Sprawl & The New Urbanist Solution (Meredith 2003, Good But 58 PGS)

Sprawl and the New Urbanist Solution
Author(s): Jeremy R. Meredith

Source: Virginia Law Review, Vol. 89, No. 2 (Apr., 2003), pp. 447-503
Published by: Virginia Law Review
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NOTE
SPRAWL AND THE NEW URBANIST SOLUTION
Jeremy R. Meredith*
INTRODUCTION...................................................................................448
I. THE PROBLEMSOFURBAN SPRAWL...................................... 452
A. Economic Problems ................................................................452
1. Increased Economic Burden on Suburban
Municipalities..............................................................................453
2. The Decline of American Cities.............................................455
B. Social Problems .........................................................................457
1. Economic and Racial Segregation.........................................458
2. Destruction of Community........................................ 461
C. EnvironmentalProblems .......................................................463
1. The Effects of Direct Displacement.......................................463
2. The IndirectEffects of Sprawl ...............................................464
II. THE CAUSES OF URBAN SPRAWL ................................................466
A. Preferencesas the Cause of Urban Sprawl.............................466
1. Economic Preferencesthat Encourage Sprawl ....................467
2. Social Preferencesthat Encourage Sprawl ...........................468
3. Political Preferencesthat Encourage Sprawl........................471
B. Behavioral Influences that Cause Urban Sprawl....................472
1. HeuristicBiases that Encourage Sprawl...............................473
2. GovernmentPolicies that Encourage Sprawl.......................474
III. THE NEW URBANIST SOLUTION.............................................478
A. Tenetsof The New Urbanism...................................................478
B. Scales of the New UrbanistActivity .........................................482
IV. EVALUATION OF THE NEW URBANIST SOLUTION.................... 487
A. Limits of the New UrbanistVision...................................... 487
B. Shortcomingsof the New Urbanismin Practice.....................490
*J.D. Candidate,2003, Universityof VirginiaSchool of Law. I would like to thank

ProfessorJulia Mahoney for her guidance and supportwhile serving as advisor for
this Note. I am also gratefulfor the valuablecommentsof ProfessorJamesRyan,Pro-
fessor KennethSchwartz,RaphaelRabalais,KarenMeredith,and SarahZinn and the
rest of the Virginia Law Review Notes Department.
447
448 Virginia Law Review [Vol. 89:447
V. THE ROLE OF REGIONAL GOVERNMENTS IN SOLVING
URBAN SPRAWL.........4............. .......................................... 495
CONCLUSION.............................................. ....................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 the
industrial revolution, its population migrated into the cities; since
World War II, Americans have left urban areas and have settled in
their expanding outskirts.1Suburbs have rapidly spread outward,
with acre after acre cleared to make room for suburban-tracthous-
ing and big-box retailers.2As greater distances separate Americans,
we have become increasingly dependent on using cars to traverse
these ever-growing suburbs and have lost opportunities to interact
personally with one another. At the same time, many cities have
been left with a shrinking tax base and disappearing employment
opportunities. As a result of this void, cities must manage problems
related to economic and social disenfranchisement.
The harms of urban sprawl are being articulated with 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 to
46.1%. 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, 2Metropolitan Areas and Cities (1991)).
From 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 per
square mile). As a result, land consumption outpaces population at a rate of nearly
three-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 1970s
and 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, 19
Hamline J. Pub. L. & Pol'y 254, 298 (Patricia L. Delk ed., 1997). From the 1970s to
the 1990s, New York City consumed land at an even greater pace, with a population
growth of five percent and an increase in rate of land consumption growth of sixty-
one percent. Id.
2003] Sprawland the New UrbanistSolution 449
guished from the larger category of "suburban growth." Some

scholars have likened sprawl to Justice Potter Stewart's description
of pornography: "I know it when I see it."3Other commentators
have taken a more scientific approach. These analysts usually de-
fine sprawl in light of its accompanyingproblems.
From the current literature, Professor Robert W. Burchell and
Naveed A. Shad have identified six characteristics commonly in-
cluded in working definitions of sprawl.4First, sprawl has a low
relative density.5Second, it consists of unlimited and noncontigu-
ous or "leapfrog" development.6 In residential areas, this type of
development primarily includes single-family tract housing. Third,
under sprawled conditions, different types of land uses tend to be
segregated.7In these areas, municipal zoning ordinances only per-
mit one use in each district. Fourth, sprawl consumes large quanti-
ties of exurban agricultural and other fragile lands.8 Fifth, in
sprawled areas, 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.10They
claim that sprawl occurs in areas in which the land-use framework
has been fragmented among numerous municipalities and 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 in
the United States, 5 Hastings W.-Nw. J. Envtl. L. & Pol'y 137, 140-42 (1999); see also
Reid Ewing, Counterpoint:Is Los Angeles-StyleSprawlDesirable?,63 J. Am. Plan.
Ass'n 107, 107-09 (identifyingcommonalitiesamong analysts'descriptionsof urban
sprawl,including"(1) leapfrogor scattereddevelopment,(2) commercialstripdevel-
opment,or (3) largeexpansesof low-densityor single-usedevelopment").
Professor Burchell and Shad note that average population density varies and,
therefore,the concept of low densitydiffersbetween nations.For example,densityin
WesternEuropeancountriesis higherthan in the United States,but only a fractionof
the densitiesin Hong Kong and in Indonesia.Burchell& Shad,supranote 4, at 140-
41.
6
Id. at 141.
7Id.
8Id.
9Id.
10
Id.
"Id.
Academics warned of the dangers of sprawl as early as the late
1950s,12but it did not receive significant notice from national lead-
ers and the media until the late 1990s.13As public awareness has in-
creased, many localities and states have initiated legislation to
combat the problems associated with urban sprawl. In 1998, thirty-
one states proposed over 240 ballot measures regarding conserva-
tion, parklands, and smart growth issues. Over seventy percent of
these measures passed, allocating more than $7.5 billion of addi-
tional state and local spending for sprawl-relatedissues.14Initiatives
in 2000 received mixed results-measures limiting regional growth
met greater resistance while those providing public funding for
green space succeeded more easily.15
Despite widespread passage of ballot measures, accompanying
success in containing sprawl has been difficult to achieve. These
measures often permit significant exceptions, do not get fully im-
plemented, or are enforced inadequately.16These shortcomings beg
the question whether Americans are fully committed to ending ur-
12
See, 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 and
causes of sprawl as well as supporting action against sprawled development).
13
See, 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 vacuum
is 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 the
Free 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 and
state 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).
ban sprawl. Many Americans complain about sprawl, yet continue

to move outward into low-density development, seemingly expect-
ing that growth in the area will suddenly cease 17
While lawmakers have struggled to create successful policies
combatting sprawl, planners, architects, and developers have for-
mulated their own alternatives, most notably New Urbanism. This
vision 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. Through the movement's principles, proponents of
New Urbanism aim to increase the diversity of communities, de-
sign cities primarilyfor use by transit systems and pedestrians, cre-
ate universally accessible public spaces that define towns, and
frame 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 and
its potential to alleviate the problems caused by sprawl. Part I will
identify the most widely accepted problems of urban sprawl. Many
societal ills have been attributed to sprawl,20but 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 Geography of
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 vividness
and 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 updated
Mar. 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 of
the effect of social and environmental deprivation caused by sprawl), and a general
decrease in quality of life, see generally, for example, James Howard Kunstler, The
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 they
would rather not live in the suburbs. This Note will argue that be-
havioral influences in the form of heuristic biases and government
policies distort these stated preferences and contribute to the de-
velopment of urban sprawl. Part III will describe the tenets of the
New Urbanists' proposed solution to sprawl and the levels on
which they must be implemented. Part IV will evaluate New Ur-
banism's ability to cure the problems created by 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 to
combat sprawl, they fail to articulate a clear plan at the regional
level. As a result, New Urbanist communities suffer from many of
the same problems as traditional sprawled development. In Part V,
this Note will argue that even though the legal literature seems to
be reaching a consensus on regional governments as the solution to
sprawl, regional governments that successfully avoid the problems
associated 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 sprawl and therefore fail to prevent it.
In conclusion, this Note will advocate an interdisciplinarystudy of
the law. Neither the legal nor the New Urbanist proposal has cured
sprawl on its own, but if they were to look to each other, they
would be more likely to find successful solutions.
I. THE PROBLEMSOF URBAN SPRAWL

A. Economic Problems
Although environmentalists have been among the most outspo-
ken advocates of anti-sprawl legislation, sprawl also has distinct
economic consequences on American cities and municipal gov-
ernments. As urban sprawl 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).
2003] Sprawl and the New Urbanist Solution 453
economic burden on growing municipalities by increasing the cost

of providing services. In the meantime, the exodus of a strong tax
base from urban areas has contributed to the deterioration of many
cities.
1. Increased Economic Burden on SuburbanMunicipalities

Most commentators agree that sprawled communities cost more
to service than moderate-density development, but some debate
the extent of this increased burden. 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 the
cost of service provision.2 At the same time, extremely high density
may not provide a better alternative. Instead, it seems that me-
dium-density communities impose the smallest burden on munici-
pal budgets.2
Some of the debate over the costs of service production may be
due to sprawl's differential effect on each type of service. Sprawled
development has been seen to increase the cost of many municipal
services, 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
21
See, 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, The
Search 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 Metropolitan
Growth, 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, Impact Assessment 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, Impact
Assessment of the New Jersey Interim State Development and Redevelopment
Plan, 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).
these services. Among these costs, sprawl's impact on the cost of
schools is the most controversial.23While currently there is no con-
sensus regardingthe implications for school costs, most commenta-
tors agree that sprawl increases the cost of building and maintain-
ing infrastructure,such as transportationand water systems.24
Urban sprawl causes the cost of municipal services 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 current body
of literature relating to municipal expenditures.25Their research
reveals that the costs of providing municipal services are higher in
sprawled areas for three primary reasons: need, distance, and effi-
ciency.
First, sprawlinggrowth increases the need for services because it
tends to develop areas where services are not currently provided.26
Therefore, recently developed areas need new sources for services
such as schools, roads, and police protection. These greenfield de-
velopments create new needs for infrastructure,even though pock-
ets of existing capacity already exist. 27 Therefore, rather than using
available service facilities, leapfrog development requires munici-
palities to create new capacity.
Second, the distance between developments in sprawled areas
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-
frastructureto serve the same number of people.28
23
See, 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-Revisited 51-
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)) (proposing
that the wealth of local residents has a greater impact, because wealthier residents
demand 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 Literature
on the Impacts of Sprawl versus Managed Growth (1995).
26Id.
at 8.
27
Id.
28
Id. at 9.
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, larger facilities, while sprawled developments re-
quire more, smaller facilities to meet the needs of a dispersed
population. For example, a larger central sewage treatment facility
costs less to build and operate than smaller, individual plants that
would 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 more
likely to have a neutral or positive net outcome if they are able to
prevent pockets of excess capacity. When municipalities are able to
draw upon existing operating capacity to provide services to newly
developed areas, they are able to contain costly outlays for addi-
tional services.31On the income side, municipalities have the option
to pay for the increased burden on the municipality through exac-
tions.32Today, exactions have gained virtually universal acceptance
as developers and new residents share some of the economic bur-
den of new growth through a one-time fee that pays for the crea-
tion and maintenance of municipal services.33
2. The Decline of American Cities

As cities sprawl outward, new growth not only burdens exurban
communities, it often leaves behind an economic void in core ur-
29 d.
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 when
there is an essential nexus between a legitimate state interest and the exaction and
when 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. Bushek
eds., 1995).
33Robert H. Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, 29 Urb. Law.
183, 188 (1997).
ban areas.34Suburbanization started in the early- to mid-twentieth
century, but the move of population, income, and jobs from the cit-
ies to the suburbs accelerated in the 1970s.35This abandonment of
the urban core has had a profound impact on cities' well-being.
With the flight of jobs and people from urban areas, city tax bases
have deteriorated, and cities have lost a primary source of fiscal
stability to the surroundingsuburbs.36
In the meantime, city governments have been called upon to
spend more on municipal services. Many wealthy residents have
exited the city and those residents who remain in the city often
have higher relative demands for health care and social welfare
programs, but a decreased ability to pay for them.37Therefore, the
city is left with a smaller tax base to meet a relatively higher de-
mand for services. At the same time, cities must provide services to
commuters and tourists who do not pay municipal taxes.38Addi-
tionally, the fiscal crises of cities have worsened with large cuts in
the 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 wealthy
residents and businesses as a source of tax revenue. As wealth
moves to the suburbs, cities must raise taxes to replace lost in-
come.41This response creates a feedback effect by encouraging de-
velopment in surrounding suburbs, which usually offer lower tax
rates. 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 David
Listokin eds., 1981).
37Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United
States 284-85 (1985).
38 Dreier, supra note 1, at 1371.
39Id. at 1372.
40
41
Buzbee, supra note 19, at 71.
Michael E. Lewyn, Suburban Sprawl: Not Just an Environmental Issue, 84 Marq.
L. Rev. 301, 353-54 (2000).
urbs creates a "Catch-22"for cities-raise taxes and risk the flight
of wealthy residents or provide fewer services and face the possibil-
ity of the same result.42
In his study, Cities WithoutSuburbs,43David 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 growth
through annexation and infill development.44Using this quantifica-
tion, Rusk finds that the greater the ability of cities to capture
growth, 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 living
standards in suburbs have increased, cities are becoming home to
problems such as concentrated poverty, homelessness, violent
crime, infant mortality, and crumbling infrastructure.46Despite im-
proving conditions, suburbs may not be immune from the decline
of urban areas. Several recent studies demonstrate that the health
of suburbs is linked to their cities, and that the decline of inner
suburbs 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-out nature of sprawl inhib-
its a sense of community between people, making what Professor
Gerald Frug refers to as "city life" 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'y
Rev. 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) and
Richard Voith, Do Suburbs Need Cities? (Fed. Reserve Bank of Phila., Working Pa-
per No. 93-27/R, 1994)).
1. Economic and Racial Segregation
The shift of jobs from the city to the suburbs affects not only city
governments, but also city residents. As jobs move away from the
urban core, areas of concentrated poverty grow. Since the mid-
1960s, the movement of jobs from downtown business districts has
been "stark and universal."48In response to government policies
and changing preferences, residents began an exodus from cities to
their suburbs.49While metropolitan areas have grown as a percent-
age of the nation's population, the suburbs have received most of
this 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.51For
example, during the 1980s, the suburbs received 95% of new office
jobs and 120% of net manufacturingjob growth.52
At the same time, a shift in the American economy worsened
employment problems for city residents. As Professor William
Julius Wilson describes in The Truly Disadvantaged, the American
economy moved from a goods-producing to a service-producing
industry.5 In making this transformation, urban centers shifted
from "centers of production and distribution of material goods to
centers of administration,information exchange, and higher-order
service provision."54As a result, jobs remaining in the downtown
core require higher levels of education, which many city residents
55
do not possess.5
An automobile-centered transportation system makes it even
more difficult for city residents to take advantage of 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
52
Jackson, supra note 37, at 266-71.
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.
53
William Julius Wilson, The Truly Disadvantaged: The Inner City, the Underclass,
and Public Policy 39 (1987).
54
Id. (internal quotation marks omitted) (quoting John D. Kasarda, Urban Change
and Minority Opportunities, in The New Urban Reality 33 (Paul E. Peterson ed.,
1985)).
55
Id. at 39-41.
out of reach for many lower-income households.56Therefore, the

absence of car ownership and the inadequacy of public transit 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 areas
have become home to areas of concentrated poverty.58In 1960, cen-
tral cities housed one-third of the poor people in America; by 1990,
this share had increased to one-half.59In addition to creating a self-
perpetuating effect, concentrations of low-income residents may
aggravate problems associated with poverty such as high crime
rates, welfare dependency, slum housing, and drug use.60
The decline of inner cities has had a disproportionate effect on
racial and ethnic minorities. Although suburbanization does not
necessarily require it, racial segregation has accompanied sprawl.
As people moved to the suburbs, government policies in the form
of exclusionary zoning, enforcement of restrictive covenants, and
federal housing policies restricted minorities to urban areas,61leav-
ing the well-being of minority groups intertwined with the status of
America's cities.62In effect, as city residents have become poorer,
so have minorities. During the 1970s, the number of people living
in "extreme poverty" areas in the five largest American cities grew
182%.63While the population of whites in these areas grew by only
45%, the black population in extreme poverty areas rose by
148%.64
56The
average American family spends about $6,000 per year to operate a single
car. Robert D. Bullard et al., The Routes of American Apartheid, F. for Applied Res.
& Pub. Pol'y, Fall 2000, at 66.
57Kushner, supra note 48, at 75-76.
58Wilson, supra note 53, at 46-62.
9 Lewyn, supra note 41, at 302. Of America's thirty-seven largest cities, thirty-one
had poverty rates above the national average. Id.
60
61 Richard
Thompson Ford, The Boundaries of Race: Political Geography in Legal
Analysis, 107 Harv. L. Rev. 1841, 1847-49, 1870-74 (1994).
62 Cities Without
63
Suburbs, supra note 2, at 7.
Wilson, supra note 53, at 46.
64Id. For more information on how government policies have contributed to the
concentration of poverty, see discussion infra Section II.B.2.
Professor John Kain has labeled the especially pernicious effect
of this phenomenon on minorities as "spatial mismatch."65He ar-
gues that housing discrimination limits blacks to inner cities, thus
preventing them from accessing employment opportunities in the
suburbs. While some scholars have challenged Kain's hypothesis, a
growing body of evidence suggests that because of segregation,
race "affects which residents are poor" even though it "has no ef-
fect on the proportion or number of persons who are poor."66
Among all other minorities, it appears that blacks are affected
the 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 the
poor, but that blacks suffer more from discrimination, making
them a greater victim of concentrated poverty.67While the underly-
ing mechanisms are still debated, empirical data support the fact
that blacks have more difficulty in overcoming spatial mismatch
than other minorities.68
In addition to continued discrimination, the concentration of
poor minorities persists in part due to self-perpetuation. Massey
and Denton argue that "segregation concentrates poverty to build
a set of mutually reinforcing and self-feeding spirals of decline into
black neighborhoods."69They claim that a collective action prob-
lem exists: people look to their neighbors when making behavioral
65
John 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, Negro
Employment, and Metropolitan Decentralization, 82 Q.J. Econ. 175 (1968) (using an
econometric model to initially develop the hypothesis).
66Janice F. Madden, Do Racial Composition and Segregation Affect Economic
Outcomes in Metropolitan Areas?, in Problem of the Century: Racial Stratification in
the United States 290, 315 (Elijah Anderson & Douglas S. Massey eds., 2001).
67
Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and
the Makingof the Underclass9, 150-60 (1993).
68E.g., Camille Zubrinsky Charles, Socioeconomic Status and Segregation: African
Americans, Hispanics, and Asians in Los Angeles, in Problem of the Century: Racial
Stratification 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, a
small impact on Hispanics, and no significant impact on Asians); Michael A. Stoll &
Steven Raphael, Racial Differences in Spatial Job Search Patterns: Exploring the
Causes and Consequences, 76 Econ. Geography 201, 203 (2000) (finding that spatial
mismatch explains employment differences between blacks and whites, but not Lati-
nos, in Los Angeles).
69
Massey & Denton, supra note 67, at 2.
decisions, so concentrated poverty decreases the chances that indi-

viduals will make positive investments in their community and in-
creases the likelihood of anti-social behavior.70Professor Wilson
observes 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 relay
employment information, so youth in these areas possess limited
examples and opportunities to escape poverty.72
2. Destruction of Community
Related to economic and racial segregation, sprawl also destroys
a sense of community on a larger scale. In his article, "The Geog-
raphy of Community," Professor Gerald Frug calls this a loss of
"city life."73Frug borrows political scientist Iris Young's conception
of "city life" as "the being together of strangers."74While this
togetherness does not breed a community with common final ends
and 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 group
affinities. Second, varietycreates a mix of activities that generates a
distinct sense of place within each neighborhood. Third, eroticism
emphasizes a sense of excitement from the unusual and the strange
through both people-watching and architectural diversity. Finally,
publicity, through the availability of public spaces, exposes people
to 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,
72Id. supra note 53, at 56-57.
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).
76Iris Marion Young, Justice and the Politics of Difference 238-40 (1990).
other, let alone work together on the region's problems."77Al-
though suburbs are growing in diversity,78they do not offer the de-
gree of interaction between strangers that cities create.79Through
the hallmarks of sprawled development, such as large distances be-
tween uses and cul-de-sacs, suburbs prevent both social and spatial
connections.80With few areas for the general public to informally
gather, suburban Americans have few other alternatives than to
"retreatinto the sanctuaryof their family rooms."81
The destruction of community has other negative effects on
American society. For example, it hampers exposure to cultural ac-
tivities. Due to spatial and social barriers, suburbanites are less
likely to avail themselves of concerts, museums, and other cultural
activities offered by the city.82It also prevents some positive exter-
nalities, referred to as "intellectual spillovers," that some scholars
consider essential to economic growth.83Through spatial proximity
in cities, "non-market interactions," which provide opportunities
for intellectual spillover, are easier to create and maintain.84There-
fore, through these relationships, city life encourages the "borrow-
ing of information, the transfer of values, and the formation of net-
works," which in turn, spur economic growth.85In suburbs, these
"non-marketinteractions"are much less likely to occur.
By contrast, urban dwelling offers the ideals of city life and pro-
motes interaction with the unknown. Professor Frug explains that
77
Frug, supra note 19, at 1048.
78 Mark
Baldassare, Trouble in Paradise: The Suburban Transformation in America
169-75 (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.
82 Kenneth T.
Jackson, The Effect of Suburbanization on the Cities, in Suburbia:
The American Dream and Dilemma 103-04 (Phillip C. Dolce ed., 1976).
83 Edward L. Glaeser, The Future of Urban Research: Non-Market Interactions 2
(Sept. 9, 1999), http://post.economics.harvard.edu/faculty/glaeser/papers.html. Glaeser

defines intellectual spillovers as "idea flows between individuals that are not mediated
by the market." Id.
4Id. at 3.
85Id. at 39.
living in a heterogeneous community provides two benefits. First, it

encourages tolerance for social and cultural diversity.86Tolerance
does not guarantee that others will approve of or accept differ-
ences, but it suggests a "live-and-let-live attitude."87Though toler-
ance will ultimately reach its limits, city life tends to extend these
boundaries through continued 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 promotes
the 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 is
easier to observe. Perhaps for this reason, environmentalists have
been among the most outspoken critics of sprawl.90Through the
rapid consumption of land, sprawl not only directly impacts the en-
vironment by displacing natural habitats, but also has more subtle,
indirect effects on the environment.
1. The Effects of Direct Displacement

The direct displacement of undeveloped land illustrates the most
obvious result of urban sprawl. The pace of urbanization is rapid
and accelerating in the United States.91Agricultural and environ-
mentally fragile lands are particularly at risk because these lands
86
87Id.
88Id. 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 (1.4
million acres a year), 1982-92." U.S. Dep't of Agric., 1997 National Resources Inven-
tory: Highlights 1, at 1 (rev. ed. 2001).
tend to be the cheapest available for exurban development and are
typically part of otherwise developable tracts.92
Urban sprawl poses one of its greatest threats by destroying
natural habitats. Most experts recognize development as the pri-
mary factor in the destruction of natural habitats and the loss of
terrestrial species and ecosystems.93Sprawl creates a danger to
wildlife through direct displacement and through fragmentation of
habitats by leaving "islands" of undisturbed land.94While some
species can survive in these smaller habitats, many species, such as
the black bear, require larger tracts of undeveloped land to sur-
vive.95
2. The Indirect Effects of Sprawl

While not as readily observed, sprawl also has indirect effects on
the environment in the form of air and water pollution, soil ero-
sion, and increased energy consumption.96Sprawl is inextricably
linked with automobile travel, which contributes to each of these
environmental harms. Though the density of development influ-
92 Burchell &
Shad, supra note 4, at 141. Since 1982, sixty percent of developed land
has 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-hours of delay in 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 (last
visited Jan. 24, 2003) (on file with the Virginia Law Review Association).
For demand and supply-side proposals to decrease congestion and force drivers to
internalize their costs, see Anthony Downs, Stuck in Traffic: Coping with Peak-Hour
Traffic Congestion (1992).
ences the amount of automobile use, the separation of land uses
and a transportation infrastructurebased on collector roads play
much more significant roles.97Residents must rely on automobile
travel for even the simplest trips, because sprawled development
creates large distances between residential and commercial areas
and hinders accessibility by requiring buffers between uses.98Fur-
thermore, with leapfrog development, people often live far from
where they work, increasing the amount they must drive everyday.
From 1960 to 1990, the number of people with jobs outside their
counties 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 Oren
summarizes the impact of auto emissions on air quality.'??The
harmful components of auto emissions consist primarily of carbon
monoxide, hydrocarbons, and nitrogen oxides.10'Although gov-
ernment regulations have been partially successful in reducing
them, auto emissions continue to impose serious social costs.102 One
study estimates that health costs resulting from air pollution exceed
$56 billion each year within the United States.103 At particular risk
are the elderly, the young, and those who already have respiratory
disease.'1 In addition to respiratory problems, air pollution causes
nonhealth effects, such as smog, damage to crop yields, and harm-
ful changes to forest compositions.105
Environmental damage from auto emissions is not limited to the
air. Nitrogen oxide emissions also create acid rain.06Furthermore,
auto emissions threaten aquatic life by causing nitrogen loadings in
97
Ewing, supra note 4, at 113.
98 Andres
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). These
commutes have led metropolitan drivers to spend an average of nearly an hour in
their 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?, 17
Stan. Envtl. L.J. 141,151-57 (1998).
101
Id.
102Id.
103
Cobb,supranote 96.
104
Buzbee, supra note 19, at 73.
105 note 102, at 156.
106
Oren, supra
Id. at 154.
surface water.107 One recent study suggests that traffic congestion
associated with urban sprawl causes water pollution in the form of
polycyclic aromatic hydrocarbons ("PAHs"), which are the largest
class of suspected carcinogens.108This study finds that the increased
vehicle traffic associated with urban sprawl causes the emission of
PAHs, which eventually deposit carcinogenic sediment in water-
sheds.109 As greater areas of land are paved over, sprawl also con-
tributes to water pollution through chemical runoff110 and soil ero-
sion or siltation.11
Finally, urban sprawl harms the environment by increasing en-
ergy consumption in two primary ways. First, studies have demon-
strated that energy consumption varies greatly by housing type.112
Of all housing types, the single-family residences characteristic of
sprawl development require the greatest amount of power."3Sec-
ond, sprawl requires greater use of the automobile by making the
central city less accessible11and by inhibiting the creation of suc-
cessful mass transit.11 The Texas Transportation Institute found
that in 2000, Americans wasted nearly six billion gallons of fuel in
traffic delays alone, without even considering the additional energy
consumed by increased commuting distances.116
II. THE CAUSES OF URBAN SPRAWL
A. Preferencesas the Cause of UrbanSprawl

Sprawl occurs one household at a time. In this regard, people
make the choice as individuals to move into the suburbs. Only
when these decisions reach a certain aggregate level do they reveal
themselves as urban sprawl. Three broad categories of preferences
107
Id.
08
Peter 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.
13
See id.
114
note 4, at 113.
15Ewing,supra
See Literature Review, supra note 111, at 46.
16Tex. Transp. Inst., supra note 96.
motivate individuals to leave the city for the suburbs: economic,

social, and political. Economic preferences involve a belief that the
suburbs offer better and more appropriatelypriced services. Social
preferences include a desire to feel safer, both by being surrounded
by similar people and by escaping what is perceived to be the more
chaotic living environment of the city. Finally, political preferences
consist of a perception that suburbs offer a better opportunity to
exercise one's political voice.
1. Economic Preferencesthat Encourage Sprawl

Professor Charles Tiebout provides an economic model that
helps explain how individual preferences have led to an exodus
from the city. Making assumptions like perfect mobility, he argues
that people will move to the locality whose revenue-expenditure
patterns match their preferences.117While his argument may be as
limited as its assumptions, empirical data demonstrate that many
people 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 important
components of this bundle.19With respect to schools, many people
choose the suburbs over cities in search of a higher level of educa-
When compared to students in suburban schools,
tional quality.120
urban students generally have much lower standardized test scores
and significantly higher dropout rates.12Differentiation in school
performance occurs largely because suburbs have a greater tax
117 Charles M.
Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416,
424 (1956).
118
Georgette 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).
19
Poindexter, supra note 118, at 615-16.
120 Jeffrey 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).
base to fund schools122 and because schools in areas of concentrated
poverty create an environment with lower expectations.123
Some commentators posit a more invidious motive behind the
move toward suburban schools, arguing that people leave cities to
avoid racial integration.124Their argument contends that the United
States Supreme Court's decision in Milliken v. Bradley12solidified
flight by middle-class whites into the suburbs. In Milliken, the
Court found that past de jure segregation by a city school district
could not validate a remedy that included surrounding suburban
districts.126
With 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 Preferencesthat Encourage Sprawl

The arguments about white flight in schools suggest a second
reason for preferences that developed into sprawl: social comfort.
Many people move into the suburbs in search of a place where they
feel socially comfortable.128 Sociologist Richard Sennett describes
this as a need for "purified community."129 He finds the origins of
this search for purity in adolescence.130 During adolescence, people
are confronted by an increasingly complex and uncertain world. In
response, most adolescents seek a set of circumstancesvoid of sur-
prises. This defensive pattern creates a desire to "build an image or
identity that coheres, is unified, and filters out threats in social ex-
perience."'1LAdolescents extend this need for self-purification to
122
Id. 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 the
Soul of Suburbia (1995)).
125
418 U.S. 717 (1974).
26
Id. at 744-45.
127
128
Byrne, supra note 124, at 2269.
Poindexter, supra note 118, at 619-20.
129 Richard
130
Sennett, The Uses of Disorder: Personal Identity & City Life 27 (1970).
Id. at 12.
131Id. at 9.
their surrounding environment.132Sennett claims that this search
for purity sometimes extends into adulthood and explains subur-
banization better than economic rationales.133 He argues that "[i]t is
the simplification of the social environment in the suburbs that ac-
counts for the belief that [purity related to a] close family life will
be 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... and
the kind of people who live there."135 He goes on to claim that the
suburbs do not provide an adequate shield against the physical
conditions lamented in the city, asserting that "the city/suburbline
does not separate noise from quiet, dirt from cleanliness, smells
from fresh air."136 Sennett's hypothesis suggests a self-perpetuating
effect that may explain why people remain in the suburbs despite
their inability to shield themselves from the city. People see the fu-
ture as an intolerable uncertainty, so they form bonds to current
features of their life, making them resistant to change.137
While Professor Frug does not dispute the suburbs' ability to
shield people from others unlike themselves, he argues that people
undervalue the benefits of city life celebrated by commentators
like Jane Jacobs.138 Though Professor Frug sees this as an underrat-
ing of the city, may simply mean that people prefer being around
it
those similar to them over availing themselves of the benefits of
the city. This could be the case, for as philosopher David Hume
remarks, "[m]en have such a propensity to divide into personal fac-
tions that the smallest appearance of real difference will produce
them."'39Unfortunately, a desire to find a simplified (or purified)
environment, combined with an inclination to divide among even
the smallest perception of difference, could bring back exclusion-
132
Id. at 3-30.
133
Id. at 70.
134
Id.
135Frug, supra note 19, at 1056.
136
Id. at 1057.
137
138
Sennett, supra note 129, at 8.
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 of
Great 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)).
ary zoning or other mechanisms of white flight as a leading cause
for urban sprawl.
Whether due to racial divides or not, many observers support
the view that people move to the suburbs to seek a higher level of
comfort.140Rather than explaining the move to the suburbs as a
search for a preferred level of services, some sociologists claim that
fear motivates people.141People move to the suburbs to flee from
threats they perceive in the city, such as the poor, disease, crime,
rudeness, and minorities. Again, these fears fall into the categories
of those posed by the city's physical environment and those posed
by its residents.'42
The availability of the suburbs as a means of escape has been
propagated by American intellectual history. In The Intellectual
Versus the City, Lucia and Morton White chronicle the anti-urban
sentiment that has existed in American intellectual tradition since
the 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 Sullivan and Frank Lloyd Wright;
and other American intellectual icons have all spoken in unison
against the city.44These figures represent the 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 a
desire for an increased quality of life, see David Rusk, Inside Game Outside Game:
Winning
141
Strategies for Saving Urban America 316-24 (1999).
Id. at 99 (citing one commentator as explaining that "the underlying reason for
the 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 (Frederick
Lewis 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.
144 White & White, supra note 143, at 3. For more discussion on the existence of this
intellectual tradition, see Leo Marx, The Machine in the Garden: Technology and the
Pastoral Ideal in America (1964); Gregory S. Alexander, Dilemmas of Group Auton-
omy: Residential Associations and Community, 75 Cornell L. Rev. 1, 7-10 (1989).
city today. The Whites explain that people look to our intellectual
role models and share their fear of the city.145
The ability of the suburbs to act as a safe haven has also been re-
inforced by the Supreme Court. In the seminal zoning power case,
Village of Euclid v. Ambler Realty Co., the Court upheld the use of
the state's police power to separate residential uses from commer-
cial and industrial uses.146Justice Sutherland reasoned that this
separation of uses bore a rational relation to health and safety, be-
cause residential districts protect people against "fire, contagion
and disorder which in greater or less degree attach to the location
of stores, shops and factories."'47He argued that dense residential
districts might fail to provide this safeguard, as higher-density
apartments failed to shield people from "disturbingnoises incident
to 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 in
more favored localities."'48
Justice Douglas's opinion in a more recent zoning case continues
to recognize the suburbs as a location preferable to the city. In Vil-
lage of Belle Terrev. Boraas, the Supreme Court upheld the use of
the zoning power to restrict residences to single-family dwellings.'49
Justice Douglas supported this decision by claiming that this type
of suburban development created "[a] quiet place where yards are
wide, people few, and motor vehicles restricted.""50 He continued
his praise for the suburbs as a place where "family values, youth
values, and the blessings of quiet seclusion and clean air make the
area a sanctuaryfor people."'15
3. Political Preferencesthat Encourage Sprawl

Finally, people prefer the suburbs over the city because people
are motivated by the desire for political participation.According to
145White & White, supra note 143, at 200-08.

146
272 U.S. 365
47Id. at 391. (1926).
148
Id. at 394.
149
416 U.S. 1 (1974).
50Id. at 9.
51
Id.
this theory, people seek a local government receptive to their po-
litical voice. Due to diversity within the city, people believe their
voice will be lost among numerous opposing opinions.152 As a reac-
tion, people exit the city for the suburbs. The homogeneity of the
suburbs allows people to live among other like-minded people, re-
sulting in a local government where their voice is heard.'53 Also,
small suburban local governments often represent a stark contrast
from the massive bureaucraciesof some city governments. This dif-
ference in functional structure demonstrates another reason why
people may feel that the suburbs provide more opportunity to par-
ticipate in government at the local level.54
B. Behavioral Influences that 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 suburbanlifestyle ranked fourth 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 retail
areas, consumers strongly prefer compact centers to strip malls,
finding them more convenient, safer, and more aesthetically pleas-
ing.157If 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. Rather
than 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 the
discussion infra Part V.
153
154
Poindexter, supra note 118, at 617.
Id. at 618.
155 Robert 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 other
forms 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
may move away from the city because they are using heuristics that
do not result in rational or consistent behavior. Government poli-
cies may further distort people's behavior by providing subsidies
and restrictions that pull them away from the city and into the sub-
urbs.
1. HeuristicBiases that Encourage Sprawl

Behavioral law and economics may help explain the occurrence
of sprawl. Incorporating learning from social sciences, behavioral
law and economics attempts to explain why traditional models that
assume the rationality of people often fail to explain their behav-
ior.'58These theories posit that people, who are confronted with
large amounts of information on a daily basis, use heuristics, or
mental shortcuts, to make decisions.159Several of these heuristics
may be responsible for perpetuating sprawl. One of these heuristics
is mental accounting. Under mental accounting, people distribute
their resources into different accounts. Although similar resources
should be considered fungible, people place different values on
these resources depending on their "mental account.""'6 Therefore,
a dollar spent from a "vacation account" differs from one spent
from an account set aside for college tuition or retirement.'16
In the same respect, people may make mental accounts of their
time. The average American spends nearly an hour commuting to
and from work each day.162 Further, the single-family houses found
in suburbs require more time spent on maintenance than other
forms of housing.163 Rather than valuing their leisure time less than
city-dwellers, suburbanites may place commuting and housekeep-
ing time in an account that does not influence the amount of time
available for other activities. The difficulty in valuing time 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 to
other problems, see generally Behavioral Law and Economics (Cass R. Sunstein ed.,
2000).
159 See 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.
163 Highway Admin., U.S. Dep't. of Transp., supra note 99, at 2-6.
Real Estate Research Corp., supra note 95, at 76-77.
suburbs for economic reasons, they may not be accounting for the
value of the increased time they must spend to maintain the subur-
ban lifestyle.
The availability heuristic is another mental shortcut that may
help explain the behavior that forms sprawl. The availability heu-
ristic suggests that people often estimate the likelihood of an event
based on how readily they can recall pertinent examples. There-
fore, people will perceive a higher risk of those events that are
most easily called to mind.'64Earlier, personal safety was identified
as 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 that
when accounting for deaths by traffic accidents and homicides by a
stranger, people are more likely to be killed in the suburbs than in
the 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 crime
than to traffic accidents, thus increasing the ease of recalling exam-
ples of violent crime.
2. GovernmentPolicies that Encourage Sprawl
While the decision to escape the city is typically made on the in-
dividual level, government policies can profoundly influence these
decisions. 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
examining whether 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 drawing them 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.
166
Id.
167
For an excellent account of how government policies contribute to sprawl, see
Jackson, supra note 37.
First, the federal government's transportation policy contributes

to sprawl by encouraging automobile travel over mass transit.168
The government encourages sprawl both directly, through subsi-
dies, and indirectly, by failing to make commuters responsible for
the full costs of driving to work. Since the passage of the Highway
Trust Fund169 in 1956, the highway system has thrived because it has
been considered a public good by the government.'70At the same
time, mass transit has struggled, in part because the government
decided to treat it as a private investment that should not draw
upon common taxpayer money.'17Meanwhile, highway programs
have transformed once inaccessible land into areas prime for de-
velopment.172 Once highways are constructed, commercial and resi-
dential centers quickly develop around them.73The highway sub-
sidy continues today in the form of the Intermodal Surface
Transportation Efficiency Act ("ISTEA"),174which granted $108
billion of federal aid to highways over six years,175and the Trans-
portation Equity Act for the 21st Century ("TEA-21"),176which
provides over $171 billion to federal highway programs over four
years.'77Government transportationpolicies also encourage sprawl
because they do not force drivers to internalize their costs on soci-
ety. These costs include those relating to 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
172
Jackson,supranote 37, at 168-71.
Id. at 163-68.
173
174
Lewyn,supranote 124, at 536-38.
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)).
175
Liam 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 the
mass transit system in favor of highways. Id. at 867-80.
and military costs associated with serving gasoline-based interests

in the Persian Gulf.178
Second, federal housing policies have also encouraged the de-
velopment of sprawl in the United States. The Federal Housing
Administration ("FHA") has contributed to the spread of low-
density housing through its selective insurance of home mortgages
and its preference for home construction over home repair. From
its inception in the 1930s to the 1960s, the program's anti-urban
policies and administrationmade residential development cheaper
in the suburbs and, in some cases, the only option available.179 Fed-
eral tax regulations also contribute to sprawl through policies such
as, "accelerated depreciation; five-year amortization; and deducti-
bility of 'passive' real estate losses," that make suburban develop-
ment cheaper than urban development and building new houses
cheaper than repairingold ones.180
These 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, prohibiting
blacks from taking advantage of these subsidies.'8'Not only did the
FHA insure mortgages with racially prejudicial requirements, it
advocated their use."82 Even after racially restrictive covenants were
found unconstitutional, the agency continued to enforce racial seg-
regation for twenty more years by consistently giving black
neighborhoods the highest risk ratings.183 While the FHA has now
acted to prohibit the racist administrationof these programs, some
accuse the government of failing to take the proper measures to
prevent it from occurringin the private mortgage market.84
178
179
Jackson, 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 1848
184 Dreier, 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.
Finally, the federal government has also helped contribute to

sprawl in its capacity as the nation's largest employer. Governmen-
tal defense spending decisions have the potential to influence land-
use patterns through the creation of jobs. Since World War II, mili-
tary spending has consumed the largest portion of the federal
budget and, in turn, has generated an enormous number of jobs.185
Defense spending has led to sprawl by building installations in
once-rural areas and by limiting research spending 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.'87So suburbs, rather than cities, receive the employment
and tax benefits of the defense budget and its resulting industries.
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 municipalities to encourage sprawl. These pow-
ers include:
the right to incorporate as a separate municipality;immunity
from annexationby the central city; the privilege of engaging in
exclusionaryzoning; the ability to legislate and provide services
solely in their own self-interest;the authoritynot only to tax the
real property located within city boundaries but to spend the
revenue collected solely on local residents.88
Metropolitan areas have become fragmented along municipal
lines, because states have afforded local governments a large
amount of autonomy. In turn, these municipalities compete against
each other for a higher tax base in the form of wealthier residents
and industries. A collective action problem among municipalities
helps contribute to sprawl by constantly providing incentives for
185
186
Drier, supra note 1, at 1379.
7
Id.;Frug,supranote 19, at 1068.
88Frug, supra note 19, at 1070; see also Rusk, supra note 140, at 246 (arguing that
states contribute to sprawl through the different levels of autonomy they grant to
their municipalities); Byrne, supra note 124, at 2269 (noting the powers granted by
states to municipal governments, which in turn produce urban sprawl); Henry R.
Richmond, Metropolitan Land-Use Reform: The Promise and Challenge of Majority
Consensus, in Reflections on Regionalism, supra note 2, at 9, 38 (recognizing that
laws passed by states allow municipal actions that encourage sprawl).
suburban growth and by concentrating wealth in only a few locali-
ties.189
The local zoning power gives municipalities the strongest tool
for encouraging sprawl.190 Through the creation and administration
of exclusionary zoning ordinances that influence the cost of hous-
ing, local governments can exclude poorer residents.'19The result-
ing income homogeneity also serves to attract wealthy residents
who wish to prevent the income redistribution that occurs when
equal services are extended to people who pay different amounts
of tax.192Even in 1924, the district court judge in Ambler Realty Co.
v. Village of Euclid, although subsequently overruled, recognized
that one result of exclusionary zoning would be "to classify the
population and segregate them according to their income or situa-
tion in life."'93This kind of zoning contributes to sprawl by encour-
aging leapfrog development. Rather than moving into localities
that still have room for growth, people seek cheaper locations at
the currentperimeter of development.194
III. THE NEW URBANIST SOLUTION

A. Tenetsof New Urbanism
New Urbanism attempts to solve the problems of sprawl through
focusing on four guiding principles: diversity, pedestrian orienta-
tion, accessible public spaces and community institutions, and cele-
bration of unique local elements.'95First, New Urbanists encourage
diversity in land use and population. Proponents of New Urbanism
claim that diversity in use both limits dependence on the automo-
89Richard Briffault,Localism and Regionalism,48 Buff. L. Rev. 1, 8-10 (2000);

SheryllD. Cashin,Localism,Self Interest,and the Tyrannyof the Favored Quarter:
Addressingthe Barriersto New Regionalism,88 Geo. L.J.1985,1991-95 (2000).
'90Richmond,supranote 188,at 10.
191
Hall, supra note 183, at 60; Paul Davidoff & Mary E. Brooks, Zoning Out the
Poor, in Suburbia:The AmericanDream and Dilemma, supra note 82, at 135, 145;
Robert H. Nelson, Privatizingthe Neighborhood:A Proposalto Replace Zoning with
PrivateCollectivePropertyRightsto ExistingNeighborhoods,7 Geo. MasonL. Rev.
827, 839 (1999).
192
Been, supra note 118, at 1111.
193
297 F. 307,316 (N.D. Ohio 1924), rev'd, 272 U.S. 365 (1926).
194
Briffault, supra note 189, at 9.
195Cong. for the New Urbanism,
supra note 18, at 1.
bile and helps to build social bonds within the community.196
Through placing office 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 community without needing
a car.197Although concentrations of mixed-use land will not imme-
diately create entirely self-sufficient towns,98 automobile use will
diminish as people realize the benefits of short commutes199 and as
transit stops are placed within walking distance of these centers.200
The New Urbanist vision also highlights a diversity in population
within communities, which includes housing for minorities and for
people of all incomes.20'New Urbanists claim that racial and eco-
nomic diversity will afford equal opportunity, serve environmental
goals through alleviating the motivations underlying flight from ar-
eas of concentrated poverty, and strengthen "the personal and civic
bonds essential to an authentic community."202 The proponents do
not provide a formulaic prescription,203 but instead offer a few ex-
amples of successful ways to foster diversity. These include Port-
land, Oregon's zoning ordinances,204 Montgomery 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).
199
Duany 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, in
Charter 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.
203
Duany 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.
land's affordable housing requirements,205 and the Silicon Valley
ManufacturingGroup's transit system.206
Second, the movement stresses pedestrian and transit orienta-
tion. Pedestrian orientation must be accomplished by placing a va-
riety of uses within walking distance of housing or transit stops and
by creating pedestrian-friendly street networks.207New Urbanists
caution that their movement does not necessarily preclude the use
of cars. They realize that "[a]utomobiles are a fact of modern life,
and they are not going away."208 Instead, communities should "ade-
quately accommodate automobiles" while still encouraging pedes-
trian travel and preserving public spaces.209
New Urbanist communities revolve around a five-minute walk
by using the "criticallimiting factor" 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 sprawl by reducing traffic, conserving energy, and im-
proving air quality.21
Proponents 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-
opments have failed to provide an attractive or safe pedestrian
environment because they have isolated pedestrians from the
street, forced traffic onto the arterial network, or designed
neighborhood streets primarily for the speed and convenience of
205 MontgomeryCounty,Maryland,uses a mandateand rewardsystemby requiring

housingprojectswith more than fifty units to provideat least fifteen percentof their
units as low- to moderate-incomehousing.Duany et al., supranote 98, at 53; Rich-
mond,supranote 201, at 57-58.
206 The Silicon
Valley ManufacturingGroup used new rail lines to connect areas of
medium-density,mixed-useto greenfieldsites of affordablehousing..Richmond,su-
pra note 201, at 56-57.
207
Calthorpe,supranote 200, at 43.
208Douglas Farr,Twenty two, in Charterof the New Urbanism,
supranote 201, at
141,144.
209
210 Cong.for the New Urbanism,supranote 18, at 2.
Duany et al., supranote 98, at 198;ElizabethPlater-Zyberk,Eleven, in Charter
of the New Urbanism,supranote 201, at 79, 81; Don Prowler,Mack/Prowler,in The
PedestrianPocketBook: A New SuburbanDesign Strategy,supranote 198,at 37, 37.
211
Walter Kulash,Twelve, in Charterof the New Urbanism,supranote 201, at 83,
83.
212
Duany et al., supranote 98, at 64-74.
automobiles.213Instead, New Urbanists propose narrower travel
lanes to slow traffic, street landmarks to orient pedestrians, large
sidewalks to encourage pedestrian activity and outdoor seating, on-
street parking to create a buffer between automobile and pedes-
trian traffic, and intersections that allow for both pedestrian and
vehicular movement.214In 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.216 To en-
sure successful transit, communities should make transit systems
"frequent and predictable[,]... follow a route that is direct and
logical[,] ... [and have stops that are] safe, dry, and dignified.""'
8' 810' 8'

ParkingTravelLanesParking
New Urbanists seek to create a pedestrian-friendly
environment 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.219 Schools should be designed, in
terms 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
216
Cong. for the New Urbanism, supra note 18, at 2.
Calthorpe, supra note 200, at 102-07; William Lieberman, Fifteen, in Charter of
the New Urbanism, supra note 201, at 101,101-03.
217
Duany 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 a
transit system).
218
Calthorpe, supra note 200, at 95.
219
Id. at 93.
nity can walk to them.220 Furthermore,promoters of New Urbanism

encourage the creation of public parks within two blocks of any
residence.221By making public spaces central to neighborhoods,
New Urbanists hope to provide places for community interaction,
which will ultimately evoke pride and participationin public life.222
Finally, the movement celebrates unique local elements such as
local history, climate, ecology, and building practice. New Urban-
ists draw upon these elements to create memorable places. Design-
ing around natural landscape features creates landmarks, while
recognizing climate allows for more energy-efficient buildings.223
Combining 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."224Examples of these
memorable places frequently cited by New Urbanists include San
Francisco, California and Savannah, Georgia.22
B. Scales of New UrbanistActivity
To achieve these goals, New Urbanists encourage activity on
three different scales. The largest scale, the region, consists of the
metropolis, city, and town.226According to the Charterof the Con-
gress for the New Urbanism, "[m]etropolitan regions are finite
places with geographic boundaries derived from topography, wa-
tersheds, coastlines, farmlands, regional parks, and river basins."227
Within these regions, the proponents of New Urbanism suggest
coordinated strategies of "economic development, pollution con-
trol, open-space preservation, housing, and transportation."228
220
Elizabeth Moule, Sixteen, in Charter of the New Urbanism, supra note 201, at
105, 107.
221
222
Calthorpe, supra note 200, at 91-93.
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 "dramatic streetscapes
and 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, supra
note 201, at 13, 13.
These regional goals should include transportation connections,
deconcentration of poverty, urban growth boundaries, tax-base
sharing, and balanced education systems.29New Urbanists call for
these strategies to be carried out by both the private and the public
sectors; however, they do not provide many specific guidelines for
implementation at this level.230
The middle scale includes the neighborhood, the district, and the
corridor.231 While the regional scale concerns mostly policy objec-
tives, this level primarily focuses on urban planning doctrine. This
scale "is the heart of New Urbanism: the reassertion of fundamen-
tal urban design principles at the neighborhood scale and their
unique accommodation to the contemporary world.""3According
to 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 tenets
discussed above, including: a pedestrian focus, a mix of uses, and
the creation of public space.233Some of these neighborhoods will
come together to create districts with specialized functions, such as
theater districts, college campuses, airports, and industrial parks.234
New Urbanists stress that, despite this specialization, these districts
should also have mixed uses and match the structure of the
neighborhood.235Finally, corridors should connect individual
neighborhoods and districts through bikeways and railways as well
as highways for longer distances.236
229
Duany et al., supra note 98, at 142-49, 227-33; Peter Calthorpe, One, in Charter
of the New Urbanism, supra note 201, at 15, 19, 21; Wendy Morris, Five, in Charter of
the New Urbanism, supra note 201, at 43, 43-45.
230
See 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
232
Neighborhood, District and Corridor, in Charter of the New Urbanism, supra
note 201, at 71, 71.
233
234
Plater-Zyberk, supra note 210, at 79-81.
Id. at 81.
235
Id. at 81-82.
236
Kulash, supra note 211, at 83-86; Plater-Zyberk, supra note 210, at 82.
AREA: PREFERABLE 160 ACRES
TO HOUSE ENOUGH PEOPLE TO
SUPPORT ONE ELEMENTARY
SCHOOL
\
SITE RESERVED
,
' FOR CIVIC
rt-Kr tABLE SHAPE: BUILDNG \
ALL SIDES FAIRLYEQUIDISTANT ''|L'*^' \
FROMTHE CENTER
New Urbanists have provided detailed guidelines

on how to create their vision at the neighborhood level.27
Perhaps because they consider it to be the center of their vision,

New Urbanists have articulated thorough guidelines for activity on
237
Source: Ramsey/Sleeper, Architectural Graphic Standards 86 (John Ray Hoke,
Jr., ed., 10th ed. 2000) [hereinafter Architectural Graphic Standards].
this scale.38 In addition to detailed neighborhood-building princi-
ples, they have drafted a legal framework, the Traditional
Neighborhood Development ("TND") Ordinance.239 New Urban-
ists recognize the importance of the TND Ordinance, observing
that "[c]odes are pervasive in their control of the built public
realm."240 The TND Ordinance offers zoning regulations that will
create neighborhoods according to the New Urbanist model.
While the TND Ordinance allows more flexibility than many
zoning codes, it still offers specific guidelines for the "traditional
neighborhood." Indeed, the TND Ordinance represents some of
the most detailed articulations of how the tenets of New Urbanism
may be fulfilled. It begins by restating the characteristics of New
Urbanist design and the social goals that these characteristics are
meant to promote.24 The Ordinance then sets forth zoning re-
quirements that will fulfill these objectives. It provides six land
uses, each with particular space allocations in the neighborhood,
design regulations, and street and parking requirements.242 The Or-
dinance emphasizes pedestrian orientation through provisions that
include size limitations for the overall neighborhood and limita-
tions for block lengths, the requirement of streetlamps at specified
intervals, minimum sidewalk widths, and maximum setback allow-
ances.243It also encourages medium-density development through
provisions that discourage low-density development and prohibit
high-density development.244Finally, the Ordinance focuses on
public spaces through requirements such as the setting aside of a
minimum proportion of land for public parks, a child-care facility,
and a one-acre central square no farther than two thousand feet
from the edge of the neighborhood.245
238See, 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, at
109, 109.
241
Architectural Graphic Standards, supra note 237, at 98.
242
Id. 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, New
Urbanist communities have maximum setbacks in order to encourage activity and in-
teraction on sidewalks.
244
For example, all non-civic structures must be no taller than four stories. Id.
245
Id.
At the smallest scale of activity, New Urbanists focus on the
block, the street, and the building.246This scale moves from using
planning principles to architectural mechanisms to fulfill their
goals.247New Urbanists feel that most modern urban architecture
has improperly shifted away from outdoor spaces allowing public
interaction toward impersonal high-rise towers, freeways, and
abandoned urban cores.248In response, activities in this smallest
scale strive to reinforce the pedestrian focus and create more pub-
lic space on the neighborhood level.249New Urbanists argue that, to
do this, people must feel safe in both public spaces and in walking
areas. New Urbanists promote safety through design elements such
as lighting at ample and regular intervals, landscaping that does not
block views at eye level, and windows that allow for surveillance of
the street below.250
New Urbanists also seek to create community through designing
public 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 to
interact with walkable public areas by encouraging "encroaching
elements" like balconies, canopies, and colonnades.251 New Urban-
ists do not limit public space to streets; they also include squares,
plazas, and accessible civic areas.252
The 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
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).
248Thisshift 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.
249 Roger Trancik, Finding Lost Space: Theories of Urban Design 4 (1986).
Block, Street, and Building, in Charter of the New Urbanism, supra note 201, at
121.
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.
251
252
Dover, supra note 214, at 147-49.
Id. at 150-51; Duany, supra note 222, at 161-65.
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 Proponents of New Urban-
ism also hope to inspire a sense of history through revitalizing and
restoring historic areas and buildings.255
IV. EVALUATIONOFTHENEW URBANISTSOLUTION
A. Limits of 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 have
failed to solve many of sprawl's problems. Put simply, New Urban-
ists have not provided actionable solutions at the regional level;
rather, New Urbanists have only given practitionersand lawmakers
detailed guidelines for creation of the New Urbanist vision at the
block 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 Other New Urbanist works provide thorough dia-
grams on how to design intersections, street vistas, and community
squares.57
Yet, once the movement addresses issues beyond these spatial
relationships, its recommendations become increasingly vague. At
the metropolitan level, New Urbanists make suggestions that seem
to 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.
257
E.g., Calthorpe, supra note 200, at 39-114.
workable solutions.25For example, when arguing for the deconcen-
tration of poverty, their only guidance is that "each jurisdiction
within the metropolis must provide its fair share of affordable
housing."259 When calling for regional tax-base sharing, they simply
state "[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 these
difficult solutions are all but absent.
In fact, the works of New Urbanists gloss over even the first step
of the process because they do not address how localities must
strike a balance between autonomy and power-sharing in order to
create an effective regional government. In his book, SuburbanNa-
tion, Andres Duany recognizes the difficulty of this pursuit, and
then 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 existing
governments to avoid increased taxation. Once a regional-scale
agency is established, however, its mandate is clear."26'Other New
Urbanist writings have provided scarcely more help when advising
the creation of a regional government. In Charterof the New Ur-
banism, Robert Yaro offers a promising section title, "How to Ini-
tiate and Pursue a Regional Plan," but he fails to deliver.262He
starts encouragingly by suggesting that "[t]o succeed in efforts to
develop metropolitan plans, the citizens of a region must begin by
registering broad public concern about threats to natural or cul-
tural heritage, or to economic prospects."263 Yet, the only recom-
mendations he offers come in the form of six short paragraphsthat
simply list examples of cities that have regional plans.264In the end,
258
The only exception to the lack of specificity at the regional level is with regard to
regional 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, in
Charter of the New Urbanism, supra note 201, at 59, 59-63.
259 Calthorpe, supra note 229, at 19.
260Id. at 21.
261
262
Duany et al., supra note 98, at 227-28.
Yaro, supra note 230, at 24.
263Id.
264
Id. at 24-25. These descriptions include: "In San Francisco, the Public Utilities
Commission 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
Yaro neglects to extract the lessons learned from each of these re-
gional coalitions or to contrast these successful examples with at-
tempts that did not work. The lack of specificity of the New Urban-
ist vision at the metropolitan level stands in stark contrast to the
richness of detail at the neighborhood scale and below. Their lit-
erature needs to provide concrete suggestions on how to overcome
the 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 Ahwahnee
Principles, an early articulation of New Urbanist tenets, heavily
emphasizes actions at the community scale.266 Two years after pub-
lication of the Ahwahnee Principles, Peter Calthorpe included a
section on regional plans in his book The Next American Metropo-
lis.26'Soon thereafter, the New Urbanists placed even more empha-
sis on the region in The New Urbanism:Toward an Architectureof
Community, where Calthorpe wrote a section on the region that
received as much attention as planning principles at the neighbor-
hood and block levels.268 Finally, five years after publication of the
Ahwanee Principles, the First Congress of the New Urbanism es-
tablished the region as an equal to the two other scales when it
passed the Charterof the New Urbanism.269 In the Charter,the New
Urbanists "recognize that physical solutions by themselves will not
solve 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 planning
authorities such as the Cape Cod Commission and the Tahoe Regional Planning
Agency (whose authority straddles the California-Nevada border to include the entire
Lake Tahoe basin) have also taken steps to integrate the design of urban areas with
the 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, at
217.
266
The 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.
without a coherent and supportive physical framework."270 Subse-
quent works have continued this trend of attention to the regional
level, but they still require more detail before New Urbanism can
be considered a comprehensive solution to sprawl.27
B. Shortcomingsof the New Urbanismin Practice

The failure of New Urbanists to supply depth to their vision be-
yond the neighborhood scale may explain why it has fallen short of
its ideals in practice.272Although 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 claim
fewer than two thousand residents in their communities.273 Though
there may not be enough examples of the New Urbanism to make
a conclusive judgment on the movement,274 these early communities
suggest that the current formula for New Urbanism does not meet
its goals. When asked to assess New Urbanism, the Chairman of
the Department of Urban Planning and Design at Harvard Univer-
sity's Graduate School of Design, Alex Kreiger, replied:
To date you [New Urbanists]have helped produce:More subdi-
visions (albeit innovativeones) than towns;an increasedreliance
on private managementof communities,not innovativeforms of
elected local governance; densities too low to support much
mixed use, much less to supportpublic transportation;relatively
homogenous demographic enclaves, not rainbow coalitions; a
new, attractive,and desirableform of plannedunit development,
not yet substantial infill, or even better, connections between
270Id. at 1.
271See,
272
e.g., Duany et al., supra note 98, at 142-149.
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 of
urban 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).
74 Cf.
Emily Talen, Sense of Community and Neighbourhood Form: An Assessment
of the Social Doctrine of New Urbanism, 36 Urb. Stud. 1361, 1362 (1999) ("[N]ew
[U]rbanists are plagued by a sheer lack of evidence.").
new and existing development;marketingstrategiesbetter suited
to real estate entrepreneursthan public officials;a new wave of
form-follows-functiondeterminism (oddly modern for such ar-
dent critics of Modernism),implyingthat communitycan be as-
sured throughdesign;a perpetuationof the myth of the creation
and sustainmentof urban environmentsamidstpastoralsettings;
carefullyedited, rose-coloredevocationsof small-townurbanism,
from which a century ago many Americans fled not to the sub-
urbsbut to the city.275
Even some advocates of the New Urbanist theory express disap-
pointment with New Urbanism in practice; architectural historian
Vincent Scully remarks that "[t]he New Suburbanism might be a
truer label." 276
Professor Scully's portrayal may rise from the fact that while
New Urbanist developments have succeeded in providing the spa-
tial models set forth by their doctrine, they have not yet conquered
the problems of urban sprawl. Even though these communities
take a different form than cul-de-sacs and strip malls, they still ex-
hibit some of sprawl's hallmark troubles. Outside of Orlando, Flor-
ida, the development known as "Celebration" provides one ex-
treme example. To see if Disney's version of New Urbanism
satisfied the lofty proclamations of its creators, New York Univer-
sity Professor Andrew Ross lived in Celebration for a year. After
this period, he concluded that although Celebration has its advan-
tages, the community represents part of Disney's plan to protect
property values and secure public funding for highways to its
theme parks and fails to accomplish many of the New Urbanist
goals like political participation and racial diversity.277
Other New Urbanist projects have similar shortcomings. Several
communities presented as models of the movement consist of luxu-
rious vacation and retirement homes. About Seaside, Florida, the
proponents of New Urbanism claim that, although, "[o]riginally
designed to be an inexpensive beachfront vacation community,
275Alex
276
Kreiger, Whose Urbanism?, Architecture, Nov. 1998, at 73, 74.
Vincent Scully, The Architecture of Community, in The New Urbanism: Toward
an Architecture of Community, supra note 268, at 221, 221.
277
Andrew Ross, The Celebration Chronicles: Life, Liberty, and the Pursuit of
Property Value in Disney's New Town 223-56, 265-98 (1999).
Seaside today feels more like an upscale resort."278Later, they
boastfully describe Windsor, Florida, as "an exclusive, upscale re-
sort community."279 While few New Urbanist communities include
their own eighteen-hole golf course, few can be put forward as suc-
cessful examples of economic and racial diversity.
The failure to cure segregation can be attributed in part to the
high price of New Urbanist dwellings. A residence in their commu-
nities comes not only at a high absolute price,280
but also at a pre-
mium over similar properties in the market area.281One study
found that New Urbanist homes cost eleven percent more than
their market equivalents.282This phenomenon occurs in many New
Urbanist communities because of covenants that are designed to
maintain high property values. One code in the Kentlands, Mary-
land,283mandates the use of nearly all natural building materials.284
Provisions that add to the cost of housing have been used for dec-
ades by communities that seek to exclude low- and middle-income
residents.285
These requirements underscore the distributive effects
of land-use regulations-by creating high housing prices, residents
can 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 file
with the author).
281 E.g., Mark J. Eppli & Charles C. Tu, Valuing the New Urbanism: The Impact of
New 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 for
differences in the buildings' quality, age, and location. Id.
283The Kentlands is one of the most commonly touted successes of New Urbanists
and 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
285
(1993) (on file with author).
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 ....").
New Urbanist developers have also failed to solve other prob-
lems of sprawl, because most often they have chosen suburban and
exurban locations. While their medium-density form helps reduce
the direct effect on environment, the choice of greenfield locations
displaces more land than the selection of infill development. The
indirect environmental effects of sprawl also exist in New Urbanist
communities. First, although some developers have succeeded in
creating a mixed-use environment, New Urbanists have not allevi-
ated the need for commuting by automobile. Few who work in the
retail stores and small offices located in New Urbanist communities
can afford to live in those communities. Duany admits that most
residents of the Kentlands will have to commute to work: "I
wouldn't be surprised if it starts out at 90 percent or higher."287
Since this community lies twenty-three miles northwest of Wash-
ington, D.C.,288it will require commutes that create the same harm-
ful emissions as traditional urban sprawl. The Kentlands is not
alone in this regard. When voting against permits for the creation
of 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
going to be burned in your gas tank."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 burden
on suburban municipalities just as much as traditional urban
sprawl. Since these communities often rely upon greenfield rather
than infill development, they require the creation of additional
municipal facilities rather than drawing on existing capacity. Just as
in sprawl, under these circumstances, New Urbanist communities
287
Mark 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 fall
to forty percent within two generations. Id. Duany relies on this gradual recognition
of the benefits of living in New Urbanist communities to create the benefits of the
movement. 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., supra
note 98, at 190.
88
Katz, 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).
will burden the municipality to the extent that the local govern-
ment does not exact impact fees.
Many New Urbanist communities will contribute similarly to the
decline of cities by propagating spatial mismatch and encouraging
wealthy residents to leave the city. Because of these communities'
distance from the urban core and the lack of viable transit in most
suburban 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 Urbanist
communities will prevent city residents from moving into these
communities to take advantage of these new employment oppor-
tunities. Making the problem worse, these new developments will
create incentives for an even larger number of wealthy people to
move away from the city. Rather than staying in the city to enjoy
the benefits of a pedestrian-oriented community, wealthy city resi-
dents may choose suburbia and move to a New Urbanist commu-
nity in the suburbs. Like traditional urban sprawl, these types of
New Urbanist communities may leave cities with a lower tax base.
The greatest promise of the current form of the New Urbanism
lies in recreating a sense of community. Although studies on
whether the residents of the New Urbanist developments feel a
sense of community have ambiguous results, they use a different
definition of community than the one advanced by Professor Frug.
He explains his hesitation to use the word "community"because of
its use "to refer to a group of people who share things in com-
mon... and who seek to foster the bonds they have with each
other."290Rather, Professor Frug's community, or "city life," pro-
motes a variety of ideals through creating opportunities for interac-
tion with the unknown. When taken in this light, the New Urbanist
communities have the potential to afford more interactions with
neighbors because of the spatial proximity of 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 provide
more interactions with strangers, these "strangers" may not be
290
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.").
quite so unfamiliar, due to their racial and economic homogeneity.

While it would be incorrect to suggest that people have only racial
and economic differences, this homogeneity of New Urbanist
communities nonetheless detracts from their potential to offer the
full "city life."
Current examples of New Urbanism suggest that the movement
solves only this one problem of urban sprawl, but its proponents
still tout the vision as the complete remedy. They may be right, yet
many obstacles lie before them. As the New Urbanists have admit-
ted, the problems of sprawl cannot 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 expensive
homes,292they 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 traditional sprawl. 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 New
Urbanism combine with a stronger regional formulation, then the
vision will more successfully address problems such as exclusionary
zoning and leapfrog development.
V. THE ROLE OF REGIONAL GOVERNMENTSIN SOLVING URBAN
SPRAWL
Just as government policies have helped create sprawl, they can
also provide a critical part of the solution. Since the different levels
of government contribute to sprawl, they each can be called upon
to create policies that help to combat it. At the federal level, the
government can first act by reversing some of the policies that con-
tribute to suburban and exurban development. Specifically, it can
stimulate the creation of better transit networks through subsidies
parallel to those given for highways. At the same time, it can force
292
Fulton, supra note 273, at 3; cf. Evan McKenzie, Privatopia: Homeowner Asso-
ciations and the Rise of Residential Private Government 97 (1994) (commenting on
homeowner associations, though some critics would argue equally applicable to New
Urbanism, McKenzie observes that "beneath the democratic and egalitarian rhetoric
was often a marketing strategy that targeted the affluent and emphasized exclusiv-
ity").
commuters to internalize the costs of automobile travel by reduc-
ing subsidies for highway construction 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 even
better than, the creation of new suburbanhousing. Additionally, as
has already begun, the federal government may alter its public
housing policies to encourage the desegregation of poverty.293
While these actions may have some effects on land use, the Consti-
tution restricts the ability of the government to 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 acts upon sprawl at each of its levels.294
Instead, we must look to the states, which possess the taxing,
spending, and police powers that can complement federal laws to
create a comprehensive anti-sprawl program. As we have seen,
sprawl largely manifests itself on a regional level. Therefore, much
of the hope for solving sprawl lies in the ability of states to encour-
age the formation of regional governments that have the power to
overcome the fragmentation of municipalities and interests within
their areas.
Indeed, in legal literature, the majority of discussion about
sprawl's solution revolves around regional governments. The writ-
ings of Professors Richard Briffault295 and Gerald Frug296 have pro-
duced the most debate about the benefits of regional governments
as a means to solve metropolitan problems such as sprawl. Most of
293
Rusk, supra note 140, at 251-76 (discussing changes to public housing policies
during 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) [hereinafter
Briffault, The Local Government Boundary Problem]; Briffault, supra note 189.
296E.g., Gerald E. Frug, Against Centralization, 48 Buff. L. Rev. 31 (2000); Gerald
E. Frug, Beyond Regional Government, 115 Harv. L. Rev 1763 (2002) [hereinafter
Frug, 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].
this legal theory concentrates on the tradeoff between granting lo-

calities the power to act effectively while restricting their ability to
negatively affect each other through externalities. While munici-
palities must be given a fair amount of power to solve their prob-
lems,297granting them too much power may lead to competition,
which creates and perpetuates inequalities among them.298 For ex-
ample, these disparities can be observed in the income inequalities
between cities and their suburbs.299 Though lacking accord for the
perfect structure, Professors Frug and Briffault agree upon a re-
gional government that coordinates those neighborhood activities
that affect each other, yet still permits municipalities to provide the
type and the extent of services uniquely desired by their resi-
dents.300
The challenge of actually creating a regional government has
been left to lawmakers. In practice, successful regional govern-
ments have been extremely difficult to create.301Adding to the
theoretical tension described above, numerous practical obstacles
stand in the way of regional governments. Despite the benefits of-
fered by powerful regional governments, they will face significant
opposition. For example, those who benefit from the current state
of affairs, like "local elected officials, land developers, corporations
that are the subjects of interlocal bidding, and the businesses and
residents located in the high-tax-base localities of the metropolitan
area," will all have reasons to resist the creation of a regional gov-
ernment.302On the opposite side of the spectrum, even those
groups traditionally identified as the primary victims of localism-
racial and ethnic minorities-may also be wary of a regional gov-
ernment. Currently,minorities have a significant voice in many ur-
ban areas. Regional governments may weaken their voice by dis-
297
Frug, The City as a Legal Concept, supra note 296, at 1149-51 (suggestingthat
cities be given broadpowers,includingthe power to act as banks and insurancecom-
panies).
298
Briffault,Our Localism:Part I, supranote 295, at 19-24; Cashin,supranote 189,
at 1986-88.
299Briffault,Our Localism:PartII,
supranote 295, at 346, 351-55.
300SeeBriffault, The Local Government Boundary Problem, supra note 295, at
1115,1164-71;Frug,DecenteringCentralization,supranote 296, at 253, 295-300.
30'"The long and largelyunsuccessfulhistoryof efforts to create metropolitangov-
ernmentshas persuadedsome regionaliststhat governancereformis doomed to fail-
ure."Briffault,supranote 189, at 6.
302Id. at 27 (citations omitted).
persing minority populations and by making them compete politi-
cally with the predominantlywhite suburbanresidents.303
Another obstacle to creating a regional government is the lack
of 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 Margaret Weir identifies three common characteristics:
"at least one politically powerful interest that saw metropolitan re-
gionalism as a way to address its concerns, bipartisan coalition
building, and relatively weak opposing groups."34The lessons that
Professor Weir draws from these experiences rely mostly on state-
level coalition building rather than institutional design.305
Other ex-
aminations of these models have had a similar focus. In Metropoli-
tics, former state legislator Myron Orfield describes Minnesota's
experience with creating a regional government.306 When discussing
the applicability of this experience to other regions, he identifies
eleven 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 perimeter
that contains their growth, but within this perimeter lies "the low-
est-density, most sprawling large region in America outside of At-
lanta."308Portland has fared somewhat better in containing growth,
but it still faces many of the problems of sprawl. First, Portland's
neighborhoods continue to isolate people from one another, be-
303
john a. powell, Assessing Regional Dilemmas for Minority Communities, in Re-
flections on Regionalism, supra note 2, at 218, 228-32.
304
Margaret Weir, Coalition Building for Regionalism, in Reflections on Regional-
ism, note 2, at 127, 128.
305supra
Id. 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 dealing
with 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.").
cause the neighborhoods still follow the traditional postwar subur-

ban subdivision model.'9 Also, even though it has a small minority
population, Portland has a large amount of racial and economic
segregation.310Furthermore, 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 growing
population.31Despite successes in some areas, these regional gov-
ernments lack effective policies to support many anti-sprawl goals
like economic desegregation, medium-density development, and
reduced dependence on automobiles.
These shortcomings of "successful"regional governments might
indicate that they have not found an institutional structure that re-
solves the tension between local autonomy and local competition.
Alternatively, this failure may be due to a lack of proper initiatives
at smaller levels such as the neighborhood and the block, like those
advocated by New Urbanists. Even more likely, some combination
of these flaws contributes to the continuation of sprawl despite the
existence of regional governments.
CONCLUSION
In the end, the depth of the solution to sprawl must match the
complexity of the problem. Urban sprawl affects us by creating
economic burdens and inequalities, hampering our social interac-
tions, and polluting our environment. The causes of sprawl have
equal breadth, coming from individual preferences, psychological
barriers, and government policies at the local, state, and federal
levels. These complexities will resist the formulation of a simple
panacea.
Efforts to combat urban sprawl ultimately must work on a num-
ber of levels. At the largest scale, the federal government can 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 coordinating actions that
affect the region as a whole, such as exclusionary zoning and spa-
309
Rusk, 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 at 172-74.
Id.
tial mismatch. Finally, the solution must recognize the importance
of spatial elements as they relate to urban sprawl.
The legal literature appears close to reaching a consensus on a
proposed answer to sprawl at the regional level and above. It sug-
gests modifications to federal mortgage, transportation, and other
policies that currently encourage sprawl and even proposes laws
that will subsidize urban living. Legal scholars have also created a
regional framework that hinders competition and exclusion at the
local level, while also permitting local governments to satisfy their
constituents' unique economic and political preferences.
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 around
mixed-uses and the five-minute walk, New Urbanists have pro-
vided a way to reduce dependence on the automobile as well as
create opportunities for more human interaction. Policies that re-
quire medium-density development promote communities with
lower municipal service costs and less damage to the environment.
New Urbanists have demonstrated that "spatial ordering of uses in
our urban environment has... a profound effect on our social,
economic, and civic life."312
The solutions from both New Urbanist and legal literature seem
promising on their own level, yet without each other, they have
both seemed to fail in practice. Accordingly, they must look to
each other. In order to create a framework that acts against sprawl
at each of its levels, legal scholars and lawmakers must look to New
Urbanism and recognize the importance of spatial factors. Simi-
larly, New Urbanists should rely more upon government structures
at the regional level. After studying racial segregation in the
United States, British geographer R. J. Johnston reflected:
One can take a geographicalviewpointwithinthe social sciences,
emphasizingthe study of particular-usually spatial-aspects of
a society. But that geographicalviewpointcannot be isolated, for
a full understandingof spatialorganizationrequiresinvestigation
of many aspects of economic, social and political organiza-
tion .... One of these is law, the study of which is integralto the
312
Moule, supra note 220, at 105.
understandingof the organization of a class-based society, in-

cludingthe 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 block
levels and can be fought accordingly. Yet as the shortcomings of
New Urbanism in practice reveal, the solution does not lie only on
this level. As legal scholars have articulated, some of the roots of
sprawl are grounded in 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 legal framework for their vision at the
neighborhood and block scales. Although they have formulated
some regional principles, these principles do not match the richness
of 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 should
see the law as an opportunity to control aspects of human interac-
tions on the regional scale.
When articulatingtheir approach to regionalism, New Urbanists
should 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 Urbanist
vision. 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 institutional frameworksin the same depth that they
have examined the spatial models of the neighborhood and
block.314For example, as the legal literature has suggested, a popu-
larly elected regional legislature that controls common issues could
allow municipal residents to satisfy both their political and eco-
nomic preferences. Through a limited regional government, people
can exercise their political voice through both their municipal and
regional governments. Maintaining some local autonomy would
313
R. 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).
still allow residents to select the locality that best meets their pre-
ferred bundle of services, while pushing decisions that affect more
than one community to the regional level will prevent the kinds of
interlocal competition that has created the problems associated
with sprawl.
New Urbanists have proposed solutions to some of these areas
of common concern among regions. These solutions include trans-
portation planning, land use, and education. Although some of
these concerns, such as land use, must be addressed by all regional
governments, many of these areas of common concern will depend
on the individual region. 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 be
worse off in some respects.315 To overcome these political barriers,
New Urbanists must propose ways to garner the political will to
create a regional body. Again, the legal literature provides some
examples. Professor Frug argues that a successful regional govern-
ment must gain legitimacy by finding "an entrance point that will
generate enough political support."316 These 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 proposes
coalition-building tips such as "reach[ing]out, person to person" in
the region and seeking a broad coalition including philanthropic,
religious, business and civic groups.37By combining the lessons
from successful coalition-building efforts and the necessary ele-
ments of institutional design, New Urbanists can offer a stronger
regional plan.
Without a regional government, New Urbanist neighborhoods
will 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.
sprawl. New Urbanists have proposed an innovative alternative to

leapfrog suburban development, but their lack of a clearly articu-
lated regional plan has led them to fall short of their goals. Even
with increasing recognition of the importance of regional factors,
the absence of a concrete regional framework still forms the great-
est shortcoming of their movement. As its regional vision matures,
New Urbanism will become more valuable. Indeed, when com-
bined with the appropriate changes in federal policies, a regional
government that incorporates New Urbanist concepts offers a
promising solution to urban sprawl.

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Sprawl and the New Urbanist Solution

Author(s): Jeremy R. Meredith

SPRAWL AND THE NEW URBANIST SOLUTION

*J.D. Candidate,2003, Universityof VirginiaSchool of Law. I would like to thank

guished from the larger category of "suburban growth." Some

ban sprawl. Many Americans complain about sprawl, yet continue

I. THE PROBLEMSOF URBAN SPRAWL

Geography of Nowhere: The Rise and Decline of America's Man-Made Landscape

economic burden on growing municipalities by increasing the cost

1. Increased Economic Burden on SuburbanMunicipalities

Finally, sprawled development increases the cost of municipal

2. The Decline of American Cities

34Economic and Fiscal Costs, supra note 21, at 168.

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

decisions, so concentrated poverty decreases the chances that indi-

73Frug, supra note 19, at 1048.

(Sept. 9, 1999), http://post.economics.harvard.edu/faculty/glaeser/papers.html. Glaeser

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

1. The Effects of Direct Displacement

2. The Indirect Effects of Sprawl

II. THE CAUSES OF URBAN SPRAWL

A. Preferencesas the Cause of UrbanSprawl

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

1. Economic Preferencesthat Encourage Sprawl

2. Social Preferencesthat Encourage Sprawl

140 For a discussion of whether this comfort is created

3. Political Preferencesthat Encourage Sprawl

145White & White, supra note 143, at 200-08.

1. HeuristicBiases that Encourage Sprawl

64Timur Kuran & Cass R. Sunstein, Controlling Availability Cascades, in Behav-

First, the federal government's transportation policy contributes

and military costs associated with serving gasoline-based interests

Finally, the federal government has also helped contribute to

III. THE NEW URBANIST SOLUTION

89Richard Briffault,Localism and Regionalism,48 Buff. L. Rev. 1, 8-10 (2000);

196 See Duany et al., supra note 98, at 187.

205 MontgomeryCounty,Maryland,uses a mandateand rewardsystemby requiring

8' 810' 8'

Third, New Urbanists seek to create communities built around

nity can walk to them.220 Furthermore,promoters of New Urbanism

New Urbanists have provided detailed guidelines

Perhaps because they consider it to be the center of their vision,

A. Limits of the New UrbanistVision

Community, at xi (Peter Katz ed., 1994).

B. Shortcomingsof the New Urbanismin Practice

quite so unfamiliar, due to their racial and economic homogeneity.

this legal theory concentrates on the tradeoff between granting lo-

cause the neighborhoods still follow the traditional postwar subur-

understandingof the organization of a class-based society, in-

' Id. at 1790.

sprawl. New Urbanists have proposed an innovative alternative to

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