Reflections on urban sprawl, smart growth, and the Fifth Amendment.

• Author: Dowling, Timothy J.

The purpose of this essay is modest and twofold. First, I hope to show that the policy debate regarding whether urban sprawl is a serious problem should be over and largely is over. Legitimate disagreement exists regarding the cure and the proper roles of federal, state, and local governments in addressing sprawl, but it is no longer reasonable to deny sprawl's existence.

Second, I argue that efforts to combat sprawl are entirely consistent with longstanding traditions regarding appropriate regulation of land use, as well as the Takings Clause of the Fifth Amendment.(1) Those who argue that courts should constrain smart growth initiatives through an activist application of the Takings Clause threaten not only our constitutional structure, but also the very property rights they purport to champion.

1. MUCH ADO ABOUT NOTHING?

   G.K. Chesterton once observed that it is sometimes difficult to defend a proposition of which you are entirely convinced. If you were asked, for example, why civilization is preferable to savagery, you might look wildly around, pointing at object after object, and frantically but vaguely respond: "Why, there is that bookcase.., and pianos.., and policemen."(2) In Chesterton's words, the "very multiplicity of proof which ought to make reply overwhelming makes reply impossible."(3)

   The sprawl debate sometimes suffers from the difficulty of proving the obvious. When skeptics suggest that concerns about sprawl are largely dust and nonsense, it is hard to know where to begin. The debate sometimes lacks precision because urban sprawl threatens so much: quality of life (particularly in our poorest neighborhoods), prime farmland, the environment, our historic and cultural heritage, and our sense of community.

   Because sprawl's harmful effects are all-pervasive, there is a danger of forgetting what life was like without it. Over time, we might unthinkingly come to accept a ninety-minute daily commute, a smoggy horizon, lifeless central cities, and bloated property taxes as the natural order of things. Like the skeptical fish that questions whether there is any water in the tank, skeptics try to use sprawl's very pervasiveness to their advantage.(4)

   Sprawl unquestionably has an I-know-it-when-I-see-it quality to it.(5) As with pornography, however, the difficulty in defining urban sprawl is no argument against attempting to control it. As we work to find solutions, a common definition is emerging--a definition that focuses the debate on low-density, land-consuming, automobile-dependent, haphazard, non-contiguous (or "leapfrog") development on the fringe of settled areas, often near a deteriorating central city or town, that intrudes into rural or other undeveloped areas.(6)

   The problem is not growth per se, but dysfunctional growth. The solution is not no growth, but smart growth achieved by directing development back to central cities and other areas that yield sustainable communities. Tax incentives, brownfield redevelopment, elimination of sprawl-enhancing subsidies, urban growth boundaries, transferable development rights, and many other initiatives comprise the smart growth agenda.

   Evidence of sprawl surrounds us. For years, sprawl consumed nearly six million acres of farmland annually,(7) and we continue to lose an estimated one million acres each year.(8) In central California, sprawl threatens to destroy more than 3.6 million acres of our most productive farmland in the first half of this century.(9) According to the American Farmland Trust, 80% of our fruits, vegetables, and dairy products are "in the path of sprawling development."(10)

   Sprawl leads to excessive dependence on automobiles, which imposes enormous costs and degrades our quality of life. The average daily round-trip commute for workers in Atlanta is 36.5 miles.(11) The average speed on Los Angeles freeways is expected to fall to eleven miles per hour during the next decade.(12) In Washington, D.C., area residents waste about seventy-six hours each year in traffic jams at a cost of about $1260 per person.(13) Nationwide, the price tag for lost time and fuel due to sprawl-exacerbated congestion is $72 billion per year.(14) This congestion is literally driving us crazy, with steadily increasing road-rage incidents claiming more than 200 lives in recent years.(15)

   Sprawl imposes burdensome infrastructure costs. One study estimates that the cost of providing services in outlying areas is at least twice the cost of servicing new development located near existing facilities.(16) In Maine, for example, the cost of education, roads, and police increased by $1300 per household during the 1980s, and sprawl was a major contributor.(17)

   Try as they might, skeptics cannot credibly dismiss concerns about sprawl as the rant of environmental extremists. Indeed, business leaders are among the most effective voices for smart growth. Citing the enormous costs of sprawl in California, a 1995 landmark report sponsored by the Bank of America found that "unchecked sprawl has shifted from an engine of California's growth to a force that now threatens to inhibit growth and degrade the quality of our life."(18) The report concludes that sprawl contributes to, among other ills, decreased employee productivity, higher business costs and taxes, and a decreased urban tax base.(19)

   Other industry executives agree. The Atlanta Chamber of Commerce has established a Smart Growth Partnership with the Urban Land Institute and The Georgia Conservancy because traffic congestion threatens Atlanta's economic vitality.(20) In Silicon Valley, industry leaders are promoting smart growth to attract highly skilled workers to leading high-tech companies.(21) Business executives in northwest Michigan are pursuing smart growth to preserve the natural environment and to protect the area's tourism industry.(22)

   The people who live with sprawl every day recognize it as a serious failure of public policy. Nationwide polls show strong public support for the protection of open space.(23) In 1998, voters weighed in on more than 240 ballot initiatives designed to control sprawl, and they approved more than 70% of them.(24) In one of the fastest growing counties in the nation, smart growth candidates recently prevailed in every contested county supervisor race.(25) Thirty-four governors hailed open space protection and other smart growth initiatives in their 1998 inaugural or "state of the state" addresses.(26) In the Commonwealth of Virginia, hardly a hotbed of radical activism, most people believe urban sprawl is destroying their cultural heritage and quality of life, and about 70% favor smart growth.(27)

   Skeptics respond that only a small percentage of the United States is developed. With so much open space available, they contend, the anti-sprawl movement must perforce be a subterfuge to expand government power at the expense of individual freedom.(28) Those who make this argument would have more credibility if they resided in Death Valley or the other vast, uninhabitable terrain they include in their calculation.

   More to the point, our concentrated population patterns cannot plausibly be used to justify the unplanned, myopic growth that is destroying our central cities, prime farmland, and environment. The macro-statistics used by opponents of smart growth gloss over distinctions between the quality of the land we are losing and the land that remains. To be sure, we can convert some forestland and rangeland to cropland, but the highly productive, prime farmland we are losing today will be gone forever.(29) The same holds true for environmentally sensitive land that falls victim to sprawl.

   Skeptics also argue that the market is self-correcting because periods of great open space loss are sometimes followed by a period of reduced loss.(30) Recently released statistics show just the opposite, with almost sixteen million acres of forest, cropland, and open space on private land lost to development from 1992 to 1997, more than double the annual loss rate experienced from 1982 to 1992.(31) Moreover, even if accurate in isolated locations, this argument disregards the obvious truth that the rate of open space loss sometimes decreases in particular areas because once open space is lost, there is less to lose. To cite but one example, California has lost ninety percent of its original wetlands and ninety-five percent of its coastal wetlands.(32) That the rate of wetlands and open space loss might be falling in certain areas is not necessarily cause to cheer.(33)

   One skeptic suggests that sprawl actually enhances air quality, arguing that although sprawl has increased since the 1970s, levels of carbon monoxide, lead, and other air pollutants have fallen.(34) A better example of the post hoc, ergo propter hoc fallacy is difficult to imagine, for this reasoning attributes air quality improvements to sprawl simply because they followed (or coincided with) sprawl, with no accounting for the federal ban on leaded gasoline, more stringent air quality controls, and the many other factors that led to those air quality improvements. Moreover, emissions of one key precursor to groundlevel ozone and smog, nitrogen oxide, increased 11% from 1970 to 1997,(35) and the national average ozone level increased five percent in 1998.(36) Although today's automobiles are more than...