Healthy zoning.

• Author: Parlow, Matthew J.

ABSTRACT

This Article explores local governments' foray into the area of health regulation through their general regulatory and land use powers. Local governments are limited in their powers: they enjoy only those powers that the state permits them and, in some cases, only those that they choose to embrace themselves. Health care and health law have traditionally been the domain of federal and state governments. However, many local governments have begun to use what powers they have to attempt to address obesity and other health problems that plague many communities. In fact, land use law may be the most important and powerful tool at local governments' disposal to create meaningful and positive impacts on our collective health. This Article analyzes the different ways in which local governments are using their general regulatory and land use powers to promote greater health among their citizenry. Many of these health initiatives are controversial. Critics view local government action in this sphere as infringing on a policy area reserved for the federal and state governments or, at the very least, exceeding local government powers. Accordingly, this Article will also identify and address some of the challenges that such local government efforts face.

TABLE OF CONTENTS Introduction 34 I. The Health Concerns of Local Governments 36 A. Obesity 37 B. Asthma 39 II. Local Governments' Innovative Health Policy Initiatives 40 A. Non-Land Use Health Policies on the Local Level 40 1. Menu-Labeling Laws 41 2. "Happy Meal" Bans 42 3. Soda Bans 44 4. Trans-Fat Bans 45 B. Local Land Use Policies Aimed at a Healthier Citizenry 45 1. New Urbanism, Smart Growth, and Zoning 46 2. Health Elements in General Plans 47 3. Siting Grocery Stores in Food Deserts 49 4. Restricting Fast Food Restaurants and Liquor Stores 50 5. Other Innovative Land Use and Zoning Approaches to Health Policy 52 III. Impediments to Local Government Efforts 54 Conclusion 56 INTRODUCTION

There is an ongoing debate--both descriptive and normative--among local government law scholars about whether local governments (1) have, or should have, robust or limited powers. (2) This debate focuses largely on cities' powers vis-a-vis their respective state governments. This scholarly discourse has provided a forum for the rise of localism, a theory based on a preference for local government control and authority. (3) While this localist focus has been driven by a number of concerns and influences such as efficiency and self-government, (4) one of the primary motivations is the prospect that local governments will further innovative policy initiatives that could inform policy- and decision-making at higher levels of government. (5) Indeed, due to the political strife and gridlock that exists at the state and federal government levels, local governments, in many respects, are better "laborator[ies] of democracy" than Justice Louis Brandeis envisioned the states to be. (6)

As Professor Charles Tiebout describes in his seminal theory, local governments have tended to be more innovative than states because they compete against each other to attract and retain consumer-voters. (7) Consumer-voters can "vote with their feet" and leave one city for another if the package of goods, services, and taxes offered by a particular municipality is not to their liking. (8) Accordingly, local governments compete with one another by providing residents and businesses with a distinct set of policies, regulations, services, and the like to respond to the needs and interests of consumer-voters. (9) This dynamic creates an efficient local government marketplace where people with similar values and preferences tend to locate in the same municipalities. (10) Such homogeneity provides local governments with the ability to experiment with policies that might not be politically viable at other levels of government. (11) Thus, local governments have pushed innovative policies that could not gain traction on the state or federal level in areas such as marriage equality, (12) climate change, (13) immigration, (14) marijuana legalization, (15) and raising the minimum wage. (16)

One area where local governments have become particularly active in recent years is health policy. This development is noteworthy as an example of local government innovation and experimentation, since health policy has traditionally been the domain of the federal and state governments. (17) In response to increasing societal health problems--ones that other levels of governments have been unsuccessful in addressing--many municipalities have begun using their general regulatory and land use powers to attempt to improve the health of their residents. These efforts have ranged from the adoption of a universal health care law, as in San Francisco, (18) to the new urbanism movement--an approach that seeks to reduce the reliance on automobiles and promote community integration through pedestrian-friendly, mixed-use development--that have taken root in many American cities. (19) This kind of local government policy experimentation exemplifies the innovation that localism scholars advocate, even though--as discussed further below--it is often met with political resistance and legal challenges.

This Article seeks to highlight the evolution of health policy on a local level and situate it in local government and land use scholarship. Part I explains the reasons why various municipalities have focused on health-related matters. Part II analyzes the ways in which local governments have used their general regulatory and land use powers to positively impact the health of those who live and work within their boundaries. Part III addresses some of the challenges that these local health policy efforts face, and the Article's Conclusion provides some final thoughts.

1. THE HEALTH CONCERNS OF LOCAL GOVERNMENTS

   Local governments are increasingly focused on health policy in response to the growing body of evidence that illustrates the impact of the built environment (20) on the health of individuals in a community. (21) Specifically, urban sprawl--and its attendant "complex pattern of land use, transportation, and social and economic development" (22)--has contributed to public health issues such as obesity and asthma.

   1. Obesity

      There is an obesity epidemic both globally and in the United States. (23) In the United States, more than one-third of adults are considered obese. (24) One study found that in 2010, forty-three million preschool children globally were considered obese or overweight--constituting a sixty percent increase in the past two decades. (25) Moreover, low-income, minority, and rural communities experience higher than average rates of disease related to obesity. (26) The costs of obesity on the American health care system are estimated to be between $147 billion and $210 billion annually. (27) Moreover, the chronic diseases associated with obesity--including diabetes and heart disease--are among the leading causes of death in the United States. (28) This obesity epidemic is not confined to the United States. The worldwide obesity rate has almost doubled since 1980, (29) and one international study projected that by 2025, twenty percent of the world's population will be obese. (30)

      To be sure, there are many causes of obesity, including factors such as a person's diet and genetic make-up. Nonetheless, in recent years, public health experts, urban planners, and local government officials have come to understand the ways in which the built environment of many metropolitan regions contributes to the increase in obesity rates. (31) Indeed, as some scholars have posited that "[t]he modern America of obesity [and] inactivity... has not happened to us. We legislated, subsidized, and planned it this way." (32) Even if such results were not deliberately designed, there is no doubt that the way in which cities permit and incentivize land use directly impacts the health of those in their communities. (33)

      Urban sprawl in particular seems to be a contributing factor to the obesity epidemic. As one reporter quipped, "[a]s communities sprawl into automobile-dependent developments and suburbs, so do their residents' waistlines spread." (34) Urban sprawl has been characterized by four key features: a widely-dispersed population in a low-density development; homes, shops, and workplaces that are distinctly separated; a network of roads with large blocks and poor access; and a lack of identifiable activity centers such as a downtown area. (35) These characteristics, in turn, inevitably lead to--or correspond with--a lack of public transportation, a strong reliance on automobiles, and a decrease in neighborhood schools and recreational opportunities. (36)

      This increase in automobile dependence and the lack of meaningful public transportation options have led to a more sedentary culture in the United States. (37) With longer distances to schools, workplaces, and other destinations, more Americans have turned to their cars to fulfill their transportation needs. (38) In this regard, urban sprawl has led to a decrease in walking and bicycling and an increase in automobile usage as a form of transportation. (39) In fact, research shows that more than 90% of all trips in the United States are made by automobiles, even though 28% of those trips were for fewer than one mile and an additional 13% of trips were for fewer than two miles. (40) Even leisurely physical activity appears to have lessened due to urban sprawl. (41)

      The lack of access to healthy foods in many urban communities has also led to an increase in obesity rates in those communities. As urban sprawl took root, families moved to the suburbs and so did many of the retail and grocery stores that had previously served various communities within the city. (42) The disappearance of grocery stores in many urban communities created "food deserts"--areas within cities where low-income...