHA insure mortgages with racially prejudicial requirements, itadvocatedtheir use."82 ven after

raciallyrestrictivecovenants were

found unconstitutional,the agency continued to enforce racial seg-regation for twenty more years by consistently giving black

neighborhoods the highest risk ratings.183While the FHA has nowacted to prohibit the racist administrationof these programs,someaccuse the government of failing to take the proper measures to

prevent it from occurring n the privatemortgagemarket.84

178Ewing, supra note 4, at 112.

179Jackson, supra note 37, at 203-18; Lewyn, supra note 124, at 546-48; Michael H.

Schill & Susan M. Wachter, 143 U. Pa. L. Rev. 1285, 1308-13 (1995).180

Epstein, supra note 47, at 355 (footnotes omitted); see also Lewyn, supra note

124, at 549 (discussing the home mortgage tax deduction).181Ford, supra note 61, at 1848. These racial covenants were found unconstitutional

in Shelley v. Kraemer, 334 U.S. 1 (1948).182Jackson, supra note 37, at 198; Ford, supra note 61, at 1848;Lewyn, supra note 41,

at 306.183

Peter Hall, Cities of Tomorrow: An Intellectual History of Urban Planning and

Design in the Twentieth Century 293-294 (1996); Ford, supra note 61, at 1848184 reier, supra note 1, at 1381 ("Since its enactment in 1977, federal bank regula-

tors have failed to enforce the Community Reinvestment Act, the nation's major anti-

redlining law."); Schill & Wachter, supra note 179, at 1316-28.



Sprawlandthe New UrbanistSolution

Finally, the federal government has also helped contribute to

sprawlin its

capacityas the nation's

largest employer.Governmen-

tal defense spending decisions have the potential to influence land-use patternsthroughthe creation of jobs. Since WorldWarII, mili-

tary spending has consumed the largest portion of the federal

budget and, in turn, has generated an enormous number of jobs.185Defense spending has led to sprawl by building installations inonce-rural areas and by limiting researchspending to a few metro-

politan areas.'86Within the metropolitan areas that receive defense

spending, most of the money goes to companies located in subur-ban areas.'87o suburbs,rather than cities, receive the employment

and tax benefits of the defense budget and its resultingindustries.State governments have also been responsible for passing laws

that propagate the behavior that forms sprawl. While many ob-servers blame urban sprawl on local governments, states grant the

powers that enable municipalitiesto encourage sprawl.These pow-ers include:

the right to incorporateas a separate municipality; mmunityfrom annexationby the centralcity;the privilegeof engagingin

exclusionaryzoning;the abilityto legislate and provideservices

solely in their own self-interest; he authoritynot only to tax thereal property located within city boundaries but to spend therevenue collectedsolelyon localresidents.88

Metropolitan areas have become fragmented along municipallines, because states have afforded local governments a largeamount of autonomy. In turn, these municipalitiescompete againsteach other for a higher tax base in the form of wealthier residentsand industries. A collective action problem among municipalitieshelps contribute to sprawl by constantly providing incentives for

185Drier, supra note 1, at 1379.

186Id.;Frug,supranote 19,at 1068.

7Dreier, supra note 1, at 1380.

88Frug, supra note 19, at 1070; see also Rusk, supra note 140, at 246 (arguing thatstates contribute to sprawl through the different levels of autonomy they grant totheir municipalities); Byrne, supra note 124, at 2269 (noting the powers granted bystates to municipal governments, which in turn produce urban sprawl); Henry R.

Richmond, Metropolitan Land-Use Reform: The Promise and Challenge of MajorityConsensus, in Reflections on Regionalism, supra note 2, at 9, 38 (recognizing thatlaws passed by states allow municipal actions that encourage sprawl).

2003] 477




bile and helps to build social bonds within the community.196

Through placingoffice

space,retail

stores, housing,and civic build-

ings in the same area, mixed-use development allows people to

shop, to work, and to interact with the communitywithout needinga car.197lthough concentrations of mixed-use land will not imme-

diately create entirely self-sufficient towns,98automobile use willdiminish as people realize the benefits of short commutes199nd astransitstops are placed withinwalkingdistance of these centers.200

The New Urbanist vision also highlightsa diversityin populationwithin communities, which includes housing for minorities and for

people of all incomes.20'New Urbanists claim that racial and eco-

nomic diversitywill afford equal opportunity,serve environmentalgoals through alleviatingthe motivations underlyingflight from ar-eas of concentratedpoverty, and strengthen"thepersonal and civicbonds essential to an authentic community."202he proponents donot provide a formulaic prescription,203ut instead offer a few ex-

amples of successful ways to foster diversity. These include Port-

land, Oregon's zoning ordinances,204Montgomery County, Mary-

196 See Duany et al., supra note 98, at 187.197 Id. at 187-192.198Peter Calthorpe, Introduction to The Pedestrian Pocket Book: A New Suburban

Design Strategy 3, 4-5 (Doug Kelbaugh ed., 1989).199Duany et al. claim that this relocation of businesses and homes will be realized

within a generation. Duany et al., supra note 98, at 190.200 See Peter Calthorpe, The Next American Metropolis: Ecology, Community, and

the American Dream 41 (1993).201

Cong. for the New Urbanism, supra note 18, at 1; Henry R. Richmond, Seven, inCharter of the New Urbanism 53, 53 (Michael Leccese & Kathleen McCormick eds.,2000).

202 Marc A. Weiss, Thirteen, in Charter of the New Urbanism, supra note 201, at 89,89.

203Duany et al., supra note 98, at 53.204 Portland's Urban Growth Boundary has reduced competition among municipali-

ties to attract larger housing lots and has increased the amount of land zoned for

multi-family housing. Richmond, supra note 201, at 54-56.

2003] 479



VirginiaLaw Review

land's affordable housing requirements,205nd the Silicon Valley

ManufacturingGroup'stransit

system.206Second, the movement stresses pedestrian and transit orienta-tion. Pedestrian orientation must be accomplishedby placing a va-

riety of uses withinwalkingdistance of housing or transitstops and

by creating pedestrian-friendly street networks.207 ew Urbanistscaution that their movement does not necessarilypreclude the useof cars. They realize that "[a]utomobilesare a fact of modern life,and they are not going away."208nstead, communities should "ade-

quately accommodate automobiles"while still encouraging pedes-triantravel andpreservingpublic spaces.209

New Urbanist communities revolve around a five-minute walkby using the "critical imitingfactor"of a quarter-milebetween the

neighborhood's center and its edge.210By encouraging people to

walk, bike, or take the bus, these communities combat some of the

problems of sprawlby reducing traffic,conserving energy, and im-

provingairquality.21Proponents of New Urbanism warn that, without complemen-

tary street designs, a walking radius and mix of uses will not suc-

cessfully reduce automobile dependence.22Many mixed-use devel-

opmentshave failed to

providean attractive or safe

pedestrianenvironment because they have isolated pedestrians from the

street, forced traffic onto the arterial network, or designedneighborhood streets primarilyfor the speed and convenience of

205MontgomeryCounty,Maryland,uses a mandateand reward ystem by requiringhousingprojectswith morethanfiftyunitsto provideat least fifteenpercentof theirunits as low- to moderate-incomehousing.Duanyet al., supranote 98, at 53; Rich-mond,supranote201,at 57-58.

206 The SiliconValley ManufacturingGroupused new rail lines to connect areasof

medium-density,mixed-use o greenfieldsites of affordablehousing..Richmond,su-pranote201,at 56-57.

207Calthorpe, upranote 200,at 43.

208Douglas Farr,Twentytwo, in Charterof the New Urbanism, upranote 201, at141,144.

209

Cong.forthe New Urbanism, upranote 18,at 2.210

Duanyet al., supranote 98, at 198;ElizabethPlater-Zyberk,Eleven, in Charterof the New Urbanism, upranote 201,at 79, 81;Don Prowler,Mack/Prowler,n ThePedestrianPocket Book:A New SuburbanDesignStrategy, upranote 198,at37,37.

211 WalterKulash,Twelve,in Charterof the New Urbanism, upranote 201, at 83,83.

212Duanyet al.,supranote 98,at 64-74.

480 [Vol. 89:447




automobiles.213nstead, New Urbanists propose narrower travellanes to slow

traffic,street landmarks to orient

pedestrians, largesidewalks to encourage pedestrian activityand outdoor seating, on-street parking to create a buffer between automobile and pedes-trian traffic, and intersections that allow for both pedestrian andvehicular movement.214n a comfortable pedestrian environment,people will feel safe to travel on foot and to interact with other

people in their communities.21For longer distances,New Urbanists

suggest interconnectedness through transit and bikeways.216o en-sure successful transit, communities should make transit systems"frequent and predictable[,]... follow a route that is direct and

logical[,] ... [andhave stops that are] safe, dry, and dignified.""'

8' 810' 8'ParkingTravelLanesParking

New Urbanists seek to create a pedestrian-friendlyenvironment with narrow travel lanes to slow traffic and on-street

parking to act as a buffer between automobiles and street life.218

Third, New Urbanists seek to create communities built around

public spaces. At the center of their neighborhoods,New Urbanists

place civic centers with government offices, post offices, libraries,and other community buildings.219chools should be designed, interms of both size and location, so that all children in the commu-

213 Calthorpe, supra note 200, at 43.214 Id. at 95-97; Victor Dover, Twenty three, in Charter of the New Urbanism, supra

note 201, at 147, 147-49.215

Cong. for the New Urbanism, supra note 18, at 2.216

Calthorpe, supra note 200, at 102-07; William Lieberman, Fifteen, in Charter ofthe New Urbanism, supra note 201, at 101,101-03.

217Duany et al., supra note 98, at 202-03; see also Lieberman, supra note 216, at

101-03 (detailing specific factors that communities should consider when creating atransit system).

218Calthorpe, supra note 200, at 95.

219 Id. at 93.

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482 VirginiaLaw Review [Vol. 89:447

nity can walk to them.220urthermore,promotersof New Urbanism

encouragethe creation of

public parkswithin two blocks of

anyresidence.221 y making public spaces central to neighborhoods,New Urbanists hope to provide places for community interaction,whichwill ultimatelyevoke pride and participation n public life.222

Finally, the movement celebrates unique local elements such aslocal history, climate, ecology, and building practice. New Urban-ists drawupon these elements to create memorable places. Design-ing around natural landscape features creates landmarks, while

recognizing climate allows for more energy-efficient buildings.223Combining these design elements with local history and building

practices will create a regional identity that "celebrates and de-lights in what is different about a place."224 xamples of thesememorable places frequently cited by New Urbanists include San

Francisco,California and Savannah,Georgia.22

B. Scalesof New UrbanistActivity

To achieve these goals, New Urbanists encourage activity onthree different scales. The largest scale, the region, consists of the

metropolis, city, and town.226 ccording to the Charterof the Con-

gress for the New Urbanism, "[m]etropolitan regions are finiteplaces with geographic boundaries derived from topography, wa-tersheds, coastlines, farmlands,regional parks, and river basins."227Within these regions, the proponents of New Urbanism suggestcoordinated strategies of "economic development, pollution con-

trol, open-space preservation, housing, and transportation."228

220Elizabeth Moule, Sixteen, in Charter of the New Urbanism, supra note 201, at

105, 107.221

Calthorpe, supra note 200, at 91-93.222 Andres Duany, Twenty five, in Charter of the New Urbanism, supra note 201, at

161,161-65.223 Duany et al., supra note 98, at 196; Douglas Kelbaugh, Twenty four, in Charter of

the New Urbanism, supra note 201, at 155,156-157.224

Kelbaugh, supra note 223, at 155.225 See, e.g., Duany et al., supra note 98, at 33 (extolling the beauty of the city design

in Savannah); Kelbaugh, supra note 223, at 157 (describing the "dramaticstreetscapesand views" of San Francisco).

226 Cong. for the New Urbanism, supra note 18, at 2.227Id.

22The Region: Metropolis, City and Town, in Charter of the New Urbanism, supranote 201, at 13, 13.




These regional goals should include transportation connections,deconcentration of

poverty,urban

growth boundaries, tax-basesharing,and balanced education systems.29New Urbanists call forthese strategiesto be carried out by both the private and the publicsectors; however, they do not provide many specific guidelines for

implementationat this level.230The middle scale includes the neighborhood, the district,and the

corridor.231While the regional scale concerns mostly policy objec-tives, this level primarilyfocuses on urban planning doctrine. Thisscale "is the heart of New Urbanism: the reassertion of fundamen-tal urban design principles at the neighborhood scale and their

unique accommodation to the contemporaryworld.""3Accordingto New Urbanists, neighborhoods should be built with a quarter-mile radius and aggregate into towns and cities, which then com-bine to form regions. Central to each neighborhood are the tenetsdiscussed above, including:a pedestrian focus, a mix of uses, andthe creation of public space.233ome of these neighborhoods willcome together to create districtswith specialized functions, such astheater districts,college campuses, airports,and industrialparks.234New Urbanists stress that, despite this specialization,these districtsshould also have mixed uses and match the structure of the

neighborhood.235Finally, corridors should connect individual

neighborhoods and districtsthrough bikeways and railwaysas wellas highwaysfor longer distances.236

229 Duany et al., supra note 98, at 142-49, 227-33; Peter Calthorpe, One, in Charterof the New Urbanism, supra note 201, at 15, 19, 21; Wendy Morris, Five, in Charter ofthe New Urbanism, supra note 201, at 43, 43-45.

230See Duany et al., supra note 98, at 227-43; Robert D. Yaro, Two, in Charter of

the New Urbanism, supra note 201, at 23, 23-25.231

Cong. for the New Urbanism, supra note 18, at 2.232 Neighborhood, District and Corridor, in Charter of the New Urbanism, supra

note 201, at 71, 71.233 Plater-Zyberk, supra note 210, at 79-81.234 Id.at 81.235Id. at 81-82.236 Kulash, supra note 211, at 83-86; Plater-Zyberk, supra note 210, at 82.

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AREA: PREFERABLE 160 ACRESTO HOUSE ENOUGH PEOPLE TO

SUPPORT ONE ELEMENTARYSCHOOL

rt-Kr tABLE SHAPE:ALLSIDES FAIRLYEQUIDISTANTFROMTHE CENTER

[Vol. 89:447

\,SITE RESERVED

FOR CIVIC'BUILDNG \

''|L'*^' \

New Urbanists have provided detailed guidelineson how to create their vision at the neighborhood level.27

Perhapsbecause they consider it to be the center of their vision,New Urbanists have articulatedthorough guidelines for activityon

237 Source: Ramsey/Sleeper, Architectural Graphic Standards 86 (John Ray Hoke,

Jr., ed., 10th ed. 2000) [hereinafter Architectural Graphic Standards].

484




this scale.38In addition to detailed neighborhood-building princi-

ples, theyhave drafted a

legal framework, the TraditionalNeighborhood Development ("TND") Ordinance.239 ew Urban-ists recognize the importance of the TND Ordinance, observingthat "[c]odes are pervasive in their control of the built publicrealm."240he TND Ordinance offers zoning regulations that willcreate neighborhoods accordingto the New Urbanist model.

While the TND Ordinance allows more flexibility than manyzoning codes, it still offers specific guidelines for the "traditional

neighborhood." Indeed, the TND Ordinance represents some ofthe most detailed articulations of how the tenets of New Urbanism

may be fulfilled. It begins by restating the characteristics of NewUrbanist design and the social goals that these characteristicsaremeant to promote.24The Ordinance then sets forth zoning re-

quirements that will fulfill these objectives. It provides six landuses, each with particular space allocations in the neighborhood,design regulations, and street and parkingrequirements.242he Or-dinance emphasizes pedestrian orientation through provisions thatinclude size limitations for the overall neighborhood and limita-tions for block lengths, the requirementof streetlampsat specifiedintervals, minimum sidewalk widths, and maximumsetback allow-ances.243t also encourages medium-density development throughprovisions that discourage low-density development and prohibithigh-density development.244Finally, the Ordinance focuses on

public spaces through requirements such as the setting aside of aminimumproportion of land for public parks, a child-carefacility,and a one-acre central square no farther than two thousand feetfrom the edge of the neighborhood.245

238 ee, e.g., Calthorpe, supra note 200, at 77-94, 101-12; Duany et al., supra note 98,at 183-214.

239Architectural Graphic Standards, supra note 237, at 98-99.240

Bill Lennertz, Seventeen, in Charter of the New Urbanism, supra note 201, at109, 109.

241Architectural Graphic Standards, supra note 237, at 98.

242Id. at 99. These land uses include public, civic, commercial, high residential, low

residential, and workplace. Id.243

Id. While many zoning regulations require minimum setbacks for buildings, NewUrbanist communities have maximum setbacks in order to encourage activity and in-teraction on sidewalks.

244For example, all non-civic structures must be no taller than four stories. Id.

245Id.

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Virginia Law Review

At the smallest scale of activity, New Urbanists focus on the

block,the

street,and the

building.246his scale moves from

usingplanning principles to architectural mechanisms to fulfill their

goals.247 ew Urbanists feel that most modern urban architecturehas improperly shifted away from outdoor spaces allowing publicinteraction toward impersonal high-rise towers, freeways, andabandoned urban cores.248n response, activities in this smallestscale strive to reinforce the pedestrian focus and create more pub-lic space on the neighborhoodlevel.249 ew Urbanists arguethat, todo this, people must feel safe in both public spaces and in walkingareas.New Urbanistspromote safety throughdesign elements such

as lightingat ample and regularintervals,landscapingthat does notblock views at eye level, and windows that allow for surveillanceofthe street below.250

New Urbanists also seek to create communitythrough designingpublic spaces that attractpeople. They wish to recreate a street life,so that people do not feel the need to withdraw into the built envi-ronment. To achieve this goal, New Urbanists invite buildings tointeract with walkable public areas by encouraging "encroachingelements" like balconies, canopies, and colonnades.251 ew Urban-ists do not limit

public spaceto streets;

theyalso include

squares,plazas, and accessiblecivic areas.252The block is the primarylevel where New Urbanists seek to cre-

ate a sense of place. They aim to do so through creating a harmo-

246 Cong. for the New Urbanism, supra note 18, at 2.247

Architects emphasizing urban design heavily influenced the New Urbanists. See,

e.g., Michael Dennis, Court & Garden 3 (1986); Elizabeth A.T. Smith, Urban Revi-sions: Current Projects for the Public Realm (Russell Ferguson ed., 1994); Demetri

Porphyrios, Introduction to Leon Krier: Architecture & Urban Design 1967-1992, at

8, 9-10 (Richard Eckonomakis ed., 1992).248This hift has come about in large part due to reliance on the automobile, the

Modernist movement in architecture, urban-renewal and zoning policies, the domina-tion of private interests over those of the public, and a change in the use of land in the

inner-city. Roger Trancik, Finding Lost Space: Theories of Urban Design 4 (1986).249

Block, Street, and Building, in Charter of the New Urbanism, supra note 201, at121.

250 Ray Gindroz, Twenty one, in Charter of the New Urbanism, supra note 201, at

133, 135-36. Windows also advance a New Urbanist goal of connecting people to the

community by providing a connection to the outdoor world. Mark M. Schimmenti,

Twenty six, in Charter of the New Urbanism, supra note 201, at 169, 169.251Dover, supra note 214, at 147-49.252Id. at 150-51; Duany, supra note 222, at 161-65.

486 [Vol. 89:447




nious built environment. Rather than an eclectic mix of building

styles,New

Urbanists strive for environments based on natural,cultural, and historical settings that distinguish between common

dwellings and monuments.53To create these environments, archi-tects focus on building materials and techniques that reflect the

unique elements of the community.254 roponents of New Urban-ism also hope to inspire a sense of history through revitalizingand

restoringhistoric areas and buildings.255

IV. EVALUATIONOFTHENEWURBANISTSOLUTION

A. Limitsof the New UrbanistVision

Promoters of New Urbanism give the most concrete formula-tions on smaller scales, but since urban sprawl occurs on levels

higher than the neighborhood, New Urbanist communities havefailed to solve many of sprawl'sproblems. Put simply,New Urban-ists have not provided actionable solutions at the regional level;rather,New Urbanists have only given practitionersand lawmakersdetailed guidelines for creation of the New Urbanist vision at theblock and neighborhood level. For example, the TND Ordinance

provides specific recommendations on everything from the place-ment of streetlights to the allocation of civic space in a traditional

neighborhood.256 ther New Urbanist works provide thorough dia-

gramson how to design intersections, street vistas, and communitysquares.57

Yet, once the movement addresses issues beyond these spatialrelationships, its recommendations become increasingly vague. Atthe metropolitan level, New Urbanists make suggestions that seemto restate the problem in the negative, rather than providing

253 Stefanos Polyzoides, Twenty, in Charter of the New Urbanism, supra note 201, at

127, 127-30.254 Kelbaugh, supra note 223, at 155-59.255Ken Greenberg, Twenty seven, in Charter of the New Urbanism, supra note 201,

at 173, 173-75.256 In general land-use areas "[s]treetlights are provided along all thoroughfares at

35 to 50-ft intervals" and in public land-use areas "[a] minimum of 5% of the

neighborhood area or 3 acres (whichever is greater) is permanently allocated to pub-lic use." Architectural Graphic Standards, supra note 239, at 99.

257E.g., Calthorpe, supra note 200, at 39-114.

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workable solutions.25For example, when arguingfor the deconcen-tration of

poverty,their

only guidanceis that "each

jurisdictionwithin the metropolis must provide its fair share of affordable

housing."259 hen callingfor regional tax-base sharing, they simplystate "[w]ithout regional tax-sharing provisions, inner-city eco-nomic decay will continue to spread."26While New Urbanists rec-

ognize that many of sprawl's problems can be effectively chal-

lenged at the regional level, suggestions on how to effectuate thesedifficult solutions are all but absent.

In fact, the works of New Urbanistsgloss over even the first stepof the process because they do not address how localities must

strike a balance between autonomy and power-sharingin order tocreate an effective regional government.In his book, SuburbanNa-

tion, Andres Duany recognizes the difficulty of this pursuit, andthen moves along as if the problem does not warrant more atten-tion. He writes, "[t]o create [a regional government] can be diffi-

cult, as it should be built with resources distributed from existinggovernments to avoid increased taxation. Once a regional-scaleagency is established, however, its mandate is clear."26'Other NewUrbanist writingshave provided scarcelymore help when advisingthe creation of a

regional government.In Charter

ofthe New Ur-

banism, Robert Yaro offers a promisingsection title, "How to Ini-tiate and Pursue a Regional Plan," but he fails to deliver.262Hestarts encouraginglyby suggesting that "[t]o succeed in efforts to

develop metropolitan plans, the citizens of a region must begin byregistering broad public concern about threats to natural or cul-tural heritage, or to economic prospects."263et, the only recom-mendations he offers come in the form of six short paragraphsthat

simply list examples of cities that have regional plans.264n the end,

258 The only exception to the lack of specificity at the regional level is with regard toregional transportation planning, in which the New Urbanists again provide a detailed

spatial solution. See Calthorpe, supra note 200, at 101-07; G.B. Arrington, Eight, inCharter of the New Urbanism, supra note 201, at 59, 59-63.

259 Calthorpe, supra note 229, at 19.260d. at 21.261

Duany et al., supra note 98, at 227-28.262

Yaro, supra note 230, at 24.

263Id.264

Id. at 24-25. These descriptions include: "In San Francisco, the Public UtilitiesCommission spent more than $2 million and five years on a plan to manage the

63,000-acre Peninsula and Alameda watersheds to preserve water quality, but also to

488 [Vol. 89:447




Yaro neglects to extract the lessons learned from each of these re-

gionalcoalitions or to contrast these successful

exampleswith at-

tempts that did not work. The lack of specificityof the New Urban-ist vision at the metropolitan level stands in stark contrast to therichness of detail at the neighborhood scale and below. Their lit-erature needs to provide concrete suggestions on how to overcomethe difficulties of creating regional coalitions and how New Urban-ist concepts can be woven into the goals of these coalitions.

Fortunately, proponents of the movement recognize this short-

coming and have begun to improve in this regard.265 hwahnee

Principles, an early articulation of New Urbanist tenets, heavily

emphasizes actions at the communityscale.266wo years after pub-lication of the Ahwahnee Principles, Peter Calthorpe included asection on regional plans in his book The Next American Metropo-lis.26'Soon thereafter,the New Urbanistsplaced even more empha-sis on the region in The New Urbanism:Toward an ArchitectureofCommunity,where Calthorpe wrote a section on the region thatreceived as much attention as planning principles at the neighbor-hood and block levels.268inally, five years after publication of theAhwanee Principles, the First Congress of the New Urbanism es-tablished the

regionas an

equalto the two other scales when it

passed the Charterof the New Urbanism.269n the Charter, he NewUrbanists "recognizethat physical solutions by themselves will notsolve social and economic problems, but neither can economic vi-

tality, community stability, and environmental health be sustained

conserve significant buffers to urbanization in the Bay area;"and "[r]egional planningauthorities such as the Cape Cod Commission and the Tahoe Regional PlanningAgency (whose authority straddles the California-Nevada border to include the entireLake Tahoe basin) have also taken steps to integrate the design of urban areas withthe preservation of open places." Id. at 25.

265 "Our town planning practice is based on the understanding of these [design]techniques, but we have also come to understand that, alone, they are insufficient.

Policy and management can work hand-in-hand with design to ensure results or, like-

wise, can conspire to make such results impossible." Duany et al., supra note 98, at217.

266The document lists fifteen "community" principles, but only four "regional prin-

ciples." Ahwahnee Ctr. for Res. Efficient Cmtys., Ahwahnee Principles 2 (1991)6Calthorpe, supra note 200, at 118-35.

268 Peter Calthorpe, The Region, in The New Urbanism: Toward an Architecture of

Community, at xi (Peter Katz ed., 1994).269 In the Charter, the New Urbanists devote nine principles each to the region, the

neighborhood, and the block. Cong. for the New Urbanism, supra note 18, at 2.

2003] 489



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without a coherent and supportive physical framework."270ubse-

quentworks have continued this trend of attention to the

regionallevel, but they still require more detail before New Urbanism canbe considered a comprehensivesolution to sprawl.27

B. Shortcomingsof the New Urbanism n Practice

The failure of New Urbanists to supply depth to their vision be-

yond the neighborhood scale may explain why it has fallen short ofits ideals in practice.272lthough the New Urbanist vision has ma-tured quickly, products of the movement have not developed at

nearly the same pace. In 1996, the New Urbanists could claimfewer than two thousand residents in their communities.273houghthere may not be enough examples of the New Urbanism to makea conclusivejudgmenton the movement,274hese early communities

suggest that the current formula for New Urbanism does not meetits goals. When asked to assess New Urbanism, the Chairman ofthe Department of Urban Planningand Design at HarvardUniver-

sity's Graduate School of Design, Alex Kreiger,replied:

To date you [New Urbanists]have helped produce:More subdi-visions(albeitinnovativeones) thantowns;an increasedreliance

on private managementof communities,not innovativeforms ofelected local governance;densities too low to support muchmixed use, muchless to support publictransportation;elativelyhomogenous demographicenclaves, not rainbow coalitions; anew, attractive,anddesirable ormof plannedunitdevelopment,not yet substantialinfill, or even better, connections between

270Id. at 1.271See, e.g., Duany et al., supra note 98, at 142-149.272 While New Urbanism has not made significant progress in combating sprawl, it

has made other contributions in practice. For example, the U.S. Department of Hous-

ing and Urban Development has incorporated New Urbanist concepts into some of its

public housing designs. These designs look to be successful in avoiding the creation ofurban ghettos by mixing federally subsidized housing with tenants that pay market

price. Steve Garman, The Hope and Risk of New Urbanism, Pub. Mgmt., Jan.-Feb.2002, at 10, 11-13; Weiss, supra note 202, at 89-96.

273William Fulton, The New Urbanism: Hope or Hype for American Communities?1 (1996).

74Cf. Emily Talen, Sense of Community and Neighbourhood Form: An Assessmentof the Social Doctrine of New Urbanism, 36 Urb. Stud. 1361, 1362 (1999) ("[N]ew[U]rbanists are plagued by a sheer lack of evidence.").

490 [Vol. 89:447




new andexistingdevelopment;marketing trategiesbetter suitedto real estate

entrepreneurshan

publicofficials;a new wave of

form-follows-functiondeterminism(oddly modern for such ar-dent critics of Modernism), mplyingthat communitycan be as-suredthroughdesign;a perpetuationof the mythof the creationand sustainmentof urbanenvironmentsamidstpastoralsettings;carefullyedited,rose-coloredevocations of small-townurbanism,from which a century ago manyAmericans fled not to the sub-urbs but to the city.275

Even some advocates of the New Urbanist theory express disap-

pointmentwith New Urbanism in

practice;architecturalhistorian

Vincent Scully remarks that "[t]he New Suburbanismmight be atruer label." 276

Professor Scully's portrayal may rise from the fact that whileNew Urbanist developments have succeeded in providing the spa-tial models set forth by their doctrine, they have not yet conqueredthe problems of urban sprawl. Even though these communitiestake a different form than cul-de-sacs and stripmalls, they still ex-hibit some of sprawl'shallmarktroubles. Outside of Orlando,Flor-

ida, the development known as "Celebration" provides one ex-

treme example. To see if Disney's version of New Urbanismsatisfied the lofty proclamationsof its creators,New York Univer-

sity Professor Andrew Ross lived in Celebration for a year. Afterthis period, he concluded that although Celebration has its advan-

tages, the community represents part of Disney's plan to protectproperty values and secure public funding for highways to itstheme parks and fails to accomplish many of the New Urbanist

goals like political participationand racialdiversity.277Other New Urbanist projects have similarshortcomings.Several

communitiespresented as models of the movement consist of luxu-

rious vacation and retirement homes. About Seaside, Florida, theproponents of New Urbanism claim that, although, "[o]riginallydesigned to be an inexpensive beachfront vacation community,

275Alex Kreiger, Whose Urbanism?, Architecture, Nov. 1998, at 73, 74.276

Vincent Scully, The Architecture of Community, in The New Urbanism: Towardan Architecture of Community, supra note 268, at 221, 221.

277Andrew Ross, The Celebration Chronicles: Life, Liberty, and the Pursuit of

Property Value in Disney's New Town 223-56, 265-98 (1999).

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Seaside today feels more like an upscale resort."278 ater, they

boastfullydescribe

Windsor, Florida,as "an

exclusive, upscalere-

sort community."279 hile few New Urbanist communities includetheir own eighteen-hole golf course, few can be put forward as suc-cessful examples of economic and racialdiversity.

The failure to cure segregation can be attributedin part to the

high price of New Urbanist dwellings.A residence in their commu-nities comes not only at a high absolute price,280ut also at a pre-mium over similar properties in the market area.281One studyfound that New Urbanist homes cost eleven percent more thantheir market equivalents.282his phenomenon occurs in many New

Urbanist communities because of covenants that are designed tomaintain high property values. One code in the Kentlands, Mary-land,283 andates the use of nearly all naturalbuilding materials.284Provisions that add to the cost of housing have been used for dec-ades by communities that seek to exclude low- and middle-incomeresidents.285 hese requirementsunderscore the distributiveeffectsof land-use regulations-by creating high housing prices, residentscan exclude the poor.286

278

Peter Katz, Seaside, in The New Urbanism: Toward an Architecture of Commu-nity, supra note 268, at 2, 4.

Peter Katz, Windsor, in The New Urbanism: Toward an Architecture of Commu-

nity, supra note 268, at 60, 61.For example, the smallest townhouse model in the Kentlands, Maryland, com-

munity costs $239 thousand, well out of reach for a low-income family. See City of

Gaithersburg Plan. and Code Admin., Kentlands Information Package (2001) (on filewith the author).

281E.g., Mark J. Eppli & Charles C. Tu, Valuing the New Urbanism: The Impact ofNew Urbanism On Prices of Single Family Homes 73 (1999); Lawrence W. Cheek,New Urbanism Sees Green, Architecture, Mar. 2000, at 74, 74 (reporting that dwell-

ings in Civano, Arizona cost from twelve to fifteen percent over comparable proper-ties in the market).

282Eppli & Tu, supra note 281, at 73. These market comparisons were adjusted fordifferences in the buildings' quality, age, and location. Id.

283The Kentlands is one of the most commonly touted successes of New Urbanistsand represents "the first application of the traditional neighborhood development(TND) principles to a real, year-round, working community." Peter Katz, Kentlands,in The New Urbanism: Toward an Architecture of Community, supra note 268, at 30,31.

284 Kentlands Architectural Code 1-2 (1993) (on file with author).285

Davidoff & Brooks, supra note 191, at 145.286

Cf. Byrne, supra note 124, at 2266 ("The predictable consequences [of some land-use regulations] are that prices will be high and purchasers will have wealth. All land-use regulations have distributive effects ....").

492




New Urbanist developers have also failed to solve other prob-lems of

sprawl,because most often

theyhave chosen suburbanand

exurban locations. While their medium-density form helps reducethe direct effect on environment, the choice of greenfield locations

displaces more land than the selection of infill development. Theindirect environmental effects of sprawlalso exist in New Urbanistcommunities. First, although some developers have succeeded in

creating a mixed-use environment, New Urbanists have not allevi-ated the need for commutingby automobile. Few who work in theretail stores and small offices located in New Urbanist communitiescan afford to live in those communities. Duany admits that most

residents of the Kentlands will have to commute to work: "Iwouldn't be surprised if it starts out at 90 percent or higher."287Since this community lies twenty-three miles northwest of Wash-

ington, D.C.,288t will require commutes that create the same harm-ful emissions as traditional urban sprawl. The Kentlands is notalone in this regard. When voting against permits for the creationof a New Urbanist development that incorporated environmen-

tally-friendly design components, a city councilwoman explained,"It's so far out that everything you save on heating your house is

goingto be burned in

your gastank."289

New Urbanist communities often fail to prevent the economic

problems of sprawl as well. Due to their frequently remote loca-

tions, these developments have the potential to add to the burdenon suburban municipalities just as much as traditional urban

sprawl. Since these communities often rely upon greenfield ratherthan infill development, they require the creation of additional

municipalfacilities ratherthan drawingon existing capacity.Just asin sprawl, under these circumstances,New Urbanist communities

287Mark Jenkins, The End of Suburban Blight, Warfield's, Apr. 1990, at 60, 63.

Duany follows this statement with optimism and predicts that this proportion will fallto forty percent within two generations. Id. Duany relies on this gradual recognitionof the benefits of living in New Urbanist communities to create the benefits of themovement. He states that studies of older communities show that people "will relo-cate their home or business to be near their business or home." Duany et al., supranote 98, at 190.

88Katz, supra note 283, at 31.

289 Cheek, supra note 281, at 75 (quoting former councilwoman Molly McKasson on

why she disapproved of Civano, which lies fifteen miles outside Tucson, Arizona).

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will burden the municipality to the extent that the local govern-ment does not exact

impactfees.

Many New Urbanist communities will contributesimilarlyto thedecline of cities by propagatingspatial mismatch and encouragingwealthy residents to leave the city. Because of these communities'distance from the urban core and the lack of viable transit in mostsuburban areas, city residents will not be able to access jobs cre-ated by new retail and office complexes within these developments.Furthermore, the high prices of entry into many New Urbanistcommunities will prevent city residents from moving into thesecommunities to take advantage of these new employment oppor-

tunities. Making the problem worse, these new developments willcreate incentives for an even larger number of wealthy people tomove away from the city. Rather than staying in the city to enjoythe benefits of a pedestrian-orientedcommunity, wealthy city resi-dents may choose suburbia and move to a New Urbanist commu-

nity in the suburbs. Like traditional urban sprawl, these types ofNew Urbanist communitiesmay leave cities with a lower tax base.

The greatest promise of the current form of the New Urbanismlies in recreating a sense of community. Although studies onwhether the residents of the New Urbanist developments feel a

sense of community have ambiguous results, they use a differentdefinition of communitythan the one advancedby Professor Frug.He explains his hesitation to use the word "community"because ofits use "to refer to a group of people who share things in com-mon... and who seek to foster the bonds they have with eachother."290 ather, Professor Frug's community, or "city life," pro-motes a varietyof ideals throughcreatingopportunitiesfor interac-tion with the unknown. When taken in this light, the New Urbanistcommunities have the potential to afford more interactions with

neighborsbecause of the spatialproximityof residences and shops,the pedestrian orientation of the neighborhood design, and the fo-cus on public spaces.29'Still, most of the New Urbanist communities

may not fully offer the "city life" ideals. Although they providemore interactions with strangers, these "strangers" may not be

290 Frug, supra note 19, at 1048.291 See Talen, supra note 274, at 1365 ("It has been shown in numerous studies that

architectural design plays a role in fostering or inhibiting resident interaction.").

494 [Vol. 89:447




quite so unfamiliar,due to their racial and economic homogeneity.While it would be incorrect to

suggestthat

peoplehave

onlyracial

and economic differences, this homogeneity of New Urbanistcommunities nonetheless detracts from their potential to offer thefull "citylife."

Currentexamples of New Urbanism suggest that the movementsolves only this one problem of urban sprawl, but its proponentsstill tout the vision as the complete remedy. They may be right, yetmany obstacles lie before them. As the New Urbanistshave admit-

ted, the problems of sprawlcannot be solved at only the neighbor-hood level. If New Urbanists want to avoid the accusation of being

"mere nostalgia peddlers" that use their concept to sell expensivehomes,292hey must formulate a more concrete plan above the

neighborhood level to address all of the causes of urban sprawl.Without a strong regional force, New Urbanism has only been im-

plemented in pockets and its communities have demonstrated

many of the same problems as traditionalsprawl.For the New Ur-banists' claims to be truly realized, their neighborhoods must be

part of a larger,more cohesive plan. If the spatial concepts of NewUrbanism combine with a stronger regional formulation, then thevision will more

successfullyaddress

problemssuch as

exclusionaryzoning and leapfrog development.

V. THE ROLE OFREGIONAL GOVERNMENTSIN SOLVING URBAN

SPRAWL

Just as government policies have helped create sprawl, they canalso provide a criticalpart of the solution. Since the different levelsof government contribute to sprawl, they each can be called uponto create policies that help to combat it. At the federal level, the

government can first act by reversingsome of the policies that con-

tribute to suburban and exurban development. Specifically, it canstimulate the creation of better transit networks through subsidies

parallel to those given for highways.At the same time, it can force

292Fulton, supra note 273, at 3; cf. Evan McKenzie, Privatopia: Homeowner Asso-

ciations and the Rise of Residential Private Government 97 (1994) (commenting onhomeowner associations, though some critics would argue equally applicable to New

Urbanism, McKenzie observes that "beneath the democratic and egalitarian rhetoricwas often a marketing strategy that targeted the affluent and emphasized exclusiv-

ity").

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commuters to internalize the costs of automobile travel by reduc-

ingsubsidies for

highwayconstruction and maintenance. The fed-

eral government can also amend tax laws so that urban develop-ment and repair of existing houses will be treated equally, or evenbetter than, the creation of new suburbanhousing. Additionally, ashas already begun, the federal government may alter its publichousing policies to encourage the desegregation of poverty.293While these actions may have some effects on land use, the Consti-tution restrictsthe abilityof the governmentto take some other ac-tions to fight sprawl.Because it possesses limited powers, the fed-eral government likely will not be able to use its legislative power

to create a policy that actsupon sprawlat each of its levels.294Instead, we must look to the states, which possess the taxing,

spending, and police powers that can complement federal laws tocreate a comprehensive anti-sprawl program. As we have seen,sprawl largely manifests itself on a regional level. Therefore, muchof the hope for solving sprawllies in the ability of states to encour-

age the formation of regional governments that have the power toovercome the fragmentationof municipalitiesand interests withintheir areas.

Indeed, inlegal

literature, themajority

of discussion about

sprawl'ssolution revolves around regional governments. The writ-

ings of Professors Richard Briffault295nd Gerald Frug296ave pro-duced the most debate about the benefits of regional governmentsas a means to solve metropolitan problems such as sprawl.Most of

293 Rusk, supra note 140, at 251-76 (discussing changes to public housing policiesduring the past thirty years).

294 See generally Buzbee, supra note 19, at 98-124 (discussing the constitutional lim-its of the federal government in addressing sprawl and advocating the use of the con-ditional power to create indirect anti-sprawl incentives).

295 E.g., Briffault, Our Localism: Part I-The Structure of Local Government Law,90 Colum. L. Rev. 1 (1990) [hereinafter Briffault, Our Localism: Part I]; Briffault,Our Localism: Part II-Localism and Legal Theory, 90 Colum. L. Rev. 346 (1990)[hereinafter Briffault, Our Localism: Part II]; Briffault, The Local Government

Boundary Problem in Metropolitan Areas, 48 Stan. L. Rev. 1115 (1996) [hereinafterBriffault, The Local Government Boundary Problem]; Briffault, supra note 189.

296E.g., Gerald E. Frug, Against Centralization, 48 Buff. L. Rev. 31 (2000); GeraldE. Frug, Beyond Regional Government, 115 Harv. L. Rev 1763 (2002) [hereinafterFrug, Beyond Regional Government]; Jerry Frug, Decentering Centralization, 60 U.Chi. L. Rev. 253 (1993) [hereinafter Frug, Decentering Centralization]; Gerald E.

Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1059 (1980) [hereinafter Frug,The City as a Legal Concept].

496 [Vol. 89:447



Sprawlandthe New UrbanistSolution

this legal theory concentrates on the tradeoff between grantinglo-

calities the power to act effectivelywhile

restrictingtheir

abilityto

negatively affect each other through externalities. While munici-

palities must be given a fair amount of power to solve their prob-lems,297ranting them too much power may lead to competition,which creates and perpetuates inequalities among them.298or ex-

ample, these disparitiescan be observed in the income inequalitiesbetween cities and their suburbs.299hough lacking accord for the

perfect structure, Professors Frug and Briffault agree upon a re-

gional government that coordinates those neighborhood activitiesthat affect each other, yet still permitsmunicipalitiesto provide the

type and the extent of services uniquely desired by their resi-dents.300

The challenge of actually creating a regional government hasbeen left to lawmakers. In practice, successful regional govern-ments have been extremely difficult to create.301Adding to thetheoretical tension described above, numerous practical obstaclesstand in the way of regional governments. Despite the benefits of-fered by powerful regional governments, they will face significantopposition. For example, those who benefit from the current stateof affairs,like "local elected officials, land

developers, corporationsthat are the subjects of interlocal bidding, and the businesses andresidents located in the high-tax-baselocalities of the metropolitanarea,"will all have reasons to resist the creation of a regional gov-ernment.302On the opposite side of the spectrum, even those

groups traditionallyidentified as the primaryvictims of localism-racial and ethnic minorities-may also be wary of a regional gov-ernment. Currently,minorities have a significantvoice in many ur-ban areas. Regional governments may weaken their voice by dis-

297 Frug,The Cityas a Legal Concept, supranote 296, at 1149-51 (suggesting hatcitiesbe givenbroadpowers, ncluding he powerto act as banks andinsurancecom-

panies).298

Briffault,Our Localism:PartI, supranote 295,at 19-24;Cashin,supranote 189,at 1986-88.

299Briffault,Our Localism:PartII, supranote 295,at346,351-55.300SeeBriffault,The Local GovernmentBoundaryProblem,supra note 295, at

1115,1164-71;Frug,DecenteringCentralization,upranote296,at253,295-300.30' Thelong andlargelyunsuccessfulhistoryof effortsto createmetropolitangov-

ernmentshas persuaded ome regionalists hatgovernancereform s doomedto fail-ure."Briffault, upranote 189,at 6.

302Id. at 27 (citations omitted).

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persing minority populations and by making them compete politi-

callywith the

predominantlywhite suburbanresidents.303

Another obstacle to creating a regional government is the lackof successful models. People repeatedly present Portland, Oregon,and Minneapolis-St. Paul, Minnesota (the "Twin Cities"), as suc-cessful regional governments. After studying these two examples,Professor MargaretWeir identifies three common characteristics:"at least one politicallypowerful interest that saw metropolitan re-

gionalism as a way to address its concerns, bipartisan coalition

building, and relatively weak opposing groups."34The lessons thatProfessor Weir drawsfrom these experiences rely mostly on state-

level coalition buildingrather than institutionaldesign.305 ther ex-aminations of these models have had a similarfocus. In Metropoli-tics, former state legislator Myron Orfield describes Minnesota's

experience with creatinga regional government.306When discussingthe applicability of this experience to other regions, he identifieseleven lessons in coalition building.307

Although Portland and the Twin Cities have succeeded in creat-

ing regional governments, they have not completely solved the

problems of sprawl.The Twin Cities have created a large perimeterthat contains their

growth,but within this

perimeterlies "the low-

est-density, most sprawling large region in America outside of At-lanta."308ortland has fared somewhat better in containinggrowth,but it still faces many of the problems of sprawl. First, Portland's

neighborhoods continue to isolate people from one another, be-

303john a. powell, Assessing Regional Dilemmas for Minority Communities, in Re-

flections on Regionalism, supra note 2, at 218, 228-32.304Margaret Weir, Coalition Building for Regionalism, in Reflections on Regional-

ism, supra note 2, at 127, 128.

305Id. at 148-50.306 Myron Orfield, Metropolitics: A Regional Agenda for Community and Stability

(1997).307 Id. at 167-71.308 Richmond, supra note 188, at 35; see also Orfield, supra note 306, at 72-73 (argu-

ing that the lack of a regional planning policy has prevented the Twin Cities from cur-

tailing sprawl); James Poradek, Note, Putting the Use Back in Metropolitan Land-Use Planning: Private Enforcement of Urban Sprawl Control Laws, 81 Minn. L. Rev.

1343, 1346 (1997) ("The early promise of Minnesota's system as a model for dealingwith sprawl has remained largely unfulfilled. Instead, Minnesota has become a case

study in how weak official enforcement can undermine even the best laid metropoli-tan plan.").

498 [Vol. 89:447




cause the neighborhoods still follow the traditionalpostwar subur-ban subdivision

model.'9 Also,even

thoughit has a small

minoritypopulation, Portland has a large amount of racial and economic

segregation.310urthermore, although it has been able to confine

development, Portland's Metro has been forced to expand its

growth boundary in order to accommodate Portland's growingpopulation.31Despite successes in some areas, these regional gov-ernments lack effective policies to support many anti-sprawlgoalslike economic desegregation, medium-density development, andreduced dependence on automobiles.

These shortcomingsof "successful"regional governments might

indicate that they have not found an institutional structurethat re-solves the tension between local autonomy and local competition.Alternatively, this failure may be due to a lack of proper initiativesat smaller levels such as the neighborhood and the block, like thoseadvocated by New Urbanists. Even more likely, some combinationof these flaws contributes to the continuation of sprawldespite theexistence of regional governments.

CONCLUSION

In the end, the depth of the solution to sprawl must match thecomplexity of the problem. Urban sprawl affects us by creatingeconomic burdens and inequalities, hampering our social interac-

tions, and polluting our environment. The causes of sprawl have

equal breadth, coming from individual preferences, psychologicalbarriers, and government policies at the local, state, and federallevels. These complexities will resist the formulation of a simplepanacea.

Efforts to combat urbansprawlultimatelymust work on a num-ber of levels. At the largest scale, the federal governmentcan force

people to internalize the costs of suburbanizationthrough its tran-sit, tax, and housing policies. At the same time, regional govern-ments can link municipalities together by coordinatingactions thataffect the region as a whole, such as exclusionary zoning and spa-

309Rusk, supra note 140, at 161-63 (noting that the sidewalks in a "neotraditional"

development were too small and close to the street to promote interaction).310 Id. at 164-68.311

Id. at 172-74.

2003] 499




tial mismatch.Finally, the solution must recognize the importanceof

spatialelements as

theyrelate to urban

sprawl.The legal literature appears close to reaching a consensus on a

proposed answer to sprawlat the regional level and above. It sug-gests modifications to federal mortgage, transportation,and other

policies that currently encourage sprawl and even proposes lawsthat will subsidize urban living. Legal scholars have also created a

regional framework that hinders competition and exclusion at thelocal level, while also permittinglocal governments to satisfy theirconstituents'unique economic and politicalpreferences.

At the same time, New Urbanists have presented a potential an-

swer at the neighborhood level and below. They contribute a solu-tion that recognizes that spatial elements greatly influence behav-ior. Through concepts like organizing a neighborhood aroundmixed-uses and the five-minute walk, New Urbanists have pro-vided a way to reduce dependence on the automobile as well ascreate opportunities for more human interaction. Policies that re-

quire medium-density development promote communities withlower municipalservice costs and less damage to the environment.New Urbanists have demonstrated that "spatialorderingof uses inour urban environment has... a

profoundeffect on our social,

economic, and civic life."312The solutions from both New Urbanist and legal literatureseem

promising on their own level, yet without each other, they haveboth seemed to fail in practice. Accordingly, they must look toeach other. In order to create a frameworkthat acts against sprawlat each of its levels, legal scholarsand lawmakersmust look to NewUrbanism and recognize the importance of spatial factors. Simi-

larly,New Urbanists should rely more upon government structuresat the regional level. After studying racial segregation in the

United States, BritishgeographerR. J. Johnston reflected:One cantake a geographicalviewpointwithin the socialsciences,emphasizing he study of particular-usually spatial-aspects ofa society.But thatgeographicalviewpointcannot be isolated,fora full understanding f spatialorganization equires nvestigationof many aspects of economic, social and political organiza-tion .... One of these is law, the studyof which is integralto the

312Moule, supra note 220, at 105.

500




understandingof the organizationof a class-basedsociety, in-

cludinghe residentialmosaic of its suburbs.313

New Urbanists must make the same realization. Sprawl occurs,to some extent, in the spatial realm on the neighborhood and blocklevels and can be fought accordingly.Yet as the shortcomings ofNew Urbanism in practice reveal, the solution does not lie only onthis level. As legal scholars have articulated,some of the roots of

sprawlare groundedin the regional level.For New Urbanism to succeed, it must provide more detail to its

plan at the regional level. Through the TND Ordinance,New Ur-banists have offered a

legalframework for their vision at the

neighborhood and block scales. Although they have formulatedsome regionalprinciples,these principlesdo not match the richnessof the rest of their vision. Accordingly, New Urbanists need to fo-cus more on the legal mechanisms available at the regional level.Just as codes control the built public realm, New Urbanists shouldsee the law as an opportunityto control aspects of human interac-tions on the regional scale.

When articulatingtheir approachto regionalism,New Urbanistsshould go beyond stating regional goals. Instead, they should sug-

gest ways to overcome the institutional and political barriers to re-gional governments that complement the rest of the New Urbanistvision. A regional government must strike the proper balance be-tween allowing local autonomy and preventing local competition.Striking this balance will be difficult, but New Urbanists should

study possible institutionalframeworksin the same depth that theyhave examined the spatial models of the neighborhood andblock.314 or example, as the legal literaturehas suggested, a popu-larly elected regional legislature that controls common issues couldallow municipal residents to satisfy both their political and eco-

nomic preferences.Through a limited regional government,peoplecan exercise their political voice through both their municipal and

regional governments. Maintaining some local autonomy would

313R. J. Johnston, Residential Segregation, the State and Constitutional Conflict in

American Urban Areas 185 (1984) (citations omitted).314

In a recent article, Professor Frug looks at the European Union as a possible ex-

ample, but also suggests examining other institutions such as American homeowners'associations. Gerald E. Frug, Beyond Regional Government, supra note 296, at 1830

(2002).

2003] 501



Virginia Law Review

still allow residents to select the locality that best meets their pre-ferred bundle of

services,while

pushingdecisions that affect more

than one communityto the regional level will prevent the kinds ofinterlocal competition that has created the problems associatedwith sprawl.

New Urbanists have proposed solutions to some of these areasof common concern among regions. These solutions include trans-

portation planning, land use, and education. Although some ofthese concerns, such as land use, must be addressed by all regionalgovernments, many of these areas of common concern will dependon the individualregion. New Urbanists emphasize that their plan

must reflect local elements at the neighborhood and block levels.Similarly,the creation of a regional government requires the flexi-

bility to meet the unique needs of each region.The recognition of regional differences implicates the second

hurdle to regional governments that New Urbanists must explore.Even with an ideal regional government, some people will beworse off in some respects.315o overcome these political barriers,New Urbanists must propose ways to garner the political will tocreate a regional body. Again, the legal literature provides some

examples.Professor

Frug arguesthat a successful

regional govern-ment must gain legitimacy by finding "an entrance point that will

generate enough political support."316hese entrance points will

depend on the problems of the region and may include traffic,smart growth, pollution, or education. Learning from his experi-ence in the Twin Cities, former state legislator Orfield proposescoalition-building tips such as "reach[ing]out, person to person"inthe region and seeking a broad coalition including philanthropic,religious, business and civic groups.37By combining the lessonsfrom successful coalition-building efforts and the necessary ele-

ments of institutional design, New Urbanists can offer a strongerregional plan.

Without a regional government, New Urbanist neighborhoodswill not aggregate into towns, cities, and regions. Standing alone,New Urbanist communities have failed to solve the problems of

' Id. at 1790.316

Id. at 1813.317

Orfield, supra note 306, at 167-71.

502 [Vol. 89:447



2003] Sprawland theNew UrbanistSolution 503

sprawl.New Urbanists have proposed an innovative alternative to

leapfrogsuburban

development,but their lack of a

clearlyarticu-

lated regional plan has led them to fall short of their goals. Evenwith increasing recognition of the importance of regional factors,the absence of a concrete regional framework still forms the great-est shortcomingof their movement. As its regional vision matures,New Urbanism will become more valuable. Indeed, when com-bined with the appropriatechanges in federal policies, a regionalgovernment that incorporates New Urbanist concepts offers a

promisingsolution to urbansprawl.

sprawl & the new urbanist solution (meredith 2003, good but 58 pgs)

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