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Monday, August 20, 2007

Emerson on Sprawl

Chad D. Emerson (Faulkner University School of Law) has posted two articles on SSRN on sprawl.  The first is All Sprawled Out: How the Federal Regulatory System Has Driven Unsustainable Growth:

The United States faces a serious threat that grows more troublesome every year; one whose negative effects run the gamut from environmental concerns to social and fiscal harms

The threat — often called sprawl — is evidenced by the proliferation of unsustainable land development patterns throughout this country.

Significantly though, sprawl is not simply a problem of bad design or planning. These are, in fact, merely symptoms of a much more prolific cause. Indeed, the true driving force behind sprawl has been a series of federal laws and regulations that, over the last century, have facilitated development patterns in the United States that are neither fiscally sound nor physically sustainable.

This article examines three specific areas of federal regulation that have exacerbated sprawl: federal tax policy, federal transportation policy, and federal housing policy. It analyzes these laws and regulations within a historical context to determine why and how they came to be.

To accomplish this, the article surveys specific examples of federal laws within each of these categories that have served to promote the near unfettered growth of American sprawl. By doing so, the article identifies those areas of federal regulation that, if modified or repealed, can facilitate a move away from sprawl growth and toward a more sustainable land development strategy.

Ultimately, this article exposes the federal laws that have driven sprawl in this country — and, by doing so, have exacerbated the numerous negative impacts of sprawl on our society.

The second is Making Main Street Legal Again: The Smartcode Solution to Sprawl:

For those concerned with the sustainability of today's land development patterns, there looms an unfortunate yet eye-opening reality: presently, if a developer wants to develop a project similar to classic American communities such as Charleston, Savannah, Key West, or Alexandria, in most jurisdictions, doing so would be illegal under existing zoning codes. Similarly, if a developer sought to develop a neighborhood with a traditional corner store or a classic American main street where the shopkeeper lived about her shop, many existing zoning codes would legally prohibit such a result.

The stark reality is that, in most jurisdictions within the United States, traditional town and neighborhood planning techniques are illegal because many of today's conventional zoning codes either prevent their use expressly or by effect. And, even worse, this is not a recent phenomenon but rather the result of an outdated zoning scheme that dates back to the early 1900s. A zoning system that, as this article will show, has now outlived much of its original purpose and usefulness.

Fortunately, a growing group of land planners and attorneys have developed a comprehensive legal response to this unsustainable reality — a response whose leading purpose is to legalize the use traditional planning techniques in our regions, communities, neighborhoods, and streets. Known as the SmartCode and developed by leading town planner Andres Duany, this response is not simply an abstract theory or proposal, but rather an actual regulatory document that can be adopted by local jurisdictions to enable the legal use of traditional planning techniques. At its core, the SmartCode is “a fundamentally different vision of how cities should be coded” as it codifies many of the traditional planning techniques that today are advocated by the New Urbanism movement — techniques such as mixing uses, utilizing interconnected street networks, and designing compact, walkable, and environmentally-sustainable communities.

This article will analyze the format of the SmartCode and, since the SmartCode is a model code that must be legally customized for local jurisdictions, the article will further explain the legal steps that communities must take in order to implement the SmartCode as a zoning option. While doing so, the article will also examine how the strict Euclidean structure of today's conventional zoning codes has necessitated the creation of the SmartCode in order to allow communities to legally utilize traditional town and neighborhood planning techniques.

Ben Barros

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