The zoning diet: using restrictive zoning to shrink American waistlines.

• Author: Spacht, Allyson C.

INTRODUCTION

Would you like fries with that? Unfortunately, this phrase has become all too common to American adults and children alike. Fast food has become imbedded in American culture. McDonald's golden arches are more recognizable than the Christian cross. (1) In a survey of American children, ninety-six percent were able to identify Ronald McDonald, who was the second most recognized fictional character after Santa Claus. (2) Each year, Americans spend more money on fast food than on higher education, personal computers, or new cars. (3) The amount of money that Americans spend on fast food trumps their combined spending on movies, books, magazines, newspapers, videos, and recorded music. (4) Americans are taking advantage of the ubiquity of fast food restaurants in the United States. Nearly one-quarter of the country's population visits a fast food restaurant on any given day. (5)

The omnipresence of fast food is receiving much of the blame for the obesity epidemic in America. (6) Experts agree that a strong correlation exists between the abundance of fast food restaurants and obesity. (7) This correlation is due, in part, to the availability of large, inexpensive, energy-dense portions at fast food restaurants, coupled with the high frequency with which Americans consume fast food. (8) Many states are responding to this epidemic by employing a variety of tools to foster public health, including "snack taxes," public education campaigns, and bans on trans fats. (9) Additionally, many communities are using zoning regulations to restrict or exclude fast food restaurants. These types of zoning ordinances have traditionally been enacted under the guise of community aesthetic concerns, but, within the past several years, local governments have begun to consider employing land use restrictions for the express purpose of promoting public health.

In July 2008, the Los Angeles City Council unanimously approved an Interim Control Ordinance (ICO) "designed to address the imbalance in food options currently available in South Los Angeles." (10) The ordinance proposes a one-year moratorium on new fast food restaurants in the South Los Angeles, Southeast Los Angeles, West Adams, Baldwin Hills, and Leimert Park community planning areas. (11) The ordinance defines a fast food restaurant as "[a]ny establishment which dispenses food for consumption on or off the premises, and which has the following characteristics: a limited menu, items prepared in advance or prepared or heated quickly, no table orders, and food served in disposable wrapping or containers." (12) The ICO was drafted and passed in order to

provide a strong and competitive commercial sector which best serves the needs of the community, attract uses which strengthen the economic base and expand market opportunities for existing and new businesses, enhance the appearance of commercial districts, and identify and address the over-concentration of uses which are detrimental to the health and welfare of the people of the community. (13) The over-concentration of fast food restaurants in the South Los Angeles region motivated the drafting and passage of the ordinance. (14)

The goal of the ICO is to allow city planners to analyze the quantity of fast food restaurants in these communities and to develop solutions to combat the extreme imbalance that has resulted in these areas from decades of spot zoning and neglect in community planning and development. (15) With minimal land remaining for development in these areas, the ICO allows city planners to determine what types of businesses best suit a community with the highest incidence of diabetes in the county and an obesity rate that is nine percent above the county average. (16) The ICO enables council members to actively attract healthier options to these communities, including grocery stores and sit-down restaurants, by preserving the limited existing land for such uses. (17) Councilwoman Jan C. Perry, author of the ICO, and fellow supporters of the ordinance argue that "[m]aking healthy decisions about food is difficult when people have small incomes, the grocery store is five miles away and a $1 cheeseburger is right around the corner." (18) The ICO serves as just one of the many planning tools the Los Angeles City Council hopes to employ "'to attract sit-down restaurants, full service grocery stores, and healthy food alternatives ... in an aggressive manner.'" (19)

A movement to regain American health and well-being has begun, and the Los Angeles ICO is just one weapon in the country's expanding arsenal. Battles are being waged around the country, with schools eliminating soda, cities banning trans fats, and, most recently, New York City requiring certain food service establishments to display calorie content on menus and menu boards. (20) The Los Angeles ICO, however, is truly radical in nature because it appears to be the first instance of a local government prohibiting a certain type of restaurant for health, rather than aesthetic, reasons. (21) Municipalities often use different types of zoning regulations as tools to restrict or exclude fast food restaurants; (22) however, they are careful to predicate such ordinances on the protection of the unique and aesthetic character of the community. (23) While other communities have proposed similar types of regulations, (24) the Los Angeles ICO appears to be the first regulation approved that explicitly defines the "health and welfare of the people of the community" as one of its purposes. (25)

Critics have already begun to speak out, many claiming that this type of regulation is too paternalistic and does not credit the intellect of the over 500,000 people who live in the South Los Angeles area. (26) They see this type of government control over the "built environment" as an imposition of government officials' values on the public and believe that the sale and purchase of food should operate in a freemarket system. (27) The National Restaurant Association opposes the ban, agreeing that the government has an interest in solving the American obesity epidemic because of its impact on health costs, but averring that lawmakers have overstepped their bounds. (28) It argues that restaurants are not the sole cause of the obesity epidemic, but because lawmakers cannot control the food being consumed at home, or the lack of physical activity in Americans' daily regimens, they have therefore turned to the only place where they can exert control, causing fast food restaurants to take the fall for Americans' poor personal choices. (29)

There are also several types of constitutional challenges that may potentially be raised in opposition to this kind of legislation, and it is only a matter of time until the courts are forced to address the constitutional validity of this type of land use regulation. First, restrictive fast food zoning may violate substantive due process, which requires that zoning regulations be rationally related to a legitimate government interest. (30) Fast food zoning may also violate the Takings Clause of the Fifth Amendment, (31) which requires the government to pay just compensation when it imposes an unfair burden on a landowner. (32) However, because zoning for public health often provides legislatures with broader discretion to zone than other goals, courts often defer to legislatures regulating for public health purposes. Furthermore, the fact that prohibiting certain types of food establishments does not deprive property owners of all economically viable uses of their land strongly suggests that fast food zoning would most likely survive such challenges. (33) While the roles of substantive due process and the Takings Clause have decreased in land use cases, the dormant Commerce Clause has played an increasing role in challenges to the validity of restrictive land use planning mechanisms such as restrictive zoning. (34)

This Note argues that restrictive zoning of fast food restaurants to combat obesity as a matter of public health is a valid exercise of a municipality's police power and survives constitutional challenges raised under the dormant Commerce Clause. Part I of this Note examines the American obesity epidemic, including the possible causes and solutions for this public health emergency. Part II discusses the origins of zoning in state police power and the delegation of this power to local governments to regulate for the health and welfare of their communities. Part III examines the dormant Commerce Clause and the limitations it places on the states' ability to regulate economic activities. Finally, Part IV argues that local governments have the ability to restrictively zone fast food restaurants under their police powers in the interest of the public's health and welfare. This type of land use control does not violate the dormant Commerce Clause because it is neither facially discriminatory nor unduly burdensome to interstate commerce, and the benefit it provides to the health and welfare of the community outweighs its incidental commercial burden. Therefore, the ICD approved in Los Angeles, as well as a permanent fast-food-restrictive zoning ordinance, are two constitutionally valid tools that may be placed in the nation's arsenal in its battle against the American obesity epidemic.

1. THE AMERICAN OBESITY EPIDEMIC

   Obesity in America has become such a prevalent and alarming issue that it can no longer be ignored. This epidemic is attributable in large part to the ubiquity of fast food in the United States. Many local governments have begun to wage war against ballooning waistlines in an attempt to recapture American health. A variety of tactics are being employed, including public-education campaigns, healthy-living initiatives, and so-called snack taxes. Recently, local governments began using land use regulations to restrict or exclude fast food restaurants from their communities. While most local governments...