The Holy Grail: Managing Growth While Maintaining Affordability and Protecting Natural Resources

• Author: Charles M. Haar/Michael Allan Wolf
• Pages: 539-599

Page 539

Chapter Seven

The Holy Grail: Managing Growth While

Maintaining Affordability and Protecting Natural

Resources

I. Parochialism or Sprawl Control?: The Challenge of Growth Management

You may recall that Justice George Sutherland’s majority opinion in Euclid v. Ambler contained

this strong (and enduring) endorsement of local control of land use:

It is said that the Village of Euclid is a mere suburb of the City of Cleveland. . . . But

the village, though physically a suburb of Cleveland, is politically a separate municipal-

ity, with powers of its own and authority to govern itself as it sees t within the limits of

the organic law of its creation and the State and Federal Constitutions.

In many ways, the Court’s 1926 decision cleared the way for similarly situated communities to

limit population and to ward o the evils of urbanization despite the fact that the municipality in

question stood in the way of residential development for central city residents hoping to escape the

physical connement and other problems of inner-city life.

e use of public and private land use controls was closely connected to the growth of politi-

cally distinct suburbs. In the words of one suburban Chicago critic of annexation: “Under local

government we can absolutely control every objectionable thing that may try to enter our limits

but once annexed we are at the mercy of city hall.”1 Boston’s experience, as presented by Sam Bass

Warner Jr., in his inuential study, Streetcar Suburbs: e Process of Growth in Boston (1870-

1900), at 164-65 (2d ed. 1978), was not atypical:

It was already apparent in the 1880’s that to join Boston was to assume all the burdens

and conicts of a modern industrial metropolis. To remain apart was to escape, at least

for a time, some of these problems. In the face of this choice the metropolitan middle

class abandoned their central city. . . .

Beyond Boston the special suburban form of popularly managed local government con-

tinued to ourish. In suburbs of substantial income and limited class structure, high

standards of education and public service were often achieved: Each town, however,

now managed its aairs as best it could surrounded by forces largely beyond its control.

Zoning out, or segregating, the city’s most distasteful uses could help ensure that the escape to the

suburbs would not mean replicating the problems left behind.

Because of zoning’s contribution to the continued isolation of middle-class communities,

courts and legislatures in some states beginning in the late 20th century began to mandate regional

1. K T. J, C F: T S   U S 151 (1985) (quoting a

Mar. 9, 1907, editorial from the Morgan Park Post).

Page 540 Land Use Planning and the Environment: A Casebook

responsibility for suburban areas, while in other areas planning and zoning controls were, at least in

part, recaptured by state ocials. ese shifts in the nature and operation of zoning law are not nec-

essarily timely reactions to 21st-century socioeconomic and governance realities. ey can also be

appreciated as the inevitable, if sorely delayed, responses to the negative externalities of the suburban

(and eventually exurban) movement that was given credence and support by the Court in Euclid v.

Ambler. Chief among these externalities are duplicative and costly municipal services, resegregation

of public school systems, the despoiling of undeveloped forest, farmland, wetlands, and other criti-

cal habitats, located far from the city center, and unsightly and energy-wasting sprawl.

In the late 1990s, the national debate over the nature and implications of urban and suburban

sprawl began to attract page-one media coverage (and its Internet equivalent—the on-line poll)

and the attention of national policymakers and candidates for America’s highest political oces.

Legislative and administrative policies and numerous policy studies have endorsed the strategy of

harnessing growth and redirecting development away from the prime farmland, precious open

space, and environmentally sensitive settings that often dene those regions that lie beyond the

more populous cities and older suburbs. In fact, environmental concerns often appear to be the

chief impetus for a broad-based attack on the visual clutter, low-density construction, and automo-

bile-dependent development on the metropolitan fringes.

While sprawling cities have been a part of civilization for hundreds, even thousands, of years,

the “crisis” that attracted the current urry of regulatory and political attention has its roots in the

dramatic expansion of single-family home ownership in the second half of the 20th century—a

phenomenon that had been viewed as one of the major accomplishments of the post-World War II

years. While many critics place a large part of the blame for modern American sprawl on lawmak-

ers and bureaucrats inside the D.C. beltway, the extent of federal responsibility is still a matter of

dispute, as evidenced by the title of a 1999 Government Accountability Oce (GAO) report—

Community Development: Extent of Federal Inuence on “Urban Sprawl” Is Unclear.

For decades, courts, legislatures, and legal and planning commentators have wrestled with the

negative social, economic, and environmental externalities of unbridled growth. For exa mple, in

Manseld and Swett, Inc. v. Town of West Orange, 198 A. 225, 229 (N.J. Sup. Ct. 1938), the state

court observed (in the gendered vernacular of that time):

We are surrounded with the problems of planless growth. e baneful consequences of

haphazard development are everywhere apparent. ere are evils aecting the health,

safety and prosperity of our citizens that are well-nigh insurmountable because of the

prohibitive corrective cost. To challenge the power to give proper direction to commu-

nity growth and development . . . is to deny the vitality of a principle that has brought

men together in organized society for their mutual advantage.

Even the best-laid schemes for long-term regulation of land use will be frustrated by the whims

and caprices of the market. is is especially true for residential development. e Manseld and

Swett court was not alone in its deep fear for the future of the American metropolitan landscape,

as indicated by the cases and notes that follow.

Over the last few years, a growing number of commentators—chiey environmentalists who

are concerned about the loss of precious “greenelds” to make way for “edge cities,” and New

Urbanist architects and planners frustrated and bored by cul-de-sac-obsessed suburban develop-

ers and their customers—have placed much of the blame for sprawl on the federal government.

e former mayor of Albuquerque, David Rusk, in his oft-cited study, Cities Without Suburbs

(1993), places much of the blame for the emergence of a suburban nation (and the decline of the

central city) on a range of federal policies including Federal Housing Administration and Veterans

Administration mortgage support for single-family homes, federal aid for the construction of roads

Chapter Seven: The Holy Grail Page 541

and highways (much more than for public transit), and billions of dollars in foregone tax revenue

attributable to the mortgage interest deduction.

Unfortunately for those who seek to rally the anti-sprawl forces against one enemy, this

morality play is far more complex. e GAO study mentioned above noted that “[s]ome experts

believe—and anecdotal evidence exists to support their belief--that the federal government cur-

rently inuences ‘urban sprawl’ through spending for specic programs, taxation, and regulation,

among other things, but few studies document the extent of the federal inuence.” Given the

absence of hard data on housing and other subjects, the researchers could only conclude that “the

level of the federal inuence is dicult to determine.”2

How seriously should we take dire warnings that are unaccompanied by alternative programs

for accommodating natural population growth and for fostering upward social mobility? W hat

role can the lawyer play in minimizing the harms identied by these critics? Does (or should) the

lawyer’s obligation to counsel a developer-client include the duty to propose alternative construc-

tion plans or locations? What role can lawyer-legislators play in crafting eective laws that reward

urban inlling (targeting undeveloped or underdeveloped sites within or close to the city center

that the market has bypassed) and punish leap-frogging (skipping over undeveloped stretches of

land to build suburban and exurban, low-density developments)? Can traditional neighborhood

codes (TNDs) and other New Urbanist-style approaches be smoothly incorporated into existing

Euclidean schemes, or does it make more sense to move to alternatives such as “form-based” or

“smart” codes?3

II. Two Enduring Templates

While localities have been using zoning and other land use tools to slow the pace of multi-family

residential development since the 1920s, the “growth management” movement took o in the

1970s with the implementation (and judicial approval) of two key strategies: tying private develop-

ment of new housing to the availability of adequate public facilities (also known as concurrency)

and enacting residential building quotas (also known as tempo or time controls). ere are many

rationales for adopting these and other devices; while some of these reasons are stated outright—

protecting natural resources and conserving open space, passing the costs of growth onto develop-

ers (and in turn the new homeowners), and preserving the small-town character of communities

at the exurban fringe—others, particularly the desire to exclude potential residents of aordable

units, remain unspoken.

As it turns out, we now know that by 1975 the legitimacy of these two basic approaches had

been settled by t wo highly inuential cases—one from New York’s highest state court, the other

a federal case from California decided by the Ninth Circuit. As in the Mount Laurel line of cases

addressed in Chapter Six, those parties challenging growth “controls” often emphasize their exclu-

sionary purpose and eect, despite the claims of public ocials that local governments are merely

2. U.S. GAO, C D: E  F I  “U S” I U 2-3

(1999).

3. See D K. S  ., A L G  U  S D  P, D-

,  A 90 (2008):

Traditional neighborhood development codes (TND codes) plug into existing Euclidean zoning codes as a new

district. Form-based codes substitute a focus on the form of a building for the Euclidean focus on use and have

been advanced by urbanists as the best way to deliver urbanism and appropriate design. Finally, the SmartCode, a

particular version of form-based code tied to the transect, has been developed as a model unied code to address

subdivision, zoning and comprehensive planning issues.

For a graphic illustration of the transect, running from the T1 Natural Zone, through intermediate Rural, Suburban,

General Urban, Urban Center, and Urban Core Zones, see http://www.dpz.com/pdf/07-Transect%20Charts.pdf.