In 1926, this village on Lake Erie won the seminal U.S. Supreme Court decision on local zoning authority. The Court upheld Euclid’s power to bar factories and apartment buildings from residential and commercial areas, even though the ordinance slashed property values by 75 percent. The measure also thwarted "natural development" from neighboring Cleveland that would otherwise "soon absorb the entire area for industrial enterprises." Euclid v. Ambler Realty Co., 272 U.S. 365.

Euclid was not just a "mere suburb," wrote Justice George Sutherland, but a sovereign entity that could decide that land uses must be segregated to protect the community’s safety and welfare.  Nearly 75 years later, the small town that won the big battle over local zoning power now seeks greater regional cooperation in land use and development policies. Rather than fighting economic encroachment from Cleveland, Euclid, now an inner-ring suburb, has joined the city and nearby towns to fight sprawl from outer-belt suburbs.

In an ironic twist, Euclid Mayor Paul Oyaski sees the independent zoning authorities of some 60 local governments in Cuyahoga County as adding to the problem. "Redistributing wealth, property values and population to newer, undeveloped areas, which is the essence of urban sprawl, serves to benefit not the public at large but the real estate developers and speculators and the politicians they support," Oyaski wrote in a 1999 article in the ABA’s State and Local Government Law newsletter.

"Who benefits from building new communities, new hospitals, new schools, new infrastructure while abandoning similar facilities near the city?" Oyaski asked. "Communities and neighborhoods are not disposable commodities, to be discarded at will. Rebuilding, renovating, and reinvesting in existing neighborhoods is a better policy."

The "smart growth" movement that Oyaski describes has swept up local officials, state legislators and governors across the United States. And it isn’t limited to urban regions.  In January, Maine Gov. Angus King warned that haphazard development threatened the state’s economy and environment. King criticized "congestion and commercial sprawl at the gateways to our spectacular natural resources" and "residential development leapfrogging to the headwaters of lakes, slowly turning them algae green."

Smart growth has even become an issue in national politics. Al Gore has spearheaded the White House’s  "livability agenda," a host of new and warmed-over anti-sprawl initiatives. Among them are federal aid for urban smart-growth projects, protection of threatened farmland and "Better America Bonds," providing federal backing for municipal efforts to preserve open spaces and redevelop downtowns. Also in June, GOP hopeful George W. Bush told a gathering of big city mayors that the federal government "should not be your rival but your partner in promoting smart growth and regional cooperation."

Spreading Thin
Euclid’s experience is instructive, says Jonathan Weiss, director of George Washington University LawSchool’s Center on Sustainability and Regional Growth. Weiss, a Cleveland-area native, recalls the town as "a proud, quintessential working-class suburb, a nice place to raise a family." Euclid once had a strong industrial and commercial base, he says, but businesses and residents started departing for outer suburbs in the 1970s, leaving behind unproductive brownfields, dilapidated buildings and a declining tax base.

It is indeed ironic, says Weiss, that Euclid’s current desire for regional cooperation must overcome the municipality-based zoning system that it helped establish at the beginning of the 20th century. "The town once thought it could control its destiny internally through measures like zoning, but now, as we enter the 21st century, it realizes its destiny is increasingly tied to larger regional forces. ...

"The new geographic reality is that urban regions are expanding across the world, creating a multiplicity of new  issues. The problems regions face—from transportation to pollution—know no formal boundaries," says Weiss. "True smart growth will require lawyers to see beyond existing boundaries in law and land." Veteran land-use practitioners note that smart-growth issues have increased the legal and political complexity of their work. In areas facing severe growth pressures, big development deals are seldom quiet, one-on-one affairs between a builder and a local zoning board. Instead, they may have a cast of players, including citizen and environmental groups, politicians from neighboring communities, and regional planning officials.

"There’s much more public input into the development process," says Peter A. Buchsbaum of Woodbridge, N.J., chair of the Land Use Planning and Zoning Committee of the ABA State and Local Government Law Section.

In southern California, which has some of the nation’s most stringent land-use controls, developers’ lawyers must master a dizzying array of requirements on water and air quality, roads, sewers and financing, says Los Angeles attorney Kenneth B. Bley.  "You can’t just slap down the zoning code and say, ‘I have a right to build,’ " says Bley. "You may have to negotiate for months before you even get a hearing."

Negotiation has always been a huge part of dealing with zoning and land-use regulations because of the mix of such volatile ingredients as people, power, property and profit. Anti-sprawl measures—which further limit development and may threaten local control over land-use policy—inspire even greater passion.

One of the legal pioneers of the smart-growth movement is Kansas City, Mo., attorney Robert H. Freilich. In the 1960s, Freilich designed and successfully defended an 18-year phased development plan for the town of Ramapo, N.Y. Golden v. Planning Bd. of Ramapo, 30 N.Y.2d 359 (1973). Ramapo’s geographical, sequenced growth-management scheme—which tied development to the town’s long-term capital improvement plan—has served as a model for municipal ordinances and state legislation nationwide. Freilich went on to help design growth management plans for Minneapolis-St. Paul, San Diego, Seattle, Baltimore and Reno, among other cities.

Freilich, who is editor of the ABA's Urban Lawyer, calls urban sprawl—low-density, single-use suburban development—"America’s most lethal disease." His list of sprawl-related symptoms includes declining cities and inner suburbs, environmental degradation, energy waste, loss of farms and affordable housing, infrastructure deficiencies, fiscal insolvency and taxpayer revolts.

According to Freilich, the cease- less spread of suburbs around big cities pushes the most expensive ring of homes about two miles farther from the downtown each decade. This leads to more vehicle traffic, more demands for highways and road maintenance, and greater municipal and county debts for public services, he says.

Gore has said that sprawl can exacerbate a host of societal problems: transforming "suburbs into lonely cul-de-sacs"; creating road-rage-inducing, child-bedtime-story-missing commutes; and emptying main streets in older communities, "leaving a nighttime vacuum filled with crime and disorder."

Voters approved 70 percent of the 240 anti-sprawl initiatives that appeared on the ballots of 31 states in 1998. Local and state politicians have also adopted a variety of smart-growth schemes, including Ramapo-style  phased development plans, promoting regional cooperation, brownfield and mixed-use development, protection of farmlands and open spaces, and even temporary building bans.

Other smart-growth measures include:

• Development fees in Lancaster, Calif., that increase with the distance from downtown.

• Urban growth boundaries that channel development and protect the remaining green spaces in Portland, Ore.

• A tiered growth system in Palm Beach County, Fla., with four use designations: urban/suburban, rural, agricultural reserve and glade.

• A legislative package in Pennsylvania offering regional planning commissions priority for state funding and protection from developers’ lawsuits.

• New Jersey’s revision of building codes to encourage in-fill development.

Yet despite its broad, bipartisan support, the smart-growth movement has angered many property owners, developers, home builders and conservative groups.

What Sprawl?
Critics dispute the seriousness of urban sprawl, and dislike an active government role in slowing or redirecting development. "What’s one person’s sprawl is another person’s desire for a home on a single-family lot," Bley notes. In a 1999 report by the conservative Reason Public Policy Institute in Los Angeles, land-use analyst Samuel Staley noted that less than 5 percent of the nation’s land is developed, and most states are overwhelmingly rural. Staley argues, in "The Sprawling of America: In Defense of the Dynamic City," that urban decline is largely attributable to nonsprawl "push" factors, including poor schools, high taxes, crime, and lack of decent, affordable housing.

The public is rightly worried about how our communities are "changed by the rapid pace of growth," says Steven Hayward of the Pacific Research Institute in San Francisco. However, "Alarmist clichés about ‘the paving of America’ or ‘running out of farmland’ ... are ridiculous and don’t deserve to be taken seriously by adults." According to Hayward, the rate of suburban development and farmland loss today is slower than in the 1960s and 1970s.

Fritz Knaack, a former Minnesota state legislator who represents municipalities, developers and builders, says city politicians have seized on smart growth "as a means of limiting economic expansion in suburban areas, which has been viewed as detrimental to core city interests." "Unsophisticated locals advancing a [not-in-my-backyard] argument used to appear to be merely selfish. Now, cloaked in ‘smart- growth’ language, they’ve all become environmentalists overnight," says Knaack, of the Twin Cities suburb Vadnais Heights. He characterizes anti-sprawl advocates as "affluent, yuppie, middle-class types who tend to ... congregate with similar, like-minded folk."

Critics also argue new smart-growth measures have the effect, if not the purpose, of increasing housing costs, thus excluding working- and middle-class families. Robert Mitchell, president of the National Association of Home Builders, says restrictive land-use policies keep many municipal workers from living in the communities they serve.

"In some California and other high-tech markets, teachers, firefighters and police officers are commuting more than 100 miles a day because they can’t find affordable housing closer to their jobs," Mitchell says. "That’s unacceptable." Hayward charges that the exclusionary effect of development restrictions is actually a major drawing point. He says that a 1998 poll in Ventura County, Calif., found that support for anti-growth measures actually grew when voters were told it would inflate house prices. "People who own homes don’t much care about the opportunity for others to own new homes," says Hayward. "This issue unites Range Rover Republicans with Martha
Stewart Democrats into a powerful coalition."

Builders naturally respond to economic realities, says Brad Bailey, an attorney for Littleton, Colo. "If smart-growth ordinances limit the number of units that can be built, then developers will try to get the biggest bang for their buck. There is more profit in a ‘trophy home’ than in a 2,000-square-foot split-level ranch. This may put additional [gentrification] pressure on lower-income neighborhoods ... and push out the working poor."

Weiss notes that exclusionary practices may be disguised as phased development or as other smart-growth measures. However, he says, "Bona fide smart growth requires a broader approach" that accounts for lower-income housing needs. Freilich agrees that growth-management systems that do not ensure affordable housing will fail in court.

Such concerns of opposing groups stoke the prospect that the legal brawl over sprawl will keep lawyers busy for years, and the stakes are potentially huge. Loudoun County, Va., one of the nation’s fastest-growing regions, recently elected a full slate of county supervisors who favor smart growth. The board set up a $1 million legal defense fund in anticipation of future litigation from developers, he says.

Meanwhile, the National Association of Home Builders is lobbying Congress to make it easier to file federal complaints against zoning ordinances and land-use restrictions. In March, the House passed the Private Property Rights Implementation Act, H. 2372, under which Fifth Amendment takings claims would be ripe for federal adjudication as soon as a town denies a development plan. Under current Supreme Court case law, the developer must exhaust state remedies before making a federal case of it. Williamson County Planning Comm’n v. Hamilton Bank of Johnson City, 105 S. Ct. 3108 (1985).

The NAHB claims that this legislation simply ensures a quick resolution of constitutional claims that are held hostage during interminable zoning board proceedings. Local government groups see a more sinister purpose behind the measure. Diana Shea of the National Association of Counties testified before the House last year that the bill "would  give large land developers and special interests a ‘club’ with which to intimidate communities that cannot afford to put up a fight in federal court."

Few towns employ a full-time legal staff, Shea noted, and hiring outside legal counsel can impose "large and unexpected burdens on small governmental budgets." Indeed, even unsuccessful takings claims may bust a town’s bank, Shea notes. Small but fast-growing Hudson, Ohio, spent $250,000 to defeat a lawsuit against a smart-growth measure that limited the issuance of building permits.

Last term, the Senate considered a similar takings bill, called Citizen Access to Justice Act, S. 1028. Though it was tabled in September, the Justice Department reportedly recommended that President Clinton veto it if it reaches his desk. Relegating developers to state court may be of scant consolation to the municipalities and politicians they sue, says Catherine M. Harper of Fort Washington, Pa. As the solicitor in one Philadelphia suburb and an elected official in another, Harper has firsthand experience in land-use litigation tactics. She has both defended and been a defendant in cases where disgruntled developers sued officials in their personal capacities.

Both cases were settled, but not before Harper was deposed three times and saw her clients forced to turn over "personal tax returns and homeowner insurance policies, and answer intrusive questions."
Suits against elected officials are a means of intimidating municipalities, Harper says, and the tactic occasionally works. "Sometimes the threat alone will do it. I’ve actually seen elected officials quail in the face of a stiffly worded letter."

The more common, and usually less acrimonious, takings claims against municipalities are seldom successful, according to Freilich. "If you know what you’re doing, it’s almost impossible to get involved in a takings situation," he says, adding that the Court has found compensable takings only in extreme cases.

And yet the seminal Euclid continues to haunt zoning law in the 21st century. Euclid’s Mayor Oyaski believes that the municipality-centered land-use system may be part of the problem, rather than a solution to the ills of America’s metropolitan areas. Oyaski says that local zoning, combined with "our love affair with the auto," poor transportation planning, a laissez-faire attitude by the state, and a dysfunctional idea of growth have contributed to sprawl.

The economy and competitiveness of greater Cleveland are suffering from "a stagnant population, an  overabundance of infrastructure and a dispersing community," says Oyaski. This self-destructive expansion must cease, he warns. "The new mantra for the new millennium must be  ‘Revitalize, Renovate and Redevelop.’ "

William C. Smith, a legal journalist, is also a lawyer for the U.S. Environmental Protection Agency's regional office in Philadelphia. This article was written in Smith's private capacity, and no federal government endorsement is intended or should be inferred. Source:  American Bar Association, ABA Network, Land Use, December 2000, by William C. Smith.