Academic journal article Fordham Urban Law Journal

Healthy Zoning

Academic journal article Fordham Urban Law Journal

Healthy Zoning

Article excerpt

ABSTRACT

This Article explores local governments' foray into the area of health regulation through their general regulatory and land use powers. Local governments are limited in their powers: they enjoy only those powers that the state permits them and, in some cases, only those that they choose to embrace themselves. Health care and health law have traditionally been the domain of federal and state governments. However, many local governments have begun to use what powers they have to attempt to address obesity and other health problems that plague many communities. In fact, land use law may be the most important and powerful tool at local governments' disposal to create meaningful and positive impacts on our collective health. This Article analyzes the different ways in which local governments are using their general regulatory and land use powers to promote greater health among their citizenry. Many of these health initiatives are controversial. Critics view local government action in this sphere as infringing on a policy area reserved for the federal and state governments or, at the very least, exceeding local government powers. Accordingly, this Article will also identify and address some of the challenges that such local government efforts face.

TABLE OF CONTENTS

Introduction                                                     34
I. The Health Concerns of Local Governments                      36
   A. Obesity                                                    37
   B. Asthma                                                     39
II. Local Governments' Innovative Health Policy Initiatives      40
   A. Non-Land Use Health Policies on the Local Level            40
      1. Menu-Labeling Laws                                      41
      2. "Happy Meal" Bans                                       42
      3. Soda Bans                                               44
      4. Trans-Fat Bans                                          45
   B. Local Land Use Policies Aimed at a Healthier Citizenry     45
      1. New Urbanism, Smart Growth, and Zoning                  46
      2. Health Elements in General Plans                        47
      3. Siting Grocery Stores in Food Deserts                   49
      4. Restricting Fast Food Restaurants and Liquor Stores     50
      5. Other Innovative Land Use and Zoning Approaches to
         Health Policy                                           52
III. Impediments to Local Government Efforts                     54
Conclusion                                                       56

INTRODUCTION

There is an ongoing debate--both descriptive and normative--among local government law scholars about whether local governments (1) have, or should have, robust or limited powers. (2) This debate focuses largely on cities' powers vis-a-vis their respective state governments. This scholarly discourse has provided a forum for the rise of localism, a theory based on a preference for local government control and authority. (3) While this localist focus has been driven by a number of concerns and influences such as efficiency and self-government, (4) one of the primary motivations is the prospect that local governments will further innovative policy initiatives that could inform policy- and decision-making at higher levels of government. (5) Indeed, due to the political strife and gridlock that exists at the state and federal government levels, local governments, in many respects, are better "laborator[ies] of democracy" than Justice Louis Brandeis envisioned the states to be. (6)

As Professor Charles Tiebout describes in his seminal theory, local governments have tended to be more innovative than states because they compete against each other to attract and retain consumer-voters. (7) Consumer-voters can "vote with their feet" and leave one city for another if the package of goods, services, and taxes offered by a particular municipality is not to their liking. …

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