amusing pseudo-intellectual quotes
From Andrew Sullivan's blog

POSEUR ALERT WINNER 2004: "But how to paint or sketch such a genius at substitution [as Jacques Derrida]? One must, one can only catch him, portray him in flight, live, even as he slips away from us. In these sketches we shall catch glimpses of the book's young hero rushing past from East to West, -- in appearance both familiar and mythical: here he is for a start sporting the cap of Jackie Derrida Koogan, as Kid, I translate: lamb-child, the sacrificed, the Jewish baby destined to the renowned Circumcision scene. They steal his foreskin for the wedding with God, in those days he was too young to sign, he could only bleed. This is the origin of the immense theme that runs through his work, behind the words signature, countersignature, breast [sein], seing (contract signed but not countersigned), saint --cutting, stitching -- indecisions -- Let us continue." - from the prefatory author's note in "Portrait of Jacques Derrida as a Young Jewish Saint," by Helene Cixous, published by Columbia University Press.

POSEUR ALERT RUNNER-UP: "Admittedly, Midge Decter's biography of Donald Rumsfeld may stand the test of time as a classic achievement in the literature of coprophagia; the vivid yet bulimically svelte anthology of paranoid slanders Ann Coulter has given us in "Treason" has added something innovative to that small, delectable canon of hallucinatory works that also includes Celine's Bagatelles Pour un Massacre and the unjustly anonymous Protocols of the Elders of Zion; and the eloquent-as-a-treacle-tart Christopher Hitchens, in a prodigious outpouring of books and articles, has rendered the mental process by which intellectual prostitutes magically change form in alignment with shifting power formations as legibly as few besides Curzio Malaparte have managed since the fall of Mussolini." - Gary Indiana, Village Voice.

POSEUR ALERT HONORABLE MENTION I: "Yesterday I posted an announcement of my new piece on gay marriage. This piece, I believe, will shift the gay marriage debate from speculation about the future to a discussion of present realities. For that reason, I see it as the most important piece on gay marriage I've ever published." - Stanley Kurtz.

POSEUR ALERT HONORABLE MENTION II: "The value of listening to Brion's score by itself - with the exception of his thematically tongue-in-cheek "Strings That Tie to You" - is situated in the potency of its corresponding visual nostalgia. This seems to be the logical fate of most film scores, but in the case of Eternal Sunshine, Brion's insistence on certain themes popping in and out of his textures seems particularly appropriate, as the soundtrack's fluid matrix performatizes the cinematography's mind/body collapse: In the film, Brion's organi-synthgaze postlude "Phone Calls" plays after Joel decides not to try and save his first memory of Clementine, but just to enjoy it. Here, Brion's score meets Eternal Sunshine's oculophilia halfway, and fittingly comprises one of the film's most potent scenes." - Nick Sylvester, Pitchforkmedia.

"Starve the beast" theory defanged

It has become conventional wisdom among some economic conservatives that if government cut taxes, spending will miraculously cut itself as government becomes starved for revenue - notwithstanding spending's failure to cut itself over the past four years (as well as under Reagan).

But a recent op-ed from the Cato Institute (of all places) suggests otherwise: that tax cut-induced deficits actually lead to higher spending.

Money quotes:

"However, economist William Niskanen, chairman of the Cato Institute (also my employer), has presented econometric evidence that federal spending tends to increase when tax revenues decline, flatly contradicting the starve-the-beast theory. Furthermore, according to William Gale and Brennan Kelly of the Brookings Institution, members of Congress who signed the President's "No New Taxes" pledge were more, not less, likely to vote for spending increases, which is hard to square with the starve-the-beast theory.

"Starve the beast" is really a conjecture about the psychology of voters and legislators. The idea embodied in Friedman's statement is that mounting deficits will spur voters to choose representatives who will impose fiscal discipline. But why would voters react that way? Will they be worried about deficits causing rising interest rates, or about the prospect that their children will be stuck with a huge bill?

It seems just as likely that current voters would prefer to have their kids and grandkids foot the bill. In the long run, we're all dead, and the dead don't pay taxes. If the doctor gives you a month to live, why not run up the Visa?

Niskanen's analysis suggests that when current spending is financed by current taxes, voters see it as their money being spent, and so are more motivated to be frugal. But when current spending is financed by debt, voters see it as future voters' money being spent. If voters prefer to benefit now and have some one else pay later, there is no good reason to think legislators will see deficits as a reason to restrain themselves."

Social Security not going broke after all
Go to the Social Security Administration trustees' page of economic assumptions:

Scroll all the way to end for GNP assumption; their "intermediate" assumption is 1.8% growth, a level that (as SSA itself points out) is far lower than American economic growth in recent decades.

In other words, the almost universally-shared view that Social Security is "going broke in 2042" is based on an assumption that is at best unduly pessimistic.

Bottom line: the Social Security "crisis" may be completely imaginary.

Of course, one can argue that we should turn Social Security upside down to prevent a crisis that might not occur.

But I note that the sort of people who are most likely to favor this argument tend to be utterly uninterested in doing anything about global warming- a phenomenon which, like Social Security, is not a present concern at all, but which has become prominent based on projections (based on computer models) about an alleged disaster that might or might not happen 50 years from now.

old Buffalo Beat op-eds from 2001
BLUE DOG PRESS/BUFFALO BEAT OP-EDS

These are some of my last op-eds from Blue Dog Press (a Buffalo weekly I used to write for). Upon reading them, I notice my thinking has evolved: I am less skeptical about missile defense than I was before 9-11; I still don't think it would have much impact upon the calculations of an ordinary ruthless dictator like Sadaam Hussein, but I think it could reduce the number of casualties should a terrorist who has no return address (and thus cannot be deterred by the threat of nuclear annihilation) get his hands on a few nukes too many.

The Paradox of Missile Defense (Blue Dog Press 7-25-01; one of my last Blue Dog Press articles)

by Michael Lewyn

Ever since President George W. Bush was inaugurated, his administration has insisted on planning to spend tens of
billions of taxpayer dollars on a missile defense system to protect American cities from the yet-to-be-deployed
missiles of Iraq, North Korea and a variety of other small thugocracies.

The logic of missile defense is as follows: during the Cold War, we survived without missile defense because the
Soviet Union was rational enough to be deterred by our thousands of nuclear warheads. But over the next few years,
our pint-sized enemies may deploy nuclear missiles, and may either (a) be irrational enough to fire atomic bombs at
the United States even if by doing so they risk annihilation themselves, or (b) use their future nuclear deterrent to
prevent the United States from mounting a conventional invasion the next time these ""rogue states"" threaten their
neighbors, for example, if Iraq invades Saudi Arabia or North Korea invades South Korea.

But paradoxically, missile defense may make less sense now than at the height of the Cold War. Here''s why:
during the Cold War, the Soviet Union''s thousands of missiles threatened not just American cities, but America''s
own missiles. In fact, the Soviet Union had so many missiles that they arguably could have destroyed all of
America''s land-based missiles (though not our air- and sea-based missiles) in their silos. This, in turn, meant that if
some technical breakthrough allowed the Soviets to destroy our air- and sea-based nuclear weapons, they could, in
theory, have been able to fight and win World War III in half an hour, by destroying our nuclear deterrent.

It logically followed that if we deployed a missile defense that destroyed 50 percent of Soviet missiles before they
entered U.S. territory, we would have insured that our own nuclear deterrent would survive a first strike by the
Soviets, thus deterring the Soviets from starting World War III. Therefore, a Cold War-era missile defense would
actually have been of significant value, even if it did not destroy every single incoming missile.

By contrast, the missile system proposed by President Bush would probably be designed only to deter nuclear
attacks by smaller nations with only a few dozen missiles apiece, far too few to threaten America''s nuclear
deterrent.

It follows that the Bush program would protect only America''s cities rather than its missiles, and thus would have
to be 100 percent effective in order to avoid a catastrophe. Suppose, for example, North Korea decides to fire 20
nuclear weapons at United States territory. Even if the missile defense system was 90 percent effective, and 2 of
North Korea''s weapons landed on American cities, millions of Americans would die, as would (a few hours later) a
few million North Koreans who our own nuclear weapons would vaporize. Because even a 90 percent effective
system would be unable to prevent a foreign dictator from killing millions of Americans, such a system would have
little deterrent value.

It could be argued that without a missile defense system, one of America''s less powerful enemies could use their
future nuclear deterrent to prevent the United States from using its own conventional deterrent. For example, a
nuclear-armed Iraq could invade Saudi Arabia and suggest to American leaders that any attempt to rerun the Gulf
War would lead to a rerun of Hiroshima in an American city. But these threats would be effective whether a missile
defense was 10 percent effective or 90 percent effective, because even a 10 percent chance of a blown-up American
city (or, for that matter, the destruction of an American city or two by 10 percent of Iraq,,s nuclear missiles) would
be sufficient for Iraq''s deterrent to work. In other words, unless the United States or its enemies knew with
absolute certainty that our missile defense would be 100 percent effective, a missile defense would not prevent
those enemies from mounting conventional attacks upon their neighbors.

Even supporters of a missile defense concede that an American missile defense would not, in fact, be 100 percent
effective. For example, Frank Gaffney (who was responsible for missile defense policy in the Reagan Defense
Department) wrote in the March issue of Commentary, ""Even the best defense would likely have some leakage, a
fact that, for a nation relying on it, could well prove catastrophic."" It logically follows that missile defense is
unlikely either to prevent an attack by a so-called ""rogue state"" or to deter a conventional war by a rogue state.

In defense of missile defense, Gaffney argues: ""an adversary contemplating an attack in the face of even partially
effective defenses could never know whether his warheads would succeed in reaching their targets and if so, which
ones they would be. This in itself may create an additional disincentive to launching a strike in the first place,
particularly if the consequences of doing so would be certain and devastating retailiation by a still wholly or mainly
unscathed United States."" In other words, Gaffney asserts that a dictator would be crazy enough to risk being
blown up by mounting a successful nuclear attack against the United States, yet not crazy enough to take the risk
that his nuclear attack would be frustrated by missile defense, an obviously absurd scenario. So an imperfect missile
defense is unlikely to deter even the most deranged dictator.

??2001 Blue Dog Press Published July 25, 2001

REALITY TV: THE GOOD, THE BAD, AND THE UNETHICAL


By Michael Lewyn

To a much greater extent than motion pictures or plays, network television radically changes from year to year.

For a while, the dominant fad might be the wholesome family situation comedy. Then, a raunchier comedy becomes
popular, and all of the television networks try to copy it by airing potty-mouthed farces. For a time, hour-long
dramas are popular, and the networks fall all over themselves imitating those.

Recently, the latest fad has been so-called reality television, a generic term for shows that feature non-actors in
contrived situations. For example, Survivor (the reality show with which I am most familiar) drops numerous
persons into some isolated landscape, such as a tropical island or a desert, tells them to vote each other off the show
on a regular basis, and then, after a series of strange challenges (eating bugs, standing on a pole), the final tribe
members face their peers. After the ultimate votes are cast, a large sum of money is awarded to the person who
survives the elimination battle.

Generally, I find Survivor (and its knockoffs -- for the five or ten minutes that I have examined them) to be
anything but reality TV. I personally have never been on a tropical island with 15 strangers with whom I have to
simultaneously live and plot against -- and I suspect the same is true for most readers. Big Brother forced a group
of strangers to live together in a studio-fabricated house as television viewers voted off whom they felt were the
most annoying. On The Mole, players hunted for the spy amongst them. Fear Factor finds folks willing to do almost
anything (be with 400 live rats or get dragged by a horse) to win $50.000.

Frankly, Survivor isn''t any more realistic than most other television shows. For example, television executives
justify their obsession with crime, premarital and extramarital sex, and violence on the grounds that these
phenomena do in fact occur in the United States. But these problems are hardly as significant to my life as they are
to most television shows.

For example, I have not been murdered even once, nor has my apartment ever burned to the ground -- yet TV news
intensely covers crime and fire, and television entertainment is filled with violence. And about my sex life... let''s
just say that there''s not as much sex in my life as there is on television. In fact, about one-fourth of my life (as
much as one-third on good days) consists of sleep -- yet television scarcely ever portrays anyone sleeping, let alone
sleeping for one-fourth of an episode (7.5 minutes of a 30 minute sitcom --with commercials; and 15 minutes of a
one-hour drama).

If television truly reflected reality (say, by airing extended coverage of actual human sleep, a la Andy Warhol''s
movie, aptly titled Sleep), it would be far more relaxing -- but perhaps even less entertaining than it is today, if such
a thing were possible, that is.

But even if Survivor were more realistic, it would nevertheless still fail to retain my attention. I simply don''t find
other people''s lives interesting enough to watch on television. Rather, I prefer to obsess on the soap opera of my
own life. Over the past 15 years, I have lived in eight different cities, held eleven different jobs (counting temporary
jobs of various types), been laid off once, narrowly avoided termination once (by leaving a law firm only a few
months before it folded), and experienced four nationwide job hunts (once of which involved 48 interviews in over
a dozen cities). Even now, I am hardly stuck-in-a-rut. I usually have to prepare for a new class or two every
semester, work hard to retain the good will of both my students and the administrators who have the power to fire
me, worry that the law school where I teach will not stay in business, and write enough scholarly articles to have a
decent chance of tenure. Perhaps if I were used to job security, I would be a bit more interested in the adventures of
some people thrown onto an island, who are told to work with and against each other.

Perhaps being a contestant on a reality show is more fun than watching one -- but nevertheless, I would not like to
be part of these shows'' institutionalized backbiting. Jewish tradition understandably condemns lashon hara
(Hebrew for ""evil talk"" -- but more loosely translated as gossip, or negative comments about others). Yet, some
of the reality shows are structured to encourage lashon hara. On Survivor, for example, contestants have to vote
each other off the show. This encourages them to speak negatively about their fellow combatants, scheming, of
course, that someone else will be voted off the show before they are.

I realize that I wouldn''t necessarily burn in Hell if I were to spend a few months as part of the Survivor cast -- but
nevertheless, such a situation could not possibly be good for my ethical development.

So watch Survivor and its ilk if you must, but definitely don''t treat the contestants as role models.




??2001 Blue Dog Press Published July 03, 2001

SPECIAL NEEDS, SPECIAL CIRCUMSTANCES

BY MICHAEL LEWYN

On October 25, 1979, Johnny Paul Penry raped and murdered Pamela Carpenter.

He confessed that, after he installed a stove in Carpenter''s home, he planned to return for an encounter that would
prove deadly for her.

In his own very chilling words, Penry said, ""I decided I would go over to the chick''s [Carpenter''s] house and get
me a piece. I also wanted to get the money that she had in her purse. I knew that if I went over to the chick''s home
and raped her that I would have to kill her, because she would tell who I was to the police, and I didn''t want to go
back to the pen.""

After entering Carpenter''s home, Penry hit her repeatedly and raped her for thirty minutes. ""I sat down on her
stomach and I told her that I loved her and hated to kill her, but I had to so she wouldn''t squeal on me."" Penry
(who was on parole from a previous rape) then stabbed Carpenter in the chest and ran away. Carpenter clung to life
for an hour and then died from her wounds. According to the Texas Supreme Court, she ""was in the grip of violent
pain...up until the time she died.""

More than twenty-one years have passed since that tragic day, and Johnny Paul Penry''s fate has not yet been
resolved. After Penry was convicted of murder and sentenced to death by a Texas jury, he appealed the death
sentence, asserting that (to quote the U.S. Supreme Court''s description of his argument) ""it would be cruel and
unusual punishment, prohibited by the Eighth Amendment, to execute a mentally retarded person like himself.""
The Supreme Court did not adopt his argument, but has twice remanded his case to the Texas courts on more
technical grounds. Specifically, the Court has held that the Texas courts did not clearly instruct juries that Penry''s
retardation should be considered as a mitigating factor.

Recently, the High Court once again stayed Penry''s death sentence. His case (and the general issue of whether
retarded murderers should be executed) has attracted a significant amount of publicity. In fact, the Texas state
legislature passed a bill banning the execution of mentally retarded persons, but the bill was vetoed by Governor
Rick Perry.

The case against executing the retarded was articulately stated years ago by Justice William Brennan, who
concurred in the first Supreme Court opinion halting Penry''s death sentence. Brennan argued that ""the impairment
of a mentally retarded offender''s reasoning abilities, control over impulsive behavior, and moral development in
my view limits his or her culpability so that, whatever other punishment might be appropriate, the ultimate penalty
of death is always and necessarily disproportionate."" Similarly, the American Association on Mental Retardation
(AAMR) argued before the Supreme Court that because of ""disability in the areas of cognitive impairment, moral
reasoning, control of impulsivity, and the ability to understand basic relationships between cause and effect,""
mentally retarded people cannot act with the level of moral culpability that would justify capital punishment.

Penry''s own behavior rebuts these arguments. Justice Brennan wrote that a retarded defendant''s lack of ""control
over impulsive behavior"" bars capital punishment. But Penry was anything but impulsive. He confessed that for
three weeks before he killed her, he ""thought about [Carpenter] a lot. He made the decision to rape her when he
""saw a girl in City Hall who reminded me of [Carpenter]."" Penry decided at that time that he would murder
Carpenter in order to escape detection. While he was stabbing her, he actually told her that he was killing her ""so
she wouldn''t squeal on me.""

It is hard to imagine a more calculated, controlled crime. Far from being unable to control his impulses, Penry was
about as ""impulsive"" as Timothy McVeigh. Like McVeigh, he mulled over the details of his crime before
committing it, and killed not on impluse, but based on a rational calculation of costs and benefits. Specifically, he
believed that if he stabbed Carpenter to death, he would be less likely to ""go back to the pen"" than if he merely
raped her and allowed her to live.

The AAMR asserted that retarded individuals lack ""the ability to understand basic relationships between cause and
effect."" But Penry murdered Carpenter because he had exactly that ability. He murdered Carpenter because he
believed that there would be a cause/effect relationship between his murder and his freedom: that his decision to
murder Carpenter would cause the fortunate (for him) effect of eliminating the only witness to his rape of her, thus
hampering the police investigation.

I gladly concede that some killers who science defines as ""mentally retarded"" should not be executed because of
their mental problems. For example, the defendant who is incapable of distinguishing between death and sleep. But
Johnny Paul Penry knew exactly what he was doing when he raped and murdered Pamela Carpenter, so if capital
punishment is morally appropriate for anyone at all, Johnny Paul Penry deserves to die.

??2001 Blue Dog Press Published June 27, 2001

Biblical Politics

By Michael Lewyn

As I have become more interested in my religious heritage, I have begun to look at the Bible now and then,
especially the one part of the Bible which lays down a large number of specific laws: the Five Books of Moses
(Genesis, Exodus, Leviticus, Numbers and Deuteronomy) also known as the Pentateuch or (to us Jews) the Torah.
Generally, the most religious Americans are also the most politically conservative, but the Pentateuch does not
always support this tendency.

On the cultural issues that motivate the Religious Right, the Pentateuch does tend towards positions that might be
considered conservative in this century (or even in the last century). For example, the text states: ""He that smiteth a
man, so that he dieth, shall surely be put to death"" (Exodus 21:12). To be fair, Jewish commentators watered down
capital punishment by endorsing a variety of procedural protections for defendants. Nor is the Bible''s law-and-
order tendency mitigated by a desire to protect criminals merely because they had disadvantaged backgrounds: it
states ""Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor, nor favor the
person of the mighty"" (Leviticus 19:15). And despite the Religious Right''s intense interest in abortion, this
subject is never directly mentioned in the Pentateuch.

But on economic issues, the Pentateuch is not particularly right-wing. It seeks to protect debtors by limiting the use
of clothing as collateral (Exodus 22:25-26), and creates an early version of bankruptcy law by mandating that all
debts be released at the end of every seven years (Deuteronomy 15:1). The Pentateuch also protects the poor in a
variety of ways. It states to the ancient Hebrews: ""if thy brother be waxen poor, and his means fail with thee, then
thou shalt uphold him"" (Leviticus 35:38).

More specifically, it adds: ""And when ye reap the harvest of your land, thou shalt not wholly reap the corner of thy
field, neither shalt thou alter the gleaning of thy harvest. And thou shalt not glean thy vineyard, neither shalt thou
gather the fallen fruit of thy vineyard, thou shalt leave them for the poor and the stranger."" (Leviticus 19:9-10).
This passage would appear to mandate a modest form of workfare, requiring ancient Israelites to support the poor
with the fruits of their labor as long as the beneficiaries were willing to exert the effort necessary to turn agricultural
products into food and money. On the other hand, such modest forms of relief do not contemplate the total
elimination of poverty or inequality.

The Pentateuch also shows some environmentalist tendencies: for example, after God tells Moses to give the Levites
(ancient Israel''s priestly tribe) cities to dwell in, God adds: ""open land round about the cities shall ye give unto the
Levites... for their cattle, and for their substance, and for all their beasts. And the open land about the cities, which
ye shall give unto the Levites, shall be from the wall of the city and outward a thousand cubits round about.""
(Numbers 35:2-4). In other words, the Bible creates an urban growth boundary for the Levites: a greenbelt that, like
that enacted in 20th-century Oregon, limits the sprawl of urban and suburban development and requires everything
beyond that boundary to be used for agriculture and other rural land uses. The Pentateuch adds: ""When thou shalt
besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof... is the tree of
the field man, that it should be besieged of thee?"" (Deuteronomy 20:19). It therefore appears that the author of the
Bible was the original pro-tree environmentalist.

Like religious conservatives and secular liberals, the Pentateuch is critical of discrimination. It states: ""Thou shalt
not curse the deaf, nor put a stumbling-block before the lind"" (Levicitus 19:14). And, ""if a stranger sojourn with
thee in your land, ye shall not do him wrong"" (Leviticus 19:33). Although these passages hardly mandate specific
legislation, they do emphasize the value of fair treatment for foreigners and the disabled.

It could even be argued that the Pentateuch confronts racism: God inflicts a skin disease upon Miriam (Moses,,
sister) after she ""spoke against Moses because of the Cushite [Ethiopian] woman who he had married."" (Numbers
12:1). (However, the Bible does not directly state the cause of Miriam''s complaints, so this passage is ambiguous).

In sum, the author or authors of the Pentateuch endorsed a kind of centrist populism, moderately redistributionist on
economic issues, conservationist on environmental issues, but culturally conservative. Of course for some, this
discussion may beg the question: so what? The answer depends not only on one''s view of the Bible''s divine origin
or lack thereof, but also on the extent to which one''s own morality and faith should shape a religiously diverse
society.

??2001 Blue Dog Press Published June 21, 2001

PROHIBITION: THE LESSER EVIL?

By Michael Lewyn

A few months ago, I saw the Oscar-nominated movie Traffic. The apparent message of the film was that despite the
billions of dollars spent on the so-called War on Drugs, anybody who wants to smuggle drugs into the United States
can easily do so, and anyone who wishes to buy illegal drugs can easily do so. The film''s popularity reflects a
common (albeit not a majority) point of view: drug prohibition has failed to stop drug use, and is thus a failure.

Certainly, drug prohibition has failed to live up to its lofty goals. Our politicians and bureaucrats have ranted for
decades that if we only throw enough money at law enforcement, we can eradicate the scourge of illicit drugs from
American soil. But millions of Americans continue to sell and use cocaine, heroin, PCP and similar substances. On
the other hand, the drug war has not been a total failure. Between 1991 and 1999, the number of drug-related
murders in America nosedived by 58 percent (from 1353 to 564) ---- a decrease even faster than the overall 1990s
decrease in crime. Similarly, use of illicit drugs appears to have decreased. Surveys by the U.S. Substance Abuse
and Mental Health Services Administration reveal that in 1985, 12.1 percent of Americans used (or at least were
willing to admit to using) one or more illegal drugs in the month prior to the survey, while in 1998, 6.2 percent of
Americans did so. Use of cocaine, the most popular illicit drug other than marijuana, decreased from 3.0 percent to
0.8 percent. Such surveys are of questionable accuracy, because some people lie even on anonymous surveys, and
because some changes may not be statistically significant; nevertheless, it appears that drug use has not increased
and may well have decreased. So maybe the War on Drugs isn''t a complete failure.

It follows that we cannot resolve the issue of drug prohibition merely by deciding that current laws are overly harsh,
or by noticing that millions of Americans still use cocaine, heroin and similar intoxicants. Even if drug prohibition
is imperfect, it may still be the lesser evil if its benefits outweigh its costs: that is, if the problems created by the
status quo are less obnoxious than those caused by legalization. I don''t know what the right answer to this question
is ---- but I do have a pretty good idea what factors we should be thinking about.

American legislators, judges and voters generally believe that what Americans do to their own bodies is their
business. Otherwise, tobacco would be illegal, as would a variety of other dangerous practices (such as drinking
alcohol or maybe even eating fatty foods). Indeed, this norm is so widespread that Americans are willing to allow
each other to do things to their own bodies that harm other beings, such as abortion (which kills an arguably human
fetus). It follows that the case for drug prohibition rests not on harm to users but on harm to nonusers ---- that is,
crime caused by drug addicts.

It could be argued that the drug war itself causes a great deal of violent crime. Sellers of illegal drugs rob and kill
each other to wipe out the competition ---- a problem that would go away if large corporations sold cocaine and
heroin. Addicts steal to support their habit; arguably, fewer would do so if drugs were legal, because legalization
might entice more businesses into the drug market, thus causing the supply of drugs to increase, thus causing prices
to go down.

But there is another side to the argument. If now-illegal drugs were legal, some Americans who don''t use them
would do so, both because they would no longer fear prosecution and because such drugs might become less
expensive than they are today. Some of those Americans would become addicts, and some of those addicts would
commit crimes ---- either because of the intoxicating effects of illegal drugs, or to get money to support their
habits.

How many Americans would become drug addicts if the most dangerous drugs were legalized? Certainly not a
majority; most Americans are too rational even to smoke cigarettes, let alone smokable ""crack"" cocaine. But it
seems equally clear that a few Americans would yield to temptation; when cocaine became cheaper in the late 1980s
and early 1990s, the streets of America''s ghettoes overflowed with crackheads. If even one percent of America''s
adults became drug addicts, we would have about two million new drug addicts on our hands.

In other words, legalization would prevent some crimes (especially those arising from the drug trade) yet create
others (especially those committed by frenzied addicts). To decide whether cocaine or heroin should be legalized,
we should start thinking about whether the second group will be more numerous than the first.

??2001 Blue Dog Press Published June 13, 2001

Blaming the Victims

By Michael Lewyn

One common excuse for state government''s failure to stem suburban sprawl is the ""blame the victims"" theory:
the view that the troubles of cities such as Buffalo are fundamentally the result of incompetent municipal
government, rather than state policies that promote migration to suburbia (such as funding roads that shift
development to the countryside). For example, Washington pundit Gregg Easterbrook argues that Americans
""sought the suburbs in order to escape the corruption and mismanagement of urban government.""

But in fact, there is little correlation between city competence and city wealth. In 2000, the Maxwell School of
Citizenship & Public Affairs And Governing magazine graded the efficiency of 35 city governments. Fourth-place
Minneapolis lost population in the second half of the 20th century, as did eighth-place Milwaukee. Conversely,
some poorly-managed cities continue to grow. Columbus''s city government was the fourth worst, yet Columbus
has gained population in every decade since 1950. In fact, of the ten most incompetently managed cities, five
(Nashville, San Francisco, Anchorage, Columbus, and Los Angeles) have gained population in recent decades. It
therefore appears that some well-run cities have been bled dry by their suburbs, while some poorly run cities
continue to grow and prosper, evidence that municipal incompetence is only a minor factor in sending Americans to
suburbia.

It could be argued that high taxes rather than incompetent service delivery drives middle-class flight from cities. But
Buffalo has lower property taxes than many of its suburbs, yet continues to lose population to them. Conversely,
New York City has a city income tax, yet continues to grow.

Admittedly, many urban governments tax more and provide less than their suburban counterparts. But to the extent
that this is so, sprawl is more cause than effect. This is so for three reasons. First, if a city''s middle class migrates
en masse to suburbia, its tax base will be smaller and it will thus be forced to raise taxes or reduce services. Second,
if a city''s middle class migrates to suburbia, its schools will become less prestigious, because children from
disadvantaged backgrounds tend -- other factors being equal -- to be slower learners than middle-class children.
Third, suburban sprawl itself may facilitiate the election of incompetent urban governments.

Because of middle-class flight to suburbia, older cities are dominated by low-income voters, who tend to favor
liberal politicians whose tax-and-spend, soft-on-crime policies drive away anti-tax middle-class voters. For example,
in Washington, D.C., the ""white flight"" of the 1950s and 1960s and the middle-class black flight to suburbia of
more recent decades combined to create a low-income, overwhelmingly African-American electorate that was
responsive to Marion Barry''s appeals to black pride, and supported his attempts to create jobs by inflating the city
payroll. As a result, Barry was able to reduce the size of the city''s police force, get convicted of using crack
cocaine, and nevertheless be reelected mayor in 1994. The results of Barry''s policies were calamitous: between the
1980 Census (two years after Barry was first elected) and 1998 (when he left office, hopefully for the last time) the
city of Washington lost population more rapidly than the city of Buffalo, even though the population of the
Washington region increased by over 30 percent. But paradoxically, Barry benefitted from the city''s decay: the
voters who moved to the suburbs were middle-class voters who were likely to oppose him, while those who stayed
in the city tended to be his low-income supporters.

By contrast, had there been no middle-class flight during the last half of the 20th century, the city of Washington
would have been resembled the Washington metro area as a whole; that is, it would have been a 3/4 white city with
a 10 percent poverty rate instead of a 2/3 black city with a 20-25 percent poverty rate. In such a city, a Marion
Barry-type candidate could not have been elected or reelected. Thus, Marion Barry and politicians like him are
results, rather than causes, of sprawl.

Moreover, the ""blame the victim"" theory of suburban sprawl requires us to believe a number of bizarre
coincidences. Most Northeastern and Midwestern American cities gained population in the 1930s and 1940s and
lost population for several decades thereafter. So, to believe that suburban sprawl is the result of municipal
incompetence, one would have to believe that dozens of city governments, by an incredibly strange coincidence,
became unable to police their streets or improve their schools at exactly the same time -- an obviously unbelievable
proposition. In recent decades, the inner suburbs of Rust Belt cities such as Buffalo and Cleveland have begun to
lose population. So, to believe that municipal incompetence is the major cause of middle-class flight, we would have
to believe that all of these suburbs became ungovernable at exactly the same time, an equally unbelievable
proposition.

In sum, the claim that urban incompetence causes suburban growth is meritless, both because the correlation
between municipal competence and urban decay is weak, and because urban decay may be a cause, rather than a
result, of incompetent government.

old Atlanta Journal-Constitution op-eds
ATLANTA JOURNAL-CONSTITUTION OP-EDS

Tuesday, February 19, 2002

Car czars won't yield to transit alternatives
MICHAEL LEWYN
FOR THE JOURNAL-CONSTITUTION

In most of America, including Atlanta, the car reigns supreme.

According to a 2000 report by the conservative Georgia Public
Policy Foundation, more than 90 percent of metro Atlanta commuters
drive to work.

Government exists primarily to serve the driver. For example, Gov. Roy Barnes wants to spend $2.4 billion on the Northern Arc (a highway
designed to shift development to Forsyth County and Cherokee
counties, which have no public transit whatsoever) but recently
refused to extend $10 million to MARTA to prevent bus service
cutbacks.

Common sense dictates that drivers such as me would feel secure in
our supremacy, perhaps even secure enough to give nondrivers a few
crumbs from the table. But not all drivers are so magnanimous. For
example, Boston Globe columnist Jeff Jacoby complained a few years
ago: "The car-haters aren't fooling around, and they're not going to
give up until Big Brother takes the T-bird away."

And last year in Atlanta, the Georgia Highway Contractors
Association ran advertisements claiming that evil environmentalists
were "preventing us from driving cars and forcing us to live
downtown."

And what evidence is there of this vast anti-auto conspiracy?
Certainly the streets of Atlanta contain no such evidence; the
clogged interstates prove that no one is "preventing us from driving
cars" or "forcing us to live downtown."

Jacoby writes: "Don't underestimate the intensity of the zealots'
antipathy toward private cars. 'We need bicycles and we need buses,'
demands environmental crusader Bill McKibben."

So evidently, our fearless conspiracy fighters believe that if you
support allowing anyone to ride a train, a bus or even a bicycle, you
are an anti-auto "zealot." To be fair, reasonable people can disagree
about the cost-effectiveness of some of the rail projects undertaken
in the name of increasing transit ridership. For example, the Georgia
Public Policy Foundation report criticized proposals for large-scale
commuter rail on economic grounds --- but the same report endorsed
express buses.

But the blunderbuss of more radical transit critics swings against
any alternative to driving, even the humble bus. When MARTA proposed
to eliminate two-thirds of Sunday bus service last year and to
eliminate all service to Roswell, the anti-transit zealots did not
argue that the consumer choice they (pretend to) glorify should
extend to buses as well as cars. Instead, they endorsed MARTA's anti-
transit jihad.

For example, a Georgia State professor wrote an Atlanta Journal-
Constitution op-ed column calling for the elimination of public
transit entirely outside unspecified "high-density corridors."
Fortunately, MARTA only partially heeded these arguments,
implementing a more modest package of cutbacks.

Despite their pseudo-libertarian rhetoric against conspiracies to
force people out of their cars, anti-transit pundits and activists
are basically auto-totalitarians: They wish to create an absolute
dictatorship of the automobile, a society where government, by
building roads such as the Northern Arc to develop places without
transit and then slashing bus service in the places that already have
transit, makes it impossible to work without a car.

As for the millions of Americans too poor, too young, too old or
too disabled to drive --- those Americans might as well not exist.
And as for the environmental extremists who just don't like spending
their lives in 2,000-pound metal boxes, "The time has come to run
these plodding idealists off the road," wrote Heritage Foundation
pundit Steven Hayward.


January 21, 2001

Parents' attempts at 'protection' do children no favors in long run
MICHAEL LEWYN
FOR THE JOURNAL-CONSTITUTION

One night not long ago, I was chatting with a middle-aged woman
about the virtues and vices (mostly vices) of raising children in
suburban Atlanta.

I said something like: "I wouldn't want to raise kids in Atlanta,
at least not in the areas where my relatives live. When my mom was
10, she was able to take her grown-up relatives on a streetcar tour
of Atlanta. But my suburban nephew and niece are going to be
prisoners of their parents' cars until they are 16. They can't take
buses anywhere because there are no bus routes where they live, and
they can't walk to a bus stop or a shop because there are no
sidewalks and nothing within walking distance."

The woman responded: "This is a different time. The world is so
dangerous that you can't expect these children to walk outside." In
other words, my dowager acquaintance believed that every suburb and
neighborhood is chock full of child molesters, and that the only way
to protect children from evildoers is to keep them locked up in their
parents' houses and cars until they turn 16 --- at which point their
parents will whisk them from a world of infantile helplessness to a
world of auto ownership and unlimited mobility. What's wrong with
this argument?

Plenty. First of all, the woman's argument requires one to believe
two contradictory positions. On the one hand, America's streets are
so dangerous that no one under 16 can ever be let out of the Holy
Trinity of Home, Car and School. On the other hand, the same streets
(and nearby expressways) are so safe that as soon as the same
children turn 16, they may not only be released from the Home/Car/
School bubble, but may (indeed, must, in order to free their parents
from carpool work) be given a 2,000-pound metal box that they must
drive at 50 or 60 mph, despite the dangers of carjackers and bad
driving. Both propositions cannot be true. If children are endangered
by perverts on the streets, they are even more endangered by
criminals and drunken drivers on the highways.

Indeed, auto-dependent lifestyles have killed far more American
children than pedophiles. In 1998, 1,772 American children15 were
killed in auto accidents while they were passengers in cars
(presumably cars being driven by their parents or their friends'
parents), according to federal statistics. Another 316,000 were
injured.

Each year, 100 American children are abducted and murdered by
strangers, according to federal crime statistics. Only 6 percent of
all sexually assaulted children are molested by strangers, and 77
percent are assaulted in their parents' home.

In other words, the only strangers most American children need to
fear are strangers in cars. So Americans who "protect" their children
by keeping them off the streets may well be making their lives more
rather than less dangerous. Indeed, isolated suburban children may be
in more danger from criminal strangers than are urban children.

Common sense suggests that a 10-year-old who is used to going
outside will be far more likely to intelligently distinguish friend
from foe than a 10-year-old whose experience of the world is limited
to Mommy's car and the voice of the family TV.

Auto-dependent children also suffer from a more long-term danger:
obesity and obesity-related diseases. As children walk less, they
exercise less. And when children exercise less, they become fatter
and more prone to heart disease, cancer, diabetes and other obesity-
related diseases. According to the Department of Health and Human
Services, "walking and bicycling by children 5-15 has dropped 40
percent between 1977 and 1995," and by an odd coincidence the
"percentage of young people who are overweight has doubled since
1980."

Of children 5 to 15 who are overweight, 61 percent have one or
more cardiovascular disease risk factors, and 27 percent have two or
more."

So by locking children in their homes, Americans are preparing
them for a lifetime of heart disease and other health problems. So to
those of you who wish to isolate your children in a protective
bubble, I quote the fifth century poet Rutilius Numatianus: "Because
of their fear, they shun what is good. . . . Whatever their reasons,
I find them strange."

Books I read in 2004 (some, but not all, of which I actually understood)
Judaism/Religion/Philosophy:
1. Maimonides, Guide for the Perplexed
2. Levi, Moments of Reprieve
3. Feuchtwanger, Jew Suss
4. Blech, If God Is Good Why Is The World So Bad?
5. Maccoby, Judaism on Trial
6. Kayser, Life and Times of Yehuda Halevi
7. Hsia, Trent 1475
8. Lamm, The Shema
9. Morniss, Climbing Jacob's Ladder
10. Sacks, One People?
11. Segal, Historical Consciousness and Religious Tradition in Azariah de Rossi's Ner Einayim
12. Plaut, The Torah (finished start of year- mostly read in 03)
13. Friedman, Commentary on the Torah
14. Kaplan, American Reform Judaism- An Introduction
15. Davidman, Tradition in A Rootless World
16. Taub, The Malbim Esther
17. Berkovits, Not In Heaven
18. Mittmelman, The Scepter Shall Not Depart from Judah
19. Kugel, The God of Old
20. Telushkin, The Ten Commandments Of Character
21. Halivni, Midrash, Mishnah and Gemara
22. Heschel, The Earth Is The Lord's
23. Lopes Cardoso, The Written and Oral Torah
24. Halberstam, Everyday Ethics
25. Moore, To The Golden Cities
26. Adler, Desires Right and Wrong
27. Scherman, Rosh Hashanah Guide
28. Stern, Days of Awe
29. Halevi, The Kuzari
30. De Sola Pool, Why I Am A Jew
31. Rosenzweig, On Jewish Learning
32. Scholem, The Mystical Messiah
33. Wenger, New York Jews and the Great Depression

Politics
1. Longstreth, Main Line WASP
2. O'Rourke, Eat The Rich
3. Brinkley, Brinkley's Beat
4. Raskin, Overruling Democracy
5. Novoselic, Of Grunge and Government

Urbanism
1. Gillman, The Limitless City
2. Rusk, Cities Without Suburbs (updated edition)3
3. Smart Growth Network, 100 Ways To Smart Growth II
4. Frank, Health and Community Design
5. Waldie, Holy Land

Fiction
1. Roiphe, Lovingkindness
2. Mirvis, The Ladies Auxillary
3. Just, Echo House
4. Marquez, 100 Years of Solitude

Other
1. Mencken, In Defense of Women

another article (for a social science journal)
http://bst.sagepub.com/cgi/reprint/20/4/295

Marquette law review article on sprawl
84 Marq. L. Rev. 301

SUBURBAN SPRAWL: NOT JUST AN ENVIRONMENTAL ISSUE


Michael Lewyn [FN1]


Copyright ? 2000 Marquette Law Review; Michael Lewyn


I. Introduction: What the Argument is About
Once upon a time, 'city' was not a dirty word in America. Between 1900 and 1950, every American city with over 500,000 people gained population. [FN2] But over the past several decades, metropolitan America has been transformed by suburban sprawl--the movement of people (especially middle-class families) and jobs from older urban cores to newer, less densely populated, more automobile-dependent communities generally referred to as suburbs. [FN3]
At the end of World War II, roughly 70% of metropolitan Americans lived in central cities. [FN4] But by 1990, only about 40% of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN5] Some central cities have been devastated by sprawl: for example, St. Louis has lost 60% of its people since 1950, while Buffaloand *302 Cleveland have lost over 45% of their people. [FN6] The cities that have gained population have grown either by being hubs for immigration from other countries (like New York and Los Angeles) or by annexing newly developed areas that would be considered suburbs in other cities (like Little Rock, Indianapolis and Albuquerque). [FN7] As cities have become smaller, they have become poorer. [FN8] In 1960, central cities contained one-third of America's poor people; by 1990, the central city share had climbed to one-half, [FN9] and thirty-one of America's thirty-seven largest cities had poverty rates above the national average. [FN10] Jobs as well as people have fled to suburbia: [FN11] About 95% of the 15 million new office jobs created in the 1980s were in suburbs, [FN12] and suburbs captured 120% of net job growth in manufacturing. [FN13] Today, two-thirds of all new jobs are created in suburbs. [FN14]
In recent years, Vice President Gore and numerous other commentators (especially within the environmental movement) have criticized suburban sprawl. [FN15] For example, Vice President Gore describes sprawl this way:
*303 Acre upon acre of asphalt have transformed what were once mountain clearings and congenial villages into little more than massive parking lots. The ill-thought-out sprawl hastily developed around our nations cities has turned what used to be friendly, easy suburbs into lonely cul-de-sacs, so distant from the city center that if a family wants to buy an affordable house they have to drive so far that a parent gets home too late to read a bedtime story. [FN16]
Gore complains that sprawl 'has left 'a vacuum in the cities and suburbs which sucks away jobs . . . homes and hope; as people stop walking in downtown areas, the vacuum is filled up fast with crime, drugs and danger.' ' [FN17] A book published by the Natural Resources Defense Council blames sprawl for landscapes lost, traffic congested, air and water polluted, public health endangered, and a potential energy crisis that could make those of the 1970s look mild by comparison. [FN18] A Sierra Club website asserts that sprawl increases traffic; pollutes our air and water; worsens flood damage; destroys parks; farms and open space; wastes our tax money, and crowds our children's schools. [FN19] Such concerns are not new. Decades ago, a California city's zoning ordinance blamed sprawl for 'air, noise and water pollution, traffic congestion, destruction of scenic beauty [and, thus,] disturbance of the ecology and environment.' [FN20]
In the political arena, environmentalists are the leading opponents of sprawl, [FN21] while conservatives tend to be skeptical of anti-sprawl policies. [FN22] Environmentalists typically focus on the environmental costs of sprawl, [FN23] and endorse more extensive government regulation of landuse. *304 [ FN24] Some conservatives and libertarians, by contrast, deny that sprawl is a problem at all, and suggest that sprawl merely reflects the desires of affluent consumers. For example, Steven Hayward of the Pacific Research Institute writes in National Review that 'the threat of sprawl is vastly overblown' [FN25] and accuses sprawl opponents of believing that 'commuting suburbanites are making unenlightened lifestyle choices because they lack the expert supervision that only their betters in government can provide. ' [FN26] Similarly, conservative columnist Thomas Sowell describes sprawl as 'today's contrived crisis' [FN27] and asserts that '[t]he real objection [[[to sprawl] may be that all this is going on without the guiding hand of Big Brother.' [FN28] Thus, the conventional conservative wisdom, as of early 2000, seems to be that: (1) sprawl is merely the result of the free market at work; (2) even if sprawl has negative effects, it cannot be limited without implementation of the liberal/environmentalist agenda of larger and more intrusive government; therefore, (3) conservatives should do nothing to fight sprawl. This article rejects all three propositions. Specifically, I argue that: (1) sprawl is in large part a result of runaway statism rather than the free market; (2) sprawl threatens conservative values such as consumer choice, the work ethic, and social stability, and (3) free-market, anti-spending solutions can limit sprawl and revitalize cities.


II. Background: How Statism Created Sprawl
As noted above, many conservatives believe that sprawl is merely the free market at work. [FN29] But, in fact, sprawl is in large part an unintended consequence of governmental blundering.
*305 Government's pro-suburban bias has been especially blatant in three areas: housing policy, transportation policy, and education policy. In addition, government land use policy has made city and suburb alike more sprawling and auto-dependent than a free market would dictate.

A. Housing: Turning America Into Sprawl Land
Federal housing policy has moved middle-class families out of cities both by subsidizing migration to suburbs, and by turning cities into dumping grounds for the poor.


1. Paying Americans To Move To Suburbs
The federal war against urban America began in the New Deal era, when the federal government inflicted the Federal Housing Administration (FHA) mortgage insurance program upon American cities.
Before the New Deal, mortgages were typically granted for no more than two- thirds of the appraised value of a home, so buyers needed to acquire at least 33% of the value of a property in order to make a down payment, and usually 50%. [FN30] Most loans had five to ten year terms. [FN31] During the 1930s, this system broke down, as 'financial instability caused many American homeowners to default [on their mortgages].' [FN32] To protect homeowners and home sellers, the FHA has insured long-term, low-down payment mortgages against default since 1934. [FN33] Specifically, the FHA guaranteed over 90% of the value of collateral so that down payments of only 10% of home value became the norm. [FN34] The FHA also extended repayment periods to twenty-five or thirty years, resulting in lower monthly payments. [FN35] These loan guarantees dramatically reduced bankers' risk from mortgage lending, which in turn caused banks to lower interest rates to borrowers. [FN36] By 1974, the FHAhad *306 insured over 11 million home mortgage loans. [FN37]
As a rule, FHA guaranteed home loans only in 'low-risk' areas. [FN38] FHA guidelines defined low-risk areas as areas that were thinly populated, dominated by newer homes, and without African-American or immigrant enclaves nearby--areas that disproportionately tended to be suburban. [FN39] For example, one FHA underwriting manual taught that the FHA should concentrate its efforts on newer, lower-density areas because ''crowded neighborhoods lessen desirability,' and 'older properties in a neighborhood have a tendency to accelerate the transition to lower class occupancy.'' [FN40] Another New Deal creation, the Home Owners Loan Corp. (HOLC), 'redlined' cities by issuing maps placing metropolitan neighborhoods in various categories, from 'green' (the most desirable) to 'red' ('high-risk' neighborhoods where the federal government would not insure mortgages). [FN41] Even areas with relatively small African-American populations were usually given the lowest rating. [FN42]
FHA policies also favored new construction over renovation of existing homes. FHA subsidies for repair were smaller than subsidies for the purchase of new homes, so 'a family could more easily purchase a new home than modernize an old [home].' [FN43] Because the newest suburbs tend to have the newest homes, this criterion also favored suburbs. [FN44]
As a result of the FHA's biases, the FHA generally insured suburban mortgages while refusing to insure urban mortgages. For example, residents of suburban St. Louis County received far more FHA insurance than residents of the city of St. Louis. [FN45] Similarly, theFHA *307 did not insure even one mortgage in Camden, N. J., or Patterson, N. J., until 1966. [FN46]
In the 1960s, Congress replaced New Deal malice with Great Society blundering. In order to undo the damage caused by FHA redlining, Congress enacted the Section 235 Homeownership Assistance Program in 1968. [FN47] This program subsidized low-income homebuyers by providing mortgage insurance and reducing interest rates to as low as 1%. [FN48] From 1969 to 1979, approximately 500,000 homes were purchased under the program. [FN49] But instead of stabilizing cities, Section 235 fueled 'white flight' from cities. In some communities, the federal infusion of capital to the poor fueled 'blockbusting:' Realtors sold 'a few homes to minority purchasers,' then 'spread the rumor that the neighborhood would soon become entirely black,' thus causing 'a wave of panic selling.' [FN50] Whites would sell their homes at artificially low prices, [FN51] and neighborhoods turned from all white to all black in a manner of months. [FN52] Because low-income purchasers were required to put very little of their money at risk, they could afford to buy homes that they could not afford to maintain, and were therefore forced to abandon those houses upon discovering their defects. [FN53] 'By 1979, over ninety-thousand homes, or approximately 18% of the dwellings subsidized under Section 235 [had been] assigned to [the federal government] or foreclosed. ' [FN54]


2. Turning Cities Into Dumping Grounds
While the federal government was bribing middle-class home buyers to leave cities, it was bribing the poor to stay in cities. Another New Deal program, the Housing Act of 1937, [FN55] funded local housingauthorities *308 that provided housing for the poor. The Housing Act provided that any city desiring public housing had to create a municipal housing authority or enter into an agreement to cooperate with one. [FN56] Thus, economically homogenous suburbs were able to avoid public housing by refusing to create or cooperate with housing authorities. [FN57] In fact, the Housing Act made it impossible for some suburbs to build public housing even if they wanted to. This statute's 'equivalent elimination requirement' mandated that one unit of substandard housing be eliminated for each unit of public housing built. [FN58] 'Because most suburbs had little substandard housing, even [suburbs] that wished to participate in the public housing program were sometimes excluded.' [FN59] As a result of these limitations, many suburbs have little or no public housing. [FN60]
In addition to ensuring that most public housing would be built in cities, the federal government also guaranteed that public housing would be packed with poverty. The Housing Act required that public housing be affordable by families of 'low income,' defined as 'families who are in the lowest income group and who cannot afford to pay enough to cause private enterprise . . . to build an adequate supply of decent, safe, and sanitary dwellings for their use.' [FN61] Congress also set income limits for the program that grew more stringent over the years. [FN62] Today, the law requires that 60% of all occupants of existing public housing earnless*309 than 30% of their metro area's median income. [FN63]
In addition to mandating that public housing be dominated by the poor, the federal government also made it less convenient for public housing authorities to deter antisocial conduct. 'In the early years of the public housing program, [public housing authorities] had enormous latitude in admission and eviction decisions,' and therefore could easily screen out or evict 'problem' tenants. [FN64] But in the 1960s, the federal courts forced public housing authorities to give their residents due process protections. [FN65] For example, the courts ordered housing authorities to provide tenants with a hearing, access to records, and an opportunity to cross-examine witnesses prior to eviction. [FN66] The courts also prohibited public housing authorities from evicting tenants who had criminal records or bore illegitimate children. [FN67]
Not surprisingly, public housing projects are 'havens of crime.' [FN68] Nationally, public housing residents are two and a half times as likely as other Americans to be victimized by gun-related crimes--and some projects are even more horrendous. [FN69] For example, Chicago's Robert Taylor Homes housing projects contain only one-half of 1% of that city's population, but account for 11% of the city's murders. [FN70] Similarly, a 1993 study found that 'crime in the Los Angeles housing projects was three times greater than crime rates in surrounding high-crime neighborhoods.' [FN71] Because public housing projects are such undesirableneighbors, *310 the concentration of public housing in cities makes nearby city neighborhoods less desirable to anyone who can afford to avoid them. [FN72] And by concentrating public housing in central cities, the federal government has, therefore, given suburbs a huge competitive advantage over cities.
Paradoxically, the federal government encouraged cities to destroy functional neighborhoods to build these 'havens of crime.' [FN73] The Housing Act of 1949 [FN74] gave mayors broad powers to condemn huge chunks of land in the name of 'urban renewal.' [FN75] Urban renewal projects resulted in the demolition of over 400,000 housing units [FN76] and 100,000 small businesses, [FN77] as well as fostering the deterioration of neighborhoods threatened with such destruction. [FN78] In some cities, government destroyed functional neighborhoods in order to build public housing. For example, in Buffalo, Mayor Frank Sedita destroyed a once-stable Italian neighborhood near downtown Buffalo to build the Shoreline housing project. [FN79]
In other cities, urban renewal destroyed urban neighborhoods without providing those neighborhoods' displaced residents with *311 housing, [FN80] thereby causing those neighborhoods' low-income residents to destabilize nearby areas. For example, in Boston, the federal bulldozer destroyed 2500 units of housing in Roxbury, a low-income African-American community. [FN81] The displaced persons quickly moved into nearby Dorchester, triggering a wave of white flight that turned Dorchester into a racially segregated low-income neighborhood. [FN82]
While the federal government kept the poor locked up in cities, local governments (with assistance from the federal government) tried to keep the poor out of suburbs. In the 1920s, the federal Department of Commerce drafted the Standard State Zoning Enabling Act (SZEA). [FN83] SZEA, which was quickly enacted by the majority of states, [FN84] granted municipalities power to regulate the location and use of buildings. [FN85] Suburbs quickly used their zoning powers to keep out the poor, [FN86] by limiting apartment construction to keep out 'undesirables' or requiring minimum lot sizes to keep out less expensive homes. [FN87] For example, in1970 *312 more than 99% of vacant land in New Jersey was zoned to exclude multifamily housing, and in Connecticut's Fairfield County 89% of the vacant land was subject to minimum lot requirements of one acre or more. [FN88] The predictable consequences of these regulations is to keep prices high and keep low-income purchasers out of a suburb or neighborhood. [FN89] In fact, the Supreme Court upheld one of the first anti-apartment zoning ordinances in Village of Euclid v. Ambler Realty Co. [FN90] Just as government keeps the poor in cities, it keeps the poor out of suburbs. Either way, cities become the dumping ground for the poor.

B. Transportation: Putting Suburbs First
Statist transportation policy, like statist housing policy, has consistently favored suburban migration. For most of the 20th century, all levels of government have funneled money into highway construction. By doing so, government destroyed urban neighborhoods both directly (through physical destruction of cities) and indirectly (by draining cities of their middle-class tax base).


1. How Government Put Roads First
Early in the 20th century, state and federal governments began to build new roads. State and local governments could have levied user fees to force drivers 'to reimburse local treasuries . . . for the cost of streets, traffic maintenance, and police services'--but instead frequently chose to subsidize drivers by relying on general taxation. [FN91] Thus,*313 government essentially taxed the general public (including railroads, transit users, and rail users) to support drivers. [FN92] By contrast, streetcar services were typically private and unsubsidized. [FN93] To make matters worse, streetcar fares were often controlled by government and, despite World War I-era inflation, were not allowed to rise. [FN94] Because government regulated streetcars while subsidizing drivers, one-third of American streetcar companies were bankrupt by 1919. [FN95]
Between 1919 and 1929, every state adopted a motor fuel tax and earmarked the revenue therefrom to fund highway construction projects. [FN96] By 1927, 'highways were second only to education as recipients of state and local expenditure,' and 'one-third of state assistance to local government was for highway construction.' [FN97]
In 1921, the federal government began to support highway building, by enacting a Federal Highway Act [FN98] that designated 200,000 miles of road as eligible for federal matching funds, and by creating a Bureau of Public Roads to plan an interstate highway system. [FN99] By that date, government at all levels (federal, state, and local) was pouring $1.4 billion into highways. [FN100] (By contrast, most transit systems were privately owned, received no government assistance, and paid taxes to support the highway system and other government functions). [FN101]
During the New Deal era, government largess to the highways grew. By 1940, government spent $2.7 billion on highways. [FN102] By contrast, at that time the total operating costs of all intracity bus and rail systems (except commuter rail) were $661 million--mostly *314 private rather than government spending. [FN103]
In the postwar years, government intervention on behalf of highways accelerated. In 1950, the government funneled $4.6 billion into highways and virtually nothing into transit. [FN104] In 1954, President Eisenhower appointed a committee on highways chaired by Lucius Clay, a member of the General Motors board of directors. [FN105] Not surprisingly, Clay's committee endorsed a massive highway spending scheme. That scheme was enacted into law as the Interstate Highway Act, [FN106] which created a 41,000-mile Interstate Highway System. [FN107] Under the Act, the federal government paid for 90% of the system's construction and maintenance costs, states paid 10%, and municipalities paid nothing. [FN108] By contrast, the federal government did not begin to subsidize public transit until 1962. [FN109] In fact, between 1950 and 1970 vehicle miles of transit service declined nationally by 37%. [FN110] Today, federal road spending exceeds transit spending by a margin of almost five to one. [FN111] This statistic dramatically understates the 'funding gap' between roadsand *315 transit, because federal transit spending is canceled out [FN112] by a variety of federal mandates that either increase transit agencies' costs or reduce their revenues, including (1) Americans with Disabilities Act provisions mandating that transit agencies install costly amenities to serve the disabled [FN113] (which alone cost transit providers about $1 billion a year in the early 1990s, about one-fourth of federal transit spending), [FN114] (2) labor laws that limit transit operators' ability to reduce labor costs [FN115] (which alone cost transit providers $2 billion to $3 billion per year, [FN116] or about half of all federal transit spending); [FN117] (3) imposition of federally mandated wage rates for federally funded construction; [FN118] (4) limitations upon transit agencies' use of parts manufactured in foreign countries; [FN119] and, (5) limitations on charter and school bus service in competition with the private sector. [FN120] Moreover, some states are even more pro-road and anti-transit than the federal government. For example, some states require fuel tax revenues to be spent exclusively on roads. [FN121]
Henry Ford, one of America's first auto magnates, summed upthe*316 relationship between the highway and the city when he stated: 'We shall solve the city problem by leaving the city.' [FN122] Government's obsession with road building has degraded cities and accelerated suburban sprawl in two ways: by the physical destruction of city neighborhoods and by making suburban life more convenient.


2. How Roads Destroyed Cities
During the first decade of interstate highway construction, bureaucrats destroyed millions of homes [FN123] and countless communities [FN124] in order to build interstate highways. For example, nearly 20% of Baltimore's African-Americans had their homes destroyed to make room for I-95 and I-83. [FN125] In Miami 20,000 families were displaced in order to build highways. [FN126] Overtown, one of Miami's African-American neighborhoods, 'was reduced to an impoverished enclave of tenements near downtown Miami. ' [FN127] In Cincinnati, I-75 bulldozed through the city's African-American West End, and the displaced West Enders quickly flooded nearby neighborhoods (causing massive 'white flight' from those areas). [FN128] In Cleveland, an inner-belt freeway displaced 19,000 city residents. [FN129] In Milwaukee, the Wisconsin Department of Transportation destroyed Bronzeville, a hub of local African-American culture, while building I-43, [FN130] and nearly destroyed the Third Ward, anItalian-*317 American neighborhood, while building I-794. [FN131] According to Milwaukee's current mayor, 'Bronzeville has disappeared without a trace.' [FN132] and '[t]wo years after the elevated freeway was built, [the Third Ward] had declined so much that the city contemplated turning the remains of the Third Ward into a pornographic combat zone for strip joints and erotic book stores.' [FN133]
Even neighborhoods not destroyed by highways have been damaged by them. For example, in the 1950s the federal government ruined the Treme section of New Orleans, one of the city's oldest neighborhoods, [FN134] to build the I-10 expressway. The community's main street was Claiborne Avenue, which boasted 200 businesses in its heyday and had a 6100-foot-long median. [FN135] The Louisiana Highway Department built I-10 on that street, because Highway Department bureaucrats thought that it was the most direct path from the central business district to eastern New Orleans. [FN136] With the construction of the interstate, the street's median became a strip of dirt, covered with 'a concrete roof 100 feet wide and 25 feet overhead.' [FN137] I-10 became a physical barrier that cut the neighborhood in half, and Claiborne Avenue's oak trees were replaced with concrete pillars. [FN138] Not surprisingly, Treme became a crime-filled slum. [FN139] Thus, the government had nearly destroyed Treme in order to provide commuters with an escape route to the suburbs.
Even the threat of a new highway sometimes eviscerated urban neighborhoods. For example, throughout the 1960s, Buffalo planners debated a city highway known as the West Side Arterial, that (if built) would have destroyed much of the Lower West Side of Buffalo. [FN140] At first, the creation of the West Side Arterial seemed inevitable, because 'throughout the late 1960s . . . city, county, and state planning officials were still enthusiastic about the West Side Arterial.' [FN141] For example, theNew *318 York Department of Transportation engineer Norman Krapf explained: 'It is imperative that we get started on the preliminary layout of a highway that is capable of handling the future highway traffic destined for downtown Buffalo.' [FN142] Banks, insurance companies, and government agencies were not reasonably unwilling to invest in a neighborhood destined for condemnation. For example, in 1971 the U.S. Department of Housing and Urban Development (HUD) denied an application for a grant to rehabilitate Lower West Side dwellings because, according to HUD, '[t]he project is in the probable roadway corridor of the proposed West Side Arterial.' [FN143] Not surprisingly, homeowners took the hint and left the neighborhood. In 1960, 1900 families attended Immaculate Conception Church in the neighborhood. By 1973 only 500 were left. [FN144]


3. How Roads Built Up The Suburbs
Highways have accelerated sprawl by enabling people to live farther away from downtown jobs, thus giving commuters easy access to central business districts from once-distant suburbs. [FN145] And where highway-driven residential development goes, commercial development inevitably follows, as retail businesses and other businesses move to suburbs in order to accommodate their suburban employees. [FN146] As onefederal *319 court has pointed out, '[h]ighways create demand for travel and [suburban] expansion by their very existence.' [FN147]
For example, Washington's Capital Beltway, a sixty-six mile long highway surrounding the city, was designed to allow East Coast motorists to bypass the city. [FN148] But instead, the Beltway because a magnet for office and retail centers that sprouted near Beltway exits, such as Tyson's Corner, a satellite downtown in Fairfax County, Va. [FN149] And as suburbs grew more populated, they grew more congested, which caused politicians to build even more suburban roads (ostensibly to relieve congestion) then spurring development in even more suburbs. [FN150] A study by the Surface Transportation Policy Project showed that each of the 50 largest metro areas in America added new road capacity in the 1980s and 1990s. [FN151]
Some deny that highways cause sprawl. For example, Ronald Utt, in a paper published by the Heritage Foundation, argues that the interstate highways did not cause sprawl because '[s]uburbanization was well underway in 1960, when the federal interstate highway program hadbeen *320 in existence for just four years.' [FN152] This assertion does not prove that highways are unrelated to sprawl, both because the state and federal governments had begun to support highway building long before the interstate highway system was built, [FN153] and because other antiurban government policies (such as the FHA's antiurban lending policy) had also been in effect for decades before 1960. [FN154] Moreover, Utt's assertion overlooks the fact that American cities' most stunning setbacks occurred after 1960. Of the eighteen American cities which had more than 500,000 people in 1950, every single one gained population between 1930 and 1950. [FN155] By contrast, in the 1950s, thirteen of the cities lost population, and two lost over 10% of their population. [FN156] In the 1960s, fifteen lost population, and six lost over 10%. [FN157] And in the disastrous 1970s, sixteen lost population and fourteen lost over 10%. [FN158] In other words, the sprawl that went along with the interstate system snowballed as interstates were built during the 1960s and 1970s. [FN159]
Utt argues that because some cities in Europe and Japan have also experienced population losses, suburban sprawl is a natural result of affluence. [FN160] But Utt himself admits that sprawl arises fromtransportation *321 policy, arguing that '[i]n Europe and Japan, as well as in many American cities, comprehensive and heavily subsidized public transit systems helped facilitate the exodus of central-city residents to outlying communities.' [FN161] Utt cannot have it both ways: He cannot intelligently argue that public transit facilitated suburban migration without admitting that highways had the same effect. Moreover, even highway-generated sprawl is not confined to the United States. For example, one recent Swedish-planned development has been described as a 'vast linear Edge City of business parks and hotels and out-of-town shopping centres, stretching along the E-4 highway, for twelve miles and more towards the Arlanda Airport. It is almost indistinguishable from its counterparts in California and Texas.' [FN162]
Indeed, even organizations generally regarded as supportive of new roads and suburban expansion concede that highways affect the location of development. For example, in 1999, the National Association of Home Builders (which favors increased road spending) [FN163] conducted a survey that purported to show the popularity of suburban living: The survey asked respondents what amenities would encourage them to move to a new area, and their top choice (endorsed by 55% of respondents) was 'highway access.' [FN164] If highway access makes a suburbmore *322 desirable, obviously building highways to a place makes that place more desirable to commuters and businesses.

C. Education: Making Cities Less Livable
Most readers of this article probably know someone who lived in a city neighborhood in their twenties, but moved to suburbia after marriage or childbirth so that his or her children could avoid urban public schools. [FN165] School-related flight from cities is especially common among middle-class whites: in 1990, seventeen large cities with majority white populations had school systems in which over 50% of pupils were black or Hispanic. [FN166] What went wrong? Why are urban schools so often stigmatized as 'bad schools' and avoided by middle-class parents? [FN167] Here too, government is the problem: Both the bureaucratic rules of the state-run 'public' school system and the blunders of federal judges have driven parents out of cities and into suburbs.


1. Why The System Is To Blame
If schools were left to the marketplace, popular schools, like popularuniversities, *323 bookstores and restaurants, would exist wherever parents were willing to pay for them. For example, many of America's most prestigious universities, such as MIT, Columbia, and NYU, are located in central cities. [FN168] Such schools might be concentrated in more affluent areas--but they certainly would not be limited to certain cities or counties within a metropolitan area, any more than popular bookstores or restaurants are limited to suburbia.
The status quo, of course, is far more hostile to urban parents than my hypothetical libertarian [FN169] world. In most of America, government bureaucrats assign students to schools based on their home addresses; [FN170] urban students must generally attend school within an urban school district, while suburban children attend suburban schools. Thus, a public school's student body typically reflects the city or neighborhood in which the students reside. Because cities tend to be more socially diverse than suburbs, [FN171] the average city school will nearly always have more low-income children than the average suburban school.
Other factors being equal, low-income children are harder to educate and achieve less than middle-income children, [FN172] and schools packed with low-income children have worse reputations (and therefore are less popular with middle-class parents) [FN173] than other schools.
*324 Low-income children are harder to educate because 'socioeconomic status (SES) and family background influence a student's achievement in school. ' [FN174] This is so because 'children reared in lower socioeconomic status [households] tend to be less intellectually stimulated and, consequently, tend to be less prepared for school which ultimately impacts on the child's achievements.' [FN175] For example, Harvard sociologist Christopher Jencks has concluded that '[q]ualitative differences between high schools seem to explain about 2 percent of the variation in the students' educational achievement' [FN176] and '[e]qualizing the quality of elementary schools would reduce cognitive inequality [as measured by test scores] by 3% or less.' [FN177] Similarly, a 1960s survey by sociologist James Coleman suggested that everything schools did accounted for only 5% to 35% of the variation in students' academic performances; he concluded that 'the inequalities imposed on children by their home neighborhood and peer environment are carried along to become the inequalities with which they confront adult life at the end of school.' [FN178] In sum, it may be the case that if suburban children and urban children switched schools, school boards, teachers, and administrators, the suburban/urban achievement gap would be as large as it is now.
This view is supported by the fact that low-income children are harder to educate and achieve less even within the same school or school system. For example, P.S. 24, in Riverdale (an affluent neighborhood on the northern edge of New York City) has two educational programs: a regular program for relatively gifted students, and a 'special' program for slower students. [FN179] The 'special' programsare *325 dominated by children who are poor enough to qualify for government free-lunch programs, while the regular program is dominated by students from middle-class households. [FN180] In other words, poor children achieve less than rich children even within the same school.
It logically follows that even if they are relatively well run, schools filled with poverty-stricken children quickly get a reputation as 'bad schools' and parents tend to avoid them whenever possible. [FN181] And because, as noted above, state and local governments require urban children to go to schools within poverty-packed urban districts, those governments have made urban schools less prestigious than suburban schools.


2. How The Courts Made The Problem Worse
If students had always been assigned to schools based solely upon their address, most urban schools would be more socially diverse (and thus, less prestigious) than most suburban schools, but there would be exceptions: Affluent urban neighborhoods would have homogeneously affluent (and, thus, highly regarded) public schools, and middle-class parents would be clamoring to live in those neighborhoods so their children could attend those schools. But the federal courts have inadvertently foreclosed this option. For the past forty-five years, the federal courts have used a variety of techniques to force racial integration upon city schools but made little effort to integrate suburban schools. Because African-Americans and other blacks [FN182] tend to be poorer than whites, [FN183] a racially integrated urban school typically includes children from low-income households. As a result, parents who want to send their children to schools dominated by other middle-class *326 children (which is to say, most parents) [FN184] will usually seek to avoid integrated urban schools, and will often move to the suburbs in order to do so.
The federal government's attempt to integrate public schools began with Brown v. Board of Education, [FN185] which prohibited state-sponsored segregation of public schools. Over the next fourteen years, local governments and their constituents sought to evade Brown in a wide variety of ways, including closing public schools, violence against African-American students, and a variety of more moderate measures. [FN186] The courts responded by extending Brown. [FN187] In Green v. County School Board of New Kent County, [FN188] the Supreme Court rejected a 'freedom of choice' plan which permitted each pupil to choose a public school, on the ground that the plan had failed to erase segregation. In Swann v. Charlotte-Mecklenburg Board of Education, [FN189] the Court went a step further and allowed lower courts to create integrated city schools through forced busing, racial quotas and a variety of other techniques. [FN190] After Swann, federal courts have routinely ordered cities to bus students throughout the city in order to create racial balance in public schools. [FN191]
By the mid-1970s, some big-city school systems had become overwhelmingly African-American. [FN192] Thus, urban school systems could not create a large number of integrated schools because very few white students were left in some urban school systems. [FN193] In order to solve this problem, some integrationists urged the courts to adopt 'metropolitan busing plans' which would have discouraged 'white flight' by busing suburban whites into city schools dominated by African-Americans (or vice versa). [FN194] But in Milliken v. Bradley, [FN195] the Supreme Court rejectedmetropolitan *327 busing on the ground that the suburbs involved had never discriminated against blacks [FN196] (despite the fact that many American suburbs have excluded blacks through zoning designed to keep out poor and working-class people, [FN197] who tended to be disproportionately black [FN198]).
Thus, the federal courts, while attempting to split the difference between pre- Brown segregation and massive busing schemes, have in fact adopted a double standard: City schools must be diverse, while suburban schools typically need not be. By imposing differing obligations upon cities and suburbs, the federal courts have presented parents with the following choices: (1) send their children to urban public schools, so that their children would go to school with children from the poorest neighborhoods in the city; (2) stay in cities and spend thousands of dollars on private schools; or (3) move to suburbia and send their children to 'good' (i.e. homogeneously middle-class and usually majority-white) public schools for free. Not surprisingly, most parents prefer choice (3). [FN199]


3. Why Schools Matter
It could be argued that middle-class flight from cities is caused by factors unrelated to education, such as transportation policy, housing policy, and crime. [FN200] But this argument is belied by the fact that middle-class flight from cities has primarily been a family phenomenon. Forexample,*328 in Washington, D.C., a 1967 court decision sought to integrate city schools by busing African-American students into majority white schools and eliminating a 'tracking plan' which placed brighter students (who were mostly white) into separate classes. [FN201] Over the following dozen years, white enrollment in Washington public schools declined by over 70%, [FN202] while the city's population of single whites declined by only 6%. [FN203] Similarly, in Boston, where courts sought to integrate public schools through a controversial busing plan, [FN204] the city's juvenile white population declined by over 50% in the 1970s, while the city's single adult white population decreased by only 3%. [FN205] In other words, white flight from cities has been led by the people who are naturally the most concerned about schools--families with children. This fact strongly suggests that schools and sprawl are closely related.
Moreover, property values are higher in suburban school districts even where houses and crime rates are identical to those of nearby city neighborhoods. For example, in May 1996, USA Today published an article on housing values in various metropolitan areas. [FN206] The article pointed out that property values were consistently higher in areas where school districts had good reputations, even when other factors were identical. [FN207] For example, the article compared a house in an affluent part of Milwaukee with a house less than half a mile away in the suburbof*329 Shorewood. In nearly every possible respect, including crime rates, the houses and locations were comparable. [FN208] Yet the Shorewood house was significantly more expensive, because of the Milwaukee public school system's poor reputation. [FN209] If the alleged high quality of suburban school districts affects suburbanites' property values, it logically follows that prestigious schools make suburbs more popular with homeowners.

D. How Big Brother Makes Suburbia Sprawling
In addition to encouraging migration from city to suburb, government has also made both city and suburb far more sprawling and auto-dependent than the market would dictate. In the absence of government regulation, American suburbs might have looked like Lake Forest near Chicago or Shaker Heights near Cleveland: communities that accommodated the automobile without being totally auto-dependent, communities where roads and sidewalks, pedestrians and drivers, mingled together peaceably. [FN210] But thanks to stifling government zoning codes,
[W]e have separated housing from every other human activity. The result is the familiar pattern we see today in edge-city suburbs--commercial offices in one parking pod, commercial retail in another, light industrial in another, and housing on cul-de-sacs, completely isolated from everything. Housing subdivisions consequently have no corner stores and nothing much else within walking distance, except more housing. [FN211]
The original purpose of zoning was to make crowded, rapidly growing cities more livable by separating polluting industries from *330 housing. [FN212] But over time, zoning laws have spread--both geographically (to non-industrial suburbs) and functionally (to cover even the least polluting land uses). [FN213]
The American version of suburbia was created in part by a few bureaucrats in our nation's capital. In 1921, the federal Department of Commerce formed an advisory committee on zoning and drafted the first Standard State Zoning Enabling Act (SZEA). [FN214] By 1925, nineteen states had enacted zoning statutes based on the 1921 Act. [FN215] In 1926, the Commerce Department published a revised version of SZEA [FN216] that was adopted by most states. [FN217] SZEA set up a general grant of power to cities to allow them to restrict building and lot size, the size of yards and other open spaces, the density of population, and the location and use of structures for trade, residence, and other purposes. [FN218] The SZEA declared that such legislation would be designed 'to prevent the overcrowding of land [and] to avoid undue concentration of population.' [FN219] Specifically, SZEA defined zones as parcels wherein all lots conform to the same requirements of minimum lot size, yard size, and distance of buildings from streets. [FN220] By requiring minimum lot and yard sizes for all lots within a given zone, SZEA effectively mandates 'single use zoning' which often keeps stores out of residential zones andvice *331 versa, keeps rental properties out of zones reserved for single family homes, and forces all homes in an area to be roughly the same size. [FN221] The practical consequences of the Enabling Act and its state and local clones are that absent a zoning variance, walkable traditional neighborhoods are outlawed in many American suburbs, because every activity demands a separate zone of its own; people cannot live within walking distance of shopping, and offices cannot be within walking distance of either. [FN222]
Cities as well as suburbs often adopted similar restrictions. In 1916, Dan Hoan, mayor of Milwaukee, stated: 'Congestion of the population is a serious problem confronting our community. This can be overcome only by a spreading out of the population.' [FN223] To remedy this so-called problem, Milwaukee used zoning to restrict 'Polish flats' (three or four-room houses where spare rooms were rented out to boarders). [FN224] And in downtown Sandy, Utah, '[the city's] zoning ordinance says only two words about mixing residential and commercial uses: 'Not permitted." [FN225]
Just as bureaucratic regulation of housing and commerce has made cities and suburbs less pedestrian-friendly, local governments' regulation of parking has also accelerated auto dependence. Governments make neighborhoods more auto-dependent and accelerate sprawl by forcing businesses, apartment buildings, and developers to provide (usually free) parking. [FN226] For example, nearly all building codes require developers to provide two off-street parking spaces per house, and apartment buildings must provide at least one parking space per bedroom and sometimes more. [FN227] Some suburbs are even morerestrictive; *332 Schamburg, Ill. demands that developers provide 1.5 spaces per one bedroom unit, thereby ensuring that apartment buildings have 50% more parking spaces than people. [FN228] Commercial developers are also required to provide parking for stores and office buildings. [FN229] Municipalities typically calculate the amount of 'necessary' free parking based on Institute of Transportation Engineers surveys that count the number of vehicles parked at the time of peak parking demand in areas with ample free parking and nonexistent public transit--in other words, the maximum imaginable amount of vehicles. [FN230] Local governments' free parking mandates create significant costs for developers: 'In Los Angeles, the average construction cost of an office building, excluding the cost of parking, is about $150 per square foot.' [FN231] The installation of four aboveground parking spaces per 1000 square feet of office space (a fairly typical requirement) costs $40 per square foot. [FN232] Thus, free parking requirements increase the cost of office space by 27%, and underground parking is even more expensive. [FN233] Such requirements also increase the cost of housing. For example, a requirement that each apartment include one parking space increases the cost of housing by 12.5%. [FN234]
Governments' parking mandates augment sprawl in a variety of ways. First, when businesses are forced to provide parking, driving becomes cheaper and more convenient, [FN235] and homeowners have a greater incentive to live in auto-dependent areas. In addition, the resulting increases in driving, other factors being equal, cause the roads to become more congested, [FN236] thus giving government an excellentexcuse *333 to build and widen roads [FN237] which (as explained above) [FN238] accelerates sprawl by making it more convenient for motorists to move further away from cities' older areas. Second, government parking mandates make cities and suburbs less pedestrian-friendly and more auto-dependent, by forcing consumers to walk through huge parking lots to shop and work and to share this space with speeding vehicles. [FN239]
It could be argued that such parking mandates are necessary to prevent streets from being deluged with parked cars. Assuming, arguendo, that limiting the number of parked cars is a legitimate function of government, this problem can sometimes be solved without bureaucratic parking mandates. Employers can sometimes reduce demand for parking by allowing employees to 'cash out' their parking benefits. For example, upon moving to new offices in the Seattle suburb of Bellevue, Washington, the 430 employees of the engineering firm of CH2M Hill were offered the following choice: They could get $40 per month (reflecting the cost of a parking space) if they walked, bicycled, carpooled or took transit to work, or they could get free parking if they drove alone. [FN240] The percentage of employees driving alone quickly nose-dived from 89% to 54%. [FN241] Such arrangements are less frequent where employers by law must provide enough parking for every employee, because such employers have no incentive to economize on parking. [FN242]
Government also makes streets inconvenient for pedestrians through traffic planning. For example, traffic engineers use a standard procedure for grading drivers' experiences at intersections. If driverswait *334 an average of five seconds or less to get through an intersection, they have an 'A' level of service (the ideal). [FN243] If drivers wait fifteen to twenty-five seconds, they have a 'C' level of service, and if they have to wait a minute or longer, they have an 'F' level of service. [FN244] By contrast, engineers have no such scheme for grading pedestrian service, and as a result pedestrians often have to wait sixty seconds or longer to cross. [FN245]
Traffic engineers also make streets unfriendly to pedestrians by making them extremely wide. For example, much of Main Street in Buffalo, N.Y., is six lanes wide--a width that discourages pedestrians from walking across the street unless absolutely necessary. [FN246] By making Main Street too wide to be easily walkable, government's traffic engineers have also hastened the decay of Main Street by depriving its merchants of walk-in traffic. [FN247] By contrast, another commercial street a few blocks away, Elmwood Avenue, is only four lanes wide and is thriving. [FN248]
Finally, traffic engineers make cities less competitive by limiting on-street parking. [FN249] Cities sometimes limit on-street parking in order to accelerate access to freeways (and thus accelerate access to suburbs). [FN250] But the elimination of on-street parking discourages pedestrians from crossing a street by eliminating a buffer between pedestrians and cars (thus effectively widening that street), [FN251] and also discourages downtown business patrons from parking near stores, thus making downtowns lesscompetitive *335 with suburbs. [FN252] For example, in Milwaukee, parking was banned on Wisconsin Avenue in the 1930s to allow an additional driving lane for cars. As a result, '[b]usinesses suffered from the perception of shoppers that there was no place to park, even though a two-thousand space parking ramp was built nearby.' [FN253] According to Milwaukee's Mayor Norquist, Wisconsin Avenue recently became more prosperous after on-street parking was reinstated. [FN254]

E. Alternative Explanations of Sprawl--or, Misguided Counterarguments
It could be argued that despite the pro-sprawl policies outlined above, suburban sprawl is the natural result not of state and federal bungling but of the incompetence of city governments in population-losing older cities [FN255] or Americans' understandable desire for more space. [FN256] It has also been argued that pro-sprawl federal policies are counterbalanced by anti-sprawl federal policies. [FN257] Each of these arguments will be addressed in turn.


1. Blaming the Victims
It has been argued that municipal incompetence rather than suburban sprawl is the cause of cities' problems, and that if cities would only provide their citizens with decent services and lower taxes, they would be able to compete with suburbs successfully. [FN258] This argument has a grain of truth: middle-class Americans abandon cities not just because of the convenience provided by new and widened highways, but also because of crime, high taxes, and public schools with poor reputations. [FN259] Nevertheless, cities are not solely, or even primarily, to blame for their own problems.


*336 a. Confusing Cause and Effect
High taxes, high crime, and poor schools are less a cause of suburban sprawl than a result of suburban sprawl. This is so for a variety of reasons.
First, if a city's middle class migrates en masse to suburbia, its tax base will be smaller and it, therefore, will, other things being equal, have to raise taxes or reduce services. [FN260] So other things being equal, middle-class migration to suburbia may actually cause higher taxes and poor services in cities.
Second, suburban sprawl itself may facilitate the election of urban governments whose policies drive away middle-class taxpayers. Because of middle-class flight from cities, many cities are dominated by African-American and low-income voters, [FN261] who tend to favor left-leaning politicians and high-tax, redistributionist policies [FN262] that might drive outanti-*337 tax upper-income voters. For example, in Washington, the 'white flight' of the 1950s and 1960s [FN263] and the middle-class African-American flight to suburbia of more recent decades [FN264] combined to create a low-income, [FN265] overwhelmingly African-American urban electorate [FN266] that was responsive to Marion Barry's appeals to racial pride, [FN267] and to his attempts to create jobs by inflating the city payroll. [FN268] As a result, Barry was able to emasculate the city's police force, [FN269] get convicted of using crack cocaine, and nevertheless be reelected as mayor of Washington in *338 1994. [FN270] By the mid-1990s, 7% of Washington's population was on the city payroll, far more than in any other large American city. [FN271] Washington's nearest competitor, New York City, clocked in at 5.4%. [FN272] Not surprisingly, Washington's taxes significantly exceeded those of its suburbs: City residents paid 9.5% of their income in city income taxes, as opposed to 5.75% in nearby Virginia. [FN273] The results of Barry's policies were calamitous: Washington lost 27% of its population between 1980 and Barry's departure in 1998, [FN274] while the Washington metro area's population increased by over 30%. [FN275] Between 1990 and 1998, Washington lost 13.8% of its population, [FN276] more than all but two other American cities. [FN277] By contrast, if Washington had not been ravaged by the pro-suburban federal policies discussed above, [FN278] it might have had a more racially diverse, middle-class electorate that would never have tolerated Barry's shenanigans.
Third, the common complaint that 'bad schools' drive people out of cities [FN279] exemplifies how state and federal policies cause 'bad' municipal services. State and federal governments' anti-urban transportation,*339 housing and educational policies have, as discussed above, caused cities to become disproportionately comprised of the poor [FN280] and thereby caused urban schools to become dominated by children from poor households. Because children from low-income households tend to be low achievers in school, [FN281] the 'quality gap' between city schools and suburban schools arises from state and federal incompetence rather than municipal incompetence.
Fourth, cities' high crime rates arise partially from government policy. As explained above, federal housing policy and exclusionary suburban zoning caused low-income households to be concentrated in cities, while a variety of federal, state, and local policies encouraged middle-class flight to suburbia. [FN282] As a general rule, low-income areas in cities are more dangerous than high-income areas. [FN283] If poor areas are more crime-ridden, and government policy caused cities to be dominated by poor people, it logically follows that government policy made cities more dangerous than suburbs.


b. Bizarre Coincidences
The claim that bad city government rather than state and federal misconduct drives middle-class families out of cities is logically, as well as factually, flawed.
As noted above, most older American cities gained population in the 1930s and 1940s and have lost population ever since. [FN284] Thus, to believe that suburban sprawl is the result of municipal incompetence, one would have to believe that dozens of city governments, by an incredibly strange coincidence, became unable to police their streets or improve their schools at exactly the same time--obviously a bizarre proposition.
The 'municipal incompetence' theory also fails to explain why, inmany*340 stagnant metropolitan areas, older suburbs closer to the city have begun to lose population. For example, every suburb contiguous to Cleveland and Buffalo lost population during the 1990s. [FN285] So to believe that municipal incompetence causes population loss, one would have to believe that all of these suburbs became ungovernable at exactly the same time--obviously a proposition too bizarre to be believable. Indeed, this theory is even less plausible than the theory that big cities' incompetence caused their problems. It could perhaps be argued that big cities have become ungovernable because of their sheer size (although the growth of cities that have annexed their suburbs [FN286] and of the nation's very largest cities [FN287] suggest otherwise)--but this argument cannot plausibly be made about inner ring suburbs that are just as small as their rivals further away from central cities.


c. Good Government And Bad Cities
The theory that bad city government causes suburban sprawl rests on the assumption that the most inefficient governments drive out people and businesses while competent city governments do not. Undeniably, high taxes and municipal incompetence are factors that drive out middle-class taxpayers--but far from the only factor. [FN288] Some cities with relatively competent municipal governments are being bled to death by sprawl, while other less well-run cities continue to grow. [FN289]
In 2000, the Maxwell School of Citizenship & Public Affairs and Governing Magazine graded thirty-five big cities on the management oftheir*341 governments. [FN290] The two highest-graded cities, Phoenix and Austin, [FN291] have gained population in recent decades. [FN292] But not all of the well-run cities are doing so well. Fourth-place Minneapolis has consistently lost population since 1950, as has eighth-place Milwaukee. [FN293] Conversely, some poorly managed cities continue to grow. Columbus was fourth from the bottom according to the Maxwell School survey, [FN294] while Los Angeles was third from the bottom. [FN295] Yet, both cities have gained population in recent decades. [FN296] In fact, of the ten most incompetently managed cities, five (Nashville, San Francisco, Anchorage, Columbus, and Los Angeles) gained population during the 1990s. [FN297]
It could be argued that high taxes rather than incompetent service delivery drives middle-class flight from cities. Although taxes are hardly irrelevant, [FN298] they are not the only factor governing a city's ability to survive sprawl. Cleveland imposes only $593 per capita in taxes, far less than Indianapolis ($688), Seattle ($772), and Denver ($959). [FN299] Yet Cleveland has lost nearly half its 1950 population, while the other threecities *342 have gained population over time. [FN300] Why? Perhaps because the other cities have been able to annex some of their suburbs, while Cleveland is confined within its 1940s boundaries. [FN301] Similarly, Buffalo has lower taxes than its suburbs, [FN302] yet has lost over 45% of its 1950 population. [FN303]
Utt cites New York, Milwaukee, and Indianapolis as examples of cities that have fought suburban sprawl during the 1990s by the simple expedient of electing mayors who have governed more effectively than their predecessors. [FN304] But these three examples show the futility of counting on good government to reverse suburban sprawl. Indianapolis continues to grow because decades ago, it merged with a surrounding county, and thereby took over a great deal of suburban territory. [FN305] (Ironically, Utt condemns the metropolitan government that saved Indianapolis from the fate of Cleveland). [FN306] In fact, the 1990s have been less kind to Indianapolis than prior decades: The city grew by 4% from 1980 to 1990, but only 1% from 1990 to 1998. [FN307] Despite its dramatic drop in crime, New York grew more slowly in the 1990s than in the 'bad old days' of the 1980s: by 3% in the 1980s and by only 1% in the 1990s. [FN308] And in Milwaukee, the 1990s have been a difficult decade: After losing only 1% of its population in the 1980s, the city lost 8% of its population in the 1990s--even though it has cut taxes by 21.4% during the 1990s. [FN309] It may be that with less charismatic and competent mayors, these cities would have been in much deeper trouble. But nevertheless, these cities' anemic growth in the 1990s suggests that factors other than the competence of a city's leadership underlie urban decline.
In fact, the cities that have rebounded most impressively in the 1990shave *343 done a mediocre job of fighting major urban problems. Of the fifty largest American cities, only four gained population in the 1990s after losing population in the 1980s: Chicago, Atlanta, Denver, and Kansas City. [FN310] According to the Maxwell School study, these cities have thoroughly mediocre governments: Chicago was No. 16 of 35 in governmental competence; Denver, No. 17; Kansas City, No. 20, and Atlanta No. 22--and all finished behind seemingly doomed cities such as Philadelphia and Baltimore (both of which have lost about 30% of their 1950 population). [FN311] Similarly, the 'comeback cities' have not done an especially good job at fighting urban problems such as crime. In 1997, three of the four 'comeback cities' (Chicago, Atlanta, and Kansas City) had higher murder rates than supposedly better-governed Milwaukee, and all four had higher murder rates than New York City. [FN312] While New York's murder rate declined by almost two-thirds between 1991 and 1997 (from 29.3 per 100,000 to just 10.5 per 100,000), Denver's murder rate declined by 29% (from 18.4 to 13.1 per 100,000), Chicago's murder rate declined by 16% (from 32.9 to 27.4 per 100,000), Atlanta's by 30% (from 50.9 to 35.6 per 100,000), and Kansas City's by 28% (from 30.8 to 22.1 per 100,000). [FN313] (Nationally, the murder rate declined by about 30%, from 9.8 per 100,000 to 6.8 per 100,000). [FN314] Yet three of these four cities grew faster than New York City in the 1990s. [FN315] In sum, the quality of a city's government is undeniably relevant to the speed of suburban sprawl, but is only one relevant factor among many.


2. Another Counterargument: The 'Natural Desire' Theory
It could also be argued that even if government has discouraged city living in a variety of ways, the status quo was nevertheless inevitable because Americans, when empowered by prosperity, naturally desire the bigger houses and bigger lots they get by choosing low-density suburban living, [FN316] and the effects of pro-sprawl government programsare *344 thus minor. [FN317] This argument requires one to believe that even if cities had crime rates, school systems, tax rates, and government services identical to those of suburbia, they would still be as depopulated as they are now--a proposition that should seem highly questionable to everyone who has known anyone who moved to suburbia for the schools. [FN318]
More importantly, this argument overlooks a simple fact: that livable city neighborhoods have sky-high property values. Neighborhoods like Buckhead in Atlanta, Cleveland Park in Washington, D.C., and Boston's Back Bay are more expensive than many suburban neighborhoods. [FN319] For example, in 1998 the average home price in Buckhead was $364,952--more than the average home price in all but one of greater Atlanta's suburbs. [FN320] Similarly, the average home in the Back Bay cost $444,000 in 1996, more than twice the metro Boston average, [FN321] and the average home in the zip code that includes Cleveland Park cost $571,095 in 1996, [FN322] more than three times the cost of the average Washington-area home. [FN323] If 'good' city neighborhoods areexpensive, *345 the demand for such neighborhoods obviously exceeds the supply. [FN324] In other words, despite cities' 'bad' schools and higher crime rates, there is a huge pent-up demand for city living. And if government had not turned city schools and neighborhoods into crime-ridden warehouses for the destitute and the dispossessed, the demand for city living would be higher still.


3. The Most Bizarre Counterargument: Does The Government Favor Cities?
One commentator has argued that 'critics of sprawl overlook the many policies that favor central cities, such as downtown renewal, subsidized stadia placed in central cites, and heavily subsidized downtown-focused rail transit systems.' [FN325] But none of these policies are tremendously helpful to central cities.
As explained above, the federal 'urban renewal' program destabilized central cities by destroying housing and displacing people and businesses. [FN326] And although rail systems mitigate the effect of sprawl upon the carless poor [FN327] and make it easier for suburban commuters to reach downtown jobs, their impact on cities is unclear: Like highways, rail systems that extend into suburbia make it more convenient for central city workers to live in the suburbs (as opposed to urban neighborhoods near downtown), and thus may actually accelerate sprawl under certain circumstances. [FN328] And the idea that sports stadia counterbalance pro-sprawl policies requires one to believe that a significant number of families scared out of cities by crime-ridden public housing projects [FN329] and poverty-packed schools, [FN330] and lured out of cities by convenient highways, [FN331] will nevertheless move back to a city to be a few miles closer to a ballgame. To state such a bizarre proposition is torebut *346 it. [FN332]


III. Sprawl as a Conservative Issue: Or, Why You Should Oppose Sprawl Even if
You Are Not an Environmentalist
As noted above, environmentalists have traditionally fought sprawl, while conservatives have often criticized anti-sprawl policies. But in fact, even the most anti-environmentalist conservatives [FN333] have excellent reasons to fight suburban sprawl. As explained below, sprawl reduces, rather than enhances, consumer choice, dissolves social stability, and increases welfare dependence.

A. Economic Freedom vs. Suburban Sprawl
Economic conservatives claim to favor more consumer choice and less government; [FN334] but sprawl, as explained below, means less freedom and higher taxes.


1. Sprawl vs. Freedom
Conservative economist Milton Friedman has argued that the market is superior to government not just because it is more efficient but also because it produces 'unanimity without conformity'--that is, because millions of consumers can satisfy their diverse needs without imposing their desires on others. [FN335] And in some metropolitan areas (such as the American cities of the first half of the 20th century, or many Canadian and European cities today) consumers can choose among a wide variety of options: they can live in city or suburb, and can live with no cars or plenty. [FN336] Such diversity, such unanimity without conformity,*347 is what supporters of economic freedom should support.
But in most of metropolitan America, conformity is the rule in two respects. Sprawl has made auto ownership mandatory in most of America, and has made suburban living mandatory in large chunks of America. [FN337] To quote one newspaper article, 'the suburban sprawl that started after World War II forced Americans to go everywhere by car. Traditional, walkable communities are mostly a thing of the past.' [FN338]


a. Drive or Die
In a free society, government generally should not force a particular mixture of products down consumers' throats: Consumers should be free to spend half their income on mortgage payments and take the bus to work, or live in a rundown trailer park and throw their money at a BMW. But in fact, government-induced sprawl has forced most American adults [FN339] to spend thousands of dollars on one product: a functional automobile.
In a few cities, like New York and Washington, one person can comfortably survive without a car. But in most cities and suburbs, government policies have made auto ownership virtually mandatory. [FN340] As explained above, government has, through the highway system, the education system and the FHA, lured middle-class people and their jobs to the suburbs, and then used zoning and traffic engineering to make those suburbs as auto-oriented as possible. [FN341] Government has further rigged suburban life in favor of the auto by building roads for drivers but providing minimal public transportation to nondrivers. [FN342] Thus, suburbanites often need a car even if they live in regions with relatively well-developed transit systems, and in most smaller and Sun Belt citieseven *348 city residents can barely function without them. [FN343] Because two-thirds of all new jobs are now created in suburbs, many workers need a car just to get to work. [FN344] In fact, a survey by the U.S. Department of Commerce shows that only 54.4% of American households have any public transit at all available, and that only 28.8% claim to have satisfactory public transit. [FN345]
Even in metropolitan areas with extensive transit systems, the majority of entry-level jobs are not transit-accessible. [FN346] For example, the Boston region has a central city with a well-developed transit system and a commuter train system that serves many of its suburbs. [FN347] But even in Greater Boston, just 32% of entry-level employers are within one-quarter mile of transit, 43% are within one-half mile, and 58% are within one mile. [FN348] Just 14% of entry-level jobs can be reached by transit within an hour from Boston's poorer neighborhoods. [FN349]
The situation is even worse in Sun Belt cities. For example, Atlanta's second-largest suburban county (Gwinnett County, which had 522,000 people in 1998) has no public transportation whatsoever, [FN350] and even some neighborhoods within the city limits have virtually no bus service. [FN351] Even in areas with bus service, the absence of sidewalks (or even lawns that one can walk on) prevents would-be riders from walkingsafely *349 from residential areas to the bus stop. [FN352] Not surprisingly, less than half of Atlanta-area entry level jobs are located within a quarter-mile of a public transit route. [FN353]
And in smaller cities, a non-driver's life is more desperate still. For example, in Macon, Georgia, 16% of city households [FN354] (and 14% of households in the county that includes Macon) [FN355] lack cars, yet city buses only operate until 6:45 p.m. in the evening on weekdays, Saturday service is limited, and there is no service on Sundays or holidays. [FN356] Because many entry-level employers require their newest employees to work evening and weekend shifts, this system virtually shuts many of Macon's carless residents out of the job market. [FN357]
And many employers are not transit-accessible at all: Macon's largest employers are located in the area's periphery far from any bus line: Brown & Williamson (cigarettes), Riverwood (paper mill), Cagle's (chicken processing), Cigna (insurance data processing) and the hotel operators and fast food establishments among major streets. [FN358] As a result, Macon's employers of unskilled labor often ask would-be employees whether they have a car--and if the answer is no, the applicant won't be hired. [FN359]
Macon's transportation system limits a wide variety of other activities as well. The largest supermarket chain in the area, Kroger, is not efficiently served by the buses. While two of the system's routes pass Kroger stores, the routes do not swing down access roads and intothe *350 store parking lots to permit less agile riders (such as children and senior citizens) to reach the stores. [FN360] The two largest Kroger stores in the area are not on bus lines, nor is a large discount supermarket, FoodMax, or a new Publix supermarket. [FN361] Conversely, a largely abandoned shopping center where anchor tenant K-Mart closed in 1991 is served by the system--but the new K-Mart is not. [FN362] Churches are not served by the system at all, because churches tend to be most active on Sundays and weekday evenings, when the bus system is shut down. [FN363] Even on the bus system's limited routes, the frequency of service is so minimal as to discourage use. For example, students who use public transit to attend Macon College must devote the entire day to the ordeal. After rising before 6:00 a.m. to catch the first bus from their homes to the downtown transfer station, students must catch a morning bus from downtown to the college at 7:30 a.m. Later in the day, they have only one opportunity to return home. [FN364] Needless to say, drivers suffer from none of these limitations: Government has built a toll-free, twenty-four hour system to serve them, and by building highways further and further away from downtown Macon, has encouraged employers to relocate to areas not served by bus routes. [FN365]
In sum, in most of America (especially in suburbs and small cities) government has rigged transportation systems to make driving a necessity for anything resembling a normal life, by building roads that shifted development to newer areas without creating bus routes or rail lines to serve those highway-created suburbs. Free enterprise devotees would certainly oppose a law ordering consumers to spend thousands of dollars a year on television sets, housing or ice cream. It logically follows that they should oppose policies that have the effect of forcing consumers to spend thousands of dollars on automobiles. [FN366]


*351 b. Suburbia or Else
Just as government policies have forced Americans to buy more cars than they might otherwise buy, government policies have forced Americans out of cities and into suburbs. The tyranny of the automobile arises in part from a second tyranny: the tyranny of suburbia. In a few metro areas urban decay has advanced so far that cities are essentially not an option for any consumers but the most adventurous. [FN367]
This fact is reflected in the mainstream media: all too often 'suburban' is used as a synonym for 'white,' 'respectable,' 'moderate,' or 'middle-class,' [FN368] while the word 'urban' is used as a synonym for 'poor,' 'dangerous,' or 'black.' [FN369] In the most degraded cities, like Detroit and Newark, urban decomposition is so advanced that even single people are unwilling to live in the city. For example, an elite [FN370] prep school in Connecticut, Choate Rosemary Hall (CRH), has dozens of alumni in New Jersey suburbs and hundreds in New York City--but not one who lives in Newark. [FN371] And in southeastern Michigan, CRH has about twenty alumni in Detroit's suburbs--but not one who lives in the city of Detroit. [FN372] By contrast, healthier big cities are jam-packed with CRH alumni, especially younger alumni. For example, about 1000 CRH alumni live in Manhattan, and 180 more live in New York City's other boroughs. [FN373]
*352 Even where single people can live in the city, families often cannot. For example, in Cleveland even the most open-minded Clevelanders were unwilling to stay in the city after marriage, because of the state of the city's public school system (which was unusually disreputable even by the low standards of urban public school systems) [FN374] and because nearly all of the area's private schools (except for a few parochial schools) are in the suburbs. [FN375] As a result, in Cleveland only 4% of households earning over $100,000 live in the city. [FN376] Even institutions that would be urban in other communities are suburban in Cleveland. For example, the city's major bohemian-oriented shopping street, Coventry Road, is in the suburb of Cleveland Heights, [FN377] as is the office of EcoCity Cleveland, one of the area's leading anti-sprawl groups. [FN378]
In sum, suburban life is often not an option but a virtual necessity for Middle-class Americans, because of the shortage of safe city neighborhoods and reputable city schools. So by fighting sprawl and preserving cities, Americans can actually expand, rather than limitconsumer *353 choice.


2. Sprawl Means Higher Taxes
Over the past two decades, taxes have become a defining issue in American politics, like the New Deal in the 1930s. [FN379] Conservatives and Republicans have generally opposed higher taxes; liberals and Democrats have not. [FN380] As explained below, sprawl is more likely to raise local taxes than to lower them.


a. Taxes in the Cities
Although suburban sprawl is not generally thought of as a tax issue, sprawl in fact means higher taxes and bigger government. Here's why: As cities lose middle-class residents and retain the poor, they become poorer. [FN381] In the metro areas encompassing the twenty-three American cities that David Rusk designates as 'zero elasticity' cities (that is, cities that have been unable to annex their suburbs) city per capita income is, on the average, only 66% of suburban per capita income. [FN382] And in most older cities, the city-suburb income gap has widened over time. In every single one of America's twenty-four most distressed cities (which Rusk defines as cities that have lost 20% of their 1950 population, are over one-third black or Hispanic, and have average income levels less than 70% of suburban income levels), [FN383] the gap between the average suburban income and the average city income widened during the 1980s. [FN384]
Common sense dictates that as a city becomes poorer, its tax basewill*354 decline, and tax hikes will thus become more tempting. [FN385] For example, between 1972 and 1987, Cuyahoga County (Cleveland and its older suburbs) lost $1.5 billion worth of payroll, while Cleveland's newer outer suburbs gained over $1 billion. [FN386] Moreover, poorer cities will typically have to spend more money to obtain the same quality of public services as affluent suburbs, because poorer populations will need more money for public assistance and poverty-related health care than would the population of a more affluent city, and poorer people are more likely to commit crimes (thus causing higher criminal-justice related spending). [FN387]
And as a city (and more recently, its inner suburbs) [FN388] becomes dominated by poorer voters, its electorate will be more likely to be dominated by liberals and Democrats who will prefer higher taxes to reductions in the size of government. [FN389] For example, between 1976 and 1996, in the city of Buffalo, the Republican percentage of the two party presidential vote nosedived from 37% to 17%--a twenty percentage point drop that dwarfed the national four point drop in the Republican vote (from 49% to 45%). [FN390] In Buffalo's population-losing inner ring suburbs, Republicans suffered comparable losses between 1976 and 1996. For example, the Republican nominee lost fourteen points in Lackawanna (from 35% to 21%), Cheektowaga (from 45% to 31%), and West Seneca (50% to 36%) as well as nineteen in Tonawanda (from 56% to 37%). [FN391] By contrast, in Clarence, a still-growing outer suburb, the Republican nominee lost only eight points (from 64% to *355 56%). [FN392] In the Maryland suburbs of Washington, D.C., the Republicans suffered an eleven point drop (48% to 37%) in the mature suburb of Montgomery County, and only a four point drop (50% to 46%) in booming Howard County. [FN393] In Philadelphia, the Republicans lost fifteen points (from 32% to 17%). The Republicans lost twelve points in Delaware County, a stagnant Philadelphia inner suburb (from 56% to 44%) but only five points in booming Chester County (61% to 55%). [FN394]
In sum, suburban sprawl causes cities and older suburbs to become poorer, which means they have a smaller tax base, which means that (a) their politicians will be more tempted to raise taxes, and (b) their voters will be poorer, more politically liberal, and thus less fiscally conservative.


b. Taxes in the Suburbs: Or, Tax and Tax, Spend and Spend, Sprawl and Sprawl
It could be argued that even if city residents face higher taxes from the redistribution of people and jobs caused by sprawl, suburbanites do not. After all, suburbanites often live in growing areas with few poor people to make demands on government or elect pro-spending politicians. [FN395] But even in suburbia, sprawl's impact on the public fisc is at best ambiguous. [FN396] A fast-growing suburb benefits from a larger residential and commercial tax base, but suffers when its new residents demand additional schools and roads to serve them. [FN397] For example, in *356 rapidly-growing [FN398] Loudoun County near Washington, D.C. the annual tax rate increased by 11% from 1997 to 1998 in order to pay for new services. [FN399] Likewise, Prince William County, another high-growth Washington suburb, [FN400] has the highest real estate tax rate of any county in Virginia. [FN401] Such tax increases arise from the infrastructure expenses caused by population growth. In Prince William County, for example, schools are so overcrowded with new residents' children that students are crammed into more than 100 classroom trailers. [FN402] Some suburbs also try to temporarily limit or avoid tax increases by taking on huge debt loads. In Loudoun County, debt payments rose from 3.3% of the county budget in 1990 to over 10% in 1999. [FN403] In rapidly expanding Howard County, [FN404] between Baltimore and Washington, debt nearly tripled from $130 billion to $384 billion from 1987 and 1997. [FN405] In Montgomery County, Maryland, some areas are growing while others are shrinking. So to accommodate these population shifts, the county built seventy new schools during the 1980s, while closing sixty-eight. [FN406] Thus, Montgomery County had the worst of both worlds: the money it spent building the now-closed schools had become a waste of money, yet the county also had to throw money at new schools.
Some suburban cities and counties try to finance the costs of increased residential development by encouraging increased commercial development. For example, Howard County's planning goals state that commercial development should account for 25% of the county's tax base because those developments provide revenue without adding students to the school system. [FN407] This strategy, although helpful if it works, is quite risky: Because many commuters wish to live close to work, any increase in commercial development may create a demand for nearby residential development, which in turn increases the costs ofgovernment *357 services. [FN408] And if a suburb tries to solve this problem by limiting such residential development, workers will have to commute from other areas, which in turn means more traffic congestion, which creates political pressure for more roads, which in turn means higher spending and higher taxes. [FN409]
In fact, groups generally recognized as supportive of suburban expansion openly admit that sprawl means bigger government. The National Association of Home Builders (NAHB), hardly an anti-sprawl organization, [FN410] has issued a policy statement endorsing a so-called 'Smart Growth' strategy that includes '[p]lanning and constructing new schools, roads, water and sewer treatment facilities and other public infrastructure in a timely manner to keep pace with the current and future demand for housing. ' [FN411] NAHB does not pretend that developers will bear these costs. [FN412] Instead, it asserts that
[a]ppropriate bodies of government should adopt capital improvement plans . . . designed to fund necessary infrastructure required to support new development. Ensuring that infrastructure is funded equitably and that the cost is shared equitably throughout all segments of the community--existing residents as well as newcomers--is an even greater challenge. [FN413] *358 In other words, NAHB admits that sprawl (or as NAHB calls it, 'new development') means higher government spending for schools, roads, and other 'infrastructure' designed to 'support new development.' As NAHB claims, Americans may be entitled to 'have a free choice in deciding where and in what kind of home to live.' [FN414] But developers and home buyers are not necessarily entitled to finance that 'free choice' by taxing others.


c. The Car Tax
In 1997, the average American household spent $6060 on car-related expenditures: $2736 on new and used vehicle purchases, $1098 on gasoline, $293 on finance charges, $682 on maintenance and repair, $755 on car insurance, and $501 on leasing costs, rental costs, and license fees. [FN415] Households with teenage children must spend even more, because they 'need' cars not just for both parents, but for the children as well. [FN416] As explained above, Americans live in areas where autos are a daily necessity not because of free choices made in a free market, but because of government policies that have made daily life without a car impossible for many drivers. [FN417] It logically follows that American auto dependency is an unfunded mandate analogous to the thousands of pages of federal regulations contained in the Federal Register, and that most auto-related spending is a form of indirect taxation just as much as if government enacted a law requiring consumers to spend $6060 per household on automobiles (a sum equaling 89% of the average federal income tax payment). [FN418] And if auto-related spending is a tax paid by consumers, it further follows that any efforts to reduce auto dependency reduce the burden of government upon the American people. Or to put the matter another way: if the average American could avoid owning a car, he or she would get the equivalent of an 89% income tax cut to save, invest, or spend on other consumer goods.
In sum, sprawl means higher taxes, plus a continuation of the car taxthat *359 squeezes so many American households.

B. Sprawl and Cultural Conservatism
Suburban sprawl also affects two values commonly associated with cultural conservatism: social stability and the work ethic.


1. Sprawl vs. Stability
As Paul Weyrich of the Free Congress Foundation has pointed out,
Community is of significant value to most cultural conservatives, for very good reason. Without it, there are few mechanisms to uphold morals and maintain standards of behavior. Traditionally, when most people were part of a community, they behaved for fear of community sanctions. But where there is no community, community sanctions cannot exist. [FN419]
And for community to exist, there must be stability: Today's stable, safe neighborhoods must be tomorrow's stable, safe neighborhoods, so their residents and their children and grandchildren can build a community rather than being driven out by the next wave of urban decay.
But sprawl creates constant instability: Today's suburbs can quickly become tomorrow's slums. Some of today's poor city neighborhoods were once rich, outlying areas comparable to today's suburbs--neighborhoods that were created by streetcars just as today's suburbs were created by highways. [FN420] For example, in Detroit, 19th century tycoons built mansions near Woodward Avenue-- an area that in the late 20th century became, in one commentator's words, 'something worse than a slum' where the remaining 'hopelessly decayed mansions stand in these blocks like inscrutable megaliths in a wilderness of rubble. ' [FN421] Cleveland's Euclid Avenue has met a slightly less horrible, yet nevertheless unfortunate, fate. In 1892, fifty-three of sixty-eight millionaires named in the New York Tribune's list of America's richest people called Euclid Avenue home. [FN422] And in the first half of the 20thcentury, *360 Euclid became a thriving commercial strip, 'a regional retail nexus with trolley cars feeding six department stores, live theater, and downtown offices.' [FN423] But by the late 1990s, one-third of the 8.2 million square feet of upper-floor office space on Euclid Avenue was empty, [FN424] seventeen storefronts were empty, [FN425] and the blocks of Euclid Avenue east of the city's business district were a 'weed-filled wasteland[].' [FN426]
And as sprawl has accelerated, the decay of city neighborhoods has accelerated. The number of high-poverty census tracts (that is, tracts where over 40% of the inhabitants have incomes below the federal poverty line) [FN427] in metropolitan areas increased by 131% between 1970 and 1990, [FN428] and the number of persons trapped in these slums nearby doubled. [FN429] The spread of urban decay was fastest in the cities of the Northeast and Midwest: in 1970, these areas had 379 high-poverty tracts (164 in the Northeast, 215 in the Midwest) and in 1990 they had 1471 (578 in the Northeast, 893 in the Midwest). [FN430]
Milwaukee presents one of the most extreme examples of urban decay. In 1980, the city had only nine high-poverty census tracts, all packed tightly around downtown Milwaukee. [FN431] In 1990, the city had forty-two, most of which were also close to downtown and to the original nine ghetto tracts. [FN432] The sudden decay of Milwaukee's core was due partially to a regional economic downturn, and partially due to 'racial succession' (i.e. white flight to outlying areas). [FN433] In the tracts where poverty exploded during the 1980s, the number of white residentsdeclined *361 from 1767 per tract in 1970 to 613 per tract in 1990. [FN434]
Many other cities suffered similar 'ghetto explosions' from 1970 to 1990: for example, in Buffalo the number of high poverty tracts increased from 3 to 26, [FN435] in Pittsburgh from 14 to 42, [FN436] in Rochester from 4 to 20, [FN437] in Chicago from 48 to 184, [FN438] in Minneapolis from 7 to 33, [FN439] and in Cleveland from 20 to 69. [FN440]
Admittedly, the Rust Belt's urban decay arises partially from regional economic decline as well as from suburban sprawl. [FN441] But if regionwide economic decline was the only cause of urban decay, the economic gap between city and suburb would have remained constant over the years. But in fact, per capita city income has dropped from 96% of suburban income in 1973 to 84% in 1990. [FN442] Similarly, city population has typically declined far more rapidly than suburban population. For example, the population of metropolitan Buffalo decreased by 6% between 1980 and the mid-1990s, [FN443] while the city population declined by 16%. [FN444] And in Milwaukee, Minneapolis, and Rochester, city population declined in recent decades while the suburbs continued to grow. [FN445] Moreover, even some growing cities suffered from growing blight as the middle class moved to the city's fringes: for example, Columbus, Ohio (whose citywide population has consistently grown in recent decades) [FN446] had six high-poverty census tracts in 1970 and twenty-four in 1990. [FN447]
In turn, the decline of the oldest, closest-in city neighborhoods has set in motion a chain of events that endangers newer city neighborhoods and even suburbs. As the oldest neighborhoods decay, they become *362 occupied by the poor, and nearby middle-class neighborhoods become uncomfortably close to city slums, which in turn causes them to become less appealing and eventually decay, which in turn starts the cycle in another nearby neighborhood. And by using its powers to drain cities of middle class taxpayers, government has accelerated this cycle. [FN448]
In recent decades, urban decay has spread out beyond the central city line. The most troubled suburban municipalities near cities as varied as Los Angeles, Detroit, and Miami have crime rates higher than those of the nearby big cities themselves. [FN449] For example, in 1997, Highland Park, Michigan, had 53 murders per 100,000 people (15% more than nearby Detroit) and 1196 robberies per 100,000 people (over 30% more than Detroit). [FN450] Similarly, Compton, Ca., had 66 murders per 100,000 people (more than four times as many as nearby Los Angeles), and 807 robberies per 100,000 (nearly 40% more than Los Angeles). [FN451] And Opa Locka, Fl., had 41 murders per 100,000 (over 50% more than nearby Miami) and 1369 robberies per 100,000 (18% more than Miami). [FN452] Although these municipalities are extreme cases, city crime has increasingly spread to some suburbs. In 1991, for instance, nine of Chicago's suburbs had higher crime rates than the city of Chicago. [FN453] Poverty as well as crime has spread past the city line: today, both the ten poorest and the ten richest incorporated cities in America are suburbs. [FN454] For example, both Chicago and St. Louis have suburbs with median household incomes 40% lower than those of the cities themselves. [FN455]
And even where older suburbs are not as poor or as dangerous as nearby cities, they are often in decline. For example, most of Cleveland's inner suburbs have experienced dramatic declines inhousehold *363 income relative to other suburbs. In Cleveland's poorest inner ring suburb, East Cleveland, household income declined from 77% of the metro area mean in 1970 to 57% in 1990. [FN456] Other suburbs experiencing similar declines include Bedford (101% to 87%), Bedford Heights (106% to 84%), Brooklyn (109% to 81%), Brook Park (127% to 101%), Euclid (103% to 82%), Fairview Park (136% to 113%), Garfield Heights (100% to 82%), Lakewood (99% to 93%), Maple Heights (103% to 85%), Mayfield Heights (103% to 85%), Middleburg Heights (138% to 114%), North Olmsted (124% to 115%), Parma (111% to 96%), Parma Heights (114% to 89%), Seven Hills (148% to 121%), South Euclid (117% to 106%), and Warrensville Heights (104% to 84%). [FN457] All but two of these suburbs lost population during the 1990s, [FN458] as did all of Cuyahoga County (which includes seventy-seven square miles within the city of Cleveland [FN459] and 381 square miles of suburbia) [FN460]--not because metro Cleveland as a whole lost population, but because 'outer counties' like Geauga, Lake, and Medina sucked away middle-class Clevelanders. [FN461] In fact, Cleveland's decay is not limited to the inner ring of suburbs (that is, those suburbs that are contiguous to the city). Of the declining suburbs listed above, several (Bedford, Bedford Heights, Mayfield Heights, Parma Heights, Middleburg Heights, Seven Hills, South Euclid, and North Olmsted) are second- and third-ring suburbs: that is, they border inner ring suburbs but not Cleveland itself. [FN462]
Cleveland is not alone; suburbs in other metro areas, especially slow-growth areas in the Midwest and Northeast, are experiencing similar problems. The major inner ring suburbs of older cities such as Buffalo, St. Louis, Minneapolis, and Chicago lost population during the 1990s. [FN463]
*364 In sum, suburban sprawl, like the French Revolution, devours its own children. Sprawl creates inner ring suburbs, only to destroy them a few decades later by creating outer suburbs to skim off their elites. So as long as cities and older suburbs continue to lose their most affluent citizens to newer suburbs, no community is truly safe from the ravages of neighborhood decay, and no stable community can endure.


2. Sprawl vs. Work
Conservatives claim to believe that people should be independent rather than relying on government for handouts. For example, it took a Republican Congress to enact the welfare reform bill that limited the amount of time anyone can spend on welfare. [FN464]
But sprawl punishes work and rewards welfare dependency. Here is why: Thanks to suburban sprawl, most low-skill jobs are located in areas that are inaccessible by public transportation or nearly so. [FN465] In small cities like Macon, many jobs are inaccessible without a car either because the public transportation system does not reach major employers or because the buses stop running early in the evening. [FN466] And even in the relatively transit-friendly Boston metropolitan area, just 32% of entry-level employers are within one-quarter mile of transit, 43% are within one-half mile, and 58% are within one mile. [FN467] Just 14% of entry-level jobs can be reached by transit within an hour from Boston's poorer neighborhoods. [FN468] So to get off welfare and get a job, a welfare recipient often needs a car which she probably cannot afford (otherwise she would not be on welfare in the first place). [FN469] The recipient may be stuck in a vicious cycle: she needs the car to get a job, but she can't get a job unless she has a car first. Thus, the dispersion of employment opportunities caused by sprawl frustrates welfare reformand *365 encourages welfare dependency. [FN470]
Even if one assumes that a welfare recipient can somehow obtain a car, the costs of auto ownership encourage welfare dependency at the margins. For example, suppose that welfare recipient A can earn $700 a month on welfare and $900 after taxes at work, but would have to spend $250 a month on a car if she gets a job. On balance, A would be better off on welfare because the cost of a car reduces her overall pay to $650 ($900 in wages minus $650 in auto expenses). Thus, the auto dependency caused by sprawl discourages work and encourages welfare dependency.


IV. Solutions to Sprawl: Or, Stopping Sprawl Without Empowering Government
Conservative hostility to anti-sprawl measures is based on the delusion that there is no way to limit sprawl without increasing government spending or government regulation of land use. [FN471] In fact,*366 even if conservatives must agree to disagree with environmentalists on some fiscal and regulatory issues, they can still fight sprawl in other ways consistent with conservative values.
For example, conservatives can focus on (1) eliminating highway spending that encourages sprawl, (2) breaking the link between residence and schooling, so that families can live in cities without being trapped in urban schools, and (3) limiting sprawl by reducing rather than increasing government regulation of land use.

A. No New Roads
If state and federal policy caused our urban crisis, the logical solution is to stop the policies that led to the crisis. Because highway spending has been a significant cause of suburban sprawl, [FN472] we can take a significant bite out of both sprawl and big government by eliminating sprawl-generating highway spending.
Specifically, state and federal governments should prohibit the use of their funds to build or widen roads in newer suburban areas. Because highway spending totaled $101 billion in 1997, [FN473] such a 'paving moratorium' would give taxpayers a significant break (including, ironically, drivers, whose fuel taxes pay for more than half of government highway spending). [FN474] A paving moratorium would not prevent settlement in existing suburbs--but would prevent government from creating new suburbs by building more highways, and would thus prevent government from turning today's suburbs into deserted slums.
Government justifies new and widened roads on the ground that more roads, not fewer, are needed to deal with traffic congestion. [FN475] Butthe*367 claim that new roads eliminate congestion is at best speculative. Admittedly, if new and widened roads did not affect development patterns, a new or widened road might reduce traffic congestion. But in reality, highway building affects where people live and work. If government builds highway X to suburb Y, homeowners and businesses will soon move to subdivisions near X's interchanges, thereby increasing traffic along the interchanges. [FN476] Thus, '[b] uilding more highways to reduce traffic congestion is an exercise in futility. Whenever it is done, more people take to their cars, and before long the roads are as clogged as ever.' [FN477] Even people and groups sometimes identified as pro-sprawl admit as much. As Joel Garreau of the Washington Post has written, '[t]he more capacity you add, the more likely you are to make the place more popular . . . creating more traffic.' [FN478] Mr. Garreau is hardly an anti-sprawl activist; for example, he has described the status quo as the 'manifest pattern of millions of individual American desires over seventy-five years.' [FN479] Similarly, the National Association of Home Builders (which advocates accelerated road construction) [FN480] conducted a survey that reveals that highway access would influence 55% of respondents to move to a new community--more than any other amenity. [FN481] By admitting that highways encourage movement to areaswith *368 highway access, the NAHB has effectively conceded that highways shift development to suburbs (thus making those suburbs more rather than less congested). [FN482]
Numerous studies suggest that 'induced traffic' eliminates some or all of the reduction of congestion caused by new roads and road widenings. For example, Mark Hansen, a professor of transportation engineering at the University of California at Berkeley, used statewide California statistics in concluding that new road capacity is almost entirely offset by induced traffic within five years. [FN483] A study conducted by Robert B. Noland, a former transportation analyst at the Environmental Protection Agency, similarly found that a 10% expansion in roads produced a 2.8% rise in travel over two to four years. [FN484] These traffic increases arise because in the short run, motorists switch from other routes, because they abandon mass transit and drive instead, and because development may shift people and jobs to areas near the highway. [FN485] In fact, studies such as Hansen's, if accurate, may actually overestimate the benefits of new roads by failing to account for the medium- and long-run changes in development plans caused by new and widened roads (that is, the changes that occur more than four or five years after the road is built or widened).
For example, in 1991, Montgomery County, Maryland (a suburb of Washington) widened Interstate 270 to as many as twelve lanes to reduce traffic congestion. [FN486] According to Sidney Kramer, Montgomery County executive from 1986 to 1990, '[y]ou saw a tide of development go forward because of that improvement.' [FN487] One of the high-growth suburbs created by the I-270 widening, Germantown, Maryland, grew from just over 41,000 people in 1980 to 70,000 people in 1998. [FN488] In turn, the growth of Germantown and nearby suburbs caused traffic to increase. In fact, traffic along I-270 has surpassed the levels statehighway *369 planners forecast for 2010 in their 1984 study of the proposed widening. [FN489] The Maryland highway department reported that the '1997 volume at Route 28 in Rockville was 193,000 vehicles [per] day-- 2,000 more than the 2010 projection.' [FN490] According to David Palank, an area real estate broker, '[w]ith all the lanes that are there, it just doesn't seem to be moving that quickly . . . I haven't found any relief at any time. It seems like it was congested and continues to be congested.' [FN491]
If I-270 was an aberration, areas that increased road space would have experienced a reduction in congestion during the 1990s, or at least less congestion than areas that did less road-building. But recent studies show otherwise. The Hartford, Ct., and Providence, R.I., areas experienced similar population growth between 1982 and 1997. [FN492] But Hartford's road capacity stagnated, while Providence increased its road mileage by 59%. [FN493] If road-building reduced congestion, Providence would have far less congestion than Hartford. But a study by the Texas Transportation Institute (the official research agency for the Texas Department of Transportation and the Texas Railroad Commission) [FN494] revealed that the two areas had similar levels of traffic growth and traffic congestion. In 1997, the cost of congestion per eligible driver was $390 in Hartford and $360 in Providence (Nos. 49 and 50 of 68 areas surveyed). [FN495] Rush-hour congestion increased by 200% from Hartford and 225% in Providence between 1982 and 1997. [FN496] Annual delay per driver increased by 283% in Hartford and 320% in Providence between 1982 and 1997. [FN497] In other words, Providence built far more roads, yet congestion increased in Providence just as rapidly as in Hartford.
The correlation between free-flowing traffic and free-spending road builders is equally weak in fast-growing metro areas. For example, Charlotte and Fresno had comparable population growth rates (64% and 57%). [FN498] But Charlotte increased its highway mileage by 113hile *370 Fresno's road-building lagged behind its population growth (with only a 27% increase). [FN499] Charlotte's congestion cost $680 per driver, while Fresno's cost only $315. [FN500] Annual delay per driver increased by 356% in Charlotte and only 171% in Fresno, [FN501] while peak hour congestion increased by about the same amount in both areas (229% in Charlotte and 225% in Fresno). [FN502]
Ironically, drivers are sometimes the biggest losers from road-building: When states favor road-building over routine street maintenance, roads become rutted and packed with potholes. A recent survey by The Road Information Program, a group financed by the road construction industry, shows that 35% of roads in Detroit and New Orleans are in poor condition. [FN503] Over 30% of roads were in poor condition in three other metro areas (Los Angeles, Indianapolis, and San Jose), and 20% to 30% of roads were poor in fourteen others (San Francisco, Chicago, Baltimore, Sacramento, Grand Rapids, Norfolk/Virginia Beach, Oklahoma City, Denver, Dallas, Houston, New York, Washington, Philadelphia, and Austin). [FN504] By an odd coincidence, all of these areas increased highway capacity in the 1980s and 1990s. [FN505] For example, Detroit's highway mileage increased by 21% (far ahead of its anemic 5% population growth) while New Orleans's highway mileage increased by 45% (despite that region's 4% population growth). [FN506] It, therefore, appears that some states are letting existingroads *371 deteriorate so that they can build new roads instead.
In sum, both common sense and actual experience support the view that suburban road-building creates sprawl without mitigating congestion. Thus, continued road widening and roadbuilding is pointless, if not harmful.

B. Ending the Urban School Crisis
As Mayor Norquist of Milwaukee has pointed out, '[a] major factor in the extreme separation of rich and poor in the United States is that people who are rich avoid city schools.' [FN507] As explained above, a 'bad' school (one with a poor reputation) is typically 'bad' at least partially because of its disadvantaged student body. [FN508]
Indeed, many suburbanites implicitly admit as much by fighting attempts to enroll urban children in suburban schools, on the ground that the admission of such children would 'ruin' their schools. [FN509] For example, Cleveland's suburban public schools have locked out urban children by refusing to participate in Cleveland's voucher program, [FN510] and some states have even created the crime of 'enrollment fraud' to criminally punish urban parents who seek to sneak their children into suburban schools. [FN511] If suburban schools would in fact be adversely affected by the enrollment of urban students, suburban school districts' alleged superiority obviously rests upon the background of their pupils rather than the excellence of their teachers and administrators. Thus, even suburbanites know that the quality of their 'good' schools rests on the absence of low-income students rather than on the superiority of their teachers or administrators.
It logically follows that even if government can improve poverty-packed urban schools slightly by spending more, raising expectations, or other reforms, [FN512] it probably can never make such schools as attractive to middle-class families as homogenous suburban schools. It further follows that if government wishes to stop driving middle-class families out of cities, it must stop forcing parents to choose between middle-class-dominated schools and city living. The most market-orientedremedies *372 for the urban education crisis (other than the complete abolition of government-funded education in city and suburb alike) are various forms of the voucher system.
Under a voucher system in its purest form, 'money spent on schooling [would] go directly into the pockets of families with school-age children, who could spend their voucher wherever they pleased--in either public or private systems. ' [FN513] Less radical voucher plans might require the government to pay only part of a student's private school tuition, just as college students obtain tuition assistance through government-backed loans and grants. [FN514]
Any form of voucher program, other than one limited to the poor, [FN515] would discourage middle-class flight by ensuring that parents could live in the city and nevertheless send their children to selective private or suburban schools for free (or at least at a lower price, depending on the generosity of the program). [FN516]
*373 Some criticize the voucher system as a repudiation of the American ideal of the 'common school' where children of different backgrounds cross paths and learn about one another. [FN517] And indeed it is arguable that a public school system that in fact educated children of different backgrounds together might 'teach [children] respect for opposing points of view and ways of life, and to provide them with the intellectual skills necessary to evaluate ways of life different from their parents.' [FN518] It follows that in pre-suburban America, this 'common school' argument might have had some relevance to reality. But in major metropolitan areas, the common school concept has been assassinated by sprawl: Middle-class families live in middle-class suburbs with homogeneously middle-class schools, while poor families live in cities or poor suburbs with homogeneously poor schools. [FN519] By contrast, a voucher system will increase children's exposure to diversity by enabling parents to live in or near diverse neighborhoods without sending their children to widely feared urban schools. For example, suppose Mr. and Mrs. X are willing to expose their children to city life but fear city schools. Under today's educational system, when the X children reach school age, they would reluctantly leave the city in order to avoid city schools. Under the voucher system, Mr. and Mrs. X would be able to live in a diverse city neighborhood and send their children to schools similar to those that their children would attend if they lived in suburbia. [FN520]
*374 A related argument is that competition between city schools and private schools would be 'unfair,' because private schools could exclude the least desirable students. [FN521] This argument is beside the point, because many of the most 'desirable' students (i.e. high-achieving students from middle-class households) will be segregated in any event as long as the middle class continues to avoid city schools, [FN522] and because suburban schools can exclude some of the least desirable students by using zoning and the resulting high property values to exclude low-income households [FN523] whose children are more likely to be slow learners. [FN524] Whether middle-class children go to exclusive urban schools or exclusive suburban schools, those schools will be segregated by class as well as ability; but under the status quo, this segregation creates the additional evil of urban decay. In other words, the status quo equals class segregation plus sprawl, but vouchers would at worst create class segregation minus sprawl. Because two social evils are worse than one, the voucher system is obviously preferable to the status quo.
Indeed, the 'unfairness' argument leads to absurd results. One commentator argues that vouchers are unfair because '[i]f they [private schools] choose not to help children with discipline problems, they can turn those students away. ' [FN525] Presumably, the author of this article believes that it is 'fair' for children in urban public schools to share their classrooms with a horde of bullies, while other children are able to learn in a more orderly environment. This hardly seems like a fair result. The author's remark exemplifies the kind of societal double standard that has made many American cities unattractive to the middle class: Cities have become the dumping ground for the destitute and the disorderly, while social justice demands nothing of suburbanites except pious proclamations.
*375 Voucher critics predict that an increased demand for private schools might cause private schools to raise tuition and make vouchers so fiscally impractical as to make private schools financially unaffordable, [FN526] and that vouchers will naturally lead to government overregulation of private schools. [FN527] These arguments overlook the fact that the United States already has a modified voucher system at the college and university level: the intricate web of grants and loans that help Americans attend private as well as public colleges. [FN528] If vouchers reduced access to college or made colleges worse, America's college and university system would be inferior to that of other countries. In fact, Americans attend college in greater numbers than citizens of other affluent countries, [FN529] and our university system, far from having been crushed by government regulation, is so superior that in 1995, 452,599 foreign students came to American universities to learn. [FN530] Thus, vouchers have worked well at the university level, and accordingly, should be provided for younger students. Moreover, it is unlikely that government funding would endanger the quality of private schools, for the simple reason that the government must regulate its own schools, but at least has the option of not regulating private schools. [FN531] Thus, government would probably not regulate private schools as extensively as it regulates public schools. [FN532] America's experience with charitable tax deductions suggests that government subsidies to private schools wouldnot *376 lead to overregulation. Though the federal government certainly attaches some strings to the charitable deduction, charitable institutions are certainly not regulated as extensively as government-run schools. [FN533]
Another common anti-voucher argument is that vouchers violate the Establishment Clause of the First Amendment [FN534] by subsidizing church-run schools. [FN535] This assertion is quite controversial, and is rejected even by some constitutional law scholars generally regarded as liberals. [FN536] Even if this argument is correct, a voucher system could still pass constitutional muster if it was confined to secular institutions. [FN537] It could be argued that the exclusion of sectarian schools would make any voucher experiment useless, because most existing private schools are either parochial schools or elite schools for the rich. [FN538] This argument is questionable because if government paid a significant amount of tuition [FN539] for private schools, entrepreneurs might create non-sectarianschools. *377 Just as the public demand for food and drink has encouraged entrepreneurs to form restaurants and taverns, the voucher-generated public demand for schooling would create a market that private entrepreneurs would fill. [FN540]
It could be argued that government can 'save' city schools by spending more money on them. [FN541] But there is little correlation between school spending and educational achievement. Although some city school systems spend less than suburban schools, [FN542] others do not. ''[I]n 1989-90, big-city schools systems as a group spent over $5447 per pupil in 1989-90, compared with $5427 in suburban areas and $4507 in rural communities.' [FN543] '[E] ven when adjustments are made for' [cities' greater expenses,] 'per pupil spending' by [city] 'schools, on average, is only 1%' [below] 'that of their suburban competitors.' [FN544]
Moreover, there is little evidence that well-funded urban schools are significantly superior in any way to their underfunded counterparts. For example, Milwaukee public schools spend more than the state average per pupil and more than some suburbs, yet most middle-class parents avoid them. [FN545] And in Kansas City, Missouri, a desegregation decree mandated that the city be granted a bonanza of funds: between 1987 and 1992, the state devoted $1.5 billion to the school district. [FN546] As a result, the Kansas City school district spends at least 30% more than the most well-funded suburban districts, and over twice as much as less well funded suburban districts. [FN547] Although students' test scores improved modestly in absolute terms, their performances on statewide tests did not improve relative to their peers in other school districts throughout the state of Missouri. [FN548] Thus, it appears that even where urban schoolsoutspend*378 suburban schools, student achievement does not improve enough to make urban schools attractive to middle-class parents.
A related argument is that vouchers would drain money from government-run schools. [FN549] This argument, even if true, is beside the point for two reasons. First, if, as suggested above, government-run schools do not consistently benefit from spending increases, [FN550] they might not be significantly harmed by spending cuts. Second, this 'harm' merely eliminates an unfairness to private school parents, who would no longer have to pay twice for education, once for their own child's schooling and once (through taxes) for the schooling of children in government-run schools. [FN551]
In order to give governments a chance to evaluate the validity of opponents' concerns, any voucher plan which includes private schools should be limited to the group that needs vouchers most--residents of cities where the school system drives out the middle class. Thus, a state or federal voucher plan might give vouchers only to residents of cities above a certain size that had lost population in recent decades or that have higher poverty rates than their region as a whole. If the voucher system worked well enough, governments could follow up by expanding vouchers to all children. [FN552]


1. Vouchers Lite
A less radical plan would be a 'public schools only' voucher plan. Under such a system, the federal or state government could radically expand consumer choice by enacting the following statute: 'No publicly funded elementary or secondary school receiving state [or federal, depending on who enacted the statute] funding shall discriminate in its admissions on the basis of residence.' Under a 'public schools only' voucher plan, parents would be free to send their children to suburban or urban schools, no matter where they lived. This plan would increase consumer choice without creating the practical, constitutional, and fiscal difficulties of a voucher system that included private schools. [FN553]*379 However, a 'public schools only' voucher plan would do less to combat sprawl than a pure voucher plan, because parents with children in suburban schools might be tempted to move to suburbs in order to reduce their commutes to suburban schools.

C. Housing and Land Use Policy
Although a libertarian, non-coercive land use policy cannot dictate where people live, such a policy can give Americans the opportunity to live in more pedestrian- and transit-friendly environments. As explained above, traditional, walkable neighborhoods have been virtually outlawed in much of America, thanks to local zoning laws dictating that almost nothing may be within walking distance of anything else, that commercial streets must be built for the happiness of cars rather than people, and that densities must be lower than a free market could tolerate. [FN554]
One remedy for this problem might be the complete abolition of zoning laws. [FN555] The abolition of zoning would maximize individual freedom and reduce housing costs by allowing developers to build as they pleased, without any interference from government. On the other hand, the abolition of zoning might be even more politically impossible than any reforms discussed below, and would have the added cost of eliminating sprawl-limiting ordinances (such as those limiting development in newer suburbs) as well as sprawl-creating ordinances. [FN556]
*380 A narrower remedy to zoning-generated sprawl would be a Pedestrian's Bill of Rights, which would target zoning laws that encouraged sprawl and discouraged the creation of walkable neighborhoods. Such a statute would limit localities' zoning powers by eliminating many of the most onerous sprawl-creating zoning restrictions. For example:
(1) States should outlaw government-imposed minimum lot sizes, yard sizes, house sizes, or setbacks (that is, the distance between a house and the street). [FN557] Where lots, yards and setbacks are humongous, houses are so far from each other that their occupants cannot walk from one house to shopping, or even to other houses. [FN558] If people want to live in such an environment, they can certainly try to do so--but there is no reason why government should encourage them to by ordering developers to create unwalkable subdivisions.
(2) States should outlaw municipal restrictions on residential development in commercial zones, and allow some retail development in apartment buildings and other residential areas. [FN559] Under the status quo of single-use zoning, suburbanites who would like to walk to work or to shopping often cannot do so, because the dead hand of government prohibits would-be landlords from building or renting apartments in commercial zones. [FN560] It follows that if shop owners or office park developers were consistently allowed to rent surplus space to residential tenants, more Americans would be able to walk to work, shopping, and other opportunities. Similarly, states could allow some commerce in residential areas while preserving their residential nature by allowing retail development in residential zones up to a certain percentage of a subdivision's or apartment building's square footage (up to, say, 10%) so that homeowners could walk to some amenities withouthaving *381 their neighborhoods completely transformed. [FN561]
(3) Duplex homes and apartments should be permitted by law in all residential construction. [FN562] If a homeowner wants to rent out his basement, he or she should be allowed to do so. Restrictions on rental use of homeowners' property increase housing prices, [FN563] are far more intrusive than similar restrictions on commercial use, and increase auto dependency by artificially reducing population density.
(4) Municipalities should be required to permit home offices and telecommuting not involving show windows or exterior display advertising. [FN564] Just as Americans should be allowed to walk to work, they should be allowed to work at home.
(5) Municipalities should not be allowed to require businesses to provide more free parking than the market would dictate. [FN565] This rule would prevent government from subsidizing drivers by artificially increasing the supply of free parking, and would make streets more pedestrian-accessible by encouraging on-street parking (which buffers pedestrians from traffic). [FN566] Similarly, streets should be narrower so that pedestrians could cross more safely, [FN567] and on-street parking should be allowed as a matter of course. [FN568]
As a rule, metro areas with few zoning restrictions have cheaper housing. [FN569] For example, Houston has no zoning at all and is more affordable than other big cities. [FN570] It logically follows that in addition tomaking *382 American cities and suburbs more walkable and increasing property owners' freedom, zoning deregulation would have one other beneficial side effect: increasing the supply of low-rent, affordable housing and thereby limiting or even eliminating the demand for public housing [FN571] (which, as explained above, has turned cities into dumping grounds for the poor).


V. Conclusion
Suburban sprawl is not an invention of environmental extremists, but an issue that should cut across ideological lines. Sprawl exists in large part because of government policies favoring suburbia and forcing auto dependence, and can be at least partially remedied by policies that make government smaller and less intrusive. More importantly, sprawl reduces rather than enhances consumer choice--because when an American family moves to a suburb because they feel that they have to do so to educate their children decently, or buys an extra car because they think they cannot live without one, we are all a little less free.

(Footnotes omitted due to length of article)

Col. J. Envtl. L. article on how govt. sabotages transit
26 Colum. J. Envtl. L. 259


Columbia Journal of Environmental Law
2001


Article


*259 CAMPAIGN OF SABOTAGE: BIG GOVERNMENT'S WAR AGAINST PUBLIC
TRANSPORTATION


Michael Lewyn [FNa1]


Copyright ? 2001 Columbia Journal of Environmental Law; Michael Lewyn


I. Public Transit: Pros and Cons ....................................... 261
A. The Benefits of Transit ........................................ 261
B. The Inadequacy of Transit ...................................... 263
C. The Anti-Transit Story ......................................... 266
II. How Government Has Sabotaged Public Transit ......................... 267
A. Highway Policy ................................................. 267
1. How Government Put Highways In The Driver's Seat ............. 267
2. Highway Spending and Transit: Recipe for Reduced Ridership ... 270
a. First, Use Highways To Create Suburbs . . .................. 270
b. . . . Then Keep Transit Out Of The Suburbs ................. 273
B. Unfunded Mandates: How Big Brother Makes Transit Unaffordable .. 275
1. The Americans with Disabilities Act .......................... 275
2. Labor Laws that Limit Transit Operators' Ability to Reduce
Labor Costs ....................................................... 276
3. Limitations upon Transit Systems' Use of Parts Manufactured
in Foreign Countries .............................................. 277
4. Limitations on Charter and School Bus Service in Competition
with the Private Sector ........................................... 277
C. Other Anti-Transit Policies: Or, How To Attack Transit By
Attacking Cities .................................................. 278
1. Federal Housing Administration Mortgage Insurance ............ 278
2. Public Housing Policies that have Concentrated Poverty and
Crime in Cities ................................................... 279
3. Prestigious Schools for Suburbs and "Bad" Schools for Cities . 281
4. A Tax Code that Favors Driving and Suburban Life ............. 282
D. How Zoning Makes Suburbs Auto-Dependent ........................ 284
III. Does It Matter? ..................................................... 285
IV. Conclusion .......................................................... 287



*260 Introduction
Public transportation [FN1] helps the carless poor and disabled reach jobs and other opportunities, while reducing traffic congestion and air pollution by keeping cars off the road. Nevertheless, public transit has had limited political support in recent decades. Politicians and bureaucrats have used highways to create auto-oriented suburbs, while often failing to provide public transit to those suburbs. As a result, transit users are second-class citizens in most of America, and many Americans are compelled to pollute the air and congest the highways merely to work, shop, and play.
The political elite's failure to support public transit is based on the view that despite decades of state and federal support, transit ridership has dwindled and will inevitably continue to dwindle because of Americans' love of their automobiles--a claim that in turn is based on the assumption that government has in fact sought to promote public transit. This article criticizes that assumption, and explains that far from promoting public transit, government at all levels has sabotaged transit in a variety of ways: by building highways to suburbs unserved by public transit, by loading down transit systems with unfunded mandates, by using housing, education and tax policy to encourage migration to those suburbs, and by using zoning policy to make suburbs as auto-dependent as possible.


I. Public Transit: Pros and Cons

A. The Benefits of Transit
Public transportation benefits the public in at least four significant ways. First, public transit gives mobility to the millions of Americans who do not or cannot drive, including 24 million disabled Americans, [FN2] *261 5.4 million senior citizens, [FN3] and ninety four percent of welfare recipients. [FN4] By transporting the poor and the disabled to jobs and other opportunities, America's buses and trains help America meet a variety of social goals, including the Americans with Disabilities Act's goal of "welcom[ing] individuals with disabilities fully into the mainstream of American society" [FN5] and the 1996 Welfare Reform Act's [FN6] goals of "end[ing] the dependence of needy families on government benefits by promoting job preparation [and] work." [FN7]
Second, public transportation reduces air pollution. For example, buses emit only 1.54 grams of nitrogen oxide per passenger-mile (as opposed to 2.06 for single-person autos), 3.05 grams of carbon monoxide per passenger-mile (as opposed to 15.06 for single-person autos) and 0.2 grams of hydrocarbons per passenger-mile (as opposed to 2.09 for single-person autos). [FN8] Buses are likely to become even cleaner over the next decade or two. [FN9] As a result of federal programs and political *262 pressure, cities throughout America are purchasing buses using fuels that pollute less than do diesel buses. [FN10] A 1996 Federal Transit Administration study reports that if transit users drove cars everywhere, America's air would be afflicted with more than 126 million additional pounds of hydrocarbons and 156 million additional pounds of nitrogen oxide. [FN11]
Third, public transit reduces traffic congestion, because every person who is capable of driving but nevertheless chooses to ride public transit takes one automobile (his or her own) off the road. It follows that if public transit didn't exist, some cities would face startling increases in traffic congestion. For example, one study suggests that if New York City and its suburbs eliminated their public transit systems, the number of cars on the road would increase by 47.2% (or 1.9 million more cars). [FN12] Even more auto-dependent regions obtain some benefit due to public transit: for example, Los Angeles would have 6.2% more traffic without transit. [FN13]
Fourth, public transportation makes all Americans, even drivers, freer by giving them more flexibility: just as owning a car gives a driver the flexibility to go more places, owning a car and living near bus routes and train stops gives that driver the flexibility to go even more places in more ways.

*263 B. The Inadequacy of Transit
Despite the benefits of public transit, transit-dependent persons are second-class citizens in much of America. [FN14] A survey by the U.S. Commerce Department shows that only 54.4% of American households have any public transit at all available to them, and that only 28.8% claim to have satisfactory public transit. [FN15] Even in metropolitan areas with extensive transit systems, the majority of entry-level jobs are not transit-accessible. [FN16] For example, more than one-third of all entry-level jobs in the Baltimore region cannot be reached at all without an automobile, [FN17] the majority of entry-level jobs in metro Atlanta are not within a quarter mile of public transportation, [FN18] and residents of low-income neighborhoods in Cleveland could access less than half of metro *264 area jobs even with an eighty minute commute. [FN19] In smaller cities, a non-driver's life is more desperate still. For example, in Macon, Georgia (a city of 114,000 people), [FN20] sixteen percent of city households [FN21] (and fourteen percent of households in the county that includes Macon) [FN22] lack cars, yet city buses only operate until 6:45 PM in the evening on weekdays, Saturday service is limited, and no service is available on Sundays or holidays. [FN23] Because many entry-level employers require their newest employees to work evening and weekend shifts, Macon's bus schedule virtually shuts carless residents out of the job market. [FN24] Many of Macon's employers are not transit-accessible at all, because they are located on the area's periphery, far from any bus line. [FN25] By building highways, government has encouraged employers to relocate to such areas. [FN26]
American public transit is inadequate because transit is funded far less generously than highways: between fiscal year 1992 and 1999, states had more than $33.8 billion in federal funding available to spend on either highways or public transportation, but spent only 12.5% of that sum on public transit. [FN27] Nearly half of that 12.5% was spent by two states (New York and California) [FN28] and six states (Delaware, Kansas, Mississippi, North Dakota, South Dakota, and Wyoming) used none of their allotted money on mass transit. [FN29] Direct federal support for transit has only occasionally been more generous. Between 1980 and 1998, federal support for state and local public transit declined sharply in real terms, *265 increasing by only one-third while the cost of living nearly doubled. [FN30] During the same period, federal highway grants soared by 114%. [FN31]
As a result of these trends, transit agencies have periodically been forced to either raise fares or reduce service. For example, in 1995, Congress passed a budget reducing operating assistance [FN32] to public transit by over forty percent. [FN33] As a result, half of all American transit agencies raised fares, cut back service, and/or laid off workers in late 1995 and early 1996. [FN34] Similarly, in the early 1990s thirty-one percent of transit systems took similar steps [FN35] in order to pay costs imposed by the federal Americans with Disabilities Act [FN36] (which requires transit systems to spend $1.4 billion per year to make transit service accessible to the disabled). [FN37] Transit fares increased by 150% between 1980 and 1998, *266 while gasoline prices were decreasing. [FN38] As transit agencies raised fares and reduced service, transit ridership declined from 8.9 billion trips in 1989 to 7.7 billion in 1995. [FN39] Conversely, when federal support for transit increased in the late 1990s, [FN40] ridership rose to nine billion in 1999--the highest ridership level in forty years. [FN41]

C. The Anti-Transit Story
Why do so many American communities have so little transit service? Pundits and politicians justify the status quo on the ground that, in the words of U.S. Representative Tom DeLay, "mass transit . . . has failed in this country" [FN42] because "[p]ublic use of mass transit has fallen by two billion passengers since 1960, despite a taxpayers' investment of more than $100 billion during that same period of time." [FN43] Similarly, one newspaper columnist writes: "[f]or decades we have been bombarded with demands that we get out of our cars and into mass transit . . . . Nevertheless, we drive." [FN44] The "story" told by transit critics is a simple one: government spends money on public transit, and most people don't use it. Thus, public transit is a waste of money. [FN45]
This article tells a sharply different story: far from encouraging people *267 to use buses and trains, government at all levels has inadvertently sabotaged public transit. For nearly a century, governmental transportation, education, housing and tax policies have reduced transit ridership by encouraging Americans to move from transit-friendly cities to suburbs with little or no transit service. It logically follows that if government reverses those policies, transit ridership will continue to increase.


II. How Government Has Sabotaged Public Transit
Far from fighting a losing war against "America's romance with the automobile," [FN46] government has forced Americans into cars by eliminating non-drivers' access to jobs and community facilities. For most of the 20th century, government has funneled billions of dollars into highway construction. [FN47] Highway construction increased driving and reduced transit ridership by encouraging development to shift from older, transit-accessible areas to newer suburbs, most of which are inaccessible except by automobile. [FN48] In addition, government at all levels has reduced transit system revenues (and thus transit service) through unfunded mandates; [FN49] has adopted education, housing and tax policies that indirectly shifted development to suburbs; [FN50] and has enacted zoning laws that made those suburbs as auto-dependent as possible (thereby depressing transit ridership by making it more difficult for suburbanites to use transit). [FN51]

A. Highway Policy


1. How Government Put Highways In The Driver's Seat
Early in the 20th century, the state and federal governments began to build new roads. State and local governments could have levied user fees to force drivers to reimburse local treasuries for the costs of streets, *268 traffic maintenance, and police services, but instead frequently chose to subsidize drivers by relying on general taxation. [FN52] Thus, government essentially taxed the general public (including railroads and transit users) to support drivers. [FN53] By contrast, transit providers were typically private and unsubsidized. [FN54] To make matters worse, the government often controlled transit fares and, despite World War I-era inflation, did not allow them to rise. [FN55] Because government regulated streetcars while subsidizing drivers, one-third of American streetcar companies were bankrupt by 1919. [FN56]
Between 1919 and 1929, every state adopted a motor fuel tax and earmarked the revenue to fund highway construction projects. [FN57] By 1927, highways were second only to education as recipients of state and local expenditure, and one-third of state assistance to local government was for highway construction. [FN58]
In 1921, the federal government began to support highway building, by enacting the Federal Road Act [FN59] that designated 200,000 miles of road as eligible for federal matching funds, and by creating the Bureau of Public Roads to plan an interstate highway system. [FN60] By that date, government at all levels (federal, state, and local) was pouring $1.4 billion into highways. [FN61] Adjusted to present dollars, this amounts to $12.48 billion. [FN62] At the same time, most transit systems were privately *269 owned, received no government assistance, and paid taxes to support the highway system and other government functions. [FN63]
During the 1920s and 1930s, government's highway empire continued to grow. By 1940, government spent $2.7 billion--$30.95 billion in present dollars [FN64]--on highways. [FN65] By contrast, at that time the total operating costs of all intra-city bus and rail systems (except commuter rail) were $661 million--mostly private rather than governmental spending. [FN66]
In the postwar years, government intervention on behalf of highways accelerated. In 1950, government funneled $4.6 billion--$30.63 billion in present dollars [FN67]--into highways, and virtually nothing into transit. [FN68] In 1954, President Eisenhower appointed a committee on highways. The committee endorsed a massive highway spending plan that was enacted into law as the Interstate Highway Act, [FN69] which created a 41,000 mile Interstate Highway System. [FN70] Under the Highway Act, the federal government paid for ninety percent of the system's construction and maintenance costs, states paid ten percent, and municipalities paid nothing. [FN71] By contrast, the federal government did not begin to subsidize public transit until the 1960s. [FN72] In fact, between 1950 and 1970 vehicle miles of transit service declined nationally by thirty-seven percent. [FN73] Today, federal road spending exceeds federal transit spending by a margin of more than four to one. [FN74] Moreover, state governments are *270 often even more pro-road and anti-transit than the federal government; for example, some states require fuel tax revenues to be spent exclusively on roads, [FN75] and others have simply spent as little as possible on transit. [FN76]


2. Highway Spending and Transit: Recipe for Reduced Ridership


a. First, Use Highways To Create Suburbs . . .
State and federal pro-highway policies have reduced transit ridership by encouraging people and jobs to move from transit-friendly cities to newer suburbs. [FN77] At first, highways merely enabled commuters to live farther away from downtown jobs, thus giving commuters easy access to central business districts from once-distant suburbs. [FN78] However, where highway-driven residential development came, commercial development inevitably followed, as retail businesses moved to suburbs in order to serve those suburbs' new residents and other businesses followed their employees to suburbia. [FN79] As one federal court has pointed out, *271 "[h]ighways create demand for travel and [suburban] expansion by their very existence." [FN80]
For example, Washington's Capital Beltway, a sixty-six-mile long highway surrounding the city, was designed to allow East Coast motorists to bypass the city. [FN81] Instead, the Beltway became a magnet for office and retail centers that sprouted near Beltway exits, such as Tyson's Corner, a satellite downtown in Fairfax County, Virginia. [FN82] As suburbs grew more populated in Washington and in other cities, they grew more congested, which caused politicians to build even more suburban roads (ostensibly to relieve congestion) spurring development in even more suburbs. [FN83] In fact, each of the fifty largest metro areas in America added new road capacity in the 1980s and 1990s. [FN84]
As a consequence of government's road-building sprees, [FN85] among *272 other factors, [FN86] many older American cities suffered enormous population losses by the end of the 20th century. [FN87] At the end of World War II, roughly seventy percent of metropolitan Americans lived in central cities. [FN88] By 1990, only about forty percent of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN89] Jobs, as well as people, have fled to suburbia: today, two-thirds of all new jobs are in suburbs. [FN90]
Indeed, even organizations generally regarded as supportive of new roads and suburban expansion implicitly concede that highways affect the location of development. For example, in 1999 the National Association of Home Builders (which favors increased road spending) [FN91] *273 conducted a survey that asked respondents what amenities would encourage them to move to a new area; respondents' top choice (endorsed by fifty-five percent of respondents) was "highway access." [FN92] If highway access makes a suburb more desirable, it follows that government shifts people and jobs to a suburb by building highways there.


b. . . . Then Keep Transit Out Of The Suburbs
The state and federal governments' highway spending spree might not have eviscerated transit if those governments had served suburban employers and subdivisions with buses and rail lines. Instead, government effectively decreased service for non-drivers while increasing service for drivers: that is, government drove private transit companies out of business by funding competition from highways, [FN93] took over what was left of transit service, [FN94] and actually reduced transit service while it was doing so (by thirty-seven percent between 1950 and 1970). [FN95]
As a result, most of the suburbs created by government highway spending have minimal or nonexistent public transit. For example, the most transit-friendly American metro area is New York City and its suburbs, where transit systems provide fifty percent more service hours per capita than in the second best-served metro area. [FN96] Yet even in the New York area, courts have acknowledged that auto ownership is "a necessity and not a luxury in the suburbs where mass transit facilities are *274 not as readily available to residents as they are to city dwellers." [FN97] The situation in more auto-oriented metro areas is as bad or even worse: as noted above, the majority of entry-level jobs in metro areas as diverse as Baltimore, Cleveland, and Atlanta are inaccessible to transit-dependent urbanites or nearly so. [FN98] In fact, entire suburban counties lack transit service: Atlanta's second largest suburban county, Gwinnett County, which had a population of 522,000 people in 1998, had no public transportation whatsoever. [FN99] As a result, news stories throughout America routinely refer to cars as a "necessity." [FN100]
Indeed, even opponents of public transit spending admit that highway-created suburbs are far more auto-dependent than cities. For example, in 1995 U.S. Representative Nick Smith justified transit cutbacks on the *275 grounds that "[i]nstead of the jobs being in the inner city and the suburbs needing transportation downtown, now the jobs are outside of the cities. The main reasons for mass transit for tax dollar subsidies just [aren't] there anymore." [FN101] In other words, anti-transit politicians seek to grind transit users under the heel of a self-fulfilling prophecy: they have reduced demand for public transit by building highways that shifted jobs to suburbia, and now claim that transit service should be reduced still more because--thanks to their own policies--jobs have moved to suburbia.
In sum, government at all levels has systematically reduced public transit ridership by building highways that made newer suburbs possible, while often failing to create public transit service to those suburbs. But highway spending is merely the tip of government's anti-transit iceberg.

B. Unfunded Mandates: How Big Brother Makes Transit Unaffordable
In recent years, federal road spending has exceeded transit spending by a margin of over four to one. [FN102] Some commentators suggest that this gap is appropriate or even too narrow, because transit systems receive fifteen to twenty percent of all federal spending even though transit users comprise about five percent of all commuters. [FN103] This argument overlooks the fact that federal transit spending is at least partially canceled out by a variety of federal mandates.


1. The Americans with Disabilities Act
The Americans with Disabilities Act requires that transit providers make any newly purchased or leased bus or train "readily accessible to, and usable by individuals with disabilities," [FN104] and that transit systems *276 provide paratransit service [FN105] to individuals who, due to their disability, are unable to use traditional buses and trains without assistance, [FN106] need to travel at a time when buses or trains accessible to the disabled are unavailable, [FN107] or are unable to travel to a bus or train stop. [FN108] The ADA alone cost transit providers $1.4 billion per year in the mid-1990s, about one-third of federal transit spending. [FN109]


2. Labor Laws that Limit Transit Operators' Ability to Reduce Labor Costs
Section 13(c) of the Federal Transit Act, [FN110] a statute enacted to ensure that unionized transit workers did not lose their collective bargaining rights when local governments took over financially beleaguered private bus and rail lines, [FN111] in effect mandates "that transit agencies pay six years' wages and benefits to their employees affected by layoffs." [FN112] This statute alone may have cost transit providers $2-3 billion per year by the mid-1990s, [FN113] about half of all federal transit spending at that time. [FN114] The federal government also inflates transit systems' labor costs by imposing federally mandated wage rates for federally funded construction. [FN115]
*277


3. Limitations upon Transit Systems' Use of Parts Manufactured in Foreign
Countries [FN116]
The "Buy American" provisions of the Federal Transit Act provide that steel, iron and manufactured goods used in transit projects must be produced in the United States [FN117] unless the Secretary of Transportation chooses to waive this requirement. [FN118] Waivers are allowed if application of the "Buy American" statute is not in the public interest, American-made components are not of satisfactory quality, if the cost of including domestic material will increase the cost of the overall project by over twenty-five percent, or the cost of the American-made components is sixty percent of the cost of the goods at issue. [FN119] Contractors on transit projects must sign "Buy American Certificates" that describe the extent to which their goods are American-made. [FN120]


4. Limitations on Charter and School Bus Service in Competition with the
Private Sector [FN121]
The Federal Transit Act provides that a transit system receiving federal aid may not provide charter bus transportation service outside the urban area in which it provides regularly scheduled mass transportation service if the recipient will thereby "foreclose a private operator from providing intercity charter bus service if the private operator can provide the service." [FN122] The same act provides that transit systems receiving federal aid may not "provide schoolbus transportation that exclusively transports students and school personnel in competition with a private operator." [FN123]
Every dollar that transit systems spend or forego in order to comply with these federal rules and regulations is a dollar that they cannot use to expand or preserve service. In fact, transit agencies have occasionally reduced service in order to finance compliance with federal mandates: *278 for example, in the mid-1990s thirty-one percent of American transit agencies reduced service, raised fares or laid off employees in order to pay costs imposed by the Americans with Disabilities Act. [FN124]

C. Other Anti-Transit Policies: Or, How To Attack Transit By Attacking Cities
Highway spending is hardly the only government expenditure that has reduced transit use or moved jobs away from transit users. Over the past several decades, a wide variety of government policies have indirectly encouraged Americans to move to auto-dependent suburbs.


1. Federal Housing Administration Mortgage Insurance
Since 1934, the Federal Housing Administration (FHA) has insured long-term, low down payment mortgages against default. [FN125] By 1986, the federal government backed two-thirds of the single-family mortgages in the United States. [FN126] For many years, FHA guaranteed home loans only in "low-risk" areas. [FN127] FHA guidelines defined low-risk areas as areas that were thinly populated, dominated by newer homes, and had no African-American or immigrant enclaves nearby--areas that disproportionately tended to be suburban. [FN128] In fact, FHA manuals *279 specifically taught that the FHA should favor newer, lower-density areas because "crowded neighborhoods lessen desirability [and] older properties in a neighborhood have a tendency to accelerate the transition to lower class occupancy." [FN129] Public transit is less feasible in lower-density areas, because as houses and apartments are spread farther apart, fewer people can conveniently walk to bus and train stops. [FN130] So by bribing homeowners to move to low-density suburbs, the FHA inadvertently reduced transit ridership by causing population to shift to areas where public transit was inconvenient or inadequate.


2. Public Housing Policies that have Concentrated Poverty and Crime in Cities
Public housing policies, by concentrating poverty and crime in cities, have driven middle-class families out of cities and into auto-oriented suburbs. New Deal-era federal housing legislation provided that any municipality desiring public housing had to either create a municipal housing authority or cooperate with another city's housing authority. [FN131] Economically homogenous suburbs were able to avoid public housing by refusing to create or cooperate with housing authorities. [FN132] Moreover, the federal government's "equivalent elimination requirement" kept public housing out of suburbs by mandating that one unit of substandard housing be eliminated for each unit of public housing built. [FN133] Because most suburbs had little substandard housing, even suburbs that wished to participate in the public housing program were excluded. [FN134] As a result *280 of these limitations, many suburbs have little or no public housing. [FN135]
By law, public housing projects are packed with poverty: forty percent of all occupants of existing public housing must earn less than thirty percent of their metro area's median income. [FN136] Because homogeneously poor areas tend, other factors being equal, to be more crime-ridden than more affluent areas, [FN137] public housing projects are "havens for crime." [FN138] Nationally, public housing residents are two and a half times as likely as other Americans to be victimized by gun-related crimes--and some public housing projects are even more horrendous. [FN139] For example, Chicago's Robert Taylor Homes housing projects contain only one-half of one percent of that city's population, but account for eleven percent of the city's murders. [FN140] Similarly, a 1993 study found that the incidence of crime in the Los Angeles housing projects was three times greater than crime rates in surrounding high-crime neighborhoods. [FN141] By concentrating public housing in central cities, the federal government has concentrated poverty and crime in cities, thus accelerating the flight of the middle class and their employers to auto-oriented suburbs, [FN142] which in turn (as noted above) has reduced the share of people and jobs served *281 by public transit. [FN143]


3. Prestigious Schools for Suburbs and "Bad" Schools for Cities
Over the past several decades, many American parents have moved to suburbia in order to keep their children out of urban public schools. [FN144] This problem is in part a consequence of state governments' school assignment policies. In most of America, students are assigned to public schools based on their home addresses: [FN145] urban students must generally attend school within an urban school district, while suburban children attend suburban schools. Thus, a public school's student body typically reflects the city or neighborhood in which the students reside. Because cities tend to be more socially diverse than suburbs, [FN146] the average city school will nearly always have more low-income children than the average suburban school. Other factors being equal or nearly so, low-income children are harder to educate and achieve less than middle-income children, because "socioeconomic status (SES) and family background influence a student's achievement in school." [FN147] This is so because "children reared in low socioeconomic status [households] tend to be less intellectually stimulated and, consequently, tend to be less prepared for school which ultimately impacts on a child's achievements." [FN148] It follows that schools packed with low-income *282 children will usually be less prestigious than middle-class schools. Thus, so long as state and local laws require urban children to attend schools packed with low-income children, urban schools will have bad reputations that drive away middle-class parents.
In recent decades, the federal courts have widened the gap between city and suburb in the name of "desegregation:" the courts have often required cities to create racial balance in urban schools, [FN149] while allowing lily-white suburbs to continue maintaining lily-white schools. [FN150] These rulings ensured that city schools would be more racially diverse than suburban schools, which in turn meant that because blacks tend to be poorer than whites, [FN151] city schools, even those in affluent areas, would contain more low-income children than suburban schools. This desegregation, in turn has made city schools less prestigious and thus less appealing to middle- class families. [FN152] As noted above, when middle-class families flee to auto-dominated suburbs, they are more likely to drive to work, and transit ridership plummets.


4. A Tax Code that Favors Driving and Suburban Life
Employers may provide parking to their employees as a tax-free fringe benefit worth up to $170 a month, while the tax-free ceiling on transit passes is only sixty-five dollars per month. [FN153] To a much greater extent than European countries, America taxes income and savings rather than consumption. [FN154] Thus, the tax code encourages Americans to purchase space-consuming items and the large suburban houses necessary to house those items. [FN155] Moreover, state and federal fuel taxes are too small to recapture the social costs of driving, such as highway spending not paid *283 for by fuel taxes, [FN156] the costs of auto-induced air pollution, the costs of medical care resulting from auto collisions, the costs of military spending to protect Persian Gulf oil, and the costs of police enforcement of auto-related laws such as traffic and parking laws. [FN157]
These policies have combined to place older cities in a vicious spiral of decay: as middle-class families fled to the suburbs, urban tax bases diminished, causing local government to raise taxes or reduce services, further accelerating middle-class flight, creating additional pressures for tax increases, and so on. [FN158] As urban neighborhoods emptied out, middle-class families were replaced by poor ones, [FN159] causing crime to increase, [FN160] thus accelerating middle-class flight.
In turn, the middle-class exodus from older cities and neighborhoods has reduced transit ridership in two ways. First, as employees and employers fled cities, they relocated to suburbs with minimal public transit, reducing their opportunities to use public transit. [FN161] Second, such reductions in ridership have sometimes pushed public transit into a vicious spiral: reduced ridership was used to justify reductions (or to prevent improvements) in service, [FN162] which in turn reduced ridership, which decreased transit system revenues, causing additional service reductions and fare increases. [FN163]

*284 D. How Zoning Makes Suburbs Auto-Dependent
While the federal and state governments were driving Americans into suburbs, local governments were (with state and federal support) making those suburbs as auto-dependent as possible through zoning legislation. In the 1920s, the federal Department of Commerce drafted the Standard State Zoning Enabling Act (SZEA). [FN164] SZEA, which was quickly enacted by the majority of states, [FN165] granted municipalities power to regulate the location and use of buildings. [FN166] The SZEA declared that zoning laws would be designed to "prevent the overcrowding of land [and] to avoid undue concentration of population" [FN167]--in other words, to reduce population density. SZEA-inspired zoning ordinances have artificially reduced densities [FN168] by limiting apartment construction [FN169] or by forcing all lots in a neighborhood to be of a minimum size. [FN170] For example, in 1970 more than ninety-nine percent of vacant land in New Jersey was zoned to exclude multifamily housing, and in Connecticut's Fairfield County eighty-nine percent of vacant land was subject to minimum lot requirements of one acre or more. [FN171] Such anti-density *285 zoning reduces transit use because, as noted above, [FN172] public transit is less feasible in low-density areas: as residences are spread farther apart, fewer people can walk short distances to bus and train stops. By using highway spending to create suburbs while zoning those suburbs to be auto-dependent, government reduced transit providers' revenues in two ways: first, it reduced transit providers' urban ridership, and second, it made it difficult for transit providers to serve suburbanites. By reducing transit providers' revenues, government forced them to cut back service and raise fares, [FN173] thus causing ridership losses that caused additional revenue losses. [FN174]


III. Does It Matter?
It could be argued that no matter what government does to encourage transit use, the inherent advantages of autos make any attempt to increase transit patronage futile. Even transit supporters sometimes fall victim to fatalism: one pro-transit commentator complains that "[t]he popularity of the automobile has long been the bane of urban planners who wish to increase transit ridership [because of the public] preference for the convenience and freedom that the automobile represents." [FN175] The facts prove otherwise. If people have enough transportation options and density is high enough to make transit efficient, most people will use it. For example, seventy-four percent of commuters to New York's central business district use public transit to get to work, as opposed to 1.8% of commuters to Orlando's business district. [FN176] Surely New Yorkers and Floridians desire "freedom and convenience" equally, but in New York, government evidently does less to make transit inconvenient. [FN177] Even in *286 suburbia, transit can be an option. For example, in Rosslyn, one of Washington, D.C.'s suburban employment centers, [FN178] 20.1% of employees use transit to get to work, [FN179] more than in the central business districts of many major cities. [FN180] Transit-oriented employment centers such as Rosslyn and Manhattan have survived eighty years of government hostility to public transit: if government stopped sabotaging public transit, these centers might be even more transit-friendly. Government can increase transit use if it stops sabotaging areas already serviced by transit, [FN181] and eliminates zoning laws that make transit inefficient by artificially reducing suburban population density. [FN182] Even if the state and federal governments do not increase transit funding by one cent, they can increase transit service and give Americans more transportation choices if they take a few actions.
* Stop funding highways and road widenings in suburbs with minimal or nonexistent public transit, because, as noted above, such highways shift development to auto-dominated suburbs. [FN183]
* Compensate transit systems for unfunded mandates that increase transit systems' costs, or eliminate such mandates altogether. [FN184]
* Break the link between schooling and residence, by allowing urban children to attend prestigious suburban and/or private schools rather than marooning them in urban schools with bad reputations. [FN185]
*287 * Reform the tax code to favor work and saving over the consumption of fuel and land. [FN186]
* Prohibit local governments from enacting zoning laws--such as minimum home and lot sizes and restrictions on apartment buildings--that artificially reduce density. [FN187]


IV. Conclusion
Far from "bombarding [Americans] with demands that we get out of our cars and into mass transit," [FN188] government has bombarded Americans with reasons to drive everywhere: highways that make it convenient to relocate to suburbs, zoning laws that make those suburbs as auto-dominated as possible, FHA loans that have bribed Americans to move to those suburbs, school systems that march middle-class families from city to suburb, and public housing projects that scare them away from urban neighborhoods. If we want a society where Americans are free to leave the driving to someone else, we need not drag Americans out of their cars. Rather, all we need to is to consign government's anti-transit policies to the ash heap of history.

(footnotes omitted due to length of article)

Hastings law review article on ADA and public transit
52 Hastings L.J. 1037


Hastings Law Journal
July, 2001


Articles


*1037 "THOU SHALT NOT PUT A STUMBLING BLOCK BEFORE THE BLIND": THE AMERICANS
WITH DISABILITIES ACT AND PUBLIC TRANSIT FOR THE DISABLED


Michael Lewyn [FNa1]


Copyright ? 2001 Hastings College of the Law; Michael Lewyn

The Bible states: "Thou shalt not . . . put a stumbling block before the blind." [FN1] Yet American governments at all levels have done exactly that, by making jobs and other opportunities unavailable to the 24 million [FN2] disabled Americans dependent on public transit, including 1.1 million blind Americans, [FN3] and some of the 3.2 million *1038 Americans [FN4] who are severely visually impaired. [FN5] Specifically, the state and federal governments have, by building highways to suburbs with minimal or nonexistent public transportation and through a variety of other policies encouraging migration to suburbs, redistributed jobs and other civic opportunities to those suburbs. [FN6] By redistributing development to areas without effective public transit, government has systematically excluded the blind and other transit-dependent Americans from employment, shopping, and other opportunities. [FN7]
The federal government has sought to better the lot of the disabled through the Americans with Disabilities Act (ADA), [FN8] which, inter alia, ordered local governments to make bus and train systems more accessible to the disabled. [FN9] But in fact, the ADA has not met its goal of "welcom[ing] individuals with disabilities fully into the mainstream of American society." [FN10]
The ADA imposed costly requirements upon local public transit systems but did not give local governments funds with which to satisfy this mandate. [FN11] By reducing the funds available to transit systems, the *1039 ADA has sometimes forced cutbacks in transit service for everyone [FN12] (including, ironically, the disabled to the extent that disabled people were able to use public transit before the ADA's enactment). [FN13]
The ADA does not forbid such cutbacks, because it "does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service." [FN14] In other words, the ADA does not require that disabled transit users be made equal to the auto-using majority. Instead, that statute requires merely that disabled transit users be made equal to other transit-dependent Americans. It follows that if a state or local government is not interested in aiding the transit-dependent disabled, it can freeze the disabled out of the transportation system by slashing service for all users of public transit [FN15]--even if it increases spending on highways and other driver-related services. [FN16] Thus, government can and does make the transit-dependent disabled second-class citizens by making all nondrivers second-class citizens.
*1040 Part I of this Article describes how federal, state and local transportation policies (and to a lesser extent, a variety of other public policies) disable the transit-dependent disabled. Part II describes the evolution of black-letter law governing public transit for the disabled: the first pre-ADA attempts to make public transit accessible to the disabled, and then the ADA itself and case law thereunder. Part III explains why the ADA is inadequate and sometimes even counterproductive, and Part IV suggests a variety of reforms to end government's exclusionary transportation policies.


I. How Big Brother Disables the Disabled
It has been suggested that employment and social opportunities for the disabled have improved in recent decades [FN17]--and in some respects this may be so. [FN18] But for most [FN19] of the 24 million transit-dependent disabled Americans, [FN20] life has become harder as America has become more auto-dependent. This Part explains how life has become more difficult for transit-dependent Americans in recent decades, and shows how government created this problem by driving people and jobs away from transit hubs and into auto-dominated suburbs.

A. Transit-Dependent Americans as Second-Class Citizens
Once upon a time, almost every metropolitan American could go anywhere with streetcar fare and his or her feet; in the first decades of the 20th century, developable urban real estate was typically within walking distance of streetcar lines. [FN21] Even today, one can comfortably survive without a car in a few American cities. [FN22] But in some smaller *1041 cities [FN23] and in even more suburbs, auto ownership is virtually mandatory for a normal life. [FN24] Because two-thirds of all new jobs are now created in suburbs, many workers need a car just to get to work. [FN25] In fact, a survey by the U.S. Commerce Department shows that only 54.4% of American households have any public transit at all available to them, and that only 28.8% claim to have satisfactory public transit. [FN26]
Even in metropolitan areas with extensive transit systems, the majority of entry-level jobs are not transit-accessible. [FN27] For example, the Boston region has a central city with a well-developed transit system and a commuter train system that serves many of its suburbs. [FN28] But even in Greater Boston, just 32% of entry-level employers are within one-quarter mile of transit, 43% are within one-half mile, and 58% are within one mile. [FN29] Only 14% of entry-level jobs can be reached by transit within an hour from Boston's poorer *1042 neighborhoods. [FN30] Similarly, more than one-third of all entry-level jobs in the Baltimore region cannot be reached at all by bus or train. [FN31]
The situation is even worse in Sun Belt cities. For example, Atlanta's second largest suburban county (Gwinnett County, which had 522,000 people in 1998) has no public transportation whatsoever, [FN32] and even some neighborhoods within the Atlanta city limits have virtually no bus service. [FN33] Not surprisingly, less than half of Atlanta-area entry-level jobs are located within a quarter-mile of a public transit route. [FN34] And Atlantans know their public transit system is unsatisfactory: a recent survey revealed that only 22% of metro Atlantans regard their region's public transit system as good or excellent--a percentage that nosedived to as low as 7% in some counties. [FN35]
And in smaller cities, a nondriver's life is more desperate still. For example, in Macon, Georgia (a city of 114,000 people), [FN36] 16% of city households [FN37] (and 14% of households in the county that includes Macon) [FN38] lack cars, yet city buses only operate until 6:45 PM in the evening on weekdays, Saturday service is limited, and there is no service on Sundays or holidays. [FN39] Because many entry-level employers require their newest employees to work evening and weekend shifts, this system virtually shuts many of Macon's carless *1043 residents out of the job market. [FN40] And many of Macon's employers are not transit-accessible at all, because they are located on the area's periphery, far from any bus line. [FN41] As a result, Macon's employers of unskilled labor often ask would-be employees whether they have a car--and if the answer is no, the applicant won't be hired. [FN42]
Macon's transportation system limits a wide variety of other activities as well. The two largest Kroger supermarkets in Macon are not on bus lines, nor is a large discount supermarket, FoodMax, or a new Publix supermarket. [FN43] Conversely, a largely abandoned shopping center where anchor tenant K-Mart closed in 1991 is served by the system--but a new K-Mart is not. [FN44] Churches are not served by the system at all, because churches tend to be most active on Sundays and weekday evenings, when the bus system is shut down. [FN45] Even on the bus system's limited routes, the frequency of service is so minimal as to discourage use. For example, students who use public transit to attend Macon College must devote the entire day to the ordeal. After rising before 6 AM to catch the first bus from their homes to the downtown transfer station, students must catch a morning bus from downtown to the college at 7:30 AM. Later in the day, they have only one opportunity to return home. [FN46] Needless to say, drivers suffer from none of these limitations: government has built a toll-free, 24-hour system to serve them, and by building highways further and further away from downtown Macon, has encouraged employers to relocate to areas not served by bus routes. [FN47] So in Macon, as in most of America, the transit-dependent disabled are more isolated than ever.
*1044 Not surprisingly, the disabled have become poorer as suburbia has sprawled beyond the reach of public transportation. For example, in 1988, at the eve of the ADA's passage, men with disabilities earned 36% less than their non-disabled counterparts, as opposed to only 23% less in 1980. [FN48] Similarly, in 1988 women with disabilities earned 38% less than their non-disabled counterparts, as opposed to only 30% in 1980. [FN49] Since the passage of the ADA, employment levels among the disabled have continued to stagnate. [FN50] There is no way of knowing to what extent inadequate transportation (as opposed to other factors) [FN51] caused this problem--but transportation problems undoubtedly render the disabled less employable. [FN52] According to one pre-ADA poll, 28% of unemployed Americans with disabilities blamed lack of transportation for their unemployment. [FN53] For example, Jay Rochlin, then the Executive Director of the President's Committee on Employment of Disabilities, informed Congress in 1988:
*1045 It makes little sense to protect an individual from discrimination in employment if, for example, they have less than adequate accessible public transportation services. We have conducted surveys in 45 communities over the last seven years, and, consistently, inaccessible transportation has been identified the major barrier, second only to discriminatory attitudes. [FN54] If inaccessible transportation keeps the disabled unemployed, it logically follows that the decay of public transit in recent decades has had something to do with the growth of poverty and unemployment among the disabled.


(1) How Government Has Sabotaged Public Transit
It could be argued that America's auto dependency is a natural result of affluence [FN55] or of "America's romance with the automobile." [FN56] But in fact, government has, in a wide variety of ways, eliminated nondrivers' access to jobs and community facilities.
For most of the 20th century, government has funneled billions of dollars into highway construction. [FN57] Highway construction immobilizes the disabled by shifting development from areas accessible to the transit-dependent disabled to areas inaccessible except by automobile. [FN58] In addition, government at all levels has reduced transit system revenues through unfunded mandates, [FN59] has adopted education and housing policies that indirectly shifted development to suburbs, [FN60] and has enacted zoning laws that made those suburbs as auto-dependent as possible (thereby reducing transit ridership and transit system revenues). [FN61] All of these policies have immobilized the transit-dependent disabled, either by shifting development to areas with minimal or nonexistent public transit or by starving transit systems of revenue that they could have used to expand service to such areas.


*1046 (2) Highway Policy


(a) How Government Put Highways in the Driver's Seat
Early in the 20th century, state and federal governments began to build new roads. State and local governments could have levied user fees to force drivers to reimburse local treasuries for the costs of streets, traffic maintenance, and police services--but instead frequently chose to subsidize drivers by relying on general taxation. [FN62] Thus, government essentially taxed the general public (including railroads, transit users, and rail users) to support drivers. [FN63] By contrast, streetcar services were typically private and unsubsidized. [FN64] To make matters worse, streetcar fares were often controlled by government and, despite World War I-era inflation, were not allowed to rise. [FN65] Because government regulated streetcars while subsidizing drivers, one-third of American streetcar companies were bankrupt by 1919. [FN66]
Between 1919 and 1929, every state adopted a motor fuel tax and earmarked the revenue therefrom to fund highway construction projects. [FN67] By 1927, highways were second only to education as recipients of state and local expenditure, and one-third of state assistance to local government was for highway construction. [FN68]
In 1921, the federal government began to support highway building, by enacting a Federal Road Act [FN69] that designated 200,000 miles of road as eligible for federal matching funds, and by creating a Bureau of Public Roads to plan an interstate highway system. [FN70] By *1047 that date, government at all levels (federal, state, and local) was pouring $1.4 billion into highways. [FN71] By contrast, most transit systems were privately owned, received no government assistance, and paid taxes to support the highway system and other government functions. [FN72]
During the 1920s and 1930s, government's highway empire continued to grow. By 1940, government spent $2.7 billion on highways. [FN73] By contrast, at that time the total operating costs of all intracity bus and rail systems (except commuter rail) were $661 million, and most of that sum was financed by private spending. [FN74]
In the postwar years, government intervention on behalf of highways accelerated. In 1950, government funneled $4.6 billion into highways, and virtually nothing into transit. [FN75] And in 1954, President Eisenhower appointed a committee on highways chaired by Lucius Clay, a member of the General Motors board of directors. [FN76] Not surprisingly, the committee endorsed a massive highway spending plan. That scheme was enacted into law as the Interstate Highway Act, [FN77] which created a 41,000 mile Interstate Highway System. [FN78] Under the Act, the federal government paid for 90% of the system's construction and maintenance costs, states paid 10%, and municipalities paid nothing. [FN79] By contrast, the federal government did not begin to subsidize public transit until the 1960s. [FN80] In fact, between 1950 and 1970 vehicle miles of transit service declined nationally by 37%. [FN81] Today, federal road spending exceeds transit *1048 spending by a margin of more than 5-1. [FN82] Moreover, state governments are often even more pro-road and anti-transit than the federal government; for example, some states require fuel tax revenues to be spent exclusively on roads. [FN83]


(b) How Highway Spending Harms the Transit-Dependent
As noted above, many American suburbs have minimal (or even nonexistent) public transit. [FN84] Highways caused jobs and community activities to move to these auto-dependent suburbs, thus depriving the transit- dependent of jobs and other opportunities.
At first, highways merely enabled commuters to live farther away from downtown jobs, thus giving commuters easy access to central business districts from once-distant suburbs. [FN85] But where highway-driven residential development came, commercial development inevitably followed, as retail businesses moved to suburbs in order to *1049 serve those suburbs' new residents and other businesses followed their employees to suburbia. [FN86] As one federal court has pointed out, "[h]ighways create demand for travel and [[suburban] expansion by their very existence." [FN87]
For example, Washington's Capital Beltway, a 66-mile long highway surrounding the city, was designed to allow East Coast motorists to bypass the city. [FN88] But instead, the Beltway became a magnet for office and retail centers that sprouted near Beltway exits, such as Tyson's Corner, a satellite downtown in Fairfax County, Virginia. [FN89] And as suburbs grew more populated, they grew more congested, which caused politicians to build even more suburban roads (ostensibly to relieve congestion) thus spurring development in even more suburbs. [FN90] A study by the Surface Transportation Policy Project showed that each of the 50 largest metro areas in America added new road capacity in the 1980s and 1990s. [FN91]
*1050 As a consequence of (among other factors) [FN92] government's road-building sprees, [FN93] many older American cities had suffered enormous population losses by the end of the 20th century. At the end of World War II, roughly 70% of metropolitan Americans lived in central cities. [FN94] But by 1990, only about 40% of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN95] Some central *1051 cities have been devastated by sprawl: for example, St. Louis has lost 60% of its population since 1950, while Buffalo and Cleveland have lost over 45% of their population. [FN96] The cities that have gained population have grown either by being hubs for immigration from other countries (like New York and Los Angeles) or by annexing newly developed areas that would be considered suburbs in other cities (like Little Rock, Indianapolis, and Albuquerque). [FN97] Jobs, as well as people, have fled to suburbia: [FN98] about 95% of the 15 million new office jobs created in the 1980s were in suburbs, [FN99] and suburbs captured 120% of net job growth in manufacturing. [FN100]
Indeed, even organizations generally regarded as supportive of new roads and suburban expansion implicitly concede that highways affect the location of development. For example, in 1999 the National Association of Home Builders (which favors increased road spending) [FN101] conducted a survey that asked respondents what amenities would encourage them to move to a new area, and their top choice (endorsed by 55% of respondents) was "highway access." [FN102] If highway access makes a suburb more desirable, it follows when the government builds a suburban highway, people and jobs move to locations near highway exits.


*1052 (c) Throwing the Disabled (and Everyone Else) Off the Bus
The state and federal governments' highway spending spree would not have harmed the disabled if those governments had built buses and trains to bring the transit-dependent to suburban jobs and civic centers. But instead, government effectively decreased service for nondrivers while increasing service for drivers: that is, government drove private transit companies out of business by funding competition from highways, took over what was left of transit service, and actually reduced transit service while it was doing so. [FN103]
During the first half of the 20th century, governments at all levels poured billions into highways while buses, trains and streetcars were privately owned and had to make do without government subsidy. [FN104] In fact, governments actually taxed streetcar companies to support highway spending, [FN105] and starved streetcar companies of revenue by limiting fares. [FN106]
While the federal government was funding the interstate highway system in the 1950s and 1960s, local governments began to take over failing transit systems. [FN107] But local governments did not increase transit service so that riders could reach auto-oriented suburbs. Instead, government reduced transit service in two ways: first by building highways to places unserved by public transit [FN108] (thus causing opportunities to migrate to those areas) [FN109] and second by reducing service to places that already had public transit. Between 1950 and 1970, vehicle miles of public transit service declined nationally by 37%. [FN110] According to a legislative finding contained in the Urban Mass Transportation Act, "in the early 1970's continuing even minimal mass transportation service in urban areas was threatened." [FN111]
*1053 The federal government began to support public transit in the early 1960s, [FN112] but today federal road spending exceeds transit spending by about a 5-1 margin. [FN113] And some suggest that even this sum is too much, because transit systems receive 15-20% of all federal spending even though transit users comprise about 5% of all commuters. [FN114] This argument overlooks the fact that federal transit spending is canceled out by a variety of federal mandates, including (1) the ADA itself, which alone cost transit providers $1.4 billion per year in the mid-1990s, about 1/3 of federal transit spending, [FN115] (2) labor laws that limit transit operators' ability to reduce labor costs [FN116] (which alone may cost transit providers $2-3 billion per year, [FN117] about half of all federal transit spending), [FN118] (3) imposition of federally mandated wage rates for federally funded construction, [FN119] (4) limitations upon transit systems' use of parts manufactured in foreign countries, [FN120] and (5) limitations on charter and school bus service in competition with the private sector. [FN121] Every dollar that transit *1054 systems spend or forego in order to comply with these federal rules and regulations is a dollar that they cannot use to expand or preserve service.


(3) Other Anti-Transit Policies
Moreover, highway spending is hardly the only government expenditure that has reduced transit use or moved jobs away from transit users. Over the past several decades, a wide variety of government policies have indirectly encouraged Americans to move to areas unserved by public transit, including:
* Federal Housing Administration mortgage insurance. Since 1934, the Federal Housing Administration (FHA) has insured long-term, low down-payment mortgages against default. [FN122] By 1986, the federal government backed 2/3 of the single-family mortgages in the United States. [FN123] For many years, FHA guaranteed home loans only in "low-risk" areas. [FN124] Specifically, FHA manuals taught that the FHA should favor newer, lower-density areas because "crowded neighborhoods lessen desirability [and] older properties in a neighborhood have a tendency to accelerate the transition to lower class occupancy." [FN125] Public transit is less feasible in lower-density areas, because as houses and apartments are spread farther apart, fewer people can conveniently walk to bus and train stops. [FN126] So by *1055 bribing homeowners to move to low-density suburbs, the FHA inadvertently reduced transit ridership by causing population to shift to areas where public transit was inconvenient or nonexistent. Such population shifts caused reductions in transit service, both because declining ridership arguably justifies reductions in service [FN127] and because jobs eventually followed people to the suburbs [FN128] (thus reducing the number of jobs accessible to transit-dependent urbanites).
* Zoning policies that made suburbs as auto-dominated as possible. In the 1920s, the federal Department of Commerce drafted the Standard State Zoning Enabling Act (SZEA). [FN129] SZEA, which was quickly enacted by the majority of states, [FN130] granted municipalities power to regulate the location and use of buildings. [FN131] The SZEA declared that such legislation would be designed to "prevent the overcrowding of land [and] to avoid undue concentration of population" [FN132]--in other words, to reduce population density. SZEA-inspired zoning ordinances have reduced densities by limiting apartment construction [FN133] or by forcing all homes in a neighborhood to be the same size. [FN134] For example, in 1970 more than 99% of vacant land in New Jersey was zoned to exclude *1056 multifamily housing, and in Connecticut's Fairfield County 89% of vacant land was subject to minimum lot requirements of one acre or more. [FN135] Such anti-density zoning reduces transit use because, as noted above, [FN136] public transit is less feasible in low-density areas: as residences are spread farther apart, fewer people can walk short distances to bus and train stops. So by using highway spending to create suburbs while zoning those suburbs to be auto-dependent, government reduced transit providers' revenues in two ways: first by reducing transit providers' urban ridership, and second by making it difficult for transit providers to serve suburbanites. And by reducing transit providers' revenues, government forced them to cut back service to transit-dependent individuals. [FN137]
* Public housing policies that, by concentrating poverty and crime in cities, drove middle-class families out of cities. New Deal-era federal housing legislation provided that any municipality desiring public housing had to create a municipal housing authority or to cooperate with another city's housing authority. [FN138] Thus, economically homogenous suburbs were able to avoid public housing by refusing to create or cooperate with housing authorities. [FN139] Moreover, the federal government's "equivalent elimination requirement" kept public housing out of suburbs by mandating that one unit of substandard housing be eliminated for each unit of public housing built. [FN140] Because most suburbs had little substandard housing, even suburbs that wished to participate in the public housing *1057 program were excluded. [FN141] As a result of these limitations, many suburbs have little or no public housing. [FN142] Public housing projects are by law packed with poverty: 60% of all occupants of existing public housing must earn less than 30% of their metro area's median income. [FN143] Because homogeneously poor areas tend, other factors being equal, to be more crime-ridden than more affluent areas, [FN144] public housing projects are "havens for crime." [FN145] Nationally, public housing residents are two and a half times as likely as other Americans to be victimized by gun-related crimes--and some projects are even more horrendous. [FN146] For example, Chicago's Robert Taylor Homes housing projects contain only one-half of 1 percent of that city's population, but account for 11% of the city's murders. [FN147] Similarly, a 1993 study found that crime in the Los Angeles housing projects was three times greater than crime rates in surrounding high-crime neighborhoods. [FN148] So by concentrating public housing in central cities, the federal government has concentrated poverty and crime in cities, thus accelerating the flight of the middle class and their employers to suburbia, [FN149] which in turn (as noted above) both reduces the share of people and jobs served by transit and, by reducing ridership, justifies reductions in transit service. [FN150]
*1058 * Prestigious schools for suburbs and "bad" schools for cities. Over the past several decades, many American parents have moved to suburbia in order to keep their children out of urban public schools. [FN151] This problem is a consequence of state governments' school assignment policies. In most of America, students are assigned to public schools based on their home addresses: [FN152] urban students must generally attend school within an urban school district, while suburban children attend suburban schools. Thus, a public school's student body typically reflects the city or neighborhood in which the students reside. Because cities tend to be more socially diverse than suburbs, [FN153] the average city school will nearly always have more low-income children than the average suburban school. Other factors being equal, low-income children are harder to educate and achieve less than middle-income children, because "socioeconomic status (SES) and family background influence a student's achievement in school." [FN154] This is so because "children reared in low socioeconomic status [households] tend to be less intellectually stimulated and, consequently, tend to be less prepared for school which ultimately impacts on a child's achievements." [FN155] It logically follows that as long as state and local laws require urban children to attend schools packed with low-income children, urban schools will drive away middle-class parents. And as noted above, when middle-class families flee to auto-dominated suburbs, the businesses that cater to them and *1059 employ them eventually do so as well, [FN156] thus reducing opportunities for transit-dependent Americans. [FN157]
* A tax code that favors driving and suburban life. Employers may provide parking to their employers as a tax-free fringe benefit worth up to $170 a month, while the tax-free ceiling on transit passes is only $65 per month. [FN158] To a much greater extent than European countries, America taxes income and savings rather than consumption. [FN159] Thus, the tax code encourages Americans to purchase space-consuming items and the large suburban houses necessary to house those items. [FN160]
These policies have combined to place older cities in a vicious spiral of decay: as middle-class families fled to the suburbs, urban tax bases diminished, causing politicians to raise taxes or reduce services, further accelerating middle-class flight, creating additional pressures for tax increases, and so on. [FN161] And as urban neighborhoods emptied out, middle-class families were replaced by poor ones, [FN162] thus causing crime to increase, [FN163] thus accelerating middle-class flight.
In turn, the middle-class exodus from older cities and neighborhoods has adversely affected transit-dependent Americans (including, of course, the disabled) in two ways. [FN164] First, as employers fled cities, they relocated to places with minimal public transit, thus reducing the number of jobs accessible to transit-dependent Americans. [FN165] Second, as middle-class families left the city, they also *1060 abandoned urban transit systems, pushing public transit into a vicious spiral: reduced ridership could be used to justify reductions in service, [FN166] which in turn reduced ridership, which decreased transit system revenues, causing additional service reductions and fare increases ad infinitum. [FN167]


II. Disability Law and Transit-Dependent Americans

A. Historical Background: Before the ADA
As early as the 1970s, the federal government sought to expand disabled Americans' access to public transportation.
Section 16(a) of the Urban Mass Transportation Act (UMTA), [FN168] enacted in 1970, [FN169] provided that:
elderly and handicapped persons have the same right as other persons to utilize mass transportation facilities and services; that special efforts shall be made in the planning and design of mass transportation services so that the availability to elderly and handicapped persons of mass transportation that they can effectively utilize will be assured . . . . [FN170]
Section 504 of the Rehabilitation Act of 1973 similarly provided that:
[n]o otherwise qualified person with handicaps in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to *1061 discrimination in any program or activity receiving Federal financial assistance. [FN171]
Congress then enacted section 165(b) of the Federal-Aid Highway Act of 1973 (FAHA), which directed that:
projects receiving Federal financial assistance . . . shall be planned, designed, constructed, and operated to allow effective utilization by elderly and handicapped persons who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability . . . are unable without special facilities or special planning or design to utilize such facilities and services effectively . . . . The Secretary shall not approve any program or project to which this section applies which does not comply with the provisions of this subsection requiring access to public mass transportation facilities, equipment, and services for elderly or handicapped persons. [FN172]
To implement these statutory mandates, the federal Department of Transportation (DOT) promulgated regulations in 1976 requiring transit systems to make "special efforts in planning public mass transportation facilities and services that can effectively be utilized by elderly and handicapped persons." [FN173]
Two days before the DOT regulations were published, [FN174] President Ford issued Executive Order 11,914, [FN175] which required the Department of Health, Education and Welfare (HEW) (now the Department of Health and Human Services) [FN176] to coordinate implementation of the policy of nondiscrimination announced in the Rehabilitation Act.
HEW's guidelines, issued in 1978, required all recipients of federal funds to make public transportation "readily accessible to and usable by handicapped persons." [FN177] Specifically, HEW required retrofitting of subways and buses to make those modes of transportation fully accessible to the disabled. [FN178]
HEW guidelines also discussed the role of paratransit--that is, transportation provided upon request by a disabled individual rather *1062 than on fixed routes. [FN179] HEW stressed that transit systems should offer the disabled access to public transit "in the most integrated setting appropriate" [FN180] but added that HEW did not construe the guidelines "to preclude in all circumstances the provision of specialized services [targeted to the disabled] as a substitute for, or supplement to, totally accessible services." [FN181]
In 1979, DOT promulgated regulations in compliance with the HEW guidelines. Those regulations mandated across-the-board alterations to ensure that all transportation facilities were made accessible to handicapped persons. [FN182] For example, the DOT mandated that every bus purchased after July 2, 1979 have a wheelchair lift, and that at the end of ten years half of all transit system buses be wheelchair-accessible. [FN183] The 1979 regulations were immediately challenged by the American Public Transit Association, a trade association of public transit systems. [FN184] In American Public Transit Association (APTA) v. Lewis, [FN185] the U.S. Court of Appeals for the District of Columbia Circuit invalidated the regulations. The court interpreted the Rehabilitation Act's nondiscrimination requirement to mean that transit systems must take "modest, affirmative steps to accommodate handicapped persons" [FN186] and held that DOT's regulations were not authorized by the statute because they "require extensive modifications of existing systems and impose extremely heavy burdens on local transit authorities." [FN187] The court remanded the case to DOT so the agency could determine whether its regulations were authorized by UMTA or FAHA. [FN188]
In response, DOT promulgated more modest interim regulations rather than issuing a final set of regulations. [FN189] The interim regulations contained two noteworthy provisions. First, the regulations contained a "local option" provision allowing transit systems to choose whether to accommodate the disabled through *1063 making buses more accessible to the disabled, establishing a separate paratransit system, or using disabled-accessible buses for some areas and paratransit for others. [FN190] Second, the interim Regulations contained a "safe harbor" provision relieving transit systems of their obligation to serve the disabled as long as they spent three and a half percent of funds on such services. [FN191]
In December of 1982, Congress enacted the Surface Transportation Act of 1982 (STAA), which required DOT to issue regulations establishing minimum criteria for the provision of services to the disabled. [FN192] The primary purpose of STAA was not to "specify any substantive standard" [FN193] but to "prod DOT into action following the 1981 remand of the regulations in APTA v. Lewis." [FN194]
Nevertheless, DOT did not issue final regulations until 1986. [FN195] The regulations maintained the interim regulations' local option provision, and established minimum service criteria for transit-only systems (that is, systems that proposed to serve the disabled solely through fixed-route transit), [FN196] paratransit systems, and mixed systems combining fixed-route transit and paratransit. The minimum service criteria required, inter alia, that transit service for the disabled be comparable in hours, days of service, service area, and fares to service for the non-disabled. [FN197] In addition, the regulations maintained the interim regulations' "safe harbor" provision. The safe harbor provision stated that transit systems were not required to spend more than 3% of operating costs on service for the disabled, even if, as a result, they did not meet the DOT's minimum service criteria. [FN198]
In ADAPT v. Skinner, seven disabled individuals and disability rights organizations challenged the local option and safe harbor provisions of the regulations. Plaintiffs argued that the local option provision was invalid because the law required "mainstreaming" (that is, that fixed-route buses and trains be accessible to the disabled even *1064 in jurisdictions providing paratransit service) and that the safe harbor provision was arbitrary and capricious. [FN199] The U.S. Court of Appeals for the Third Circuit rejected the first argument and endorsed the second. The court upheld DOT's local option rule, because none of the relevant statutes (the Rehabilitation Act, UMTA, FAHA and STAA) expressly required mainstreaming, [FN200] because case law thereunder had generally rejected mainstreaming, [FN201] and because DOT's local option rule was "adequately supported by record evidence of the relative costs and benefits." [FN202] The court also relied on the doctrine that in "the absence of a clear congressional mandate . . . [courts should] defer to an agency's interpretation of the relevant statute in its regulations." [FN203]
By contrast, the court held that the 3% safe harbor provision was "arbitrary and capricious" [FN204] because "under the safe harbor provision, cities could deny to the disabled the minimum quality of service mandated by the Congress with impunity." [FN205] The court explained that "according to DOT, if the 3% safe harbor were implemented, cities of less than one million people in which the transit authorities implemented a paratransit-only system would virtually never meet all of the applicable service criteria" [FN206]-- a result that was not contemplated by Congress. [FN207] In fact, the 3% safe harbor violated STAA because that statute required DOT to establish minimum service criteria, and the safe harbor rule allowed transit operators in all but the largest cities to avoid meeting those criteria. [FN208]

B. Why Pre-ADA Law Was Inadequate
After ADAPT, many transit systems sought to make their buses available to the disabled; by 1990, 35% of America's buses, and half of all newly acquired buses, were accessible to the disabled. [FN209]
*1065 Nevertheless, Congress believed that "17 years of experience with [[the Rehabilitation Act] . . . have demonstrated the need for further legislative action in this area." [FN210] Under the local option rules, a transit system could comply with DOT regulations solely by making their buses and trains accessible to the disabled [FN211] while failing to meet the needs of the 1.4 million Americans [FN212] who required additional assistance to use public transportation. [FN213] For example, individuals with severe vision impairments cannot use ordinary trains and buses without assistance if they are traveling in unfamiliar surroundings or have only recently lost their vision. [FN214] Similarly, "chronic fatigue . . . a lack of cognitive ability to remember and follow directions, or a special sensitivity to temperature" [FN215] may prevent an individual from traveling to a bus stop.
Conversely, a local government could seek to meet the needs of the disabled solely through paratransit, but this option also could not accommodate all disabled transit users. The House Education and Labor Committee found that paratransit was often inadequate
for the following reasons, among others; the need to make reservations in advance often conflicts with one's work schedule or interests in going out to restaurants and the like; the cost of rides when used frequently is often exorbitant; limitations on time of day and the number of days that the paratransit operates; waiting time; restrictions on use by guests and nondisabled companions who are excluded from accompanying the person with a disability; the expense to the public agency; and restrictions on eligibility placed on use by social service agencies. [FN216]
For example, one disabled witness from Indianapolis testified that he was forced to rely on that city's paratransit services because his city had only six buses with wheelchair lifts, and that one day when he was released from a hospital, the transit agency "called to say that they could not pick me up even though I had scheduled my ride three weeks in advance . . . there are more than 100 persons on a *1066 waiting list to utilize this very limited form of accessible public transportation." [FN217] Congress sought to solve these problems by enacting the ADA.

C. The ADA's Requirements
Section 202 of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." [FN218] Much of Title II of the ADA [FN219] clarifies this general rule by explaining what transit systems must do to avoid "discrimination" against the disabled.
The ADA's most significant transit-related provisions, Sections 222 and 223, [FN220] require transit systems to provide the disabled with both accessible fixed route service and paratransit. Section 222 provides that any public entity that purchases or leases a new bus, rapid rail vehicle, or light rail vehicle, must make the vehicle "readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." [FN221] However, nothing in Section 222 requires public entities to purchase or lease new vehicles, or even to provide any transit service at all. Thus, a public entity can avoid Section 222 by reducing transit service. [FN222]
Section 222 specifically "mandates lifts [for wheelchairs] on every new public transit bus." [FN223] The House Committee on Public Works and Transportation added that
[a]lthough individuals who use wheelchairs are specifically referenced, the concept of making a vehicle readily accessible to and usable by individuals with disabilities involves more than simply making it available to an individual using a wheelchair. For example . . . this section may require vehicles to incorporate non-slip floors for individuals whose disabilities cause balance problems *1067 or specific visual information for the hearing-impaired. [FN224]
Transit systems may not evade ADA requirements by purchasing used vehicles that are not accessible to the disabled, because a transit agency may not purchase or lease used buses or trains unless it "makes demonstrated good faith efforts to purchase or lease a used vehicle for use on such system that is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." [FN225] Similarly, transit systems may not evade the ADA by remanufacturing buses or trains, because all remanufactured transit vehicles must be "to the maximum extent feasible, readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." [FN226]
Section 223 requires all government agencies operating fixed route systems to provide paratransit service as a "safety net" for disabled individuals incapable of using conventional public transit. [FN227] Such service must be "sufficient to provide to [disabled] individuals a level of service . . . comparable to the level of designated public transportation services provided to individuals without disabilities using such system." [FN228] Specifically, paratransit systems should have response times [FN229] and service areas [FN230] comparable to those of fixed *1068 route service. Paratransit services must be provided to (1) disabled individuals who are unable, due to their disability, to board, ride or disembark from buses or trains without the assistance of another individual (other than the operator of a wheelchair lift or other boarding assistance device); [FN231] (2) any disabled individual who needs a wheelchair lift or other boarding assistance device to board, ride or disembark from any vehicle which is readily accessible to and usable by individuals with disabilities if the individual wants to travel at a time when fixed route vehicles with such assistance devices are not available; [FN232] (3) individuals who can travel on a bus or train but cannot, due to their disability, travel to a bus or train stop; [FN233] and (4) to persons traveling with disabled individuals eligible for paratransit service. [FN234]
Like Section 222, Section 223 essentially requires state and local governments to provide comparable transit service for disabled and non-disabled alike, but does not prohibit governments from reducing transit service for everyone. [FN235] Moreover, government agencies need not comply with Section 223 if doing so "would impose an undue financial burden on the [[agency]." [FN236] In such situations, transit *1069 systems need only provide paratransit services "to the extent that providing such services would not impose such a [undue] burden." [FN237] Transit systems must prepare paratransit plans after a public hearing and public comment, [FN238] and submit such plans annually to DOT for its approval. [FN239] Should DOT find that a plan does not satisfy ADA requirements, it must disapprove the plan, and the transit system must submit a modified plan. [FN240] A transit system must comply with its own paratransit plan. [FN241]
Sections 222 and 223 are the most widely applicable provisions of the ADA because fixed-route bus systems serve more riders than rail systems or demand-responsive service. [FN242] ADA provisions governing demand-responsive systems, [FN243] new transit facilities (such as rail stations and bus terminals), [FN244] and rail systems echo Sections 222 and 223. For example, the ADA requires demand-responsive systems to make new vehicles accessible to the disabled, [FN245] and requires new *1070 transit facilities [FN246] and alterations of existing facilities [FN247] to be accessible to the disabled.
The ADA also requires that rail systems go beyond merely improving new or altered facilities. Specifically, it requires that "key" rail stations (such as stations with high ridership, end-of-the-line stations, and stations at which riders likely to transfer between rail lines or between buses and trains) [FN248] be made accessible to the disabled within three years, [FN249] and that all rail systems operating multi-car trains have "at least 1 vehicle per train that is accessible to individuals with disabilities . . . as soon as practicable but in no event later than the last day of the 5-year period beginning on the effective date of this section." [FN250]
Title II of the ADA (which encompasses the public transportation provisions discussed above) provides that the remedies set forth in the Rehabilitation Act [FN251] shall govern actions involving discrimination relating to government programs. [FN252] The House Judiciary Committee explained that the ADA, like the Rehabilitation Act, provides for a private right of action. [FN253]
Finally, the ADA required the DOT to issue regulations implementing its transit-related provisions, [FN254] which the DOT did in 1991. [FN255] In addition to interpreting some of the ADA provisions addressed above, [FN256] DOT regulations addressed a wide variety of issues not directly addressed by the ADA. For example, DOT regulations:
*1071 * require that vehicles already accessible to the disabled remain accessible [FN257] and gave specific directions as to how wheelchair lifts should be maintained; [FN258]
* provide that paratransit fares may not exceed twice the fixed-route fare for a comparable ride; [FN259]
* prohibit paratransit providers from imposing restrictions on priorities based on an individual's trip purpose; [FN260]
* require that certain major bus stops should be announced for disabled passengers; [FN261]
* provides that where numerous bus routes serve one bus stop, transit systems shall provide means by which visually impaired individuals may identify the proper vehicle to enter; [FN262]
* require that disabled passengers be allowed to travel with portable oxygen supplies [FN263] and service animals; [FN264]
* require that disabled passengers be provided with adequate information about public transportation; [FN265]
* require that certain bus and train seats be designated as priority seating for the disabled; [FN266] and
* set forth means of administrative enforcement of the ADA. [FN267]
In addition to issuing regulations, DOT simultaneously issued guidelines interpreting those regulations. [FN268] Parts of these guidelines merely restate the regulations, but others are less obviously based on the ADA or the regulations. For example, the guidelines clarify that paratransit service may be either door-to-door or curb-to-curb and that paratransit service may therefore take an individual to an accessible transit stop rather than to an ultimate destination, [FN269] and interpret the nondiscrimination requirement of the ADA to mean that obnoxious conduct associated with a disability does not justify *1072 exclusion of disabled passengers unless it represents a direct threat to other riders. [FN270]

D. ADA Case Law
Case law interpreting the ADA's public transportation provisions has been quite sparse, perhaps because many disputes under the ADA settle. [FN271] Nevertheless, a few decisions have interpreted those provisions, and will be discussed below.


(1) Service Reductions
Hassan v. Slater [FN272] is arguably the most far-reaching case decided under the ADA's transit-related provisions. In Hassan, a disabled commuter alleged that a transit agency's decision to close a nearby rail station [FN273] violated the ADA. Because of the station's closure, the nearest station would be four miles from the plaintiff's home--too far for plaintiff to walk, and too far for plaintiff to afford a taxicab ride to the station on a regular basis. [FN274]
The court denied plaintiff's request for a preliminary injunction, holding, inter alia, that he had "not established a likelihood of success on the merits." [FN275] The court explained that "[i]t does not appear that the ADA requires the [transit system] to keep all of its stations open . . . rather, the ADA only requires that [it] make new stations and its designated key stations fully accessible to and usable by people with disabilities." [FN276] The transit agency's decision to close a station did not breach the latter requirement, because "the station closing affects all potential users, not merely disabled users." [FN277]
*1073 The Hassan court could simply have stated that because the station at issue was not a new facility or a "key station," [FN278] the ADA was irrelevant. Instead, the Hassan court apparently went out of its way to point out that a transit system has a right to terminate service as long as it harms disabled and nondisabled transit users equally--a ruling that would seem to apply to buses and key stations, as well as to non-key stations.
The Hassan court's view is not unique: another district court has noted that "the ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service." [FN279] Similarly, the DOT has noted that "the ADA does not attempt to meet all the transportation needs of individuals with disabilities . . . the ADA is intended simply to provide to individuals with disabilities the same mass transportation service opportunities everyone else gets, whether they be good, bad or mediocre." [FN280]
This view is not directly foreclosed by the text of the ADA, which appears to focus on equal treatment between disabled and non-disabled transit users. For example, the ADA provides that if a government chooses to finance public transit, transit vehicles must be made accessible to the disabled, [FN281] and paratransit service must be "comparable to the level of designated public transportation services provided to individuals without disabilities." [FN282] But as the Hassan court pointed out, the ADA does not explicitly require state and local governments to provide transit service to anyone, nor does it state how much transit service to provide to individuals without disabilities. Thus, a local government can, under Hassan, comply with the ADA by eliminating public transportation entirely--hardly a result consistent with the ADA's goal of "welcom[ing] individuals with disabilities fully into the mainstream of American society . . . [by ensuring that] this country can continue to make progress in providing much needed transit services for individuals with disabilities." [FN283] Obviously, the ADA's purpose is not satisfied when transit service is reduced rather than increased.
*1074 If politically powerful majorities used public transit, the majority could not reduce transportation to the disabled without reducing transportation for itself. But in reality, transit users are a disorganized, dispossessed minority. Transit riders are disproportionately poor, [FN284] and have no lobby that makes political contributions (unlike auto- and highway-related interests). [FN285] Not surprisingly, politicians use public transit as a whipping boy whenever money is scarce: federal highway grants to state and local governments increased by 150% between 1980 and 1999, [FN286] while public transit grants nosedived in real terms, increasing by only 27% while the cost of living nearly doubled. [FN287] And over the long term, as noted above, transit-dependent Americans have fewer opportunities than they once did because of the movement of jobs to transit-free suburbia. [FN288]
So by limiting transit service to the disabled to the same level as transit service to everyone else, the Hassan court essentially interpreted the ADA to mean that one group of second-class citizens (the disabled) is equal to another group of second-class citizens (other transit-dependent Americans)--hardly a result consistent with the ADA's ideals. It follows that Hassan, although consistent with the ADA's text, is hardly consistent with its egalitarian goals.


(2) Service Slip-Ups
Most ADA claims, by contrast, have involved narrow issues and been decided upon narrow grounds. For example, in Midgett v. Tri-County Transportation District, [FN289] a wheelchair user contended that *1075 "he would like to travel to work by bus, but because of [a local transit agency's] alleged failure to adequately train its bus operators and failure to maintain the wheelchair lifts" [FN290] his mobility was impeded in violation of the ADA. On one cold morning, a bus stopped for plaintiff but the bus's wheelchair lift was inoperable due to cold weather. [FN291] That very same day, plaintiff was unable to board two other buses due to similar maintenance problems. [FN292] Plaintiff accordingly sought a preliminary injunction requiring "a laundry list of augmented practices" [FN293] including, inter alia, improved data collection, improved bus driver training, a media outreach program to increase awareness among bus riders of lift access and complaint procedures, a backup system to ensure against lift failure in cold weather, a dedicated customer service line for lift users, and revised scheduling procedures to allow sufficient time for inspections. [FN294]
The court refused plaintiff's request for injunctive relief, for two reasons. First, the court found that "the desired corrective action has already been taken." [FN295] For example, the transit agency's maintenance department had recently begun using a new hydraulic fluid that enabled its wheelchair lifts to operate more consistently in cold weather. [FN296] Second, although "plaintiff points to occasional lift problems he and other wheelchair passengers have encountered, when viewed in the larger context of [[the] entire fixed-route system . . . the occasional lift problems do not violate the ADA or its implementing regulations." [FN297]
Thus, Midgett holds that occasional inaccessibility problems, as opposed to a pattern of incompetence, do not violate the ADA if a transit agency has taken steps to eliminate the problem; it is not clear from Midgett whether plaintiff's problems with wheelchair lifts would have been actionable had the transit authority did nothing. As a practical matter, Midgett suggests that the courts will not meddle in a *1076 transit system's management merely because service breaks down occasionally.
But other cases, such as James v. Peter Pan Transit Management, Inc., [FN298] hold that service breakdowns may violate the ADA if they are sufficiently egregious. In James, a wheelchair-using plaintiff claimed that she had "experienced numerous problems with CAT Connector [a local demand-response system] due to inoperable CAT Connector wheelchair lifts and improperly trained CAT Connector drivers." [FN299] After describing plaintiff's complaint, the court enumerated nineteen separate examples of CAT Connector incompetence. [FN300]
The court denied defendants' [FN301] summary judgment motion because plaintiff had submitted evidence that the bus service had repeatedly failed to check wheelchair lifts to determine whether they were operable (which in turn caused lifts to become inoperable), failed to promptly repair vehicles with defective lifts, and did not train drivers to operate lifts. [FN302] Thus, a issue of fact requiring trial existed as to whether defendants "adequately maintained and repaired its CAT Connector wheelchair lifts and adequately trained its employees to operate the lifts." [FN303]
Similarly, Cupolo v. Bay Area Rapid Transit [FN304] granted a preliminary injunction requiring a transit agency to repair its elevators. The Cupolo plaintiffs, a class of individuals with mobility disabilities, alleged that they were repeatedly unable to use the elevators at a transit agency's key rail stations. For example, in one fourteen-month period there were 76 separate incidents in which passengers were trapped in elevators. [FN305] The court found that the transit agency's own documents indicated "widespread problems," [FN306] that the "much of the [agency's] maintenance work has been fairly cursory," [FN307] that the agency "has had difficulty obtaining replacement parts in a timely manner . . . [which] has exacerbated problems with *1077 repairing elevators speedily," [FN308] and that the agency's "inability to perform through preventive maintenance . . . has probably been a significant factor behind the problems encountered by class members." [FN309] In sum, the transit agency's problems constituted "a pattern of unreliable elevator service that cannot accurately be characterized as isolated or temporary interruptions." [FN310]
Because the ADA requires transit systems to make key rail stations accessible to disabled persons, and unreliable elevator service "resulted in the denial of access to [trains] to individuals with mobility disabilities," [FN311] the court found that plaintiffs had demonstrated a strong likelihood of success on their ADA claim. The court further found that the transit agency's plan to repair its elevators did not render the suit moot, because many of the elevators' problems had not been resolved. [FN312] The court accordingly granted a preliminary injunction requiring that the elevators in the transit agency's key stations be repaired. [FN313]
Despite their varying results, James and Cupolo are consistent with Midgett: the former cases hold that a transit agency violates the ADA through consistently inadequate service, while the latter case holds that isolated service problems do not violate that statute.


(3) Establishing Disability
In Hamlyn v. Rock Island County Metropolitan Mass Transit District, [FN314] the court made it clear that a person who is "disabled" for other ADA-related purposes is also "disabled" for purposes of the ADA's public transit provisions, and that all disabled persons are entitled to equal treatment regardless of the cause of their disability.
The Hamlyn plaintiff, who suffered from AIDS, sought to be included in a county program reducing bus fares for disabled *1078 passengers. [FN315] The program's application form, however, stated: "WHO DOES NOT QUALIFY: A. Applicants whose sole disability is . . . AIDS." [FN316] The court held that because AIDS is a disability under the ADA, [FN317] and the ADA bars discrimination by reason of disability, [FN318] the ADA's language barred the transit agency from excluding persons disabled by AIDS. [FN319] Thus, Hamlyn stands for the proposition that just as a transit agency cannot discriminate against the disabled generally, it also may not discriminate against persons with one particular type of disability--a result clearly supported by the ADA's provision that "no qualified individual with a disability shall, by reason of such disability . . . be subject to discrimination by any [public] entity." [FN320]
The case of Weinreich v. Los Angeles County Metropolitan Transit Authority [FN321] addressed a different eligibility issue: whether a plaintiff can be required to pay to prove his disability. Between 1982 and 1992, the Weinreich plaintiff participated in a transit agency's reduced fare program. [FN322] In 1992, the transit agency promulgated a rule requiring disabled participants to provide medical information recertifying that they are disabled. [FN323] In 1993, plaintiff sought an exemption from this rule on the ground that he could not afford to pay a doctor to recertify his condition. [FN324] The transit agency refused to grant an exemption, and refused to renew plaintiff's eligibility for the program. [FN325] Plaintiff then filed suit [FN326] under the ADA, asserting that the ADA mandated "reasonable modifications whenever a state imposes a requirement that prevents qualified disabled people from having 'meaningful access' to a state-provided benefit." [FN327] The court *1079 disagreed, holding that plaintiff's lack of access to the reduced fare program was based not upon his disability, but upon his failure to prove his disability (and in particular upon his poverty, which prevented him from proving disability). [FN328] In other words, the ADA bars discrimination due to disability, but does not bar transit systems from imposing fees that adversely affect the poorest among the disabled. This rule, although seemingly hard-hearted, seems consistent with the ADA. That statute apparently contemplates that transit authorities may on occasion charge fares unrelated to ability to pay; for example, DOT regulations authorize transit systems to charge more for paratransit than for conventional bus service. [FN329]


(4) Alterations of Facilities
Two separate ADA provisions provide that if a public transit or commuter rail agency alters its facilities, such alterations must, "to the maximum extent feasible . . . [be] readily accessible to and usable by individuals with disabilities." [FN330] The case of Molloy v. Metropolitan Transit Authority [FN331] applied this rule to a commuter railroad's attempt to automate ticket sales at a commuter rail station.
In Molloy, a group of individuals and organizations representing the interests of blind and visually impaired riders challenged the railroad's decision to remove ticket clerks from numerous commuter rail stations, and to substitute ticket vending machines at a majority of those stations. [FN332] Plaintiffs sought a preliminary injunction against the staff reduction plans, and the railroad argued in response that the ADA was inapplicable because no "alterations" to its facilities occurred. [FN333]
The court separately addressed the removal of the ticket clerks and the installation of the vending machines. As to the first issue, the court held that such staffing changes did not constitute "alterations" within the meaning of the ADA, for three reasons. First, the language of the ADA (which refers to "alterations" to stations or *1080 facilities) [FN334] inherently suggests a physical alteration to a structure rather than a change in personnel. [FN335] Second, DOT regulations interpreting the ADA support this view, because the regulations list numerous examples of "alterations," all of which involve physical changes to facilities rather than personnel changes. [FN336] Third, the ticket clerks only worked at the station until 1 PM. So if the removal of ticket clerks constitutes an "alteration," "every day at one o'clock the station [would be] altered in contravention of the statute" [FN337]--obviously an absurd result.
By contrast, the installation of ticket vending machines was clearly an "alteration" to the station, because it was a physical change that would require additional wiring and communications lines. [FN338] The railroad argued that the installation of the machines was not an alteration because the alterations, like such primitive changes as the installation of a bench, could be removed. The court disagreed, explaining: "[i]t is easy to imagine, however, how the installation of a bench in a station could block an otherwise wheelchair-accessible path, or otherwise render a station less accessible to the disabled." [FN339] The court nevertheless declined to grant an injunction because plaintiffs could purchase tickets through other means and would thus not be irreparably harmed by the installation of the machines. [FN340]
Molloy appears to be consistent with the ADA's language, in that it defines "alterations" to "facilities" as physical alterations rather than other changes affecting the quality of service. As the court pointed out, any other holding would have led to bizarre results.


(5) Paratransit
Cases under the paratransit provisions of the ADA have been decided upon the narrowest of grounds. In O'Connor v. Metro *1081 Ride, [FN341] a disabled couple sued a transit provider for personal injuries suffered after a paratransit driver left them at the end of a driveway instead of helping them into a friend's house. [FN342] The husband sought to push his wheelchair-using wife into the friend's doorway, but instead fell down the latter's stairs, causing both husband and wife to be injured. [FN343] Plaintiffs then sued the transit agency under, among other grounds, the ADA.
The transit system argued that the ADA did not require it to provide plaintiffs with door-to-door service, because the ADA and DOT regulations require only "origin-to-destination" service. [FN344] The court held that it did not need to define the scope of the term "origin-to-destination," reasoning: "[b]ecause Defendants incorporated door-through-door service in the paratransit plan they proposed to the Department of Transportation, they may be liable under the ADA." [FN345] This ruling was based upon Section 223(e)(4) of the ADA, which provides that the term "discrimination" includes the failure "to provide paratransit or other special transportation services in accordance with the plan or modified plan the public entity submitted to [DOT]." [FN346] In other words, a transit agency must follow the paratransit plan it submits to the DOT--even if that plan is more ambitious than the ADA would otherwise require. O'Connor appears to follow the plain meaning of the statute, and therefore should not be particularly controversial. [FN347]
State courts as well as federal courts have interpreted the ADA's paratransit provisions. In Sells v. New Jersey Transit Corp., [FN348] the court upheld a state transit agency's decision to deny paratransit services to a mentally retarded plaintiff. Plaintiff applied for paratransit service on two separate grounds.
*1082 First, plaintiff claimed that he was generally unable to use fixed-route transit. [FN349] But plaintiff himself testified at a hearing that he "was still sometimes using regular fixed route bus service." [FN350] Because the evidence showed that plaintiff rode ordinary buses, the court rejected his claim that he could not do so. [FN351]
Plaintiff also claimed that even if he was generally able to use fixed-route service, he was no longer able to safely walk from his residence to the nearest bus stop for the route he used to get to work, because the nearest bus stop was three miles away, and he could no longer cut through a field that he had previously been able to cut across. [FN352] The state agency disagreed, finding that plaintiff in fact lived only half a mile from the bus stop, and because (despite the absence of sidewalks on his route) there was a grass median that he could use. [FN353] The court affirmed without much discussion, stating that the state agency's findings "that the expressed dangers were less severe than originally described and that the actual distance was less than the original calculation . . . have ample support in the record." [FN354]
Sells stands for the proposition that a disabled person (other than one with a walking-related disability) is not entitled to paratransit merely because he cannot conveniently or pleasurably travel to a bus stop--for example, if he has to walk 1/2 mile on a street without sidewalks. Rather, the bus stop must be virtually impossible to reach. This view is probably consistent with the DOT's regulations, which provide that a person is ineligible for paratransit only when "a reasonable person with the impairment-related condition in question would be deterred from making the trip." [FN355] Nevertheless, Sells reduces the mobility of the ambulatory disabled, because unfavorable conditions such as the absence of sidewalks are likely to ensure that some individuals will walk to a bus stop only if absolutely necessary. [FN356]
The case of Pfister v. City of Madison [FN357] was far simpler. In Pfister, plaintiff appealed a city's denial of her application for paratransit service, on the ground that her impaired vision, mobility *1083 impairments and migraine headaches required her to use such service. The court agreed with the city's decision, based on "testimony from a paratransit driver that on several occasions [plaintiff] had asked to be dropped off at one location and would then make her way to her ultimate destination on her own, and that this involved traveling several blocks." [FN358] Such testimony established that plaintiff was capable of walking to a bus stop and thus did not need paratransit. [FN359]
The Pfister court's dictum may be more noteworthy than its holding. In response to the city's argument that many people with impairments similar to plaintiff's disabilities rode fixed-route buses, the court responded: "it is irrelevant what other riders do, since the question is whether [plaintiff] is prevented from traveling to a boarding location." [FN360] Thus, Pfister suggests that a plaintiff's eligibility for paratransit should be determined solely by reference to plaintiff's own capacities, as opposed to those of other persons with similar problems.


(6) Damages
In addition to addressing when injunctive relief is appropriate for minor service breakdowns, the Midgett court addressed the question of when damages were an appropriate remedy for violations of the ADA's public transit provisions. Specifically, that court held that "compensatory damages are not available under Title II of the ADA absent a showing of discriminatory intent or, at a minimum, deliberate indifference." [FN361] Because no evidence of discriminatory *1084 intent was presented in Midgett, the court granted summary judgment as to plaintiff's claim for compensatory damages.


III. The ADA: Inadequate or Counterproductive?

A. At Best Inadequate . . .
The purpose of the ADA is to provide mobility to the disabled. [FN362] But the ADA's requirements (at least under current case law) are inadequate to achieve this goal.
The ADA requires that most of the same buses and trains that are available to the general public be made accessible to the disabled as well. [FN363] And transit systems have to some extent met this narrow goal. [FN364] But the ADA does not state how much service must be provided either to the disabled or to the general public. As a result, courts have suggested that disabled transit users may receive minimal service as long as other riders are similarly immobilized. For example, the Midgett court wrote that "the ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service." [FN365] Similarly, the Hassan court wrote that the ADA does not prohibit major reductions in service (such as the closing of a train station) as long as the cutback "affects all potential users, not merely disabled users." [FN366]
It logically follows that a government may meet its obligations under the ADA by reducing rather than increasing transit service. For example, suppose county X does not want to go to the expense of providing transit service to the disabled. It can comply with the ADA and cut costs by refusing to provide transit service for anyone, as *1085 many municipalities have in fact done. [FN367] For example, in Tulsa, Oklahoma, the city council voted first to eliminate, and later to drastically limit, a bus route from suburban Sand Springs to downtown Tulsa because paratransit for Sand Springs would have cost at least two and a half times the cost of fixed-route service. [FN368]
Such policies are by no means politically impossible or even infrequent. Transit-dependent Americans are a small minority of the electorate, [FN369] are disproportionately low-income, [FN370] and, unlike highway users, are supported by no significant lobby that can make campaign contributions to candidates. [FN371] As a result, transit has had far less political support than automobiles and highways. While highway spending has dramatically increased over time no matter how tight the fiscal constraints affecting the rest of government, [FN372] transit spending has gone up and down depending on the strength of federal, state and municipal finances. For example, governmental support for public transit operating expenses [FN373] actually decreased by about 20% in real terms between 1990 (the year of the ADA's enactment) [FN374] and 1996. [FN375]
The ADA apparently does not require that disabled transit users be made equal to the auto-using majority: instead, it requires only *1086 that they be made equal to other transit-dependent Americans, [FN376] who in most of small-town and suburban America are also second-class citizens. [FN377] If the federal government had followed similar principles when it enacted civil rights laws addressing racial discrimination, [FN378] it would have required that African-Americans be treated identically to other then-despised minorities (for example, homosexuals) rather than being treated identically to the white majority--obviously an absurd result. A policy that would be absurd when applied to African-Americans has been unsuccessful when applied to disabled Americans: some studies suggest that disabled Americans are as poor today as they were in 1990. [FN379]

B. Or Counterproductive?
If the ADA had merely allowed transit systems to eliminate bus routes or avoid creating service where none existed, it would have been at worst harmless. But in practice, the ADA actually gives transit systems an incentive to reduce transit service for everyone. [FN380]
As noted above, in the late 1990s the ADA cost transit authorities about $1.4 billion a year [FN381]--more than 1/3 of all federal *1087 transit subsidies for some years. [FN382] But the federal government did not help state and local governments pay the cost of the ADA's mandates; instead, the federal government actually reduced transit spending while it was dumping the costs of transporting the disabled upon state and local transit systems. Between 1990 and 1996, the federal government increased total transit spending by less than the rate of inflation, [FN383] and reduced operating subsidies by over 40%. [FN384]
By both reducing subsidies and imposing the ADA's costs on transit agencies, the federal government took a huge bite out of transit agencies' revenues. If $1.4 billion in ADA costs [FN385] are subtracted from the total of federal transit grants, federal support for transit was cut nearly in half, after adjusting spending totals for inflation, between 1990 and 1999. [FN386]
And because federal spending cuts were targeted to operating subsidies [FN387] (which disproportionately fund small-city, bus-only transit [FN388] systems used primarily by the poor and the disabled) [FN389] as *1088 opposed to capital spending (which primarily funds rail projects in a few big cities), [FN390] those cutbacks disproportionately affected the transit-dependent poor and disabled.
Not surprisingly, most transit agencies raised fares and cut service during the early and mid-1990s. In late 1995 and early 1996 alone, half of all American transit agencies raised fares, cut back service, and laid off workers due to reductions in federal operating assistance. [FN391]
But transit service would have been reduced even if the federal government had not reduced assistance to transit systems, because the ADA essentially pitted disabled riders against other passengers. In May 1995 (six months before the harshest federal budget cuts were enacted), [FN392] a survey by the American Public Transit Association (a transit system trade association) [FN393] revealed that 31% of transit systems had reduced service, increased fares, or laid off employees to meet the costs of ADA compliance, and 29% were considering doing so. [FN394] For example, in 1997 suburban Chicago's bus system, Pace, increased paratransit services, but financed the increase by eliminating eight bus routes and increasing paratransit fares by one-third. [FN395]
Other transit agencies eliminated or reduced fixed-route bus service in order to avoid spending money on comparable paratransit service. For example, Henrico County, Virginia reduced evening bus service after the ADA was enacted, because it was not willing to *1089 spend $500,000 to provide evening service to paratransit users. [FN396] In such a situation, everybody loses: paratransit users get no more service, and fixed-route riders get less.
If no disabled persons had been able to use public transit before the ADA's enactment, it could be argued that the ADA benefited the disabled by shifting resources from nondisabled transit users to disabled transit users. But this was not the case. In fact, many disabled Americans have always been able to use buses and trains that do not fully comply with ADA standards: for example, blind Americans could generally use fixed-route buses before the ADA was enacted. [FN397] By and large, the ADA's reforms were targeted towards paratransit users [FN398] (who constitute a small minority of disabled nondrivers) [FN399] and wheelchair users. [FN400] Thus, the ADA, by reducing service to the citizenry as a whole, actually reduced service to those disabled persons who used public transit before its enactment (that is, disabled persons other than wheelchair users).
Indeed, even paratransit users sometimes suffer from the ADA, in two ways. First, as noted above, the ADA as written gives transit systems a financial incentive to eliminate bus routes for everyone in order to reduce its obligations to paratransit users. A transit system need only provide paratransit service to persons living within 3/4 of a mile of a bus or rail stop [FN401]--so if the system eliminates a bus route, it also eliminates its obligation to serve disabled persons living near that route. [FN402] In fact, some transit systems have eliminated bus routes for *1090 that very purpose. [FN403] Second, transit systems have been forced to eliminate paratransit service for persons living outside the 3/4 mile limit in order to finance other ADA requirements. For example, in Lafayette, Indiana, the local bus system limited paratransit service to persons living within the 3/4 mile limit in order to finance service for persons living within that territorial limit. [FN404]
The ADA's purpose was to increase transit service for the disabled - but in fact the ADA has, by reducing transit agencies' revenues, sometimes reduced transit service for the disabled.


IV. Solutions
The ADA, as interpreted by the courts, is fatally flawed because instead of requiring that the disabled be given comparable transportation to the auto-using majority, it requires only that the disabled be given as much transportation as other transit-dependent Americans [FN405]--which is to say, not much. [FN406] This means that where, as in most of America, transit-dependent Americans are an impoverished minority, the transit-dependent disabled, too, are an impoverished minority. It follows that if the disabled are to achieve anything resembling equality of transportation opportunities, the disabled must be given opportunities equal to those given to drivers. This Part proposes a variety of transportation-related [FN407] reforms that, if enacted, will move the disabled toward such equality.

*1091 A. No More Cutbacks
In Hassan, the court gave local governments free rein to cut transit service without reducing services for drivers or violating the ADA. [FN408] As a result, the ADA may sometimes actually decrease the mobility of the disabled, by giving local governments an incentive to reduce all transit service in order to finance ADA-mandated spending [FN409] or to avoid spending money on comparable paratransit services for the most severely disabled. [FN410] Such attacks upon public transit may technically comply with the ADA, but nevertheless are destructive of the ADA's goal of making the disabled more independent and employable. [FN411]
The logical solution to this gap in the ADA is to overrule Hassan (either legislatively or judicially), [FN412] by prohibiting local governments from reducing transit service or maintenance [FN413] in any way, or from raising fares without raising drivers' costs in a similar manner (e.g., by raising fuel taxes by the same amount as transit fares were raised). *1092 Or to preserve governmental flexibility and avoid a direct conflict with Hassan, a legislature or court could allow transit cutbacks only if government reduced comparable services for drivers--for example, by closing one road for every bus route eliminated, or by reducing road funding by the same percentage as transit funding was reduced. Because local governments would presumably be unwilling to close roads [FN414] or otherwise inconvenience drivers except during the gravest fiscal crises, this statute would effectively bar the elimination of bus routes.
A "no cutbacks" law would not only prevent reductions in service, but also protect the settled expectations of the disabled and other transit-dependent individuals: they could establish homes and businesses near bus routes, and be secure in the knowledge that government could not make their investments worthless by reducing service. By contrast, today anyone who relies upon the existence of public transportation services does so at his or her peril. [FN415] Moreover, a "no cutbacks" law would be cheaper than mandating massive increases in service, because it would require only that local governments maintain existing levels of service.
It could be argued that a "no cutbacks" law would impair the ability of governments to respond to fiscal crises. This argument lacks merit, for two reasons. First, public transit spending comprises only 2% of state and local government spending. [FN416] Second, government has grown so consistently over time [FN417] that spending reductions are unlikely to be truly necessary under any circumstances short of an emergency that could require cutbacks in highway service (e.g., reductions in highway maintenance spending) as well as transit service. Thus, a "no cutbacks" statute would merely prevent public *1093 transit from being singled out for budget cuts rather than giving transit a privileged position.
It could also be argued that a "no cutbacks" statute would prevent transit systems from eliminating "inefficient" routes with low ridership. This argument is essentially a variant of the common anti-transit argument that public transit does not "pay for itself" [FN418]--an argument that proves too much. Few if any government services pay for themselves in the sense of being paid for by users: for example, no trust fund supports food stamps or other social welfare programs, and highway spending is supported partially by general revenues. [FN419] So a policy based solely on such a narrow definition of "efficiency" narrowly defined would require the elimination of most government services.
Admittedly, a "no cutbacks" law would not require actual expansion of public transit, nor would it narrow the gap between the transit-dependent disabled and auto users - but at least it would prevent local government from widening that gap.

B. No Roads Without Transit
State and local governments do not reduce transit service solely by eliminating bus routes or reducing hours of service: they also reduce opportunities for the transit-dependent by the more politically popular [FN420] technique of building and widening roads. As noted above, [FN421] suburban road expansions often reduce opportunities for transit-dependent individuals (including the transit-dependent disabled) by encouraging individuals and their employers to move to areas with little or no public transit.
*1094 The only way to prevent such "stealth cutbacks" is a "No Roads Without Transit" (NRWT) law that would condition all road expansions in metropolitan areas upon transit improvements to commercial areas served by (and thus likely to develop because of) [FN422] road improvements.
Specifically, a state or federal law could provide that any new or widened roads be accompanied by significant transit service to the road itself (if the road was a commercial street accessible to pedestrians) or to commercial streets near highway exits (if the road was a limited-access highway). [FN423]
The major advantage of NRWT is that it would not increase government spending by one cent: if governments did not want to spend money on transit, they would not have to spend money on roads. Indeed, drivers might be better off, because if local governments were unwilling to throw money either at roads or at transit, they might reduce transportation spending and reduce the gasoline taxes that traditionally finance a large portion of such spending. [FN424] NRWT merely applies the principles of the ADA to highway spending: just as the ADA apparently gives local governments the choice between providing public transit to the disabled and providing public transit to no one, [FN425] NRWT would give local governments the choice between improving transportation for the transit-dependent (including the transit-dependent disabled) and improving transportation for no one.

C. More Radical Remedies
A "no cutbacks" law, together with a NRWT law, would prevent governments from using transportation policy to widen the gap between the transit-dependent disabled and drivers. But neither proposal would remove or even narrow inequities caused by past policies. To remedy the harm caused by the policies of the past century, government would actually have to improve transit service *1095 rather than merely refusing to further degrade public transit. Ideally, state and local governments would be required to make most or all jobs transit-accessible.
Such a "universal transit access" law would, despite its cost, merely extend existing ADA principles. The ADA as written already provides that no covered employer (that is, employer with over 15 employees) [FN426] may discriminate against the disabled, [FN427] and that a qualified individual is one who "with or without reasonable accommodation, can perform the essential functions of the employment position." [FN428] Thus, employers have a duty to "reasonably accommodate" disabled employees under the ADA [FN429] unless such an accommodation would create "undue hardship." [FN430] For example, an employer in an area with no evening bus service might be required to allow a disabled employee to work an earlier shift so that the employee could finish work in time to use a bus [FN431]--but only if such an accommodation would be "reasonable" enough not to create "undue hardship." This principle could be extended to require that employers fail to reasonably accommodate disabled employees as a class if they locate in areas without public transit. Because mandatory relocation would arguably constitute "undue hardship" such a requirement should not be imposed by judicial fiat.
Instead, a "universal transit access" law could require that every urban or suburban [FN432] employer covered by the ADA (that is, every employer employing 15 persons or more) [FN433] be reachable by regular bus or train service. For example, the statute could provide: "All employers which are located within a metropolitan area and which employ over 15 persons must be accessible by fixed-route transit *1096 service. Such service must run at least once an hour until after the closing of the employer's business." This statute arguably would not require a significant number of employers to relocate, because many suburban governments might, in order to receive sales and property tax revenue from employers, be willing to invest in bus service in order to retain suburban employers. [FN434]
Such a statute would benefit millions of people: a 1998 Harris survey revealed that 30% of disabled Americans surveyed (and 17% of nondisabled individuals) [FN435] identified inadequate transportation as a problem. Admittedly, a "universal transit access" statute would by no means grant the transit-dependent disabled full equality with drivers, because some individuals would no doubt have to take multiple buses (that is, take bus A, then transfer to bus B to reach suburban employer C) to reach suburban employers. But at least the disabled would be entitled to something they now lack: a guaranteed minimal level of transit service to suburban employers.
The most persuasive objection to such a proposal would be cost--and certainly the costs of such a bold proposal would require further study. However, there is some reason to believe that state and local governments could afford to comply with a universal transit access statute. According to a researcher at the American Public Transit Association, hourly bus service to every employer with over 15 employees would cost only $1 billion [FN436]--less than 1% of total government transportation spending [FN437] and less than 0.1% of all state *1097 and local government spending. [FN438] It follows that even if bus service was required every quarter hour, the total cost might be as low as $4 billion--less than 4% of total government transportation spending [FN439] and less than 0.4% of total state and local government spending. [FN440] If these estimates are correct (admittedly a huge if) the costs of universal transit access would certainly be low enough to justify a universal transit access law. Alternatively, if universal transit access risked imposing heavy costs on existing employers or on local governments, a state or federal government could grandfather existing businesses by requiring only that new businesses be transit-accessible.
It could also be argued that an employer's duty to accommodate individual disabled employees (for example, by allowing them to finish work before bus service stops running) would render universal transit access unnecessary. [FN441] This argument is meritless for two reasons. First, some employers have no offices served by any public transportation, and thus could not reasonably accommodate transit-dependent employees. Second, disabled job applicants might be unable to avail themselves of such a reasonable accommodation, either because of ignorance of their legal rights or inability to even reach a workplace for a job interview.

D. Paratransit Only: A Reform That Won't Work
It could be argued that the reforms above are unnecessary, because an expanded paratransit system alone could handle the needs of the disabled. The logic behind this argument is that traditional fixed-route systems waste billions on mostly-empty buses rather than targeting service to the disabled who need transit the most. [FN442]
This argument lacks merit for three reasons. First, paratransit is arguably even less cost-effective than fixed-route service. [FN443] Nearly *1098 80% of disabled persons who use public transportation rely on fixed-route buses rather than paratransit, [FN444] less than 5% of all transit-dependent disabled individuals are physically incapable of using fixed-route service, [FN445] and less than 2% of all transit trips involve any form of demand-response transportation (including but not limited to paratransit). [FN446] Yet paratransit engulfs about 3/4 of all ADA-related spending. [FN447]
Second, paratransit, despite its high cost, need not serve all disabled Americans under existing law: as noted above, the ADA requires local governments to finance paratransit service not for all disabled Americans, but only for riders who, for one reason or another, are unable to use fixed-route transit to reach their destinations. [FN448] Moreover, paratransit users are subject to a variety of other limitations that make paratransit less effective than fixed-route service. For example:
* Paratransit users often must make reservations 24 hours in advance to use paratransit, [FN449] instead of receiving service on demand. As the House Education and Labor Committee found at the time of the ADA's enactment, this limitation "often conflicts with one's work schedule or interests in going out to restaurants and the like." [FN450] Because the demand for service exceeds the amount of service *1099 available, there is often a waiting list for paratransit service; moreover, rides are often delayed. [FN451]
* DOT regulations require only that reservation service must be available only during normal business hours (as opposed to evenings and weekends). [FN452] So a rider cannot schedule a ride if he learns of his needs the evening before a possible trip.
* Just as paratransit is more expensive for state and local governments, it is also more expensive to riders: under DOT regulations, paratransit fares may be twice the fixed-route fare for a comparable ride. [FN453]
* Reductions in fixed-route service might lead to reductions in paratransit service, because under current law paratransit need not serve anyone who lives more than 3/4 mile from a bus or train stop. [FN454]
* Paratransit service need not cross jurisdictional boundaries even for persons living within 3/4 mile of a bus stop. [FN455]
To be sure, all of these problems could be solved by changes in the law: transit systems could be required to serve paratransit users on demand no matter where they lived, and all disabled Americans could be made eligible for paratransit service. But such innovations would cause the cost of paratransit to balloon--and some of the same commentators who now complain about the alleged cost and inefficiency of fixed-route service would no doubt complain about the cost and inefficiency of paratransit service. Finally, fixed-route service has advantages that paratransit lacks. Because the general public uses fixed-route buses and trains, such service not only aids the disabled, but aids other public goals, such as the public interest in helping the carless poor reach jobs, [FN456] the public interest in reducing *1100 traffic congestion by taking cars off the road, [FN457] and the public interest in reducing auto-induced air pollution. [FN458] So even if fixed-route buses are more expensive than paratransit, they also create benefits that paratransit service targeted to the disabled does not create.
In sum, a paratransit-only strategy is no substitute for expanded fixed-route service--both because the limited paratransit service required by the ADA does not serve the disabled as effectively as fixed-route service, and because the paratransit expansion necessary to make paratransit a worthy substitute for fixed-route service might be just as expensive and less socially useful than existing fixed-route service.


Conclusion
For nearly a century, government at all levels has, through a variety of policies, immobilized transit-dependent Americans (including many disabled Americans). The ADA attempted to remedy this wrong by requiring that the disabled receive as much public transportation as anyone else--a solution that has proven to be unworkable because thanks to the anti-transit policies of the past, many jobs and other opportunities are now inaccessible by public transit. It follows that if America wishes to give the disabled full mobility, it must make the disabled equal not only to other transit users but to drivers, by prohibiting government from expanding highway service without expanding transit service, by prohibiting further cutbacks in transit service, and by increasing transit service to existing job sites.

[FNa1]. Associate Professor, John Marshall Law School. Formerly a law clerk to Judges Morris Arnold (W.D. Ark., more recently 8th Cir.) and Theodore McMillian (8th Cir.) and Visiting Assistant Professor, University of Miami School of Law. I would like to thank Adam Milani, Jeffrey Van Detta, and David Oedel for their helpful comments. Any errors of fact or logic, of course, are mine alone.

[FN1]. Leviticus 19:14.

[FN2]. According to the Federal Transit Administration, 24 million disabled Americans are dependent on public transit. See William W. Millar, Testimony of the American Public Transit Association Before the Labor, Health & Human Servs., Educ. & Related Agencies Subcomm. of the House Appropriations Comm., Feb. 5, 1998, available at 1998 WL 8991781. Disabled Americans are by no means the only transit-dependent Americans. Most of the very poor cannot afford cars, 62 million Americans are too young to drive, and 5.4 million elderly Americans do not drive. See Anne Simmons, A Ride to Work: TEA-21 and PRWDRA, 18 Law & Ineq. 243, 260 (2000) (94% of welfare recipients do not own automobiles); U.S. Dep't of Commerce, Bureau of the Census, Statistical Abstract of the United States 1999 at 22 (119th ed. 1999) (62 million Americans under age 16) (hereinafter 1999 Abstract); Charles T. Dubin, American Association of Retired Persons Public Policy Statements on the Americans with Disabilities Act, Fed. Law., Mar./Apr. 1997, at 28, 29 (5.4 million seniors do not drive). Cf. Robert L. Mullen, The Americans with Disabilities Act: An Introduction for Lawyers and Judges, 29 Land & Water L. Rev. 175, 180 (1994) (noting likely explosion of elderly population over next few decades).

[FN3]. See Nancy Lawler Dickhute, Jury Duty for the Blind in a Time of Reasonable Accommodations: The ADA's Interface with a Litigant's Right to a Fair Trial, 32 Creighton L. Rev. 849, 881 n.4 (1999) (1.1 million Americans legally blind).

[FN4]. Id.

[FN5]. This figure is based on Millar's estimate that 24 million disabled Americans are transit-dependent, supra note 2, and Dickhute's statement that just over 4 million Americans are blind or severely visually impaired, see Dickhute, supra note 3, at 881 n.4.

[FN6]. See infra notes 86-102, 123-63 and accompanying text (describing government policies that favored suburban growth).

[FN7]. See infra notes 24-54 and accompanying text (describing second-class status of transit-dependent Americans).

[FN8]. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. ?? 12001-12213).

[FN9]. See, e.g., 42 U.S.C. ? 12132 (no disabled person may be excluded from public services); 42 U.S.C. ? 12142 (public transit systems may not purchase or lease a new bus unless it is readily accessible to individuals with disabilities, including individuals who use wheelchairs); 42 U.S.C. ? 12143 (such agencies must provide on-demand "paratransit" service to disabled persons unable to use traditional public transit). See generally Bonnie P. Tucker, The Americans with Disabilities Act: An Overview, 1989 U. Ill. L. Rev. 923, 931-32 (briefly summarizing ADA provisions most relevant to public transit).

[FN10]. H.R. Rep. No. 101-485, pt. I (1990), reprinted in 1990 U.S.C.C.A.N. 267, 268.

[FN11]. See Millar, supra note 2; Brigid Hynes-Cherin, Testimony of the American Public Transit Association, Before the Subcomm. on Surface Transp. of the House Comm. on Transp. & Infrastructure, Sept. 26, 1996, available at 1996 WL 10831544 (pointing out that the ADA "is being implemented at the same time that federal financial support is declining" and explaining that "ADA costs to transit operators will exceed $1.4 billion annually... more than twice the $400 million annual amount of transit operating assistance since FY 1996"); Brian Doherty, Disabilities Act: Source of Unreasonable Accommodations, San Diego Union-Trib., July 16, 1995, at G1 ("The American Public Transit Association claims $1.1 billion per year just for the paratransit provisions of the ADA."). While the federal government was raising transit systems' costs, it was also reducing grants to transit systems; as a result, ADA costs canceled out over 1/3 of federal grants to state and local transit systems during the late 1990s. See American Public Transit Association, Transit Fact Book 52 (1998) (federal support for transit operating expenses decreased by over 40% between 1990 and 1996, and local support decreased by over 20%); Hynes-Cherin, supra (ADA cost transit operators $1.4 billion per year); 1999 Abstract, supra note 2, at 314 (federal government granted state and local governments $3.9 billion for mass transit in fiscal year 1999, down from $4.3 billion in fiscal year 1995).

[FN12]. See James Rana, Trying to Keep Transit's Head Above Water, Providence J.-Bull., Nov. 24, 1996, at 11 (Providence, Rhode Island bus agency reduced service because "like every other transit agency in the nation, [it] had been hurt by reductions in federal operating assistance.... At the same time... Uncle Sam is demanding cleaner-running buses and more service to handicapped riders."); Jerry Crimmins, Pace Expands Van Pool, Service to Disabled, Chi. Trib., Nov. 18, 1996, at 1 (Chicago suburban bus company reduced overall bus service in order to increase spending on special vans for disabled.); Associated Press, Transit Cuts "Too Much"--So Say Local Officials Who'll Protest in Washington, Wis. St. J., Feb. 24, 1996, at 3B (Municipal transit officials urged federal government to modify ADA because "federal mass transit cuts, costly regulations, and unfunded mandates are forcing cities across Wisconsin to reduce service.").

[FN13]. For example, 35% of all buses were accessible to the disabled before the ADA was enacted, and most visually impaired riders were able to use public transit before the passage of the ADA. See H.R. Rep. No. 101-485, pt. I, at 24; Jennifer Orsi, Bus System Catches Protests From Blind Passengers, St. Petersburg Times, Nov. 18, 1989, at 1 ("No one depends on public transportation more than the blind" according to president of Tampa Bay chapter of National Federation for the Blind.).

[FN14]. Midgett v. Tri-County Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999).

[FN15]. See supra note 12 (describing nationwide mid-1990s cutbacks in transit service, caused by ADA costs and reductions in federal aid to transit providers); Hassan v. Slater, 41 F. Supp. 2d 343, 351 (E.D.N.Y.), aff'd, 199 F.3d 1322 (2d Cir. 1999) (allowing closure of commuter train station because, inter alia, "[i]t does not appear that the ADA requires the MTA defendants to keep all of its stations open").

[FN16]. See 1999 Abstract, supra note 2, at 314 (highway spending increased between fiscal years 1995 and 1999, while federal aid to transit decreased).

[FN17]. See Sharon Rennert, All Aboard: Accessible Public Transportation for Disabled Persons, 63 N.Y.U. L. Rev. 360, 360 (1988) ("Over the past twenty years, society has begun to confront and remove many of the physical and attitudinal barriers that have segregated disabled people.").

[FN18]. Id. (To increase the mobility of the disabled, "our communities have begun to adapt their landscapes by adding curb cuts, ramps, wider doorways, and braille signs.").

[FN19]. Excepting the 1.4 million persons so severely disabled that they are unable to use a regular bus or rail system. Id. at 399.

[FN20]. See Millar, supra note 2 (24 million figure given).

[FN21]. See Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States 189 (1985).

[FN22]. See Lowell Cohn, 'Stick Made Chilly First Impression, Press Democrat, June 7, 1999 ("You really don't need a car in New York City."); James Taylor et al., Car-Free in Boston: The Guide To Public Transit in Greater Boston and New England (2000).

[FN23]. See, e.g., infra notes 37-47 (describing virtually nonexistent public transit in Macon, Ga.)

[FN24]. See Miller v. Anckaitis, 436 F.2d 115, 120 (3d Cir. 1970) ("For the urban poor, in particular, remoteness from the thriving suburban segment of the industrial economy and a deteriorating public transportation system often make use of an automobile the only practical alternative to welfare."); People v. Coutard, 454 N.Y.S. 2d 639, 642 (Dist. Ct. 1982) ("In a suburban county such as ours, the use of an automobile by most of its citizens is often as necessary as placing bread upon their tables."); Cent. Towers Co. v. Borough of Fort Lee, 390 A.2d 677, 680 (N.J. Super. Ct. 1978) ("Automobiles are a necessity and not a luxury in the suburbs where mass transit facilities are not as readily available to residents as they are to city dwellers"); John Norquist, The Wealth of Cities 172 (1998) ("As in the rest of the advanced industrial world, driving a car in Canadian cities is a travel choice, not a necessity. Only the U.S. government denies this choice to its citizens."); Charles Belfoure, Neighborhood Profile: Woodlawn, Balt. Sun, Feb. 7, 1999, at 1M ("[T]he suburban sprawl that started after World War II forced Americans to go everywhere by car.").

[FN25]. See Anne Gearan, Clinton to Loosen Car Restriction for Food Stamp Recipients, Charleston Gazette & Daily Mail, Feb. 24, 2000, at P7A.

[FN26]. See Paul M. Weyrich & William S. Lind, Does Transit Work? A Conservative Reappraisal, at http://www.apta.com/info/online/weyrich2new.htm (last visited July 7, 1999) (citing survey). These statistics may actually overestimate Americans' access to public transit, because some Americans whose public transit is in some sense "satisfactory" may not be able to use it to reach key destinations such as their jobs--for example, "reverse commuters" who live in transit-friendly cities but work in auto-dependent suburbs.

[FN27]. See Gearan, supra note 25 ("[E]ven in metropolitan areas with extensive transit systems, fewer than half the entry-level jobs are accessible by that means.").

[FN28]. See Conservation Law Foundation, City Routes, City Rights 20 (1998) [[hereinafter City Routes].

[FN29]. Id.

[FN30]. Id.

[FN31]. See Marcia Myers, Jobs out of Reach for the Carless, Balt. Sun, Nov. 16, 1999, at 10.

[FN32]. See Stacy Shelton, Transit Chief Faces Hurdles in Gwinnett, Atlanta J. & Const., Feb. 11, 2000, at C1 (noting that Gwinnett is nation's largest county without public transit).

[FN33]. For example, my parents live within the city of Atlanta about 10 miles from downtown Atlanta, but (except for a "maid bus" that comes from downtown once in the morning and returns downtown in the afternoon), they have no bus service. See Michael E. Lewyn, Are Spread out Cities Really Safer? (Or, Is Atlanta Safer Than New York?), 41 Cleve. St. L. Rev. 279, 295 n.63 (1993); MARTA Web Site, at http://www.itsmarta.com/riding/busroutes/bus_ sch.htm (last visited Feb. 17, 2000) (listing buses 701-17, a group of once-a-day "maid buses").

[FN34]. See F. Kaid Benfield et al., Once There Were Greenfields 125 (1999).

[FN35]. Jerome Thompson, Public Transit: Can You Get Around, Atlanta J. & Const., July 10, 2000, at G3.

[FN36]. See 1999 Abstract, supra note 2, at 48.

[FN37]. See U.S. Dep't of Commerce, Bureau of the Census, 1990 Census of Population and Housing, Population and Housing Characteristics for Census Tracts and Block Numbering Areas: Macon-Warner Robins, GA MSA at 177 (1993). Cf. Alewine v. City Council, 699 F.2d 1060, 1069 (11th Cir. 1983) ("[A] small percentage of Macon's population require [sic] public transit....").

[FN38]. See David G. Oedel, The Legacy of Jim Crow in Macon, Georgia, in Just Transportation 97, 102 (Robert D. Bullard & Glenn S. Johnson, eds., 1997).

[FN39]. Id.

[FN40]. Id. at 103.

[FN41]. Id.

[FN42]. Id.

[FN43]. Id.

[FN44]. Id.

[FN45]. Id.

[FN46]. Id.

[FN47]. Id. at 100 ("In theory, Macon's extensive road network may be used (or at least indirectly enjoyed) by the entire population. In fact, however, the roads operate as instruments of isolation for many residents without cars, [by] facilitating white flight to the periphery [of the area]."). See also Alex Wayne, City Tries To Make Jobs Reachable, Greensboro News & Rec., July 25, 1999, at B1 (7 of High Point, North Carolina's 20 largest employers located along North Carolina Highway 68, which is not served by public transportation; Chamber of Commerce official describes absence of transit as "a prime reason that women are not able to work" based on survey showing that 75% of area public housing residents viewed transportation as barrier to employment); infra notes 84-102 and accompanying text (discussing impact of highways upon suburban development).

[FN48]. See H.R. Rep. No. 101-485, pt. II, at 32 (1990).

[FN49]. Id. A more recent Harris poll survey for the National Organization on Disability found that among people of working age (ages 18-64) only 32% of disabled persons held full- or part-time jobs, compared to 81% of those without disabilities. See Survey Program on Participation and Attitudes, available at http://www.nod.org/hs2000.html#execsum [hereinafter Survey Program]. See also William Neikirk, Clinton Orders U.S. Agencies to Hire More Disabled People, Chi. Trib., July 27, 2000, at 16 (reporting testimony by Department of Justice official that of the 30 million adults with significant disabilities, 75% are unemployed or underemployed).

[FN50]. See Murray Weidenbaum, Why the Disabilities Act Is Missing Its Mark, Christian Sci. Monitor, Jan. 16, 1997, at 19 ("One survey reported that the portion of men with disabilities who are working dropped from 33 percent in 1991 to 31 percent in 1995. Using a different definition of disability, another study showed no change."); Liz Spayd, Poll Finds Harsh Life for Disabled, Wash. Post, July 22, 1994, at A21 (Harris poll revealed that "jobless levels for the disabled... show virtually no improvement over those revealed in a Harris poll conducted eight years ago."); Pat Lee, Fence Post, Chi. Daily Herald, Aug. 29, 1998, at 10 (1998 Harris poll revealed that "29 percent of those with disabilities reported being employed full or part time. This rate is down 5 percentage points from the 1986 Harris poll in spite of the passage of the Americans with Disabilities Act in 1990.").

[FN51]. See Weidenbaum, supra note 50 (blaming unemployment among the disabled on overly generous government disability payments that discourage labor force participation); Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants?, 34 Harv. C.R.-C.L. L. Rev. 99 (1999) (suggesting that courts interpreting ADA have narrowed its scope by favoring defendants).

[FN52]. See H.R. Rep. No. 101-485, pt. II, at 37 (Numerous witnesses in Congressional hearings pointed out that transportation is a major obstacle to the disabled.).

[FN53]. See Seth J. Elin, Curb Cuts Under Title II of the Americans with Disabilities Act: Are They Bringing Justice or Bankruptcy to Our Municipalities?, 28 Urb. Law. 293, 297 (1996). The article cited a 1990 article referencing the poll; thus, the poll must have been conducted before that date. Id. at 326 n.26.

[FN54]. Id. (citation omitted).

[FN55]. See Kenneth A. Small, Transportation and Urban Change, in The New Urban Reality 197, 205 (Paul E. Peterson ed., 1985) (asserting that increased auto use is a natural result of higher incomes.).

[FN56]. Federico Cheever, The United States Forest Service and National Park Service: Paradoxical Mandates, Powerful Founders, and the Rise and Fall of Agency Discretion, 74 Denv. U. L. Rev. 625, 636 (1997) (using phrase to explain auto traffic in national parks).

[FN57]. See infra notes 62-83 and accompanying text.

[FN58]. See infra notes 84-102 and accompanying text.

[FN59]. See infra notes 115-21 and accompanying text.

[FN60]. See infra notes 122-28, 138-57 and accompanying text.

[FN61]. See infra notes 129-38 and accompanying text.

[FN62]. See Jackson, supra note 21, at 163; Nashville, Chattanooga & St. Louis Ry. v. Walters, 294 U.S. 405, 425 (1935) (Motor vehicle-related fees "will not pay for one-half of the usual expenditure in Tennessee for highways. The balance is being paid in part by general property taxes.").

[FN63]. Walters, 294 U.S. at 425, 428 (noting that state taxed railroads to support highway construction).

[FN64]. See Paul Weyrich & William S. Lind, Conservatives and Mass Transit: Is It Time for a New Look? 10 (1996); Alewine v. City Council, 699 F.2d 1060, 1068 (11th Cir. 1983) (until 1960, most transit systems privately owned).

[FN65]. Weyrich & Lind, supra note 64, at 10.

[FN66]. Id.

[FN67]. See Richard Briffault, Our Localism: Part II--Localism and Legal Theory, 90 Colum. L. Rev. 346, 380 n.149 (1990).

[FN68]. Id. By this time, the states were also providing suburbs with sewers and water service. By contrast, the states were less generous to cities because by the 1920s, cities had already built similar facilities for their own citizens. Id.

[FN69]. 42 Stat. 212 (1921). Cf. State v. Smith, 295 P. 986, 997 (Kan. 1931) (referencing the Road Act, and noting that it required state governments to build highways themselves rather than relying on counties to do so).

[FN70]. Jackson, supra note 21, at 167.

[FN71]. Weyrich & Lind, supra note 64, at 10.

[FN72]. Id.

[FN73]. Id.

[FN74]. Id.

[FN75]. Id.

[FN76]. See James Howard Kunstler, The Geography of Nowhere: The Rise and Decline of America's Man-Made Landscape 106 (1993).

[FN77]. See Pub. L. No. 85-767, 72 Stat. 885.

[FN78]. See Kunstler, supra note 76, at 106-07.

[FN79]. See Movement Against Destruction v. Volpe, 361 F. Supp. 1360, 1367 (D. Md. 1973); Norquist, supra note 24, at 153.

[FN80]. Office of Management and Budget, Budget of the U.S. Gov't: Historical Tables, Fiscal Year 1996 (1995) (first federal mass transit spending listed in 1962). See also Town of Secaucus v. United States, 889 F. Supp. 779, 783-84 (D.N.J. 1995).

[FN81]. See Norman Krumholz & Janice Cogger, Urban Transportation Equity in Cleveland, in Metropolitan Midwest: Policy Problems and Prospects for Change 211, 211 (Barry Checkoway & Carl V. Patton eds., 1985) [hereinafter Checkoway]. Cf. 49 U.S.C. ? 5301(b)(4) (legislative finding that "in the early 1970's continuing even minimal mass transportation service in urban areas was threatened because maintaining that transportation service was financially burdensome").

[FN82]. See Liam A. McCann, 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, 859 (1999) ("[M]ore than eighty percent of the money in TEA-21 [the 1998 transportation funding bill] will go toward highway funding."); Jeff Plungis, Auto Research Faces Cutbacks, Detroit News, March 1, 2001 (Bush administration proposed highway spending of $32.3 billion and transit spending of $6.7 billion, increases from $30.2 billion and $6.2 billion respectively); 1999 Abstract, supra note 2, at 636. A similar gap exists at other levels of government. See 1999 Abstract, supra note 2, at 635, 652; Electronic correspondence from Daniel Duff, American Public Transit Association (Feb. 9, 2000) (on file with author) (stating that government highway spending 5.4 times as high as transit spending). And to the extent government has invested in transit, those investments have sometimes redistributed money from bus service to more expensive train service rather than expanding riders' transit options. See Peter Gordon & Harry W. Richardson, Defending Suburban Sprawl, Pub. Int., Spring 2000, at 65, 69 (Some cities' "bus systems have been cannibalized to pay for rail."); Eric Mann, Confronting Transit Racism in Los Angeles, in Just Transportation 68, 71 (Robert D. Bullard & Glenn S. Johnson eds., 1996) (Los Angeles reduced bus mileage by 16% between 1988 and 1997 while building subway).

[FN83]. See State ex. rel. O'Connell, 452 P.2d 943, 948 (Wash. 1969) (state not allowed to spend gasoline tax revenue on public transportation, based on provision in state Constitution requiring such revenue to be spent for highway-related purposes); Michigan Road Builders Ass'n v. Dep't of Mgmt. & Budget, 495 N.W.2d 843, 847 (Mich. App. 1992) (Under Michigan law, 90% of gas and license tax revenue must be used for roads.).

[FN84]. See supra notes 29-35 and accompanying text.

[FN85]. See Penny Mintz, Transportation Alternatives Within the Clean Air Act: A History of Congressional Failure to Effectuate and Recommendations for the Future, 3 N.Y.U. Envtl. L.J. 156, 159 (1994) ("Highways made land outside cities accessible, which in turn made the land attractive for development."); Douglas S. Massey & Nancy A. Denton, American Apartheid 44 (1993) ("In making this transition from urban to suburban life, middle-class whites demanded and got massive federal investments in highway construction that permitted rapid movement to and from central cities by car."). Cf. City of Davis v. Coleman, 521 F.2d 661, 675 (9th Cir. 1975) (noting possible "urban sprawl" caused by new highway interchange).

[FN86]. See Gordon & Richardson, supra note 82, at 70 ("[F]irms now follow the labor force to the suburbs where their employees live."); Earl Daniels, Building Boom: Area's Residential, Commercial Growth Spurt, Fla. Times-Union, Jan. 13, 2000, at E1 (quoting Jacksonville realtor Barry Goldstein's statement that "[w]e have population growth in the suburban area, and when you have the growth of residential, you have a demand for other services"); Wolfgang Zuckermann, End of the Road: The World Car Crisis and How We Can Solve It 240 (1991) ("[T]he new road system had drawn many of the former city-center shoppers to new homes in the suburbs. Many retail firms consequently abandoned downtowns to develop new stores on the periphery of urban areas where motorists could easily reach them using the freeway system. In many cases, offices followed suit, and some suburban downtowns developed around freeway intersections.").

[FN87]. Sierra Club, v. United States Dep't of Transp., 962 F. Supp. 1037, 1043 (N.D. Ill. 1997) (citing Swann v. Brinegar, 517 F.2d 766, 777 (7th Cir. 1975)).

[FN88]. See Glen Frankel & Stephen C. Fehr, As the Economy Grows, The Trees Fall, Wash. Post, Mar. 23, 1997, at A1.

[FN89]. Id. See also Jackson, supra note 21, at 165 (pointing out that many of Detroit's suburbs have risen along major roads).

[FN90]. See, e.g., Alan Sipress, Widen the Roads, Drivers Will Come, Wash. Post, Jan. 4, 1999, at B1 (discussing Maryland's widening of I-270 near Washington, which spurred suburban development but failed to reduce congestion); Stephen Fehr, Montgomery's Line of Defense Against the Suburban Invasion, Wash. Post., Mar. 25, 1997, at A1 (discussing developers' support for a new highway linking Washington's Maryland suburbs with its Virginia suburbs, ostensibly in order to reduce congestion on Washington's Beltway); Glenn Frankel & Peter Pae, In Loudoun, Two Worlds Collide, Wash. Post, Mar. 24, 1997, at A1 (In Loudoun County, a suburb of Washington, the "four-lane Dulles Greenway, a toll road designed to ease the commute for eastern residents, has opened up the west for further growth."). Loudoun County, like most newer suburbs, has minimal bus service. See Jennifer Lenhart, A Needed Lift, Wash. Post Nov. 8, 1999, at B1 (describing isolation of elderly nondrivers who moved to Loudoun County to live near adult children).

[FN91]. See Surface Transportation Policy Project, Why Are the Roads so Congested?, at http://www.transact.org/constr99/default.htm (last visited Jan. 22, 2000) [hereinafter Roads]. Frequently, the new and widened highways have been located in the newest, most affluent outer suburbs, thus increasing the inequality in tax bases and services between those suburbs and central cities or less politically favored suburbs. See Jerry Frug, The Geography of Community, 48 Stan. L. Rev. 1047, 1099 (1996); Myron Orfield, Talk Radio Called Him a Commie and Put Him on Hold, Minn. Star Trib., May 23, 1995, at 13A (In Minneapolis/St. Paul, "the southern and western outer-ring suburbs have gotten all of the new freeways and sewer systems--billions of dollars in improvements--and therefore virtually all of the region's new tax base.").

[FN92]. See infra notes 122-29, 139-64 and accompanying text (describing other government policies causing middle-class flight to suburbia); Jonathan Simon, From a Tight Place: Crime, Punishment and American Liberalism, 17 Yale L. & Pol'y Rev. 853, 856 (1999) (noting that urban crime another factor causing middle-class flight to suburbs).

[FN93]. It has been argued that highways do not cause migration to suburbia because "[s]uburbanization was well underway in 1960, when the federal interstate highway program had been in existence for just four years." Ronald Utt, Cities and Suburbs, at http://www.heritage.org/issues/chap13.htm (last visited Jan. 20, 2000). See also Peter Gordon & Harry W. Richardson, Critiquing Sprawl's Critics, Cato Inst. Pol'y Analysis No. 365, at 6 (Jan. 24, 2000) (Interstate highway program was not a cause of suburban migration because "there was significant suburbanization before 1956."). This argument lacks merit for three reasons. First, the state and federal governments had begun to support highway building long before the interstate highway system was built. See supra notes 62-75 and accompanying text. Thus, highway-building may have caused suburban growth before the enactment of interstate highway legislation. Second, other antiurban government policies (such as the Federal Housing Administration's policy of providing mortgage insurance to suburbanites but not to city-dwellers) had also been in effect for decades before 1960. See Michael E. Lewyn, The Urban Crisis: Made in Washington, 4 J. L. & Pol'y 513, 546-49 (1996) (describing FHA policies in more detail); infra notes 122-28 and accompanying text. Third, American cities' most stunning setbacks occurred after the creation of the interstate highway program. Of the 18 American cities which had more than 500,000 people in 1950, every single one gained population between 1930 and 1950. See Information Please Almanac 1955, at 215- 18 (Dan Golepaul ed., 1954). By contrast, in the 1950s, 13 of the cities lost population, and 2 lost over 10% of their population. See The World Almanac and Book of Facts 1976, at 210 (George E. DeLury ed., 1975) [hereinafter World Almanac 1976]. In the 1960s, 15 lost population, and 6 lost over 10%. Id. And in the disastrous 1970s, 16 lost population and 14 lost over 10%. See The World Almanac and Book of Facts 2000, at 390 (Robert Famighetti ed., 1999) [[hereinafter World Almanac 2000]. In other words, the redistribution of people from city to suburb snowballed as interstates were built during the 1960s and 1970s.

[FN94]. See David Rusk, Cities Without Suburbs 5 (2d ed. 1995); Benfield et al., supra note 34, at 120.

[FN95]. See Shelby D. Green, The Search for a National Land Use Policy: For the Cities' Sake, 26 Fordham Urb. L.J. 69, 73 (1998) (citing 1990 census statistics). Cf. Dixon v. Hassler, 412 F. Supp. 1036, 1045 (W.D. Tenn. 1976), aff'd, 429 U.S. 934 (1976) (by 1960s, "most cities in the United States lost population... except for gains in the suburban surrounding areas by way of annexation").

[FN96]. See World Almanac 2000, supra note 93, at 390.

[FN97]. See Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404, 412 (8th Cir. 1985) (white population of city of Little Rock declined from 1950 to 1980 if annexed territory excluded, but increased by over 30% if annexed territory included); Rusk, supra note 94, at 4.

[FN98]. See Parents Assoc. v. Ambach, 451 F. Supp. 1056, 1060 (E.D.N.Y. 1978) ("Businesses have left the City, sometimes to the suburbs to which their middle-income 'white collar' workers have preceded them.").

[FN99]. See Benfield et al., supra note 34, at 14.

[FN100]. Id. This number exceeds 100% because cities were losing manufacturing jobs while suburbs were gaining such jobs. Id. See also NAACP v. Mt. Laurel, 336 A.2d 713, 742 (N.J. 1975) (noting shift of industrial jobs to suburbs).

[FN101]. See NAHB's Policy on Smart Growth, at http://www.nahb.com/main_ features/smartpolicy.html (last visited Feb. 20, 2000) ("Ensuring that the construction of schools, roads and other infrastructure keeps pace with the anticipated growth in population and economic activity is one of the biggest challenges facing [suburban] communities today.") [hereinafter NAHB Policy Statement].

[FN102]. See National Association of Home Builders, Consumer Survey on Growth, at http://www.nahb.com/main_features/smart_survey/summary.htm Issues (last visited Feb. 8, 2000) [hereinafter NAHB Growth Survey]. Similarly, Gordon and Richardson, in an article entitled "Defending Suburban Sprawl" (which seeks to do exactly that) admit in passing that "[g]ood highways and other communications reversed [the migration of jobs to cities] in the late twentieth century." Gordon & Richardson, supra note 82, at 70.

[FN103]. See supra notes 62-81 and accompanying text.

[FN104]. See supra notes 62-80 and accompanying text.

[FN105]. See supra note 63 and accompanying text.

[FN106]. See supra note 65 and accompanying text.

[FN107]. See Alewine v. City Council, 699 F.2d 1060, 1068 (11th Cir. 1983) (until 1960, most transit systems were privately owned).

[FN108]. See supra notes 24-35 and accompanying text (noting that many American suburbs have minimal transit service).

[FN109]. See supra notes 85-102 and accompanying text.

[FN110]. See supra note 81 and accompanying text. Cf. Larry Sandler, How Buses Fare, Milwaukee J.-Sentinel, Aug. 21, 1996, at 1 (Milwaukee County's average daily bus service decreased by 29% between 1963 to 1990.).

[FN111]. 49 U.S.C. ? 5301(b)(4).

[FN112]. See supra note 80 and accompanying text.

[FN113]. See McCann, supra note 82, at 859; Duff, supra note 82, Plungis, supra note 82.

[FN114]. See Utt, supra note 93 (making argument); Larry Sandler, Views on Transit Funds Diverge, Milwaukee Journal-Sentinel, Apr. 24, 1995, at B2 (quoting similar views by Wisconsin transit official); 1999 Abstract, supra note 2, at 641 (5.3% of all Americans use public transit to get to work).

[FN115]. See Hynes-Cherin, supra note 11 (ADA cost transit providers $1.4 billion annually); Doherty, supra note 11 (ADA paratransit provisions alone cost transit operators $1.1 billion annually); 1999 Abstract, supra note 2, at 314 (Federal transit spending ranged between $3.9 billion and $4.3 billion between fiscal years 1995 and 1999.); but cf. Plungis, supra note 82 (transit spending increased to just over $6 billion in early 2000s). As explained below, transit operators have often been forced to reduce service in order to meet ADA-related expenses. See infra notes 369, 394-97, 402-05 and accompanying text.

[FN116]. See 49 U.S.C. ? 5333 (Laborers on transit-related construction projects must be paid "wages not less than those prevailing on similar construction in the locality" and transit employees must be protected against diminution of collective bargaining rights or "worsening of their positions related to employment."); Greenfield & Montague Transp. Area v. Donovan, 758 F.2d 22, 23 (1st Cir. 1985) (describing statute); John Walters, Bus-Jacking the Revolution, Pol'y Rev., Jan./Feb. 1996, at 8 (same).

[FN117]. Id.

[FN118]. See 1999 Abstract, supra note 2, at 636 (federal government granted state and local government $4.56 billion for public transit in 1997).

[FN119]. See 49 U.S.C. ? 5333(a); N. Ga. Bldg. & Trades Constr. Council v. Metro Atlanta Rapid Transit Auth., 1982 U.S. Dist. LEXIS 9862, at * 3-4 (N.D. Ga. Aug. 4, 1982) (describing requirement).

[FN120]. See 49 U.S.C. ? 5323(j); Seal & Co. v. Wash. Metro. Area Transit Auth., 768 F. Supp. 1150 (E.D. Va. 1991) (describing requirement).

[FN121]. See 49 U.S.C. ?? 5323(d) & (f); Chi. Transit Auth. v. Adams, 607 F.2d 1284, 1293 (7th Cir. 1979) (discussing protection of school bus companies); Blue Bird Coach Lines v. Linton, 48 F. Supp. 2d 47, 49 (D.D.C. 1999) (discussing protection of charter bus companies).

[FN122]. See United States v. City of Parma, 494 F. Supp. 1049, 1057 (N.D. Ohio 1980), appeal dismissed, 633 F.2d 218 (6th Cir. 1980); Michael H. Schill & Susan Wachter, The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America, 143 U. Pa. L. Rev. 1285, 1308 (1995).

[FN123]. See Gerald E. Frug, City Making 132-33 (1999).

[FN124]. See Jackson, supra note 21, at 207. In fact, the overwhelming majority of FHA loans went to suburban home buyers. See Massey & Denton, supra note 85, at 54 (describing FHA favoritism towards suburbs in St. Louis, Washington, and New York City metropolitan areas); George Steven Swan, The Political Economy of American Apartheid: Shaw v. Reno, 11 T.M. Cooley L. Rev. 1, 21 (1994) (FHA did not insure one mortgage in Camden or Paterson, New Jersey, until 1966.). The FHA became less biased against cities in the late 1960s, but by that time the damage had already been done; America's older cities had already skidded into a cycle of decay and decline. See Jackson, supra note 21, at 214-15 (describing more recent FHA policies); World Almanac 1976, supra note 93, at 210 (older cities had begun to decline in 1950s and 1960s); Massey & Denton, supra note 85, at 53 (describing long term damage to cities caused by loss of middle class).

[FN125]. See Jackson, supra note 21, at 207.

[FN126]. See James J. MacKenzie et al., The Going Rate: What It Really Costs to Drive 26 (1992) ("Densities above 7 housing units per acre are needed for cost-effective bus service while densities of over 9 housing units per acre are needed for cost-effective light rail service."); Pietro S. Nivola, Laws of the Landscape 15-16 (1999) ("The abandonment of public transportation is primarily a consequence of lower per capita incomes and low urban density. The clustered populations and workplaces of European and Japanese cities offer the critical mass needed to maintain comparatively high levels of transit ridership, whereas the decentralized urban conurbations of the United States are more efficiently served by automotive transportation.").

[FN127]. See, e.g., Thomas J. DiLorenzo, The Myth of Suburban Sprawl, USA Today, May 1, 2000, (Magazine), at 5456, available at 2000 WL 9014855 (attacking public transit spending on the grounds that ridership has declined since 1945).

[FN128]. See supra note 86 and accompanying text.

[FN129]. See Department of Commerce, Standard State Zoning Enabling Act (1926) (final version).

[FN130]. See Ex Parte City of Huntsville, 684 So. 2d 123, 125 (Ala. 1996) (SZEA used as a "model for zoning legislation in the majority of states"); 1 Anderson's American Law of Zoning ? 2.21 at 67-69 (Kenneth H. Young ed., 4th ed. 1995) (describing history of SZEA and pointing out that as early as 1930, 35 states had adopted that statute in whole or in part, and that "[a] ll of the states finally adopted zoning enabling legislation and most reflect the thinking of the draftsmen of the Standard Act").

[FN131]. See Chapman v. City of Troy, 45 So. 2d 1, 8, 241 Ala. 637, 639 (1941) (SZEA gives cities power to "divide the city into districts, and regulate the erection and use of the buildings in the several districts for trade, industry, residence or other purposes."); Lee R. Epstein, Where Yards Are Wide: Have Land Use Planning and Law Gone Astray?, 21 Wm. & Mary Envtl. L. & Pol'y Rev. 345, 357-58 (1997).

[FN132]. SZEA, ? 3, quoted by Epstein, supra note 131, at 379 n.50.

[FN133]. See, e.g., Belle Terre v. Boraas, 416 U.S. 1 (1974) (upholding ordinance limiting land use to single family homes).

[FN134]. See, e.g., Simone v. Worcester County Inst. for Savings, 1995 U.S. App. LEXIS 9081, at *6 (1st Cir. Apr. 20, 1995) (Worcester zoning law required 8000 square foot lot for 2 family home). See also Paul S. Weiland, Environment in Context, 18 UCLA J. Envtl. L. & Pol'y 131, 138 (1999/2000) ("[C]urrent zoning practices often forbid high density development and mixed-use development.").

[FN135]. See Richard Briffault, Our Localism: Part I--The Structure of Local Government Law, 90 Colum. L. Rev. 1, 41 (1990). The purpose of such zoning is usually to exclude lower-income persons. See Jackson, supra note 21, at 242 (Zoning "served the general purpose of preserving residential class segregation and property values."). In one Chicago-area suburban neighborhood, city planners seek to fix a minimum price of $275,000. See Kara Spak, Elgin, Hoffman Seen as Ripe for Senior Housing, Chicago Daily Herald, Jan. 26, 2001 ("Elgin's Far West Area plan dictates the average homoe price in the area will be $325,000, with a minimum home price of $275,000.").

[FN136]. See supra note 126 and accompanying text.

[FN137]. See infra note 392 and accompanying text (describing reductions in transit service due to 1990s revenue reductions).

[FN138]. See Jaimes v. Toledo Metro. Hous. Auth., 758 F.2d 1086, 1091 n.11 (6th Cir. 1985); Jackson, supra note 21, at 224.

[FN139]. See Briffault, supra note 135, at 41("[I]n all areas suburban localities sought to exclude public or publicly subsidized housing."); Jaimes, 758 F.2d at 1096 n.23, 1097-98 (noting Toledo suburbs' refusal to allow public housing, which caused nearly all public housing units to be in city of Toledo); United States v. City of Parma, 661 F.2d 562, 566-67 (6th Cir. 1981) (describing similar obstructionism in Cleveland suburb); Jackson, supra note 21, at 224.

[FN140]. See Schill & Wachter, supra note 122, at 1293.

[FN141]. Id.

[FN142]. See Evans v. Buchanan, 393 F. Supp. 428, 435 (D. Del.), aff'd per curium, 423 U.S. 963 (1975) (Wilmington housing authority operated 2000 public housing units in city but fewer than 40 in suburbs.); Robert E. Mendelson & Michael A. Quinn, Residential Patterns in a Midwestern City: The St. Louis Experience, in Checkoway, supra note 81, at 151, 163 (In 1970 St. Louis had 10,000 units of public housing while suburban St. Louis County, with a larger population, had only 50.).

[FN143]. See 42 U.S.C. ? 1437n(a). See also Schill & Wachter, supra note 122, at 1294-95 n.43 (law was even more restrictive in 1980s).

[FN144]. See Patrolmen's Benevolent Ass'n v. City of N.Y., 74 F. Supp. 2d 321, 335 (S.D.N.Y. 1999) (equating "high-crime" areas with "low-income" areas) (citation omitted); Douglas S. Massey, Getting Away with Murder: Segregation and Violent Crime in Urban America, 143 U. Pa. L. Rev. 1203, 1215 (1995) ( "Using least squares regression, I estimate the relationship between crime and poverty to be: Major Crime Rate = 36.55 +.02 (percentage white) + .79 (poverty rate), where the units are census tracts and crime rates are expressed per 1000 inhabitants.").

[FN145]. Rucker v. Davis, 2000 U.S. LEXIS App. 1966, at *3 (9th Cir. Feb. 13, 2000).

[FN146]. See Gary Fields, Gun Risk Double in Public Housing, USA Today, Feb. 17, 2000, at 3A.

[FN147]. See Utt, supra note 93. See also U.S. v. Thompson, 1992 U.S. Dist. LEXIS 1420, at *1 (N.D. Ill. 1992) (describing project as "notorious" for crime); Nicholas Lemann, The Promised Land 295 (1991) (Robert Taylor Homes "quite possibly the worst place in the country in which to raise a family").

[FN148]. See Utt, supra note 93.

[FN149]. See Simon, supra note 92, at 856 (noting that crime a factor in middle-class flight to suburbs).

[FN150]. See supra note 127 and accompanying text.

[FN151]. See, e.g., Vicki Been, Comment on Professor Jerry Frug's The Geography of Community, 48 Stan. L. Rev. 1109, 1110 (1996) ("When I talk to the mothers and fathers of my children's friends about their inevitably impending move to the suburbs, they talk about the higher standard of living they will enjoy there... [including] the savings of writing one check for property taxes rather than one for property taxes and another for the private school tuition."); Kristin Kovacic, New Century, Same Place, Pittsburgh Post-Gazette, Jan. 1, 2000, at A19 ("[O]ur children were fast approaching school age. The rational response appeared to be moving to a suburban area with a good school district. Many city families we know were starting to move to these [suburbs] for the schools alone.").

[FN152]. See Kern Alexander & M. David Alexander, The Law of Schools, Students and Teachers in a Nutshell 9 (1995) ("[M]ost state laws require children to attend school in the district in which the student resides.").

[FN153]. See Benfield et al., supra note 34, at 123 (central cities contain half of America's poor, though they contain only 30% of total population).

[FN154]. Reed v. Rhodes, 1 F. Supp. 2d 705, 738 (N.D. Ohio 1998). In fact, the "quality" of schooling may influence as little as 2-3% of differences in students' educational achievement. See Christopher Jencks et al., Inequality 109, 159 (1972) (differences among elementary schools account for 3% of inequalities in educational achievement, and differences among high schools account for 2% of such inequalities).

[FN155]. Reed, 1 F. Supp. 2d at 739.

[FN156]. See supra note 86 and accompanying text (noting that jobs follow middle class to suburbs).

[FN157]. See supra notes 24-32 and accompanying text (noting that transit service in suburbs often quite limited).

[FN158]. See Nivola, supra note 126, at 25.

[FN159]. Id. at 25-26.

[FN160]. Id. at 26.

[FN161]. See Massey & Denton, supra note 85, at 55; Arnold W. Reitze, A Century of Air Pollution Control Law: What's Worked; What's Failed; What Might Work, 21 Envtl. L. 1549, 1574 (1991).

[FN162]. See Paul A. Jargowsky, Poverty and Place 50-57, 223-26 (1997) (in 1970s and 1980s, number of high-poverty census tracts increased in most American cities; for example, in 1980, Milwaukee had only 9 census tracts where over 40% of residents had incomes below federal poverty rate, but by 1990 number had increased to 42).

[FN163]. See supra note 144 and accompanying text (crime higher in poverty-packed neighborhoods).

[FN164]. And to the extent transit-dependent Americans are disproportionately city dwellers, they, like other urbanites, suffered from higher taxes and higher crime due to middle-class flight to suburbia, as city neighborhoods became poorer and city tax bases declined. See Massey & Denton, supra note 85, at 55; Lewyn, supra note 93, at 521.

[FN165]. See supra notes 24-32 and accompanying text (noting that most suburban jobsites not transit-accessible).

[FN166]. See, e.g., DiLorenzo, supra note 127 (describing transit spending as "wasteful" because ridership has declined since 1945); Editorial, Continuing Ridership Decline is Everyone's Concern, Pittsburgh Post-Gazette, Feb. 27, 1994, at D2 (When ridership declines, "operating costs must be reduced, service cut, fares increase or... subsidies raised.").

[FN167]. See Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 665 (3d Cir. 1989) ("[I]ncreases in fares or reductions in the quality or availability of service have the tendency of reducing ridership, and the reduction in ridership in turn diminishes revenue.") (Rosenn, J., dissenting); Frank Donze, Riders Oppose Higher RTA Fares, New Orleans Times-Picayune, Feb. 20, 1999, at B1 (quoting rider's suggestion that New Orleans transit agency in "death spiral"); Gary Washburn, New Roads Won't Ease Traffic Jams, Report Says, Chi. Trib., Apr. 2, 1992, at 4 (expressing similar concerns about public transit in Chicago).

[FN168]. 49 U.S.C. ? 5301(d).

[FN169]. See Ams. Disabled for Accessible Pub. Transp. ("ADAPT") v. Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989). The statute was originally at 49 U.S.C. ? 1612(a).

[FN170]. ADAPT, 881 F.2d at 1187 (quoting 49 U.S.C. ? 1612(a)). Today, the statute is almost identically worded, except that it substitutes "individuals with disabilities" for "handicapped persons" and makes several other grammatical corrections. See Historical and Statutory Notes to 49 U.S.C. ? 5301 (changes made "to eliminate unnecessary words").

[FN171]. ADAPT, 881 F.2d at 1187 (quoting 29 U.S.C. ? 794(a)). Today, the statute is almost identically worded, except that it substitutes the word "disability" for the word "handicap" . See Historical and Statutory Notes to 29 U.S.C. ? 794.

[FN172]. ADAPT, 881 F.2d at 1187-88 (quoting 23 U.S.C. ? 142).

[FN173]. 41 Fed. Reg. 18,234 (1976).

[FN174]. See ADAPT, 881 F.2d at 1188.

[FN175]. 41 Fed. Reg. 17,871 (1976).

[FN176]. See 20 U.S.C. ? 3508.

[FN177]. ADAPT, 881 F.2d at 1188.

[FN178]. Id.

[FN179]. See ADAPT, 881 F.2d at 1186 n.1 (defining "paratransit"). Paratransit users are generally served with wheelchair-accessible vans rather than with conventional buses. Id.

[FN180]. 43 Fed. Reg. 2132, 2138 (1978).

[FN181]. ADAPT, 881 F.2d at 1188.

[FN182]. 44 Fed. Reg. 31,442 (1979).

[FN183]. Id. at 31,478.

[FN184]. ADAPT, 881 F.2d at 1188. See also American Public Transit Association, Transit Fact Book 7 (1998) (describing APTA).

[FN185]. 655 F.2d 1272 (D.C. Cir. 1981).

[FN186]. Id. at 1278.

[FN187]. Id.

[FN188]. Id. at 1278-80.

[FN189]. See ADAPT, 881 F.2d at 1188-89 (describing interim regulations and Congress's dissatisfaction with DOT's slow pace).

[FN190]. See ADAPT, 881 F.2d at 1188.

[FN191]. See ADAPT, 881 F.2d at 1188-89.

[FN192]. See ADAPT, 881 F.2d at 1189 (citing 49 U.S.C. ? 1612(d)). The statute is now codified at 49 U.S.C. ? 5310(f), which requires DOT "to prescribe regulations establishing minimum criteria... [federal aid recipients] shall comply with in providing mass transportation to elderly individuals and individuals with disabilities."

[FN193]. ADAPT, 881 F.2d at 1195 (emphasis omitted).

[FN194]. Id. at 1196.

[FN195]. See 51 Fed. Reg. 18,994 (1986).

[FN196]. A fixed-route transit system is one "on which a vehicle is operated along a prescribed route according to a fixed schedule." 42 U.S.C. ? 12141(3).

[FN197]. See ADAPT, 881 F.2d at 1189-90.

[FN198]. Id. at 1190.

[FN199]. Id. at 1186-87. An arbitrary and capricious regulation violates the federal Administrative Procedure Act. See 5 U.S.C. ? 706.

[FN200]. ADAPT, 881 F.2d at 1191.

[FN201]. Id. at 1193-94.

[FN202]. Id. at 1198.

[FN203]. Id. at 1193.

[FN204]. Id. at 1201.

[FN205]. Id.

[FN206]. Id.

[FN207]. Id.

[FN208]. Id. at 1202-03.

[FN209]. See H.R. Rep. No. 101-485, pt. I, at 24 (1990); Paul Stephen Dempsey, The Civil Rights of the Handicapped in Transportation: The Americans with Disabilities Act and Related Legislation, 19 Transp. L.J. 309, 317 (1990).

[FN210]. H.R. Rep. No. 101-485, p. IV, at 24.

[FN211]. See ADAPT, 881 F.2d at 1191-98 (upholding local option rule allowing local governments to rely solely on improving fixed-route transit).

[FN212]. See Rennert, supra note 17, at 399.

[FN213]. See H.R. Rep. No. 101-485, pt. II, at 37 ("Witnesses testified about the need to pursue a multi-modal approach to ensuring access for people with disabilities which provides that... paratransit is made accessible for those who cannot use the fixed route accessible vehicles."); id. at 38 (quoting numerous witnesses).

[FN214]. See H.R. Rep. No. 101-485, pt. I, at 29.

[FN215]. Id.

[FN216]. H.R. Rep. No. 101-485, pt. I, at 38.

[FN217]. Id.

[FN218]. 42 U.S.C. ? 12132.

[FN219]. 42 U.S.C. ?? 12131 et. seq.

[FN220]. 42 U.S.C. ?? 12142-43.

[FN221]. 42 U.S.C. ? 12142(a). DOT later issued detailed guidelines that define what makes a bus, train, or facility "accessible" to the disabled. See 49 C.F.R. ?? 37.7 and 37.9, 49 C.F.R. pt. 38.

[FN222]. See infra notes 273-83 and accompanying text (discussing case law allowing transit agencies to reduce service).

[FN223]. H.R. Rep. No. 101-485, pt. I, at 58 (1990) (additional views of John Paul Hammerschmidt and ten other legislators). However, the obligation to purchase lift-equipped buses may be temporarily suspended if such buses are unavailable. See 42 U.S.C. ? 12145; 49 C.F.R. ? 37.71 (b-g) (setting forth procedures for waiver).

[FN224]. H.R. Rep. No. 101-485, pt. I, at 27.

[FN225]. 42 U.S.C. ? 12142(b). See 49 C.F.R. ?? 37.73 (b-d) and 37.81 (b-d) (setting forth procedures for waiver). The "good faith" provision does not mean that transit providers may purchase inaccessible vehicles merely because they are less expensive; rather, the agency must show that it cannot find an accessible vehicle even after a nationwide search. See 49 C.F.R. ? 37.73, App. D. The DOT has stated that "good faith efforts [[may] involve buying fewer accessible buses in preference to more inaccessible buses." Id.

[FN226]. 42 U.S.C. ? 12142(c)(1). The term remanufacture "is to include changes to the structure of the vehicle which extend the useful life of the vehicle for five years... [but not] engine overhaul and the like." 49 C.F.R. ? 37.75, app. D. See 49 C.F.R. ?? 37.75(d) (remanufacturing bus to make it accessible to disabled feasible unless "engineering analysis demonstrates that including accessibility features required by this part would have a significant adverse impact on the structural integrity of the vehicle") and 37.83(c) (establishing same proposition for rail cars and trains). This subsection does not apply to "historic vehicles." 42 U.S.C. ? 12142(c)(2). The National Register of Historic Places determines whether a vehicle is "historic," 49 C.F.R. ? 37.76(d), and if an agency operates an historic vehicle, it need only make "such modifications to make the vehicle accessible which do not alter the historic character of such vehicle, in consultation with the National Register of Historic Places." 49 C.F.R. ? 37.76(e). See also 42 U.S.C. ? 12148(b)(2) and 49 C.F.R. ? 37.83(d-e) (establishing similar rules for historic trains).

[FN227]. See 49 C.F.R. ? 37.121, app. D.

[FN228]. 42 U.S.C. ? 12143(a)(1).

[FN229]. See 42 U.S.C. ? 12143(a)(2) (Paratransit users should have "response time, which is comparable, to the extent practicable, to the level of designated public transportation services provided to individuals without disabilities."). DOT regulations provide that transit systems may require paratransit users to make reservations a day in advance. See 49 C.F.R. ? 37.131(b). Paratransit service hours, however, must be as extensive as those of a transit provider's fixed route service. See 49 C.F.R. ? 37.131(e).

[FN230]. See 42 U.S.C. ? 12143(c)(2) (requiring "the provision of paratransit and special transportation services required under this section in the service area of each public entity which operates a fixed route system"). Specifically, a transit agency shall provide service to any place within 3/4 of a mile of a bus or train stop in its jurisdiction. See 49 C.F.R.? 37.131(a)(1) and (a)(3).

[FN231]. See 42 U.S.C. ? 12143(c)(A)(i).

[FN232]. See 42 U.S.C. ? 12143(c)(1)(A)(ii). An individual may be paratransit-eligible for some bus routes but not for others, depending on whether an accessible bus is available for a particular bus route. See 49 C.F.R. ? 37.123, app. D.

[FN233]. See 42 U.S.C. ? 12143(c)(1)(A)(iii). See also 49 C.F.R. ? 37.123, app. D (Such disabilities may include, but are not limited to, blindness, chronic fatigue, lack of ability to follow directions, or unusual temperature sensitivity.).

[FN234]. See 42 U.S.C. ? 12143(c)(1)(B) and (C). Subsection (B) provides that at least one individual may always travel with a disabled individual, and Subsection (C) adds that additional individuals may also do so if space is available. DOT regulations establish that the one guaranteed companion is in addition to any personal attendant required by a rider, so that a disabled rider may travel with one personal attendant and one additional companion. See 49 C.F.R. ? 37.123(f)(1). On the other hand, a disabled individual may not be required to travel with an attendant. 49 C.F.R. ? 37.123, app. D.

[FN235]. See infra notes 368, 396 and accompanying text (noting that some transit agencies have reduced overall transit service in order to avoid supplying the disabled with paratransit services).

[FN236]. 42 U.S.C. ? 12143(c)(4). The Federal Transit Administration (FTA) may consider a wide variety of factors in deciding whether to grant or deny a "undue burden" waiver, including the likelihood of fare increases or service reductions in conventional transit service that might be caused by the denial of a waiver, the possibility of preventing such outcomes through efficiencies or coordination of efforts with other transit providers, the resources available for paratransit, current levels of paratransit and fixed-route service, and any other unique circumstances that may be relevant. See 49 C.F.R. ? 37.155(a).

[FN237]. Id. However, the FTA may require public agencies to provide a minimal level of paratransit service (e.g., service along a transit agency's most popular routes during peak hours of service) even if such service would be unduly burdensome. See 49 C.F.R. ? 37.153(c)(2).

[FN238]. See 42 U.S.C. ? 12143(c)(6). See also 49 C.F.R. ? 37.139 (describing appropriate contents of paratransit plans).

[FN239]. See 42 U.S.C. ? 12143(c)(7) and (d)(1).

[FN240]. See 42 U.S.C. ? 12143(d).

[FN241]. See 42 U.S.C. ? 12143(e).

[FN242]. See Transit Fact Book, supra note 184, at 110-123 (On an average weekday Americans take 16 million fixed-route bus trips, as opposed to 341,000 demand-response trips and about 8 million heavy and light rail trips.); id. at 119 (only 11 American metro areas have subway or similar rail service); id. at 121 (only 21 American metro areas have subway or similar rail service, some of whom have heavy rail service as well or have downtown-only service); H.R. Rep. No. 101-485, pt. II, at 94 (1990) (pointing out limited scope of demand responsive service other than paratransit).

[FN243]. See 42 U.S.C. ? 12141(1) (Demand-responsive system is "any system of providing... public transportation that is not a fixed route system.") Demand-responsive systems other than paratransit are generally limited to small towns and rural areas. See H.R. Rep. No. 101-485, pt. II, at 94.

[FN244]. DOT regulations define facilities as "buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or any other real or personal property" used to provide public transit. 49 C.F.R. ? 37.3.

[FN245]. See 42 U.S.C. ? 12144. This requirement does not apply, however, if a demand-responsive transit "system, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service such system provides to individuals without disabilities." Id.

[FN246]. See 42 U.S.C. ? 12146.

[FN247]. See 42 U.S.C. ? 12147(a).

[FN248]. See H.R. Rep. No. 101-485, pt. I, at 32; 49 C.F.R. ? 37.47(b) (listing criteria relevant to definition of key stations).

[FN249]. See 42 U.S.C. ? 12147(b)(2)(A). This deadline may be extended, however, for "extraordinary expensive structural changes." 42 U.S.C. ? 12147(b)(2)(B) (allowing extensions for up to 30 years as long as 2/3 of key stations accessible within 20 years).

[FN250]. 42 U.S.C. ? 12148(b)(1).

[FN251]. 29 U.S.C. ? 794(a).

[FN252]. 42 U.S.C. ? 12133 ("The remedies, procedures and rights set forth in section 505 of the Rehabilitation Act of 1973 (29 U.S.C. ? 794(a)) shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of disability in violation of section 202 [[42 U.S.C. ? 12132].").

[FN253]. See H.R. Rep. No. 101-485, pt. III, at 52. ADA plaintiffs, however, are typically limited to injunctive relief rather than damages. See Midgett v. Tri-County Transp. Dist., 74 F. Supp. 2d 1008, 1018 (D. Or. 1999) (Damages may be awarded only if transit system engaged in intentional discrimination or deliberate indifference to plaintiff's rights.).

[FN254]. See 42 U.S.C. ? 12149(a).

[FN255]. See 49 C.F.R. pts. 37, 38.

[FN256]. See supra notes 220-54 and accompanying text.

[FN257]. See 49 C.F.R. ? 37.161.

[FN258]. See 49 C.F.R. ? 37.163-65.

[FN259]. See 49 C.F.R. ? 37.131(c).

[FN260]. See 49 C.F.R. ? 37.131(d). In fact, providers should not even ask the purpose of a trip. See 49 C.F.R. ? 37.131, app. D.

[FN261]. See 49 C.F.R. ? 37.167.

[FN262]. See 49 C.F.R. ? 37.167(c). DOT has declined to prescribe specific means for such identification. See 49 C.F.R. ? 37.167, app. D.

[FN263]. See 49 C.F.R. ? 37.167(a).

[FN264]. See 49 C.F.R. ? 37.167(d).

[FN265]. See 49 C.F.R. ? 37.167(f).

[FN266]. See 49 C.F.R. ? 37.167(j).

[FN267]. See 49 C.F.R. ? 37.11.

[FN268]. See 49 C.F.R. pt. 37, app. D.

[FN269]. See 49 C.F.R. ? 37.123, app. D.

[FN270]. See 49 C.F.R. ? 37.5, app. D.

[FN271]. See, e.g., Collins v. S.E. Pa. Transp. Auth., 69 F. Supp. 2d 701 (E.D. Pa. 1999) (awarding attorneys' fees to plaintiffs who settled ADA dispute); Neff v. Via Metro. Transit Auth., 179 F.R.D. 585 (W.D. Tex. 1998) (upholding settlement of ADA action); James v. S.E. Pa. Transp. Auth., No. Civ. A. 93-CV-5538, 1997 WL 698035 (E.D. Pa. Nov. 4, 1997) (awarding attorneys' fees to plaintiffs who settled ADA dispute). Cf. Bacal v. S.E. Pa. Transp. Auth., No. Civ. A. 94-6497, 1998 WL 324907 (E.D. Pa. June 3, 1998) (interpreting ADA consent decree).

[FN272]. 41 F. Supp. 2d 343 (E.D.N.Y. 1999), aff'd, 199 F.3d 1322 (2d Cir. 1999) (table).

[FN273]. The station was a commuter rail station rather than a light or heavy rail station; however, commuter rail stations are subject to ADA provisions analogous to those governing other forms of public transit. See 42 U.S.C. ? 12161 et. seq.

[FN274]. Hassan, 41 F. Supp. 2d at 346. The court did not mention whether the station was served by buses.

[FN275]. Id. at 350.

[FN276]. Id. at 351.

[FN277]. Id.

[FN278]. Id. (noting that station at issue was not designated as key station).

[FN279]. Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999).

[FN280]. 56 Fed. Reg. 45584, 45601 (1991) (explaining 49 C.F.R. ? 37.123, setting forth standards for ADA paratransit eligibility).

[FN281]. 42 U.S.C. ? 12142(a).

[FN282]. 42 U.S.C. ? 12143(a)(1).

[FN283]. H.R. Rep. No. 101-485, pt. I, at 24 (1990).

[FN284]. See Transit Fact Book, supra note 184, at 13-14 (in 1992, 27% of transit trips taken by persons with family incomes below $15,000); 1999 Abstract, supra note 2, at 478 (about 13% of all Americans had family incomes below $15,000). The same is true of the disabled. See Survey Program, supra note 49 (29% of the disabled live in poverty, as opposed to 10% of non-disabled, and only 16% of disabled live in households earning over $50,000 annually, as opposed to 39% of non-disabled.).

[FN285]. I examined the Center for Responsive Politics Website, http:// www.opensecrets.org (last visited July 9, 2000), and could find no public transit-related Political Action Committee. By contrast, committees affiliated with the road construction, automobile, and homebuilding industries donated millions of dollars to candidates. Id.

[FN286]. See 1999 Abstract, supra note 2, at 314 (highway spending increased from $9.2 billion to $22.7 billion).

[FN287]. Id. at 314 (transit spending increased by 27%, from $3.12 billion to $3.94 billion), 882 (consumer price index doubled between 1980 and 1998). I note, however, that transit spending has increased in recent years. See Plungis, supra note 82..

[FN288]. See supra notes 25-47 and accompanying text (discussing large number of jobs and other opportunities inaccessible without car in suburbs and small cities).

[FN289]. 74 F. Supp. 1008 (D. Or. 1999).

[FN290]. Id. at 1010.

[FN291]. Id.

[FN292]. Id.

[FN293]. Id. at 1014.

[FN294]. Id.

[FN295]. Id. at 1018. In fact, the court stated that it would not award costs to the victorious defendant because plaintiff's complaints caused "valuable and beneficial improvements in [the] fixed-route bus system, particularly in the areas of accessibility, training, equipment and awareness... [thus] plaintiff's lawsuit ultimately benefited both the disabled and non-disabled members of the community." Id. at 1019.

[FN296]. Id.

[FN297]. Id. at 1018.

[FN298]. No. 5:97-CV-747-BO-1, 1999 WL 735173 (E.D.N.C. Jan. 20, 1999).

[FN299]. Id. at *2.

[FN300]. Id. at *4.

[FN301]. The defendants were a city and a private contractor hired to provide demand response service by the city. Although the contractor provided the service, the city was held vicariously liable for the contractor's conduct. Id. at *9 (public entity liable under ADA for independent contractor's violations as well as those of its employees).

[FN302]. Id. at *6-7.

[FN303]. Id. at *7.

[FN304]. 5 F. Supp. 2d 1078 (N.D. Cal. 1997).

[FN305]. Id. at 1080.

[FN306]. Id. at 1081.

[FN307]. Id.

[FN308]. Id.

[FN309]. Id. at 1082.

[FN310]. Id. at 1083.

[FN311]. Id.

[FN312]. Id. at 1084-85.

[FN313]. Id. at 1085-86. The parties eventually reached a settlement requiring the agency to
rehabilitate or replace all elevators and escalators in key stations over the next three or four years and promptly fix broken elevators and maintain them in good working order, as well as maintaining the sanitary conditions of the elevators... increas[ing] surveillance of the elevators to reduce incidence of vandalism and urination... [and improve the accessibility of other facilities and equipment].
Mattie C. Condray, Recent Developments in Public Transportation Law, 30 Urb. Law. 1091, 1094 (1998).

[FN314]. 986 F. Supp. 1126 (C.D. Ill. 1997).

[FN315]. Id. at 1129.

[FN316]. Id. at 1129-30.

[FN317]. Id. at 1130 (citing ADA legislative history, regulations, and cases). This conclusion was confirmed by the Supreme Court and expanded to encompass asymptomatic HIV-carrier status in Bragdon v. Abbott, 524 U.S. 624 (1998).

[FN318]. 42 U.S.C. ? 12132.

[FN319]. Hamlyn, 986 F. Supp. at 1130.

[FN320]. 42 U.S.C. ? 12132.

[FN321]. 114 F.3d 976 (9th Cir. 1997).

[FN322]. Id. at 978.

[FN323]. Id.

[FN324]. Id.

[FN325]. Id.

[FN326]. Ironically, the indigent plaintiff was represented by an attorney from the highly prestigious law firm of Skadden, Arps, Slate, Meagher, and Flom. See id. at 977 (naming counsel); In re Warner Communications Sec. Litig., 618 F. Supp. 735, 749 (S.D.N.Y. 1985), aff'd, 798 F.2d 35 (2d Cir. 1986) (describing Skadden, Arps as "prestigious").

[FN327]. Weinreich, 114 F.3d at 979.

[FN328]. Id.

[FN329]. See 49 C.F.R. ? 37.131(c).

[FN330]. 42 U.S.C. ? 12147(a) (alterations of fixed route services' facilities); 42 U.S.C. ? 12162(e)(2)(B)(i) (alterations of commuter and inter city rail stations). See also 42 U.S.C. ? 12147(b) (key rapid and light rail stations must be accessible to the disabled); 42 U.S.C. ? 12162(a) (new commuter or intercity rail stations, existing intercity rail stations, and key commuter rail stations must be similarly accessible).

[FN331]. 94 F.3d 808 (2d Cir. 1996).

[FN332]. Id. at 810.

[FN333]. Id. at 812.

[FN334]. 42 U.S.C. ? 12147(a) (referring to "alterations of an existing facility or part thereof"); 42 U.S.C. ? 12162(e)(2)(B)(i) (referring to "alterations of an existing station or part thereof").

[FN335]. See Molloy, 94 F.3d at 811.

[FN336]. Id. at 811-12.

[FN337]. Id. at 812.

[FN338]. Id.

[FN339]. Id.

[FN340]. Id. at 813. The court was rather vague as to whether plaintiffs' claim could succeed on the merits. The court explained that although the machines were not fully accessible to visually impaired riders, it was not yet clear whether the machines were accessible "to the maximum extent feasible" as required by the ADA. Id. at 812-13. Cf. 42 U.S.C. ? 12147(a) (Altered facilities need only be accessible to the disabled to maximum extent feasible.).

[FN341]. 87 F. Supp. 2d 894 (D. Minn. 2000).

[FN342]. Id. at 896.

[FN343]. Id.

[FN344]. Id. at 900 (citing 49 C.F.R. ? 37.129).

[FN345]. Id.

[FN346]. 42 U.S.C. ? 12143(e)(4).

[FN347]. In another section of its opinion, the O'Connor court also suggested that defendants violated the Rehabilitation Act by failing to provide door-to-door service, stating that paratransit's
purpose is to ensure the safety of disabled persons who "by reason of" their disabilities require special assistance to get around safely. Door-to-door service is one component of that assistance, and denial of it, if proved to a jury, is the precise type of behavior that the Rehab Act is enacted to prevent.
O'Connor, 87 F. Supp. 2d at 899. It is not clear, however, whether the court would have so held had the agency not promised such service in its transit plan.

[FN348]. 689 A.2d 1386 (N.J. Super. Ct. App. Div. 1997).

[FN349]. Id. at 1391.

[FN350]. Id.

[FN351]. Id.

[FN352]. Id.

[FN353]. Id.

[FN354]. Id. at 1392.

[FN355]. Id. at 1391-92 (quoting 49 C.F.R. ? 37.123, app. D).

[FN356]. Cf. H. Eric Schockman, Municipal Measures Offer Opportunities to Aid City, L.A. Daily News, Oct. 25, 1998, at V3 (improved sidewalks increase mobility of disabled).

[FN357]. 1995 WL 640599 (Wis. Ct. App. Nov. 2, 1995) (unpublished decision).

[FN358]. Id. at *2.

[FN359]. Id.

[FN360]. Id.

[FN361]. Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1018 (D. Or. 1999). There is a great deal of non-transit case law addressing the question of when compensatory damages are appropriate for unintentional discrimination under the ADA. See, e.g., Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998) (Intentional discrimination must be shown in order to recover compensatory damages under Title II of the ADA.); Wood v. President & Trs. of Spring Hill Coll., 978 F.2d 1214, 1219-20 (11th Cir. 1992) (same); Tayofa v. Bobroff, 865 F. Supp. 742, 749-50 (D.N.M. 1994) (stating that courts have generally held that intentional discrimination a prerequisite to damages under 42 U.S.C. ? 12133), aff'd mem., 74 F.3d 1250 (10th Cir. 1996); Tyler v. City of Manhattan, 849 F. Supp. 1442, 1444-45 (D. Kan. 1994) (holding that the plaintiff could not recover compensatory damages because he did not allege that intentional discrimination caused his emotional distress, mental anguish and humiliation). But see Ferguson, 157 F.3d at 676-80 (Tashima, J., dissenting) (arguing that Title II does not require plaintiffs to prove intentional discrimination); Tyler, 118 F.3d at 1406 (Jenkins, J., dissenting) (same). For a discussion of the different standards courts have used to determine if an act is "intentional," see Leonard J. Augustine, Jr., Disabling the Relationship Between Intentional Discrimination and Compensatory Damages Under Title II of the Americans with Disabilities Act, 66 Geo. Wash. L. Rev. 592 (1998).

[FN362]. See H.R. Rep. No. 101-485, pt. I, at 24 (1990) (purpose of ADA to bring disabled "fully into the mainstream of American society").

[FN363]. See 42 U.S.C. ? 12142(a) (Newly purchased or leased buses and rail vehicles must be accessible to disabled.); 42 U.S.C. ? 12143 (Disabled persons incapable of using conventional public transit must be provided with paratransit service.).

[FN364]. See, e.g., Dan Hartzell, Tentative LANTA Workers Pact Awaiting Ratification By Union, Allentown Morning Call, Mar. 24, 2000, at B3 (By 2001, 50 of 70 Allentown, Pa. buses will be accessible to disabled.).

[FN365]. 74 F. Supp. 2d at 1012.

[FN366]. 41 F. Supp. 2d at 351.

[FN367]. See supra notes 27-47 and accompanying text (describing inadequacy of transit service in most suburbs and small cities); infra notes 369 and 396- 97 and accompanying text.

[FN368]. See Bill Swindell, Sand Springs Again Will Receive Bus Service, Tulsa World, Feb. 15, 1997, at A11. The service was limited to morning and evening rush hour due to concerns over the cost of providing paratransit for all-day service. Id.

[FN369]. See 1999 Abstract, supra note 2, at 643 (over 90% of households own cars).

[FN370]. See supra note 284 and accompanying text.

[FN371]. See supra note 285 and accompanying text.

[FN372]. See 1999 Abstract, supra note 2, at 314 (highway spending increased by 150% between 1980 and 1999, from $9.2 billion to $22.7 billion).

[FN373]. Operating expenses include the costs of operating and maintaining existing vehicles, such as employee benefits, tires, fuels, utilities, and insurance. See Transit Fact Book, supra note 184, at 57-58. By contrast, government has been more generous with capital costs (which include the costs of new facilities and construction). Id. at 38-39, 46-47. Over 2/3 of capital spending goes to rail. Id. at 47. Because the majority of cities have bus-only transit systems, spending figures for operating expenses are far more relevant to the majority of transit systems. See id. at 23 (America has 2250 bus systems, as opposed to 22 light rail, 16 commuter rail, and 14 heavy rail.), 69 (61% of transit users ride buses).

[FN374]. See George Bush, Signing Statement, Pub. L. No. 101-336, reprinted in 1990 U.S.C.C.A.N. 601 (Act signed in July 1990).

[FN375]. See Transit Fact Book, supra note 184, at 52 (government funding increased by less than 1% between 1990 and 1996); 1999 Abstract, supra note 2, at 495 (consumer price index for all items increased by 20% between 1990 and 1996).

[FN376]. See Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999) ("[T]he ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service.").

[FN377]. See supra notes 24-47 and accompanying text (describing inadequacy of American public transit).

[FN378]. See, e.g., 42 U.S.C. ? 2000a (prohibiting discrimination in public accommodations "on the ground of race, color, religion or national origin"); 42 U.S.C. ? 2000e-2 (prohibiting similar discrimination in employment context).

[FN379]. See supra notes 50-52 and accompanying text (questioning whether status of disabled has improved since 1990, and suggesting possible explanations for the absence of progress).

[FN380]. See John J. Coleman & Marcel L. Debruge, A Practitioner's Introduction to ADA Title II, 45 Ala. L. Rev. 55, 105 (1993) (If cities cannot afford to expand transit service for disabled to extent required by ADA, they face a choice between "either ignoring the regulations... or complying with the regulations in the only way that they can afford--eliminating mass transit entirely.").

[FN381]. See Hynes-Cherin, supra note 11. About 3/4 of this sum was spent to satisfy the ADA's paratransit requirements. See Doherty, supra note 11. It is unclear whether Congress expected the ADA to cost this much: before the statute's passage, the Congressional Budget Office estimated the costs of retrofitting buses and train stations to make them more accessible to the disabled, but refused to estimate the costs of the ADA's paratransit provisions. See H.R. Rep. No. 101-485, pt. III, at 80-82 (1990) (stating that "we cannot estimate the potential cost of the paratransit requirement" but estimating that addition of wheelchair lifts to buses would cost $20-30 million per year, maintenance of lift-equipped buses would cost $15 million per year, and modernization of rail facilities would cost $1 billion over 20 years).

[FN382]. See 1999 Abstract, supra note 2, at 314 (In the late 1990s, federal grants to transit systems ranged from $3.9 billion to $4.5 billion.).

[FN383]. See id. at 314, 495 (Transit spending increased from $3.7 billion to $4.2 billion, or 15%, while consumer price index increased by 20%.).

[FN384]. See Transit Fact Book, supra note 184, at 52. As noted above, operating expenses are more important to most transit users than capital expenses, because capital spending goes mostly to rail systems, and most cities lack rail of any sort. See id. at 37 (only 35.5% of capital grants went for bus-related projects), 119 and 121 (only 25 cities have heavy or light rail service).

[FN385]. See Hynes-Cherin, supra note 11.

[FN386]. I calculate this figure as follows: federal transit grants, including both capital subsidies and operating expense subsidies, increased in nominal terms from $3.7 billion to $4.2 billion between 1990 and 1998. 1999 Abstract, supra note 2, at 314. To reach the "post-ADA" total, I subtract $1.4 billion in ADA-related costs (thus giving a federal spending total of $2.8 billion, a 24% cut in nominal terms). See Hynes-Cherin, supra note 11 (estimating that ADA costs transit agencies $1.4 billion annually). I then factor in the 21% decrease in the dollar's value, 1999 Abstract, supra note 2, at 493, for a grand total of a 45% cutback.

[FN387]. See Transit Fact Book, supra note 184, at 38 (federal and state governments increased capital spending on transit between 1990 and 1996), 52 (federal government cut operating subsidies by over 40%, before adjusting for inflation); Congress Approves $4.1 Billion for Transit in Fiscal Year '96, Urban Transp. News, Nov. 8, 1995, available at 1995 WL 8354546 ("new starts" capital grant program not cut at all, while operating assistance cut by 44%) [[hereinafter $4.1 Billion].

[FN388]. See Transit Fact Book, supra note 184, at 37, 57 (only 35.5% of capital grants used for bus projects, as opposed to 57.6% of operating expenses); Mid-Sized Transit Agencies Hit Hardest by Federal Cuts, Urban Transp. News, Jan. 3, 1996, available at 1996 WL 8088255 (transit service cut most in mid-sized cities as opposed to larger cities, because mid-sized cities more dependent on federal operating assistance); Urban Caucus Opposes Operating Assistance Phase-Out, Urban Transp. News, Jan. 7, 1994, available at 1994 WL 2684899 ("[S]mall and mid-sized transit agencies... depend heavily on [operating] assistance."); Lean with the Green, Mass Transit, July 1, 1994, at 44 ("[F]ederal operating aid takes up a relatively small share of expenses for transit systems in large cities such as New York.").

[FN389]. See Transit Fact Book, supra note 184, at 72-73 (transit users in smaller cities more likely to be poor, female and disabled); Eric Mann, Radical Social Movements and the Responsibility of Progressive Intellectuals, 32 Loyola L.A. L. Rev. 761, 776 (1999) (bus riders in Los Angeles disproportionately low-income and minority to greater extent than subway riders).

[FN390]. See Transit Fact Book, supra note 184, at 37 (capital spending targeted to rail/non-bus projects), 23, 119, 121 (only a few large cities have rapid or light rail service).

[FN391]. See Fares Up, Service and Employment Down as Transit Budget Cuts Hit Home, APTA Survey Finds, U.S. Newswire, May 6, 1996, available at 1996 WL 5621136. The cuts were approved by Congress in November 1995, which means that the service cuts and fare increases took place over a period of only seven months. See $4.1 Billion, supra note 387.

[FN392]. In November 1995, Congress passed a budget that reduced operating assistance by 44%. Id.

[FN393]. See Transit Fact Book, supra note 184, at 7.

[FN394]. See Costs of Paratransit Service Higher than Government Admits, Urban Transp. News, May 24, 1995, available at 1995 WL 8354463.

[FN395]. See Crimmins, supra note 12.

[FN396]. See Marian Lumpkin, "Everybody Loses" in Bus Cuts, Richmond Times-Dispatch, Sept. 27, 1992, at B1. See also Swindell, supra note 368 (describing similar reductions in Tulsa bus service).

[FN397]. See Orsi, supra note 13 (blind especially dependent on public transit even before ADA's enactment).

[FN398]. See supra note 11 ($1.1 billion of $1.4 billion cost of ADA devoted to paratransit).

[FN399]. See Millar, supra note 2 (estimating that 24 million disabled Americans unable to drive); Rennert, supra note 17, at 399 (only 1.4 million Americans unable to use fixed-route transit).

[FN400]. See H.R. Rep. No. 101-485, pt. I, at 27 (1990) ("individuals who use wheelchairs are specifically referenced" in ADA); id. at 58 (Section 222 of ADA "mandates [wheelchair] lifts on every new public transit bus."); Tucker, supra note 9, at 931 (major ADA-related change to fixed-route service is that "new buses and rail systems will have to be fitted with lifts or ramps and fold-up seats or other wheelchair spaces with appropriate securement devices"); Regulations Compliance Update, Mass Transit, July 1, 1994, at 44 (Transit industry executives discussed ADA compliance, and consistently described their major challenges as paratransit spending and making buses wheelchair-accessible.).

[FN401]. See 49 C.F.R. ? 37.131(a)(1) and (a)(3).

[FN402]. See Judith Davidoff, Riders to Get Say on Bus Fares, Cuts, Cap. Times, May 6, 2000 ("Cutting an entire [bus] route can hire dire consequences not only for those who use the fixed route service, but for partransit riders as well: Service for people with disabilities is provided only within three-quarters of a mile from a mainline route."); Mark Eddington, Route Plan May Strand Disabled Riders, Salt Lake Trib., Feb. 25, 2000, at C1 (Possible elimination of bus routes in suburban Salt Lake City might strand disabled individuals living near areas served by routes.).

[FN403]. See Lumpkin, supra note 396 (describing service cuts near Richmond, Va.); Swindell, supra note 368 (describing service cuts in Tulsa, Ok.); Trebor Banstetter, Palm Tran Routes, SpecTran Cut in Jupiter, Palm Beach Post, Apr. 21, 1999, at 1B (describing service cuts in Jupiter, Fla.).

[FN404]. See Lori McClung, Losing Access: Compliance with Act Restricts Bus Line's Service Area, J. & Courier, Feb. 1, 1993, available at 1993 WL 3148300. Cf. Scott Powers, Board May Not Cut Its Bus Rides for the Disabled, Columbus Dispatch, Sept. 25, 1996, at 4B (bus system in Columbus, Ohio, considered but rejected similar cutbacks).

[FN405]. See Hassan v. Slater, 41 F. Supp. 2d 343, 351 (E.D.N.Y.), aff'd, 199 F.3d 1322 (2d Cir. 1999) (elimination of train station did not violate ADA if it "affects all potential users, not merely disabled users"); Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999) ("[T]he ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service.").

[FN406]. See supra notes 25-47 and accompanying text (describing gaps in American transit service).

[FN407]. In addition, a variety of other reforms in areas unrelated to transportation could assist transit-dependent Americans by reversing the anti-urban/anti-transit policies discussed supra in notes 129-60, thus making it easier for all Americans to live and work in transit-friendly areas. A full discussion of such "smart growth" reforms, however, is so extensive as to be beyond the scope of this Article. Cf. Michael Lewyn, Suburban Sprawl: Not Just an Environmental Issue Anymore, 84 Marq. L. Rev. 301, 371-82 (2000) (proposing educational and tax reforms to make cities and older suburbs areas more attractive to middle class); Andres Duany et al., Suburban Nation (2000) (proposing a variety of land use-related reforms to make suburbs and cities less auto-dependent).

[FN408]. See Hassan, 43 F. Supp. at 351.

[FN409]. See supra notes 394 and accompanying text (By 1995, 60% of transit systems either had reduced services, increased fares, or laid off employees to meet costs of ADA compliance, or were considering doing so.); Crimmins, supra note 12 (example of service reduction in order to meet costs of ADA compliance).

[FN410]. See Lumpkin, supra note 396 (example of service reduction calculated to reduce paratransit expenses by reducing fixed-route transit service); Swindell, supra note 368 (same); Banstetter, supra note 403 (same).

[FN411]. See 42 U.S.C. ? 12101(8) ("[T]he Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals."); H.R. Rep. No. 101-485, pt. I, at 24 (purposes of ADA are to "welcome individuals with disabilities fully into the mainstream of American society" and to "make progress in providing much needed transit services for individuals with disabilities").

[FN412]. A legislative solution is preferable because as a matter of law, Hassan may have interpreted the ADA correctly. See supra notes 282-83 and accompanying text (suggesting that Hassan consistent with text of ADA).

[FN413]. I consider maintenance cutbacks to be de facto reductions of service, because such policies effectively reduce the quantity of transit service a rider can purchase by making buses unusable. See Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1010 (D. Or. 1999) (maintenance failures prevented disabled plaintiff from boarding buses); Cupolo v. Bay Area Rapid Transit, 5 F. Supp. 2d 1078, 1083 (N.D. Cal. 1997) (inadequate maintenance rendered trains unusable to disabled).

[FN414]. Cf. Roads, supra note 91 (fifty largest metro areas added new road capacity during 1980s and 1990s, usually at greater rate than growth of regional population).

[FN415]. See Banstetter, supra note 403 (Resident of Jupiter, Fla. opposed elimination of bus route because "My [visually impaired] wife and I deliberately chose our house because it is close to the bus lines... [t]his [[route cut] will create tremendous difficulties for us."); Davidoff, supra note 402 (quoting Madison, Wisconsin local officeholder's statement that "if you take off a route, you could be stranding people who are very transit dependent"); Eddington, supra note 402 (Superintendent of state developmental center asserted that if certain bus routes near Salt Lake City were eliminated, "about 100 people with disabilities would lose their jobs and independence if those routes are lost.").

[FN416]. See 1999 Abstract, supra note 2, at 317 (State and local governments spent $25 billion on public transit in 1996, and $1.3 trillion on all government services; thus, public transit constituted 2% of state and local budgets.).

[FN417]. Id. at 316 (state and local government spending increased by nearly 220%, from $307 billion to $982.6 billion, from 1980 to 1997), 495 (consumer price index increased by less than 100% during same period).

[FN418]. See Al Lembke, Rail Failures, Press Democrat, June 7, 1997, at B7 (criticizing proposed light rail system because "[n]o public transportation system pays for itself through fares.... The only people who benefit from such an undertaking are the contractors and politicians who get kickbacks").

[FN419]. See 1999 Abstract, supra note 2, at 635 (government at all levels spent $92 billion on highways, but received only $59 billion in fuel taxes). Moreover, government arguably subsidizes drivers by financing a variety of auto-related costs other than highways from general revenues. See F. Kaid Benfield, Running on Empty: The Case for a Sustainable National Transportation System, 25 Envtl. L. 651, 654 (1995) (According to study by Natural Resources Defense Council, "[a]utomobiles received a much higher aggregate subsidy than does bus or rail transport" because drivers do not pay social costs such as "congestion, subsidized parking, accidents, noise, building damage, and air and water pollution."); Lewyn, supra note 93, at 541- 42.

[FN420]. See 1999 Abstract, supra note 2, at 314, 635 (highway funding consistently increased in 1980s and 1990s).

[FN421]. See supra notes 85-102, and accompanying text.

[FN422]. See supra note 86 and accompanying text (noting that suburban highways shift commercial as well as residential development to suburbs).

[FN423]. Because the primary purpose of such a law would be to ferry transit users to jobs and recreational opportunities in the suburbs, the NWRT law would require service only to streets containing such amenities, and would require service for as long as such opportunities were open (e.g., until most or all merchants on the street closed at night).

[FN424]. See 1999 Abstract, supra note 2, at 635 (over 60% of highway spending financed by fuel taxes).

[FN425]. See Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1012 (D. Or. 1999) ("[T]he ADA does not require public transit systems to provide better service to disabled passengers than is provided to other passengers, only comparable service.").

[FN426]. See 42 U.S.C. ? 12111(5)(a).

[FN427]. See 42 U.S.C. ? 12112 (No covered employer "shall discriminate against a qualified individual because... of the disability of such individual.").

[FN428]. 42 U.S.C. ? 12111(8).

[FN429]. See 42 U.S.C. ? 12112(b)(5) (Discrimination means "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability.").

[FN430]. Id. See also Jeffrey Van Detta, "Typhoid Mary" Meets the ADA: A Case Study of the "Direct Threat" Standard Under the Americans with Disabilities Act, 22 Harv. J. Law & Pub. Pol'y 849, 867 & nn.75-78 (1999) (discussing factors relevant to "undue hardship" inquiry).

[FN431]. See Patterson v. Meijier, 897 F. Supp. 1002, 1007 (W.D. Mich. 1995).

[FN432]. Presumably, such a statute would contain an exemption for rural employers; suburban employers could employ transit-dependent individuals from central cities, but rural employers by definition have no central city to recruit anyone from.

[FN433]. See 42 U.S.C. ? 12111(5) ("[T]he term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees.").

[FN434]. See Benfield et al., supra note 34, at 112-13 ("There is a common belief among local governments that, contrary to the situation with respect to residential neighborhoods, the revenues generated from commercial land uses have only positive fiscal benefits and may be used to offset the high costs of providing public services to residential developments.... As a result, many local governments still aggressively seek commercial and industrial developments.").

[FN435]. See Thomas P. Wyman, Disabled Fight to Keep IndyGo Service, Indianapolis Star, Dec. 14, 1998, at A1.

[FN436]. See Correspondence with Terry Bronson, Aug. 20, 1998 (on file with author). Ironically, the researcher opposed universal transit access on the ground that even $1 billion was too much because of the likely low ridership. I disagree, because I believe there may be a significant untapped potential demand for public transit. Only 5.3% of Americans use public transit to commute to work, 1999 Abstract, supra note 2, at 641, but 9% of households lack a vehicle, id. at 643, and many auto-owning households (including every such household with a child under 16) presumably include at least one nondriver. Specifically, there are 182 million persons over 16, but only 163 million licensed drivers. Id. Thus, 19 million adults have no drivers' license--a number that exceeds the number of carless households by 10 million. In addition, the 54 million Americans under age 16 presumably do not drive. Id.

[FN437]. See 1999 Abstract, supra note 2, at 635 ($101 billion spent on highways alone).

[FN438]. Id. at 1319 (State and local government spending exceeds $1.3 trillion.).

[FN439]. See supra note 437 and accompanying text.

[FN440]. See supra note 438 and accompanying text.

[FN441]. See Patterson v. Meijier, 897 F. Supp. 1002, 1007 (W.D. Mich. 1995) (such an accommodation reasonable).

[FN442]. See, e.g., Jerry Heaster, Mass Transit: Just the Ticket to Waste Taxes, Kansas City Star, June 9, 2000, at C1 (Instead of investing in buses and trains for everyone, society should "subsidize transportation assistance for the economically disadvantaged, the disabled or the elderly unable to get around on their own. This sort of taxpayer help, however, would be focused narrowly on the need of those for whom help is crucial to their well-being.").

[FN443]. See Rennert, supra note 17, at 362 ("Paratransit is so costly that it can meet only a small fraction of the transportation needs of disabled riders."); id. at 395-97 (citing DOT cost projections supporting this view and explaining that DOT actually overestimated usefulness of paratransit by counting only wheelchair users as disabled fixed-route users but counting all passengers as paratransit riders); Lynette Petty, Section 504 Transportation Regulations: Molding Civil Rights Laws to Meet the Realities of Economic Constraints, 26 Washburn L.J. 558, 600 (1987) ("Paratransit systems are the most expensive to operate.... An accessible bus system appears to be the most cost-effective approach for small cities.").

[FN444]. Cheryl Little, Disabled in Action, Envtl. Action, Mar. 22, 1996, at 27.

[FN445]. See Millar, supra note 2 (24 million disabled Americans unable to drive); Rennert, supra note 17, at 399 (1.4 million Americans too severely disabled to use fixed-route buses).

[FN446]. See Transit Fact Book, supra note 184, at 110-123 (On an average weekday Americans take 341,000 demand-response trips, as opposed to over 24 million bus and train trips.).

[FN447]. See Hynes-Cherin supra note 11 (ADA cost transit operators $1.4 billion per year); Doherty, supra note 11 (paratransit provisions of ADA cost transit operators $1.1 billion per year).

[FN448]. See 42 U.S.C. ? 12143(c)(1) (Paratransit services must be provided to disabled individuals who are unable to board buses or trains without assistance, cannot travel to bus or train stop, or wish to travel at a time when only buses or trains available are inaccessible to the disabled.).

[FN449]. See 49 C.F.R. ? 37.131(b).

[FN450]. See H.R. Rep. No. 101-485, pt. I, at 38 (1990).

[FN451]. See Kate Miller, Disabled Riders Rely on Unreliable Service, Tennesseean, July 5, 2000, at 1B (In Nashville, "[a]t times the waiting list for rides has topped 400.... Delays and changes in pickup times remain troubling. For a disabled person dependent on public transportation, these minutes can be the difference between having and not having a job, getting or not getting a degree and making or missing doctor appointments."); Alfonso R. Castillo, The Ride Stuff: Disabled Want Better Bus Service, Newsday, Mar. 18, 2000, at A37 (In Suffolk County, New York, paratransit riders "must call a week in advance if they expect to get an appointed time near the one they want... once the appointment is made, the buses rarely show up on time.").

[FN452]. See 49 C.F.R. ? 37.131(b).

[FN453]. See 49 C.F.R. ? 37.131(c).

[FN454]. See 49 C.F.R. ? 37.131(a)(1).

[FN455]. See 49 C.F.R. ? 37.131(a)(3).

[FN456]. See Heaster, supra note 442 (transit critic admits that public spending necessary to assist transit-dependent poor); Simmons, supra note 2, at 260 (94% of welfare recipients lack cars).

[FN457]. See Miller Tours, Inc. v. Vanderhoof, 13 F. Supp. 2d 501, 503 (S.D.N.Y. 1998) (State aids mass transit "as a means of reducing energy demands, traffic congestion, and air pollution.").

[FN458]. Id.

Utah article on growth boundaries
2002 Utah L. Rev. 1


Utah Law Review
2002


Articles


*1 SPRAWL, GROWTH BOUNDARIES AND THE REHNQUIST COURT


Michael Lewyn [FNa1]


Copyright ? 2002 Utah Law Review Society; Michael Lewyn


I. Introduction
Over the past several decades, metropolitan America has been revolutionized by suburban sprawl--"low-density, single-use development, married with strip and auto-oriented commercial land uses, at the very edges or beyond the fringe of existing urbanization." [FN1] Sprawl typically involves: (1) low-density development requiring dependence on automobiles; (2) segregated land uses (that is, commercial uses are far from residential uses); (3) long distances and poor non-automotive access between housing, jobs, and schools; (4) consumption of land for suburban development occurring at a faster rate than population growth; and (5) "consumption of agricultural and/or environmentally sensitive land for suburban development." [FN2] At the end of World War II, roughly 70% of metropolitan Americans lived in central cities. [FN3] By contrast, in 1990, only about 40% of metropolitan Americans, and only 31.3% of all Americans, lived in central cities. [FN4] *2 In recent years environmentalists, [FN5] many planners, [FN6] and a few politicians [FN7] have sought to limit suburban sprawl. A recent survey by the General Accounting Office (GAO) revealed that 84% of county officials and 64% of city officials rate sprawl as a "high," "very high," or "moderate" concern. [FN8]
Critics of the status quo argue, inter alia, [FN9] that suburban sprawl:
1. Destabilizes urban neighborhoods, causing "a middle class exodus from the central city, causing in turn crime and the segregation of poorer and minority populations in the declining central city." [FN10]
2. Destroys farmland and open space; for example, "from 1982 to 1992 [America] lost to urban and suburban development an average of 400,000 acres per year of 'prime' farmland, the land with the best soils and climate for growing crops." [FN11]; and
*3 3. Forces Americans to drive in order to meet their basic needs, increasing vehicle traffic, thus increasing air pollution [FN12] and traffic congestion. [FN13]
*4 The most stringent [FN14] anti-sprawl measure adopted by any American state is Oregon's "urban growth boundary" (UGB) [FN15] program. Urban growth boundaries are "lines on maps, surrounding areas already marked by 'urban-type' development, within which that type of development is to be channeled and encouraged, *5 and beyond which such development is to be discouraged or forbidden." [FN16] Outside the boundary, rural industries (such as logging) and open space are promoted. [FN17]
This Article briefly describes Oregon law, and then focuses on three issues: (1) whether UGBs are constitutional under the Supreme Court's 2001 decision in Palazzolo v. Rhode Island [FN18] and other relevant precedent, (2) whether the UGB has in fact saved Portland (Oregon's largest city) [FN19] from the social problems caused by sprawl, and (3) whether the side effects of UGBs make them a cure worse than the disease of sprawl.


II. Background: What Oregon Law Requires
In 1973, Oregon enacted Senate Bill 100, which established a comprehensive statewide growth management program. [FN20] Senate Bill 100 was enacted based on legislative findings that "[u]ncoordinated use of lands within this state threaten the orderly development, the environment of this state and the health, safety, order, convenience, prosperity and welfare of the people of this state," [FN21] and that "[t]he promotion of coordinated statewide land conservation and development requires the creation of a statewide planning agency to prescribe planning goals and objectives to be applied by state agencies, cities, counties and special districts *6 throughout the state." [FN22] The Oregon Legislature accordingly created a new citizen commission to oversee the planning program, the Land Conservation and Development Commission (LCDC). [FN23] The Legislature also created the Department of Land Conservation and Development as LCDC's staff for implementing the program, [FN24] and directed the LCDC to appoint the Department's director and supervise its staff. [FN25] The Legislature further required all Oregon cities and counties to adopt comprehensive land use plans and regulations implementing such plans. [FN26] The Legislature defined a comprehensive plan as a "generalized, coordinated land use map and policy statement . . . that interrelates all functional and natural systems and activities relating to the use of lands, including but not limited to sewer and water systems, transportation systems, educational facilities, recreational facilities, and natural resources and air and water quality management programs." [FN27] Such plans must be consistent with statewide planning goals [FN28] to be drafted by the LCDC. [FN29] Between 1974 and 1976, the LCDC adopted nineteen planning goals. [FN30] Local governments then adopted land use plans, which were reviewed by LCDC. [FN31]
Although the Oregon Legislature did not directly state that local governments must establish UGBs, it implicitly did so by using the term "urban growth boundary" in numerous statutes. [FN32] So the LCDC satisfied legislative intent when *7 it enacted Planning Goal 14, which specifically requires every incorporated community to establish a UGB [FN33] that excludes rural land. [FN34] The Oregon courts have interpreted Goal 14 "to prohibit urbanization outside existing UGBs" [FN35] and therefore to "preclud[e] the conversion of rural land to urban use" [FN36] outside UGBs. [FN37] Neither Goal 14 nor any other LCDC rule defines the term "urban use." [FN38] However, the Oregon courts have held that an outdoor performing arts center seating 15,000 people is an "urban" [FN39] land use, as are "areas of half-acre residential lots to be served by community water and sewer." [FN40] On the other hand, "residential density of one house per ten acres is generally not an urban intensity." [FN41]
Land outside UGBs may be converted to "urban use" only if such land is physically developed to the extent that it is no longer available for rural land uses [FN42] or is "irrevocably committed to urban levels of development" [FN43]--that is, if "it is impracticable to allow any rural uses in the . . . area." [FN44] To take advantage of these exceptions to Goal 14 (or to "take an exception," in the terminology used by Oregon courts), [FN45] a local government must show not only that commercial farm or forest use is impractical, but that all other rural uses (including sparse settlement, small farms, etc.) are impractical. [FN46]
*8 A UGB must contain the urban core and sufficient undeveloped land to accommodate population growth. [FN47] UGBs are drawn and amended based on seven factors enunciated in Goal 14: (1) the need to accommodate long-term population growth consistent with LCDC goals, (2) the need for housing, employment opportunities, and livability, (3) the orderly and economic provision for public facilities and services, (4) maximum efficiency of land uses, (5) the environmental, energy, economic, and social consequences of a plan, (6) the retention of agricultural land uses, and (7) the compatibility of urban land uses with nearby agricultural activities. [FN48]
Portland's UGB is administered by a regional agency, the Portland Metropolitan Service District (commonly known as "Metro"). [FN49] Metro has the power to force cities and counties to amend their land use plans to conform with the boundary set by Metro. [FN50] The Portland metropolitan UGB was adopted by Metro in 1979, approved by LCDC in 1980, [FN51] and encompasses twenty-four municipalities, portions of three counties, [FN52] and 369 square miles (or 236,000 acres) of land. [FN53]


III. Constitutionality: Are UGBs an Unconstitutional "Taking" of Land?
The United States Constitution provides that private property may not "be taken for public use, without just compensation." [FN54] It is not clear that the Framers of the Takings Clause intended it to restrict regulation of property (as opposed to *9 actual physical appropriation). [FN55] Nevertheless, the Supreme Court has held that "there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs." [FN56] Some commentators have suggested that UGBs are intrusive enough to constitute a "taking" of land, and thus cannot be implemented unless the government compensates all property owners adversely affected thereby. [FN57] Although no Supreme Court case is directly on point, lower court decisions have indirectly addressed the constitutionality of growth boundaries.

A. Are UGBs a "Taking" Under Supreme Court Precedent?


1. The Key Cases: A Summary
In the 1978 case of Penn Central Transportation Co. v. New York City, [FN58] the Supreme Court announced a three-part balancing test governing "regulatory takings" cases: in determining whether a land use regulation is intrusive enough to constitute a "taking," the court weighs the regulation's economic effect on the landowner, the extent to which the regulation interferes with a landowner's reasonable investment-backed expectations, and the character of the government action. [FN59] In the Palazzolo case, the Supreme Court reiterated its commitment to the Penn Central balancing test. [FN60]
*10 Of all the Court's post- Penn Central cases, the case of Agins v. Tiburon [FN61] is most closely on point. The Agins plaintiffs challenged municipal zoning ordinances that prohibited the construction of more than five single-family homes on the plaintiffs' five-acre tract of land. [FN62] Specifically, the plaintiffs argued that the zoning ordinances were a "taking" because they "forever prevented [their land's] development for residential use" [FN63] and thus "completely destroyed the [land's] value." [FN64]
The Supreme Court upheld the zoning ordinances, for two reasons. First, the ordinances "substantially advance legitimate governmental goals" [FN65]-- specifically, "protect[ing] the residents of [the city] from the ill effects of urbanization." [FN66] Second, the ordinances did not "prevent the best use of [plaintiffs'] land . . . nor extinguish a fundamental attribute of ownership" [FN67] because the plaintiffs "may be permitted to build as many as five houses on their five acres of prime residential property." [FN68]
The zoning ordinances upheld in Agins are quite similar to Oregon's urban growth boundaries. Both UGBs and the zoning laws at issue in Agins limit development in rural areas in order to prevent urbanization of those areas. [FN69] And like the ordinances at issue in Agins, Oregon law allows some residential development on rural land: the Oregon Supreme Court has stated that residential development outside UGBs is not an "urban use" (and is therefore allowed) if the developer builds no more than one unit every ten acres, [FN70] and has reserved judgment on whether the one-acre lots contemplated by Agins [FN71] are "urban" (and thus presumably forbidden outside UGBs). [FN72] In other words, the major difference *11 between the ordinances upheld in Agins and Oregon law is that the former allowed landowners to build one lot per acre, while Oregon law allows landowners to build one lot (and maybe more) per ten acres--a distinction of no obvious constitutional significance.
It could be argued that Agins is no longer dispositive, because Rehnquist Court rulings have sharply curtailed government regulation of land use. [FN73] Two decisions in particular are arguably relevant: Lucas v. South Carolina Coastal Council [FN74] and Palazzolo v. Rhode Island. [FN75]
The Lucas plaintiff purchased two beachfront lots in South Carolina on which he intended to build houses. [FN76] Two years after he purchased the lots, the state enacted a law which prohibited such beachfront construction. [FN77] The Court assumed for the purposes of its decision that this statute "rendered [plaintiff's] parcels 'valueless."' [FN78] The Court stated that as a general rule, [FN79] a taking occurs when land use regulation (1) "'does not substantially advance legitimate state *12 interests"' [FN80] or (2) "'denies an owner economically viable use of his land."' [FN81] Because the statute at issue prevented the plaintiff from gaining any financial benefit from his land, the Court held that the plaintiff had suffered a constitutional taking unless the state could "identify background principles of nuisance and property law that prohibit the uses he now intends." [FN82] The Court reasoned that
regulations that leave the owner of land without economically beneficial or productive options for its use--typically, as here, by requiring land to be left substantially in its natural state--carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. [FN83]
The Court accordingly remanded the case to the South Carolina courts so the state could have a chance to "identify background principles of nuisance and property law that prohibit the uses [Lucas] now intends in the circumstances in which the property is presently found." [FN84] The Court added in dicta that a landowner "whose deprivation is one step short of complete" [FN85] may be entitled to compensation under certain circumstances, explaining:
Such an owner might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, '[t]he economic impact of the regulation on the claimant and . . . the extent to which the regulation has interfered with distinct investment-backed expectations' are keenly relevant to takings analysis generally. [FN86]
The Palazzolo court elaborated on Lucas by clarifying the Court's definition of a "total taking" [FN87] and by explaining the relationship among the factors relevant *13 to "partial taking" cases. [FN88] In 1959, the Palazzolo plaintiff formed a corporation to develop waterfront land in Rhode Island. [FN89] The corporation's applications were denied three times by various Rhode Island agencies--first for lack of essential information, and later on environmental grounds. [FN90] In 1971, Rhode Island enacted legislation creating the Rhode Island Coastal Resources Management Council ("the Council"), an administrative agency charged with the duty of protecting the state's wetlands. [FN91] In 1978, the corporation's charter was revoked for failure to pay corporate income taxes, and title to the property passed to the plaintiff as the corporation's sole shareholder. [FN92] The plaintiff then filed two additional development applications with the Council. Both were denied because of their adverse impact on salt marshes within the property; [FN93] under the Council's regulations, such salt marshes were "coastal wetlands" on which development must be limited. [FN94] The Rhode Island Supreme Court affirmed the decision of the Council. [FN95] The plaintiff appealed this decision to the U.S. Supreme Court, which reversed in part and remanded. [FN96]
The Supreme Court began its opinion with a general description of the law of regulatory takings. The Court held that "a regulation which 'denies all economically beneficial or productive use of the land' will require compensation under the Takings Clause." [FN97] The Court added that
where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of facts including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. [FN98] *14 Thus, the government generally must compensate landowners for regulations that are "total takings," [FN99] that is, those that deprive landowners of all "economically beneficial use" of their land. [FN100] By contrast, "partial taking[s]," [FN101] that is, regulations that do not eliminate all economically beneficial use of the plaintiff's land, are judged by the Penn Central three-part balancing test. [FN102]
As to the "total takings" half of this test, the Court affirmed the Rhode Island court, holding that the Rhode Island regulations were not a "total taking" because even after the Rhode Island authorities' adverse decision, the plaintiff could still build a $200,000 residence on his eighteen-acre parcel. [FN103] The Court explained that "[a] regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property 'economically idle."' [FN104] Further, "it is undisputed that the parcel retains significant worth for construction of a residence." [FN105]
The Court went on, however, to hold that the Rhode Island Supreme Court had erroneously analyzed the plaintiff's "partial takings" claim, and to remand the case to the Rhode Island courts so that they could address that claim under the Penn Central balancing test. [FN106] The Court reversed for two reasons. First, the Rhode Island Supreme Court erred in holding that the plaintiff's takings claim was not yet ripe for judicial review. [FN107] Second, the state court erred in holding that the plaintiff "had no reasonable investment-backed expectations that were affected by [the state's] regulation . . . [because he] did not become the owner of the land until 1978 . . . [when] there were already regulations in place limiting Palazzolo's ability to fill the wetlands for development." [FN108]
As to the latter issue, the Court explained that an otherwise unreasonable taking
do[es] not become less so through passage of time or title. . . . [Otherwise] the post enactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. [FN109] *15 In other words, a regulation may be a compensable "taking" even if it is enacted before the plaintiff buys the land being "taken."
Because the Court so held by a five to four margin, [FN110] Justice O'Connor's separate concurrence is especially significant as to the "investment-backed expectations" issue. Justice O'Connor wrote that "the Rhode Island Supreme Court erred in effectively adopting the sweeping rule that the preacquisition enactment of the use restriction ipso facto defeats any takings claim based on that use restriction," but that nonetheless, the Court's holding "[did] not mean that the timing of the regulation's enactment relative to the acquisition of title is immaterial to the Penn Central analysis." [FN111] Instead, "interference with investment-backed expectations is one of a number of factors that a court must examine. . . . [T]he regulatory regime in place at the time the claimant acquires the property at issue helps shape the reasonableness of those expectations." [FN112] In support of this view, Justice O'Connor reasoned that if
existing regulations dictate the reasonableness of [investment-backed] expectations in every instance, then the State wields far too much power to redefine property rights upon passage of title. . . . [But] if existing regulations do nothing to inform the analysis, then some property owners may reap windfalls and an important indicium of fairness is lost. [FN113] Justice O'Connor accordingly wrote that rather than adopting "per se rules," [FN114] courts "must attend to those circumstances which are probative of what fairness requires in a given case." [FN115] In other words, "investment-backed expectations" are *16 one of the three factors examined under the Penn Central balancing test, and a landowner's decision to acquire property already governed by the challenged regulations is in turn highly relevant to the presence or absence of such expectations.
Justice O'Connor also discussed the third of the Penn Central factors: the "character of the governmental action" challenged by a Takings Clause plaintiff. [FN116] She explained that under this prong of the Penn Central test, a "use restriction on real property may constitute a 'taking' if not reasonably necessary to the effectuation of a substantial public purpose." [FN117] This language echoes the Agins Court's requirement that a regulation "substantially advance legitimate governmental goals" [FN118] in order to not constitute a taking. Because Justice O'Connor supplied the crucial fifth vote for the Court's decision, her concurrence is likely to be followed by future courts. [FN119]
In sum, Palazzolo, interpreted in light of Justice O'Connor's concurrence holds:
1. That "a regulation which 'denies all economically beneficial or productive use of land' will require compensation under the Takings Clause." [FN120]
2. That a regulation allowing a landowner to build one house on eighteen acres of land is not such a "total" taking. [FN121]
3. That regulations other than "total takings" are governed by the Penn Central balancing test, under which the courts must balance: (a) "the regulation's economic effect on the landowner," [FN122] (b) "the extent to which the regulation interferes with reasonable investment-backed expectations," [FN123] and (c) "the character of the government action" [FN124] (that is, the extent to which a "substantial public purpose" [FN125] supports the regulation at issue).
*17 2. Applying the Case Law to UGBs


(a) Are UGBs an Unconstitutional "Total Taking"?
As noted above, a regulation which "denies all economically beneficial or productive use of land" [FN126] will generally require compensation under the Takings Clause. UGB statutes modeled on Oregon law are clearly not such a "total taking" under Palazzolo. [FN127] The Palazzolo plaintiff sought to persuade the Supreme Court that he suffered a "total taking" [FN128] because he could only build one $200,000 residence on his eighteen-acre parcel. [FN129] The Supreme Court flatly rejected this theory, holding that a regulation "permitting a landowner to build a substantial residence on an eighteen-acre parcel does not leave the property 'economically idle."' [FN130]
Landowners in Oregon can do far more with their land than the Palazzolo plaintiff could do with his, for two reasons. First, the Oregon courts have held that houses on ten-acre lots are not "urban uses" [FN131] and thus may be built outside UGBs. [FN132] By contrast, the Palazzolo plaintiff could only build one house on an eighteen-acre parcel. [FN133] Second, Oregon landowners are not even limited to building one house on a large parcel of land: instead, they may also use land outside UGBs for agricultural purposes, [FN134] and may even convert such land to urban uses if "it is impracticable to allow any rural uses" [FN135] on such land. Thus, Oregon law is apparently less restrictive than the regulations challenged in Palazzolo. It follows that if the Rhode Island regulations at issue in Palazzolo did not "leave the [plaintiff's] property 'economically idle,"' [FN136] Oregon's less *18 restrictive laws do not do so either, and thus are not a "total taking" under Lucas and Palazzolo.
Some commentators endorse a more pro-plaintiff interpretation of Supreme Court precedent. For example, one commentator writes that because UGBs "prevent development consistent with the otherwise predictable use of the property," [FN137] they automatically deprive landowners of "all or mostly all of the value of their property." [FN138] But this need not be the case. For example, suppose that a zoning ordinance, by preventing Blackacre from being turned into a subdivision, reduces its fair market value [FN139] from $20 per square foot to $12 per square foot. Blackacre will have lost 40% of its value--more than the owners would like, but certainly less than "all or mostly all of the value of their property." [FN140] By contrast, in Lucas, the value of plaintiff's property was allegedly reduced to zero. [FN141]
It has also been suggested that a taking occurs whenever property suffers "a significant dimunition in value." [FN142] If this is the case, UGBs, although not per se unconstitutional, [FN143] may lead to a large number of successful takings claims, because
the creation of the boundary itself will cause dramatic differences between the value of undeveloped property inside the boundary and the value of similar property outside. . . . [T]hose on the inside can rest assured that the supply of developable land is now artificially limited, and hence more valuable. Those on the outside will be prohibited from entering the market. [FN144] *19 The "significant dimunition in value" standard, however, was rejected in both Lucas and Palazzolo. The Lucas Court held that "in at least some cases the landowner with 95% loss will get nothing." [FN145] Moreover, a year after Lucas, the Supreme Court cited cases rejecting challenges to regulations that diminished land value by 75% and 92.5%, in a decision unanimously reaffirming that "our cases have long established that mere diminution in the value of property, however serious, is insufficient to demonstrate a taking." [FN146] As a result of such statements, lower courts applying Lucas have "not usually found a taking because the land use regulation attacked did not deny the landowner all economically viable use." [FN147]
The Palazzolo Court similarly held that a regulation that "places limitations on land that fall short of eliminating all economically beneficial use" [FN148] is not automatically invalid, but rather is subject to the Penn Central balancing test. [FN149] Thus, a regulation that significantly reduces the value of a landowner's property is not per se unconstitutional.


(b) Applying the Penn Central Balancing Test to UGBs
As explained above, [FN150] even a "partial taking" (that is, one that reduces the value of a landowner's property by less than 100%) may be a compensable regulatory taking if it "interferes with reasonable investment-backed expectations" [FN151] or is not "reasonably necessary to the effectuation of a substantial public purpose." [FN152] Neither of these factors turns Oregon's UGB statutes into a compensable "taking."
i. Investment-Backed Expectations
Justice O'Connor, writing as the crucial fifth vote in support of a five to four decision, [FN153] wrote that "the state of regulatory affairs at the time of acquisition" [FN154] *20 is relevant to the extent of landowners' investment-backed expectations, and that "the nature and extent of the permitted development under the regulatory regime vis-a-vis the development sought by the landowner may also shape legitimate expectations." [FN155] It follows that a UGB is unlikely to interfere with landowners' investment-backed expectations where, as in Oregon, UGBs have existed for over two decades, [FN156] because a property owner will rarely have an "investment-backed expectation" in resisting enforcement of statewide statutes and regulations enacted decades ago. [FN157]
Even in states where UGBs have not yet been enacted, proposed UGBs are likely to interfere with a landowner's reasonable investment-backed expectations only if a landowner reasonably relied on their absence--for example, where property outside the UGB has previously been zoned for (or was about to be zoned for) intensive development, and a landowner bought the property in reliance upon such zoning. [FN158] Otherwise, the landowner's reasonable expectations will not have been affected by the newly enacted UGB. State and local governments can easily minimize such problems by including land already zoned for development within UGBs. [FN159] It therefore appears that even if UGBs do diminish rural property values, rural landowners will rarely have constitutional claims under Supreme Court precedent.


ii. Substantial Public Purpose
Finally, a "partial taking" may also be a compensable taking if it is not supported by a "substantial public purpose." [FN160] As noted above, the Agins court held that limiting the spread of urbanization is a legitimate state interest justifying restrictions upon development of rural and suburban land. [FN161] Thus, UGBs (which, in Oregon, were enacted at least partially in order to protect rural land from the *21 spread of suburbia) [FN162] are clearly supported by a "substantial public purpose" under Agins.
In sum, three factors are relevant to whether a land use regulation constitutes a taking: the weight of the state interests favoring the regulation; whether the regulation renders plaintiff's property valueless or nearly so; and whether the regulation interferes with plaintiff's reasonable investment-backed expectations. [FN163] None of these factors supports a finding that UGBs generally constitute a "taking" that requires governments to compensate adversely affected landowners. Thus, UGBs are constitutional under Rehnquist Court case law.

B. Lower Courts Address UGBs (Sort Of)
Although the Oregon courts have upheld Oregon's land use laws, [FN164] they have never specifically addressed the constitutionality of UGBs. However, one federal decision indirectly supports the constitutionality of UGBs. In Buckles v. King County, [FN165] plaintiffs challenged a county's decision to zone their property as "Rural Area" pursuant to the Washington growth management statute (which established "urban growth areas" similar to the Oregon UGBs). [FN166] Plaintiffs *22 argued, inter alia, that this "designation 'fails to advance a legitimate county interest and thereby takes Plaintiffs' property without payment of just compensation."' [FN167]
The U.S. Court of Appeals for the Ninth Circuit began its discussion by noting that, as a general rule, "a land use regulation does not constitute a taking if the regulation does not deny a landowner all economically viable use of the property and if the regulation substantially advances a legitimate government interest." [FN168] The court then held that the county had advanced numerous substantial interests in support of its decision, one of which was "complying with the Growth Management Act's limitation on urban development outside of the urban growth boundary because the [plaintiffs'] property lies outside of King County's urban growth boundary." [FN169] If "limitation on urban development outside of the urban growth boundary" is a legitimate state interest, it arguably follows that a UGB statute specifically designed to limit such development advances a legitimate state interest. Thus, Buckles supports the constitutionality of UGBs.


IV. Have UGBs Cured the Mischiefs of Sprawl?
Although UGBs are probably constitutional, they may nevertheless be unwise if they fail to prevent problems associated with sprawl, such as urban decay, destruction of farmland, and automobile dependency. Oregon's UGBs appear to have prevented the urban decay that other cities have suffered as a result of sprawl. However, the impact of the UGB upon the Portland region's land use and transportation patterns has been less dramatic.

A. Saving the City
As suburbs have grown, older central cities throughout America have emptied out. Between 1900 and 1950, every large American city gained *23 population. [FN170] But most older cities have been devastated by sprawl: of the eighteen American cities with over 500,000 people in 1950, thirteen lost population in the 1950s, fifteen in the 1960s, and sixteen in the 1970s. [FN171] For example, by 2000 St. Louis had lost almost 60% of its 1950 population, while Buffalo and Cleveland had lost nearly half of their 1950 population. [FN172] Those cities that have gained population have done so either by becoming hubs for foreign immigration or by annexing newly developed areas that would be considered suburbs in other cities. [FN173] As cities have become smaller, they have become poorer. In 1990, thirty-one of America's thirty-seven largest cities had poverty rates above the national average, [FN174] and central cities contained half of America's poor (as opposed to one-third in 1960). [FN175] Jobs, as well as people, have fled to suburbia: about 95% of the fifteen million new jobs created in the 1980s were in suburbs. [FN176]
In some regions, city life is not a viable choice for any residents other than the poorest or most adventurous. For example, only 4% of Cleveland-area households earning over $100,000 live in the city of Cleveland. [FN177] Even institutions that would be urban in other communities are suburban in Cleveland: the office of EcoCity Cleveland, one of the area's leading anti-sprawl groups, is located in the suburb of Cleveland Heights. [FN178]
Middle-class flight feeds upon itself: as cities become more and more dominated by the poor, who cannot afford to move to suburbia, city neighborhoods become more dangerous (because poverty-packed areas have higher crime *24 rates), [FN179] city schools become less prestigious (because children from poor backgrounds are typically less academically proficient than students from affluent backgrounds), [FN180] and city tax bases dwindle due to the city's poverty (thus causing higher taxes and inadequate services) [FN181]--thus causing additional middle-class flight. [FN182]
While some older cities have decayed, Portland has grown and prospered. From 1980 (when the Portland UGB was created) [FN183] to 2000, the city of Portland's population grew by over 40% [FN184] after declining for several decades. [FN185] Moreover, Portland's population growth compared favorably to that of the central cities of the most comparable western metropolitan areas. Table 1 compares Portland's growth to that of Denver, Salt Lake City, and Seattle--three regions *25 that, although otherwise comparable, [FN186] have lacked UGBs for most or all of the past two decades. [FN187]


*26 TABLE 1: POPULATION GROWTH

City population % Metropolitan area
increase/decrease population % increase
1950-80 [FN188] 1980-2000 1980-2000 [FN190]
[FN189]
Portland -1.5 43.7 43.8
Denver 18.4 12.3 47.5
Seattle 5.6 14.0 46.2
Salt Lake 10.4 11.0 46.5
City

As Table 1 shows, the UGB allowed Portland to gain a proportionate share of the region's population growth, while Denver, Seattle, and Salt Lake City were left in the dust by their suburbs. By contrast, in the decades before the UGB was adopted, Portland was losing population while Denver and Seattle gained population--even though Portland annexed thirty-nine miles of land between 1950 and 1980, increasing its land mass by nearly 60%. [FN191]
Moreover, Denver, Seattle, and Salt Lake City are far healthier than some other cities in high-growth regions. For example, the Atlanta metropolitan area's population grew by over 80% (far faster than metropolitan Portland) during the 1980s and 1990s [FN192]--yet while the Atlanta region's population surged, Atlanta's central city population actually declined from 425,000 to just over 416,000. [FN193] *27 Similarly, metropolitan Washington, D.C. grew by over 40% from 1980 to 2000 [FN194] while the central city population tumbled from 638,000 to just over 572,000. [FN195]
Because Portland annexed almost twenty-two miles of previously suburban territory in the 1980s, [FN196] it could be argued that annexation rather than UGBs caused Portland's startling growth. This argument is probably incorrect, for two reasons. First, as Table 2 shows, Salt Lake City and Denver annexed even more territory than Portland did, yet they failed to experience comparable urban growth.


TABLE 2: CENTRAL CITY GROWTH THROUGH ANNEXATION, 1980-1990

% increase in city land area % increase in population
[FN197] [FN198]
Portland 21.0 43.7
Seattle 0 12.3
Denver 37.7 14.0
Salt Lake City 47.7 11.0

Second, Portland annexed land during the 1950s, 1960s, and 1970s just as it did in the 1980s, yet failed to gain population because the city's land area failed to keep up with the migration of city residents to suburbia: Portland encompassed 64 square miles in 1950 and 103 square miles in 1980--yet the city *28 actually lost population. [FN199] Without UGBs to limit sprawl, Oregonians moved to suburbia faster than the city of Portland could expand its boundaries. [FN200]
As Portland's population has grown, its economy has grown as well. The number of private sector jobs increased by 21.4% in the city of Portland between 1992 and 1997 [FN201] while jobs in Salt Lake City, Denver, and Seattle increased by 6.6%, 8.8%, and 8.4% respectively. [FN202]
Because of Portland's growth and prosperity, Portland is one of the few central cities that has not become a dumping ground for the region's poor. Table 3 compares poverty trends in Portland and other western cities to poverty trends in their suburbs.


*29 TABLE 3: POVERTY TRENDS, 1979-97 [FN203]

Poverty rate [FN204] 1979 Poverty rate 1997
Denver City 13.7 16.4
Denver suburbs 5.4 6.5
Seattle City 11.2 12.9
Seattle suburbs 6.1 5.9
Salt Lake City 14.2 16.2
Salt Lake City suburbs 6.3 6.7
Portland City 13.0 12.6
Portland suburbs 7.2 7.8

In Denver, Seattle, and Salt Lake City, the central city poverty rate is more than twice the suburban poverty rate, and the gap between city and suburb has stayed roughly the same or grown. [FN205] By contrast, Portland has actually narrowed the city-suburb economic gap: its poverty rate was 1.8 times the suburban poverty rate in 1979, and was only 1.61 times the suburban poverty rate in 1997. [FN206]
In sum, Portland's UGB has arguably enhanced rather than reduced consumer choice, by making the city of Portland a viable option for middle-class households. Before the UGB was created in the 1980s, Portland was losing population while other western cities were gaining population. But over the past two decades, Portland has (unlike other western cities) grown as fast as its suburbs, and has narrowed the city-suburb economic gap. So for city- dwellers and would-be city-dwellers, the UGB has been a success on this ground alone.

B. Protection of Natural Resources
The preservation of agricultural and other natural resources areas was a *30 primary motivation behind Oregon's planning statutes. [FN207] For example, Oregon law justifies the creation of LCDC by stating that the "promotion of coordinated statewide land conservation and development requires the creation of a statewide planning agency." [FN208] Presumably, the UGB's success in this respect can be measured by Oregon's success in preserving farmland.
Table 4 shows the amount of farmland in the counties that are part of the Portland, Denver, Seattle, and Salt Lake City metro areas.


TABLE 4: ACRES OF FARMLAND IN METRO-AREA COUNTIES [FN209]

1987 1992 1997 [FN210] % loss 1987-97
Portland 605,201 571,588 596,903 1.4
Seattle 154,628 135,969 118,141 23.5
Salt Lake City 418,138 414,542 263,120 37.0
Denver 1,311,463 1,312,770 1,308,710 0.2

*31 Table 4 suggests that Oregon's policies have been only moderately successful at preserving rural land. The Portland region has slowed farmland loss, but one of the three comparable metro areas (Denver) has been slightly more successful in doing so. On the other hand, the Portland region actually gained agricultural land between 1992 and 1997, while Denver's progress in farmland preservation was reversed. Thus, it is too early to tell whether the UGB is increasing the supply of farmland and/or rural land.
The inconclusive results of the UGB were hardly unforeseeable, because at the time of its creation, the Portland UGB included some vacant buildable land, thereby allowing developers to urbanize rural land without running afoul of the UGB. [FN211] This "land cushion" constituted 37% of the buildable land within the UGB, [FN212] giving developers ample opportunity to urbanize inside the UGB land. Presumably, a stricter UGB would have reduced development of rural land, but might have created negative side effects (such as land shortages leading to higher housing prices). [FN213] Moreover, thousands of "exurban" houses have been built outside the UGB, either on lands zoned for commercial farm and forest production or on "exception lands" (that is, land outside the UGB but identified as "committed" to urban land uses). [FN214] Thus, the UGB was lenient enough to allow development of a significant amount of rural land.
In sum, the Oregon UGB has been at best moderately successful in slowing the urbanization of rural areas: metropolitan Portland lost farmland in the 1980s and early 1990s, but may have slowed or halted those losses in recent years.

C. Sprawl, Automobile Dependency, and Portland
Thanks in part to suburban sprawl, [FN215] Americans drive more than ever. Between 1983 and 1995, the length of the average American commute increased by 37%. [FN216] As a result, vehicle miles traveled (VMT) grew four times faster than the driving-age population, as Americans spread farther and farther apart. [FN217] Also, because more Americans than ever live far from bus stops and other transit *32 facilities, [FN218] public transit usage in the U.S. is far lower than in other affluent countries, [FN219] and many jobs are simply inaccessible to the carless urban poor. [FN220] By making automobile ownership virtually mandatory for a normal life, [FN221] sprawl limits consumers' transportation choices [FN222] while arguably increasing traffic congestion [FN223] and air pollution. [FN224]
One measure of automobile dependency is the growth or decline of public transit use. Table 5 addresses this issue.


*33 TABLE 5: ANNUAL TRANSIT BOARDINGS, 1980-96 (IN MILLIONS) [FN225]

1980 boardings 1996 boardings % increase
Denver 46.9 69.8 48.7
Portland 50.3 79.8 58.7
Salt Lake City 19.1 23.8 24.9
Seattle 98.2 115.5 17.6

All four metropolitan areas experienced increased transit ridership at a time when the majority of metropolitan transit systems actually lost riders [FN226]--but transit ridership grew faster in Portland than in Denver, Seattle, or Salt Lake City. Because cities tend to be more transit-accessible than suburbs, [FN227] UGB-related growth in city population [FN228] may have contributed to Portland's surge in transit ridership.
It does not appear, however, that automobile use has decreased in Portland. Table 6 compares vehicle miles traveled ("VMT") in Portland to VMT in other urbanized areas.


*34 TABLE 6: DAILY VMT PER CAPITA IN URBANIZED AREAS, 1989-99 [FN229]

1989 1999 % increase
Denver 17.3 23.2 34.1
Portland 18.9 20.8 10.0
Salt Lake City 18.5 22.6 22.1
Seattle 24.2 25.9 7.0

Table 6 shows that Portlanders drive less than other westerners, and that their per capita VMT has grown more slowly than that of Salt Lake City and Denver commuters. Table 6 also shows, however, that Portland's VMT has grown more quickly than that of Seattle commuters. Although city residents drive less than suburbanites, [FN230] the number of city residents arguably added by the UGB (161,000 if every single city resident added between 1980 and 2000 would have lived in the suburbs otherwise) [FN231] comprised only 8.3% of the region's population [FN232]--not enough to massively reduce automobile use, especially since most residents of the city of Portland drive to work. [FN233]
In sum, Portland's transportation patterns differ only modestly from those of its western neighbors: transit use has risen, but automobile use has risen as well (albeit more slowly than in some other metropolitan areas).


*35 V. Are UGBs a Cure Worse Than the Disease?
The case against the UGB has been stated succinctly by the Almanac of American Politics, an authoritative guide [FN234] to American politics:
[Portland's] 'livable community' comes at a price. The Portland area was recently rated the fourth-least affordable place in the nation to purchase a new home. Portland's policies guarantee greater traffic congestion; even optimistic planners acknowledge that its population growth will be much larger than the number of people who can be persuaded to use mass transit. Greater population densities produce more intense pollution . . . . [FN235] In other words, the Almanac suggests that the UGB: (1) reduces housing affordability by limiting development; and (2) creates traffic congestion and pollution by increasing density. Other commentators have suggested that the UGB reduces housing quality by increasing density, and that regardless of their beneficial effects, such land use controls are an inappropriate government intrusion into property rights. [FN236] Each of these arguments will be addressed in turn.

A. Portland's So-Called Affordability Crisis
By most measures, Portland is not one of America's most expensive metropolitan areas. According to the National Association of Home Builders (NAHB), Portland's median home sale price in 2000 was $168,000, far less than *36 San Francisco ($505,000), New York ($237,000), Seattle ($220,000), Denver ($183,000) and literally dozens of other metropolitan areas. [FN237]
It could be argued that even though Portland is not incredibly expensive, the UGB has nevertheless triggered an affordability crisis by creating a rapid increase in home prices. [FN238] Table 7 tests this theory by comparing Portland's housing price increases to those of comparable metropolitan areas.


TABLE 7: HOUSING PRICE INCREASES IN THE URBAN WEST, 1991-2000 [FN239]

1991 median price (in 2000 median price (in % increase
thousands of dollars) thousands of dollars)
(1st quarter) (3rd quarter)
Denver 84 183 117
Portland 80 168 110
Salt Lake 76 151 98
City
Seattle 130 220 69

Table 7 shows that home prices in Portland have increased more slowly than home prices in Denver, and that Portland-area housing price appreciation has been only slightly more rapid than price appreciation in other western regions.
It could be argued that despite Portland's perfectly ordinary rates of housing appreciation, Portland's houses are nevertheless relatively more expensive than houses in other regions because wages are lower in Portland. Table 8 sets forth the ratio between median income and median home price for Portland and comparable metropolitan areas.


*37 TABLE 8: MEDIAN INCOMES AND MEDIAN HOME PRICES, 2000 (in thousands of
dollars) [FN240]

Median income Median home price Income as % of home price
Denver 62.1 183 33.9
Portland 53.7 168 31.9
Salt Lake City 53.4 151 35.3
Seattle 65.8 220 29.9

Table 8 shows that even after Portland's lower wages are accounted for, Portland is more affordable than Seattle and only slightly less affordable than Denver or Salt Lake City. In all four areas, the median home price exceeds median income by about a three to one margin.
If Portland's housing appreciation rate is lower than Denver's and its overall prices are lower than Seattle's, then why is it so often argued that Portland is unaffordable? UGB critics rely on the NAHB Housing Opportunity Index (HOI) [FN241] which, in recent years, has consistently labeled Portland as one of the nation's most expensive metropolitan areas. [FN242] The HOI, however, yields preposterous results. For example, metropolitan New York City's median income is only $2500 higher than Portland's ($56,200 as opposed to Portland's $53,700), and New York City's median home price is $69,000 higher ($237,000 as opposed to Portland's $168,000). Yet, the NAHB considers New York City more affordable than Portland! [FN243]
Why does the NAHB claim that New York is more affordable than Portland? The NAHB's affordability index is the percentage of homes allegedly "affordable" to a hypothetical household earning the median regional income. [FN244] Thus, NAHB reasons, New York is more affordable than Portland because New *38 York households earning the median income can allegedly afford 29.3% of homes, while Portland households earning Portland's median income can only afford 27.6% of homes. [FN245] This means that the prices of homes above the NAHB-designated "affordability level" (as well as the price and desirability of homes below this "affordability level") are irrelevant to the NAHB index.
Portland's apparent unaffordability may be related to the fact that the gap between Portland's most expensive and least expensive housing is smaller than similar gaps in New York or other cities. Thus, a homeowner who cannot afford the average house also cannot afford many of the area's cheaper-than-average houses. [FN246] For example, only about one-third of Portland-area homeowners have unusually high (50% over the regional median) or unusually low (50% below the regional median) housing costs. [FN247] In contrast, a majority of Los Angeles-area homeowners [FN248] and over 40% of New York-area homeowners have unusual housing costs. [FN249]
It follows that under the NAHB's criteria, the metropolitan areas with the largest gap between the most expensive and least expensive homes may seem *39 quite affordable, because such areas will have a large number of low-cost homes affordable to median-income homeowners. It further follows that the most dangerous cities are by definition relatively affordable under the NAHB's methodology, because the very cheap houses in expensive cities may be located in run-down, dangerous areas. [FN250]
The following hypothetical illustrates how the NAHB test may lead to absurd results. Imagine two cities, City A and City B. In both, the median housing price is $150,000. A household earning the median income can afford a $50,000 to $100,000 house, and any house costing under $50,000 is likely to be in a crime-ridden neighborhood and thus undesirable to all but the most adventurous (or desperate) homebuyers. Suppose that City A is a socially homogeneous city with very low crime rates, and that as a result the price gap between the best and the worst neighborhood is lower than in most big cities (as appears to be the case in Portland). [FN251] City A's housing prices are thus distributed as follows:

Over $200,000: 5%
$150-200,000: 40%
$100-150,000: 25%
$50-100,000: 20%
Under $50,000: 5%

Although City A has very few "high-end" houses, the remaining houses are so clustered in the $100,000 to $200,000 range that a median income household can afford only 25% of them. Thus, City A has an affordability index of 25 under the NAHB methodology. However, most of the low-end houses are not in crime-infested neighborhoods, so 20% of houses are both affordable and relatively desirable (i.e., not in a dangerous neighborhood). Thus, the real affordability index--that is, the percent of houses that are both affordable to middle-class homebuyers and located in neighborhoods that middle-class homebuyers would actually be willing to consider--is 20, almost as high as the NAHB affordability rating.
*40 Portland closely resembles City A. Portland's murder rate (5.3 murders per 100,000 residents in 1998) is lower than that of most big cities. [FN252] The Portland metropolitan area is significantly safer than most cities. [FN253] Portland's urban poverty rate is lower than the national poverty rate [FN254] and (as in City A) the price gap between Portland's most and least expensive houses is lower than in other metropolitan areas. [FN255]
By comparison, City B is a two-class city. It has a number of relatively safe elite neighborhoods and/or suburbs, an equally large number of cheap, crime-infested slums, and a tiny middle class. As a result, its housing prices are distributed as follows:

Over $200,000: 40%
$150-200,000: 10%
$100-150,000: 5%
$50-100,000: 5%
Under $50,000: 40%

Because 45% of City B houses are theoretically affordable to a median-income household (i.e., one who can only afford a $100,000 house), the NAHB would give City B an affordability index of 45--nearly twice that of City A. But because of City B's crime problem, many of its housing units are simply unthinkable to the average homebuyer concerned about his or her safety. In fact, when the dangerous "under $50,000" neighborhoods are excluded, City B's affordability rating drops to 5, one-fourth that of City A.
Thus, the NAHB index yields absurd results because it systematically disfavors relatively safe, homogenous cities and metropolitan areas (like City A and Portland), and favors cities and metropolitan areas sharply divided into rich and poor, safe and unsafe (such as city B). The relative affordability of America's most dangerous regions supports this interpretation of NAHB's tabulations. The five metropolitan areas with the highest violent crime rates in 1998 all had higher *41 "affordability scores" than Portland. [FN256] Table 9 compares Portland with two of these "City B" -type areas.


TABLE 9: HOUSING COSTS IN NEW YORK, PORTLAND, AND LOS ANGELES (4th quarter
1998) [FN257]

Median income (in Median home price (in NAHB
thousands) thousands) score affordability
Portland 49.6 155 38.7
Los Angeles 49.8 179 50
New York 49.8 160 56

Los Angeles and New York had median incomes virtually identical to those of Portland, and higher median home prices. Yet according to the NAHB, Los Angeles and New York (whose violent crime rates were nearly double those of Portland) [FN258] are far more affordable, presumably because they have more extremely inexpensive neighborhoods. For example, New York and Los Angeles have higher median home prices than Portland, [FN259] but also have more homes that cost under $200 per month than Portland. [FN260] Thus, the NAHB index appears to *42 reward cities with a profusion of dangerous, low-cost slums. The NAHB index of affordability may be flawed in other respects. The index fails to consider Oregon's lack of a sales tax (thus underestimating buyers' income). It also fails to account for the fact that second- and third-time buyers benefit from the rising resale value of their first homes, because they can make larger down payments on later homes. [FN261]
Even though Portland's housing prices have exploded in recent years, its overall cost of living has not. Between 1995 and 1999, Portland's consumer price index for all items increased by 12.7%--no more than in Denver (12.7%), and less than in Seattle (13.5%). [FN262] Thus, there is no reason to believe that Portland consumers are being impoverished by high housing prices.
In sum, Portland's property values have indeed gone up over the past decade, but its price increases and home values are in line with those of comparable metropolitan areas. The UGB may have had a marginal effect on Portland's housing costs, but it has hardly been the disaster that some have claimed. [FN263]

B. Portland's So-Called Congestion Crisis
Environmentalists argue that suburban sprawl increases traffic congestion, by increasing the number of cars on the road and the distances that drivers travel. [FN264] UGB critics argue, on the other hand, that anti-sprawl policies such as UGBs actually increase congestion by forcing a constant or growing number of *43 cars onto the same amount of land. [FN265] It follows, according to UGB critics, that Portland's UGB, by increasing density, has increased traffic congestion. [FN266]
The Texas Transportation Institute (TTI), a state research agency affiliated with Texas A & M University, [FN267] regularly conducts "urban mobility studies" that evaluate the extent of congestion in America's largest metropolitan areas. Its 2001 study [FN268] contains numerous measures of congestion trends, including increases in annual delay per person. [FN269] TTI ranked Portland number eleven (out of sixty-eight metropolitan areas ranked) in the 1982-99 increase in delay caused by traffic congestion--that is, TTI found that congestion increased at a more rapid rate in Portland than in all but ten metropolitan areas. But two of those ten were comparable areas which lacked UGBs for some or all of the relevant period--Seattle (no. 5) and Denver (no. 8). [FN270] In other words, congestion increased dramatically in Portland, but no more dramatically than in other areas without UGBs.
Moreover, there is no reason to believe that Portland's congestion increase was the result of increased density. According to TTI, Portland's population density actually decreased slightly from 1982 to 1999, from 3230 people per square mile to 3040. [FN271]
*44 Seattle's brief experience with UGBs supports the view that UGBs do not cause congestion. Seattle instituted UGBs in 1994 [FN272]--so if UGBs cause congestion, congestion in Seattle should have risen more dramatically in recent years than in earlier years. Instead, Seattle's delay per person exploded from nineteen hours per driver in 1982, to fifty-five hours in 1992, and then decreased to fifty-three hours in 1999. [FN273] Thus, the Seattle UGB has not increased traffic congestion.
It could be argued that the UGB has failed to dramatically increase congestion only because Portland has not yet become particularly dense, and if Portland does not dilute or eliminate the UGB in the future, density may increase and thus cause congestion. [FN274] The link between density and congestion, however, is weak. Table 10 lists the urbanized areas with more congestion than Portland, and compares their density to Portland.


TABLE 10: DENSITY AND DELAY PER PERSON, 1999 [FN275]

Delay per person (hours) Population per square mile
Los Angeles 56 5575
Atlanta 53 1585
Seattle 53 2295
Houston 50 1830
Dallas 46 1455
Washington 46 3420
Austin 45 1585
Denver 45 2240
St. Louis 44 1775
Orlando 42 1780
Miami 42 3785
Boston 42 2605
San Jose 42 4340
Nashville 42 1085
San Francisco 42 3205
San Berardino 38 2600
Minneapolis 38 1900
San Diego 37 3575
Indianapolis 37 2050
Louisville 37 2060
Tampa 35 1530
Portland 34 3040

*45 Table 10 shows no link between density and congestion: of twenty-one areas with more congestion than Portland, fifteen (including Seattle and Denver) are less densely populated. Thus, density either (a) does not cause traffic congestion or (b) increases traffic congestion so minutely that the congestion-causing effect of density is overwhelmed by other relevant factors.
In sum, traffic congestion in metropolitan Portland has grown about as fast as in other western metropolitan areas without UGBs--a fact that suggests UGBs neither cause nor cure traffic congestion to a significant extent. And if the UGB increases regionwide density in the future, traffic congestion will not necessarily increase as a result, because there is no clear correlation between regionwide population density and regionwide traffic congestion.

C. Density, UGBs, and Air Quality
Air quality is widely acknowledged to be linked in some way to density, sprawl, and UGBs, but there is no consensus as to how these problems are linked to UGBS. Environmentalists assert that sprawl creates pollution by increasing automobile use, [FN276] and that Oregon's land use policies might therefore limit pollution by limiting sprawl. [FN277] UGB opponents argue, however, that UGB-induced increases in density will lead to increases in pollution. One commentator reasons that "[a]s density rises, so does congestion." [FN278] "[G]iven the fact that air pollution rises as urban automobile speeds decline and as 'stop and start' operation increases, the result is greater air pollution." [FN279]
As noted above, [FN280] Portland's traffic congestion is no worse than that of less densely populated metropolitan areas, including otherwise comparable regions such as Seattle and Denver. [FN281] If Portland's policies are not certain to *46 cause increased traffic congestion, those policies obviously will not cause congestion-related pollution.
Moreover, air pollution in Portland is comparable to that of nearby metropolitan areas. Table 11 lists trends in carbon monoxide emissions for Portland and comparable western metropolitan areas.


TABLE 11: CARBON MONOXIDE EMISSIONS IN PARTS PER MILLION, 1989-98 [FN282]

1989 1998 % REDUCTION
Denver 7.8 3.9 50.0
Portland 8.2 5.1 37.8
Salt Lake City 7.7 4.9 36.3
Seattle 8.5 4.5 47.0

Table 11 reveals that all four metropolitan areas reduced carbon monoxide pollution by roughly similar amounts, and that Portland was slightly less successful in reducing carbon monoxide than Seattle and Denver but slightly more successful than Salt Lake City. Thus, it appears that Oregon's land use and transportation policies, to the extent those policies differ from those of other western states, have not significantly affected air quality. Portland's rather ordinary air quality performance should not be surprising, in view of Portland's apparent failure to reduce automobile use during the 1990s. [FN283]
It could be argued that even if the UGB has not yet increased pollution, it will do so in the future by encouraging higher density (which will in turn allegedly increase pollution by increasing traffic congestion). [FN284] To be sure, a scintilla of evidence supports this theory: Los Angeles has a higher population density than any other urbanized area [FN285] and has more carbon monoxide pollution *47 than most other large urbanized areas. [FN286] But Los Angeles is unusual in that it combines high density with high automobile dependency, [FN287] perhaps because its central core is far less dense than that of less automobile-oriented cities: the central city of Los Angeles had only 7426 people per square mile in 1990. [FN288] By contrast, each of the eight large metropolitan areas included in the study where at least 10% of commuters used public transit in 1990 [FN289] included or was near a central city with 9500 persons or more per square mile. [FN290]
Metropolitan areas with high levels of public transit use tend to have relatively clean air. Table 12 lists the five metropolitan areas with the highest public transit ridership, and their pollutant levels, and compares them to Portland and other comparable metropolitan areas.


TABLE 12: PUBLIC TRANSIT RIDERSHIP AND CARBON MONOXIDE, 1998

% of commuters 1998 using Carbon monoxide emissions
public transit [FN291] (parts/million) [FN292]
New York City 47.3 3.7
San Francisco 19.5 3.5
Chicago 17.1 3.4
Boston 14.2 2.9
Washington 13.7 3.3
Denver 4.4 3.9
Portland 6.0 5.1
Salt Lake City 3.0 4.9
Seattle 7.4 4.5

*48 The most public transit-friendly metropolitan areas are all less polluted than Portland, Denver, Seattle, or Salt Lake City. Therefore, if Portland can ever densify its central core and reduce automobile dependency to the extent that those metropolitan areas have done, air pollution is unlikely to increase.

D. Do UGBs Reduce Housing Quality?
UGB opponents argue that even if the Portland UGB does not increase housing costs, traffic congestion, or air pollution, it has reduced the quality of the housing stock by reducing the amount of buildable land, thus reducing home and lot sizes. For example, one anti-UGB article is titled: Squeezed Out: No Swingset, No Sandbox, No Space Left for the American Dream. [FN293] The article asserts that because few new homes are built on half-acre lots, "[t]he American Dream is dead in Portland." [FN294] Similarly, one anti-UGB activist asserts that if the UGB is not expanded or eliminated, "[p]eople will be crowded together, living on small lots." [FN295]
But in fact, the specter of a hyper-dense Portland is imaginary; Portlanders' homes and lots are as large as ever. Between 1986 and 1995, the median-sized owner-occupied home in Portland grew from 1674 square feet [FN296] to 1764 square feet. [FN297] The median lot size grew slightly, from .22 acre [FN298] to .23 acre. [FN299] The number of houses sitting on over half an acre of land grew from 74,000 [FN300] to 98,700. [FN301] And during the 1990s, "nearly 800,000 of the 1.4 million people living in the Portland area . . . saw no change in the density of their neighborhoods." [FN302] As a result, "only 5% of the region's residents live in areas with population density greater than 10,000 people per square mile." [FN303] In *49 Portland, as in other areas, more people are building bigger houses on more land. [FN304]
Critics argue that even if Portland has no density crisis today, a refusal to expand the UGB could eventually force Portlanders to live in an overcrowded, congested environment. [FN305] But in fact, Portland has plenty of room to grow. The city of Portland has just over 529,000 people living within its 124.7 square miles. [FN306] If the city's population tripled, it would have about 1.587 million people living within those 124.7 square miles, thus creating a density of 12,726 people per square mile, which is still a lower density than that of San Francisco. [FN307] In other words, if a million people moved to Portland in the next few decades, every single one of them could, in theory, be placed in the city of Portland without either making Portland inordinately dense or increasing suburban densities by one iota.

E. The Libertarian Argument Against UGBs
Libertarians argue that regardless of its utilitarian benefits, Portland's UGB should not be imitated because restricting landowners' use of their land violates their property rights. [FN308] This argument makes sense in principle: in a society that truly valued minimal government, any form of land use regulation would obviously be inappropriate. [FN309]
However, the United States is not such a society: even in colonial times, states and cities enacted planning statutes similar to UGBs. For example, the *50 Massachusetts Bay Colony "prohibited dwellings more than one-half mile from town meeting houses without court permission." [FN310] Today, as UGB critic Clint Bolick admits, "minimum lot sizes and restrictions on multiple uses, often popular tactics among suburban governments to keep their communities pristine and exclusive, definitely contribute to 'sprawling' suburbs." [FN311] A typical zoning ordinance has separate zones for: single-family large lot, single-family medium, single-family standard, multi-family low density, multi-family medium density, multi-family high density, general office, neighborhood commercial, community commercial, service commercial, central business district, limited industrial, and heavy industrial. [FN312] These regulations contribute to sprawl by separating residential and commercial uses, thereby making it difficult for people to go from their residences to shops and workplaces without driving. [FN313] Municipalities also reduce housing supplies and force Americans to drive by mandating minimum lot sizes and house sizes within zones. [FN314] These regulations were frequently enacted for the purpose of increasing housing prices. [FN315] They also inadvertently reduce transit use, because as residences are spread farther apart, fewer people can conveniently walk to bus and train stops. [FN316] If pro-sprawl land use restrictions such as separation of land uses, minimum house sizes, and minimum lot sizes do not unduly infringe landowners' rights, neither do UGBs.
Similarly, UGB critics often support pro-sprawl government transportation policies. For decades, government has accelerated sprawl by building new roads into suburbia, thus encouraging development to shift from cities to suburbs. [FN317] But many critics of UGBs and other anti-sprawl measures are less than *51 critical of road spending. For example: (1) The Independence Institute, which purports to address "public policy issues from a free-market, pro-freedom perspective" [FN318] published an anti-UGB paper asserting that "[f]or traffic congestion to be mitigated . . . [r]oadway expansions will be necessary." [FN319] (2) Steven Hayward of the Heritage Foundation complained in a 1998 article that "Portland's planners . . . are substituting political decisions for marketplace decisions," [FN320] yet claimed in the same article that Portland will suffer increased traffic congestion because "the region deliberately avoids road-building." [FN321] (3) Grant Gulibon, a policy analyst for Pennsylvania's conservative Commonwealth Foundation, complains that the UGB "created an artificial scarcity of land . . . . Whenever a commodity becomes scarce the price goes up." [FN322] Yet Gulibon asserts that "[t]he reason [new roads] fill up right away is because you didn't build enough in the first place." [FN323]
UGBs undeniably increase government's voice in land use decisions--but so do a variety of well-established government policies, some of which are supported even by prominent UGB critics. Thus, UGBs are not uniquely intrusive.


VI. Conclusion
As explained above, UGBs are probably constitutional under Supreme Court Takings Clause precedent for two reasons. First, a UGB will rarely, if ever, cause a complete deprivation of economically beneficial use, and is thus unlikely to be a compensable "total taking" under Lucas and Palazzolo. Second, UGBs *52 will generally not be compensable "partial takings" under the Penn Central balancing test, because they are typically justified by a legitimate state purpose (that of preventing the urbanization of rural areas) and will, if prudently drafted, rarely interfere with landowners' investment-backed expectations.
The question of whether UGBs are wise public policy is a more difficult one. The Oregon UGB has apparently had one major benefit: enhancing consumer choice, by making the city of Portland a viable lifestyle choice for middle-class Portlanders, instead of merely a holding pen for people too poor to move to suburbia. And by making it easier for Portlanders to live in the city, the UGB has arguably made it somewhat easier for them to use public transit instead of being enslaved by their cars.
In other ways, Portland has continued to evolve in the same directions as nearby metropolitan areas without UGBs. On the negative side, this means that the UGB has not had an enormous effect upon automobile use, traffic congestion, or urban consumption of farmland. Although Portland's air is cleaner than it was a decade ago, the same is true for other western cities without UGBs. On the positive side, the UGB has not led to the horrors imagined by UGB critics. Portland's real estate is not significantly more expensive than that of comparable western cities, its traffic congestion is no more annoying, and its air is no more polluted. In sum, UGB supporters and opponents alike may have overestimated both the positive and negative effects of UGBs.

(footnotes deleted due to length of article)

note on copryight
Law journal articles posted on this blog are with the permission of the relevant journals.

my Ecology L.Q. article
30 Ecology L.Q. 189


Ecology Law Quarterly
2003


Books Reviewed


*189 HOW CITY HALL CAUSES SPRAWL: A CASE STUDY --A REVIEW ESSAY BY MICHAEL
LEWYN OF ATLANTA: RACE, CLASS AND URBAN EXPANSION BY LARRY KEATING: TEMPLE
UNIVERSITY PRESS, 2001, PP. 248. $69.50 (CLOTH), $22.95 (PAPER)


Michael Lewyn [FNa1]


Copyright ? 2003 The Regents of the University of California; Michael Lewyn


INTRODUCTION: SEGREGATION AND POLLUTION IN SPRAWL CITY
Journalists and scholars have repeatedly termed Atlanta "sprawl's poster child," [FN1] because the inequality, [FN2] urban decay, [FN3] and air pollution [FN4] commonly associated with suburban sprawl [FN5] have reached extreme forms in Atlanta. For example:
* While Atlanta's suburbs have grown explosively, the city of Atlanta has actually lost population in recent decades. *190 Metropolitan Atlanta's population grew by over 80% between 1980 and 2000, [FN6] but the city of Atlanta is actually less populated than it was in 1980, [FN7] and it has lost over half its 1960 white population. [FN8] The city's depopulation has been accompanied by poverty: while only 6.7% of the region's households earn less than $10,000 per year, [FN9] 17% of city households do so. [FN10]
* As jobs have followed people to suburbia, Atlanta's central business district has stagnated while its suburban employment centers have grown. In 1966, downtown Atlanta contained more than two-thirds of public, corporate and private office space in the Atlanta region. [FN11] By 1997, just 13.3% of regional private office space was located in downtown Atlanta. [FN12] The predominantly white [FN13] northern suburbs contain all but one of the region's suburban office submarkets, 65.9% of regional research-and-development office space, and 52% of regional employment. [FN14] In recent decades, much of downtown Atlanta has been virtually empty at night: [FN15] in the words of travel *191 writer Arthur Frommer, "a graveyard, a scene of death and desolation, a nullity." [FN16]
* The dominance of suburbia has, in turn, increased automobile dependency, because suburban office buildings are often spaced so far apart that walking between them (or between the office buildings and any other form of land use) is extremely difficult. [FN17] For example, one suburban commercial district, the Roswell/Alpharetta submarket, spreads less than a fifth as much office space as is contained in Atlanta's central business district over a linear distance seven times as great. [FN18]
* The suburban job market is inaccessible to the predominantly African-American, non-driving poor of the inner city. Because Atlanta-area jobs have moved to suburbs, [FN19]where public transit is minimal, [FN20] they are virtually inaccessible to non-drivers. Thirty-nine percent of all black households in Atlanta do not have access to cars, [FN21] and in 2000, only 34% of the region's jobs were within a one-hour public transit ride of low-income urban neighborhoods. [FN22] Income inequality between white and black neighborhoods has exploded: in 1950, the median family income for predominantly white census tracts was just over twice the figure for black census tracts, while the white census tract/black census tract income ratio had increased to 5.28 in 1990. [FN23]
* Atlantans drive further distances than most other Americans, causing pollution that substantially endangers public health. In *192 2000, the average Atlantan drove 33.8 miles per day, about 50% more than the national average for residents of large metropolitan areas. [FN24] Atlanta's auto dependency has contributed to the region's air pollution. In both 2000 and 2001, Greater Atlanta had higher levels of ozone (a pollutant partially caused by automobile fumes) [FN25] than all but five other American metropolitan areas. [FN26] Between 1998 and 2000, metropolitan Atlanta's most polluted county experienced 86 days on which ozone levels were at levels unhealthy for groups especially sensitive to pollution [FN27] (such as "children, the elderly, and those with chronic lung disease" [FN28]), and 31 days on which the air was unhealthy for the community as a whole. [FN29]
Some commentators have blamed suburban sprawl on decisions made by federal and state governments, [FN30] while others assert that sprawl merely expresses consumer preferences. [FN31] But in Atlanta: Race, Class and *193 Urban Expansion, Larry Keating, a professor of city planning at the Georgia Institute of Technology, [FN32] focuses on a third factor: municipal incompetence. This essay generally endorses Keating's view that local governments have contributed to Atlanta's problems, [FN33] but suggests that Keating has insufficiently described the relationship between zoning laws and Atlanta's sprawl, and has failed to fully discuss some effects of this sprawl, such as crime and inferior public education.


I. ATLANTA'S REIGN OF ERROR
Keating focuses his analysis on the city of Atlanta's highway policies, on ill-conceived mass transit and zoning policies, and on the city's imprudent urban renewal policies.

A. The Highway Fiasco
Throughout America, state and federal governments have accelerated suburban sprawl by building highways in rural areas and suburbs. [FN34] Highways facilitate access to suburban and rural land, thus making such land more appealing to developers and prospective residents. [FN35] As Keating points out, Atlanta politicians have been just as enthusiastic about sprawl-creating highways as their state and federal counterparts. As early as 1946, consultants hired by Atlanta's business leaders issued a report that urged the area's local governments to finance *194 a network of expressways radiating outward from downtown Atlanta to its suburbs. [FN36] Business leaders believed that the highways would make downtown Atlanta more prosperous by facilitating access to downtown from the suburbs and from the city's outskirts. [FN37] With the support of Atlanta politicians including Mayor William Hartsfield, the highways opened in the late 1950s. [FN38]
As early as the 1960s, this first generation of expressways facilitated massive "white flight" [FN39] to suburbia: the city lost over 60,000 whites between 1960 and 1970. [FN40] Emigrants to suburbia also followed the expressways, moving up I-75 (one of the city's north-south expressways) and I-85 (the other north-south expressway) [FN41] to Cobb, DeKalb and Gwinnett Counties. [FN42] Keating points out that, additionally, at this time the city lost industrial jobs to suburban areas along the expressways. [FN43]
In 1961 Hartsfield retired [FN44] and was replaced by Ivan Allen Jr., a prominent member of Atlanta's downtown business elite. [FN45] Before starting his campaign for mayor, Allen pledged that continued highway construction would be one of the city's major redevelopment objectives. [FN46] As promised, I-285 (known to most Atlantans as "the Perimeter"), a *195 highway encircling the city, opened in 1969. [FN47] Like Atlanta's first generation of expressways, I-285 dispersed Atlantans to suburbia. [FN48] By 1995, almost 38 million square feet of office space had sprung up on and beyond the Perimeter, more than twice the amount remaining in downtown Atlanta. [FN49] Three of metropolitan Atlanta's major commercial districts are along the Perimeter. [FN50]
By the 1980s, expressway-generated sprawl had eviscerated Atlanta's core. Between 1970 and 1980, the city of Atlanta lost 70,000 people, [FN51] as both people and jobs moved to the suburbs along I-75, I-85 and I-285. [FN52] In addition to luring the middle class to suburbia, the expressways had turned downtown Atlanta into a wasteland of parking lots and off-ramps. According to one estimate, 50% of downtown land was engulfed by a tidal wave of expressways, streets and parking, and "hundreds of acres were consumed by interchanges" on the fringes of downtown. [FN53]
Despite these emerging problems, city politicians refused to change course. Keating describes how, in the 1980s, business interests in Buckhead (a commercial district six miles north of downtown and within the city limits) [FN54] lobbied for Georgia 400, [FN55] an expressway that would link Buckhead with a suburban highway of the same name [FN56] and with I-285. [FN57] Just as Atlanta's downtown elite had once believed that highways would facilitate downtown commerce by making downtown more accessible *196 from Atlanta's suburbs, [FN58] Buckhead businesspeople believed that highways would aid Buckhead's commerce by making Buckhead more accessible to suburbanites. [FN59] Some business leaders also admitted that such "highways to the suburbs made them less dependent on an increasingly black city-workforce." [FN60] Nevertheless, the Atlanta City Council approved the highway in 1989, [FN61] and the Georgia 400 extension opened in 1993. [FN62]
Keating asserts that, like earlier highways, the Georgia 400 extension appears to have created a new generation of sprawl: the Roswell/Alpharetta suburban office submarket, built entirely during the 1990s, now encompasses more than 9 million square feet of office space along 10 miles of Georgia 400. [FN63] Suburbs served by Georgia 400 experienced enormous residential growth as well: between 1990 and 2000, Roswell's population increased by nearly 60%, and Alpharetta's population nearly tripled, [FN64] while the city of Atlanta's population increased by just 5%, [FN65] only partially reversing the city's losses in the 1970s and 1980s. [FN66]
For over 50 years, Atlanta's politicians, with business support, followed the same strategy: build road after road after road to link city and suburb. [FN67] Keating points out that instead of encouraging suburbanites to work in the city, these roads encouraged urbanites to move their businesses and families to the suburbs, turning Atlanta into (in the words *197 of one local newspaper columnist) "the incredible shrinking city" [FN68] with a "largely vacant" [FN69] downtown. The highways also reduced transit ridership and increased Atlantans' dependence on automobiles, by encouraging Atlantans to move to suburbs with minimal or nonexistent public transit. [FN70]

B. The Transit and Zoning Debacles
Keating next discusses the ways in which Atlanta's local government leaders' development of a mass transit system and related zoning regulations further contributed to sprawl. Although Atlanta's business and political leaders favored highways, they also sought to expand public transit. As early as 1954, a regional planning commission suggested that the city would need an expanded public transit system "within a few years." [FN71] In 1960, Ivan Allen, who was president of the Atlanta Chamber of Commerce at that time, announced that a rapid transit system would be part of his redevelopment program. [FN72] In 1961, a regional planning commission recommended a fixed-rail system that would connect the city with five suburban counties (Fulton, [FN73] DeKalb, [FN74] Cobb, Gwinnett, and Clayton). [FN75] Two counties (Fulton and DeKalb Counties) approved construction in a 1971 referendum, [FN76] and construction of the rail system began shortly thereafter. [FN77]
The Metropolitan Atlanta Rapid Transit Authority ("MARTA") has been only a qualified success. On the positive side, transit plays a significant role in downtown commuting: 28.6% of downtown work trips involve public transit. [FN78] But service to Atlanta's suburbs has been a *198 tougher nut to crack. Of the five suburban counties that were originally slated for MARTA service (Fulton, DeKalb, Cobb, Gwinnett and Clayton), three (Cobb, Gwinnett, and Clayton) refused MARTA service, [FN79] and until 2001 two of the five (Clayton and Gwinnett) still had no public transit whatsoever. [FN80] Not surprisingly, only 4% of commuters in the Atlanta region use public transit to get to work. [FN81] In other words, MARTA adequately serves downtown Atlanta but is of little value in most of Atlanta's suburbs.
Keating suggests that rapid rail was doomed to fail because of Atlanta's low population density. [FN82] He reasons: "only where there are significant concentrations of both residences and jobs does a rail system attract enough riders to justify the initial investment . . . . Atlanta, having experienced most of its growth during the automobile era, is a low-density city with widely dispersed residences and jobs." [FN83] Although MARTA planners were aware of this problem, they argued that Atlanta and its suburbs could create density (and thus increase rail ridership) by using zoning regulations to encourage development within walking distance of its stations and rail lines. [FN84] Shortly after the passage of the *199 1971 referendum authorizing rail service, the city hired consultants to rewrite the city's zoning ordinance to shift high-density development to areas immediately surrounding rail stations. [FN85] But Atlanta's business community (which, ironically, had supported creation of the rail system), [FN86] sabotaged that system by mounting an intensive campaign to defeat the proposed zoning changes, eventually persuading the City Council to pass a watered-down ordinance which permitted high-density development in areas far from rail stations. [FN87] As a result of these anti-transit zoning policies, the rail system has not attracted as much compact development around stations as it could have. Because fewer people live or work within walking distance of MARTA stations than would have been the case had zoning codes been more favorable, ridership is lower than it could have been, which, in turn, means that Atlanta continues to be an automobile-oriented city. [FN88]
Keating describes the way in which this pattern was repeated in Atlanta's northern suburbs. In the late 1980s, MARTA directors decided to extend its rail service into the northern suburbs, especially the commercial district in the north-central section of I-285. [FN89] Charles Loudermilk, chairman of the MARTA Board of Directors, endorsed the new rail line on the ground that "we need to get the unemployed people in the city's core out to where the jobs are" [FN90]-an argument that would have made sense had suburban jobs been concentrated near rail stations. However, suburban municipalities made the same mistake that the city of Atlanta made a few years earlier: they were willing to throw taxpayers' money at a rail line, but were unwilling to concentrate commerce or housing along the rail corridors. [FN91] As a result, suburban MARTA stations are miles away from most office buildings. [FN92] Thus, MARTA's ability to bring city residents to suburban jobs is quite limited. [FN93]

*200 C. The Redevelopment Fiasco(s)
The Atlanta city government has repeatedly sought to revitalize the city through a variety of "redevelopment" schemes, including expressways, a civic center, and a convention center. These projects have failed to stem downtown's long-term decline, [FN94] and, as Keating points out, have in fact been counterproductive, spurring white flight from the city of Atlanta while failing to revitalize the city's central business district.


1. Destruction of Urban Neighborhoods
Some of Atlanta's redevelopment projects have been highly disruptive to neighborhoods surrounding downtown Atlanta, particularly impacting low-income, minority communities. For example, when consultants hired at the behest of Atlanta business leaders planned the first Atlanta-area expressways in the 1940s, they could have minimized highway-related neighborhood destruction by routing the highways through industrial districts. [FN95] Instead, they proposed that the city raze portions of several low-income, mostly African-American, neighborhoods. [FN96] For example, the city's north-south expressway cut through the middle of Auburn Avenue, historically the city's major black commercial district. [FN97] According to Keating, business leaders wished to "remove as many poor blacks from the downtown area as possible . . . [and] create a buffer between the [central business district] and the remaining portions of those neighborhoods." [FN98] After the first expressways were built, the city used federal "urban renewal" [FN99] funds to clear land for redevelopment on both sides of the city's north-south expressway. [FN100] The combination of highway construction and urban *201 renewal eliminated half of one low-income white neighborhood and portions of several poor black neighborhoods. [FN101]
Similarly, in the early 1960s, the city spent $9 million [FN102] to raze Buttermilk Bottoms (a low-income neighborhood northeast of downtown) [FN103] in order to build a civic center. [FN104]
A further example of this racially-motivated destruction of neighborhoods was a late 1960's initiative to make Atlanta a major destination for conventions. Downtown business leaders persuaded the state government to subsidize a convention center [FN105] on the western edge of downtown. [FN106] In order to isolate conventioneers from low-income blacks, the city destroyed low-income neighborhoods surrounding the site of the convention center. [FN107] Indeed, Atlanta politicians may have been too successful at isolating conventioneers: Keating points out that because the convention center is at the western edge of downtown Atlanta, conventioneers do not find it tremendously convenient to walk from the center to the heart of the central business district, thus making downtown Atlanta even more vacant than it would otherwise be. [FN108]


2. How Urban Renewal Caused "White Flight"
Atlanta's urban renewal and expressway programs displaced about 67,000- 75,000 people [FN109] in about 20,000 households, [FN110] which is over 20% of the city's 1950 population [FN111] and includes more than half the city's black population. [FN112] Yet the city's housing authority only built 4,762 *202 potential replacement housing units. Thus, between 14,000 and 17,000 households were forced to move but did not receive replacement housing. [FN113] Instead of moving to housing projects on the city's fringes, Keating observes, displaced low-income blacks quickly moved into other areas near downtown, [FN114] spurring "white flight" from those neighborhoods. [FN115] In the words of former city planning director Leon Eplan: "A neighborhood was redeveloped and its residents moved to an adjoining neighborhood and then those people moved to the next . . . . All social organization was destroyed." [FN116]
By the 1970s, after decades of "redevelopment" designed to displace blacks from downtown Atlanta and nearby neighborhoods, downtown Atlanta was nevertheless ringed by black neighborhoods. [FN117] The same pattern exists today: according to the 2000 Census, the neighborhoods closest to Atlanta's central business district are three-quarters black [FN118] and are generally low-income. [FN119] The city's program of ethnic cleansing was thus as fruitless as it was racist. Indeed, the city's policies appear to have spurred white flight to suburbia by displacing low-income blacks, and thus encouraging them to move into then-white neighborhoods.


II. UNADDRESSED ISSUES
Although Keating has correctly identified some of the major causes of Atlanta's sprawl-induced decline, he neglected to discuss other important factors. Most importantly, although Keating emphasizes that Atlanta and its suburbs did not effectively use their zoning codes to increase transit ridership, he could have devoted more attention to the municipal zoning codes that actually reduced transit ridership by lowering *203 population densities. Keating does mention that rather than trusting the free market, some Atlanta suburbs have used their zoning codes to dictate low density. For example, Cobb County prohibits apartments with over 12 units per acre, even though garden apartments in other areas typically have densities as high as 20 units per acre. [FN120] Similar zoning restrictions increase the size of single-family homes. Even within the city of Atlanta, zoning laws require homes in some areas to be on two acres of land. [FN121] Fulton County has established a minimum lot size of two acres for portions of the county, and Cobb County has followed suit. [FN122] Such restrictions appear to have limited the supply of small-lot housing: the average lot size of a single family home in metro Atlanta is 0.78 acres, more than three times that of Dallas, Houston, Phoenix or Tampa. [FN123]
Keating points out that such zoning restrictions raise the cost of housing and thus enforce racial and class segregation by keeping inexpensive housing out of affluent neighborhoods, [FN124] but he fails to point out that Atlanta-area zoning laws, by reducing density, also reduce the number of people who live near streets served by bus and rail stops, which in turn reduces transit ridership. [FN125] Such restrictions are not limited to neighborhoods with minimal transit service. For example, the area near MARTA's Indian Creek rail station in DeKalb County is zoned solely for single-family homes. [FN126] Similarly, Sandy Springs, an unincorporated area bordering Atlanta, [FN127] has three MARTA rail *204 stations [FN128] - yet Fulton County policy generally bans new apartments in Sandy Springs. [FN129] Even office space near MARTA stations can be controversial. For example, in 2001 a developer asked Fulton County to rezone land across the street from a Sandy Springs MARTA station for offices and retail space. In response to anti-density complaints from nearby homeowners, the county ordered the developer to reduce the amount of office space involved by two-thirds. [FN130] Keating's analysis of Atlanta local government's failed policies would have been strengthened by a discussion of how these anti-density policies further exacerbated the effects of sprawl.
Furthermore, because Keating focuses on a few key issues, he gives relatively short shrift to urban problems that are less obviously related to redevelopment policy, such as Atlanta's "disturbingly high crime rate" [FN131] and its "inferior public school system." [FN132] These problems, however, have been at least partially caused by the blunders discussed above. By encouraging middle-class flight to suburbia, the city's highway and urban renewal policies caused the city of Atlanta to become poorer than its suburban neighbors. [FN133] Low-income cities and neighborhoods tend to have more street crime. [FN134] Such areas also have less prestigious schools, because children from low-income households tend to be less prepared for school and thus less likely to achieve academically. [FN135] Moreover, low-income cities also have smaller tax bases, which may affect their *205 educational systems. [FN136] So by encouraging middle-class migration to suburbia, Atlanta's mistakes also led to high crime and inferior schools.


CONCLUSION
All too often, cities have been viewed as helpless victims of sprawl or as obsolete institutions unable to withstand market forces. Keating shows that in metropolitan Atlanta, local governments' own decisions contributed to auto-dependent suburban sprawl, through municipal support for sprawl-creating highways, ineffective public transit and zoning policies, and redevelopment policies that destabilized urban neighborhoods and spurred migration to suburbia. It has been argued that "[g]overnment had tried to control the pattern of development in metropolitan Atlanta, and for the most part, it had failed." [FN137] In fact, Atlanta-area governments have tried to control the pattern of development, by mandating anti-density, anti-transit land use rules--and have in fact succeeded in dictating that pattern of development.
Although Keating does not set out a comprehensive reform agenda, his book nevertheless gives guidance to the next generation of municipal leaders, both in Atlanta and in other cities wishing to avoid Atlanta's problems. If Atlantans dislike the status quo, they must reverse course: they must fight sprawl-producing highways, allow (or even encourage) developers to concentrate residences and jobs in areas served by public transit, and avoid civic projects that disrupt and displace urban communities.

[FNa1]. Associate Professor, John Marshall Law School. B.A., Wesleyan University; J.D., University of Pennsylvania Law School. I would like to thank Sally Flocks, Demetra Pappas, and Susan Rutherford for their helpful comments. Any errors of fact or logic are, of course, mine alone.

[FN1]. Robert D. Bullard et al. The Costs and Consequences of Suburban Sprawl: The Case of Metro Atlanta, 17 Ga. St. U. L. Rev. 935, 942 (2001) (terming metropolitan Atlanta "The Sprawl Poster Child"); Arthur C. Nelson, New Kid in Town: the Georgia Regional Transportation Authority and its Role in Managing Growth in Metropolitan Georgia, 35 Wake Forest L. Rev. 625, 626 (2000) ("Metropolitan Atlanta has become the 'poster child' for urban sprawl"); Brad Smith, Housing Study Criticizes Movement to Limit Sprawl, Tampa Trib., July 8, 2001, at 1; cf. George Galster et al., Wrestling Sprawl To The Ground: Defining and Measuring an Elusive Concept, 12 Housing Pol'y Debate 681, 706 (2001) (using numerous quantitative measurements to show that Atlanta is in fact more "sprawling" than other metropolitan areas).

[FN2]. Larry Keating, Atlanta: Race, Class and Urban Expansion 34 (2001) (asserting that the "suburbanization of jobs aggravated black unemployment"); Michael Lewyn, Suburban Sprawl: Not Just An Environmental Issue, 84 Marq. L. Rev. 301, 364-65 (2000) (asserting that growth of auto-dominant suburbs increases welfare dependency among carless poor).

[FN3]. Lewyn, supra note 2, at 301 (noting that "[s]ome central cities have been devastated by sprawl").

[FN4]. Roberta F. Mann, The (Not So) Little House on the Prairie: The Hidden Costs of the Home Mortgage Interest Deduction, 32 Ariz. St. L.J. 1347, 1373-74 (2000) (sprawl causes air pollution and congestion by increasing car use and thus emissions of pollutants from cars).

[FN5]. See William W. Buzbee, Sprawl's Dynamics: A Comparative Institutional Analysis Critique, 35 Wake Forest L. Rev. 509, 510 (2000) (defining sprawl as a "dispersed, low-density, metropolitan area form, where the metropolitan area's growth occurs principally on the urban periphery...Sprawling urban forms typically are car dependent and include dispersed single family homes and substantial distances between residential, business and retail areas").

[FN6]. U.S. Census Bureau, U.S. Commerce Dep't., Statistical Abstract of the United States 31 (121st ed. 2001.),
http://www.census.gov/prod/www/statistical-abstract-01.html [hereinafter 2001 Abstract] (area had just over 2.2 million residents in 1980 approximately over 4.1 million in 2000).

[FN7]. Id. at 35 (city had 495,000 residents in 1970, 425,000 in 1980, and 416,000 in 2000). However, the latter figure is an improvement over the city's 1990 nadir of 394,000 residents. Id.

[FN8]. The city of Atlanta had just over 300,000 white residents in 1960, and only 138,400 whites in 2000. See Bureau of the Census, U.S. Census of Population and Housing: 1960 at 14 (1962) (city of Atlanta included 266,186 whites in Fulton County and 34,449 in DeKalb County, for total of 300,635); 2001 Abstract, supra note 7, at 38 (2000 statistics). Since 1970, blacks have begun to move to Atlanta's suburbs as well. See Sheryll D. Cashin, Middle-Class Black Suburbs and the State of Integration: A Post-Integrationist Vision for Metropolitan America, 860 Cornell L. Rev. 729, 741-42 (2001) (in 1990, 64% of Atlanta-area blacks lived in suburbs, as opposed to 25% in 1970).

[FN9]. U.S. Census Bureau, U.S. Commerce Dep't., Census 2000 Demographic Profiles, Atlanta, GA MSA, 3, at http:// censtats.census.gov/data/GA/390130520.pdf [hereinafter Metro Profile].

[FN10]. U.S. Census Bureau, U.S. Commerce Dep't., Census 2000 Demographic Profiles, Atlanta, GA, 3, at http://censtats.census.gov/data/GA/1601304000.pdf [hereinafter City Profile].

[FN11]. See Keating, supra note 2, at 15.

[FN12]. Id. The rest of the city suffered from sprawl too: in 1980, 40% of the region's jobs were within the city of Atlanta-but in 1997, less than 20% of the region's jobs were located within the city limits. See Bullard et al. supra note 1, at 945.

[FN13]. See Perspective, The Dynamics of Change, Atlanta J. Const., Sept. 19, 1993, at G3 (northern suburbs contain 18% of region's black population and 70% of whites, while southern suburbs contain only 28% of whites and 43% of blacks).

[FN14]. See Keating, supra note 2, at 24.

[FN15]. Id. at 89, 109. Downtown Atlanta rebounded to some extent in the 1990s. For example, downtown's residential population increased by over 20% during the 1990s, to a still-anemic 0.6% of regional population. See Rebecca R. Sohmer & Robert E. Lang, Downtown Rebound, Fannie Mae Foundation Census Note, 5-6 (2001), http:// www.brookings.edu/dybdocroot/es/urban/census/downtownrebound.pdf.

[FN16]. Frederick Allen, Atlanta Rising 231 (1996).

[FN17]. See Keating, supra note 2, at 21.

[FN18]. See Keating, supra note 2, at 22. Residential densities are also extremely low in suburban Atlanta. See Wendell Cox, Demographia: U.S. Urbanized Areas, at http://www.demographia.com/dm-uas.htm (last visited Dec. 20, 2002) (suburban Atlanta has only 1754 people per square mile, 36.2% below U.S. metropolitan area average). Atlanta's low density makes jobs less accessible to nondrivers because as residences and businesses "are spread farther apart, fewer people can walk short distances to bus and train stops." Michael Lewyn, Campaign of Sabotage: Big Government's War Against Public Transportation, 26 Colum. J. Envtl. L. 259, 285 (2001).

[FN19]. See Bullard et al., supra note 1 at 945 (less than 20% of region's jobs in city of Atlanta).

[FN20]. See Keating, supra note 2, at 8 ("Adequate public transportation does not extend to the northern suburbs, so many poor blacks who do not own cars find it difficult to reach jobs in these outlying districts"); Lewyn, supra note 2, at 348 (noting that as of 2000, Gwinnett County, an Atlanta suburb with over half a million residents, had no public transit whatsoever).

[FN21]. See Keating, supra note 2, at 8.

[FN22]. Wendell Cox, A Common-Sense Approach to Transportation in the Atlanta Region Ch. 2, at http:// www.gppf.org/pubs/projects/transportation/transportation.htm (last updated April 11, 2002).

[FN23]. See Keating, supra note 2, at 39.

[FN24]. Fed. Highway Admin., U.S. Dep't. of Transp. Highway Statistics Table HM-72 (2000), at http://www.fhwa.dot.gov/ohim/hs00/hm72r2.htm (last visited Dec. 20, 2002) (national average for metro areas over 500,000 persons was 22.8 miles per day). Only three large metropolitan areas (Houston, Nashville, and Birmingham) had more vehicle miles traveled per person than Atlanta. Id.

[FN25]. See Bullard et al. supra note 1, at 971 n.192 (ozone caused by volatile organic compounds and nitrogen oxide, common components of car exhaust).

[FN26]. See American Lung Association, State of the Air 2002 Report 7 (2002), http://www.lungusa.org/air2001 [hereinafter State of the Air] (metropolitan Atlanta had the sixth worst ozone air pollution in America in both 2002 and 2001).

[FN27]. Id. Tables 4, 5 (labeling such days "Orange" days).

[FN28]. Id. at 1. Ozone causes asthma attacks and other respiratory illnesses in children, id. at 19, and increases the susceptibility of the elderly to influenza, pneumonia, and other infections. Id. at 20. Atlanta's air quality improvements during the 1996 Olympics suggest that Atlanta's high ozone levels are closely related to auto use: during the 1996 Summer Olympics, motor vehicle use declined, transit use increased, and emergency room visits by children for asthma dropped by more than forty percent. See Oliver A. Pollard, Smart Growth & Sustainable Transportation: Can We Get There From Here?, 29 Fordham Urb. L.J. 1529, 1556 (2002).

[FN29]. State of the Air, supra note 26, Tables 4, 5 (labeling such days "Red" and "Purple" days). "Red" days are "unhealthy" for the general public, and "Purple" days are "very unhealthy." Id. at 20. In 1998-2000, Fulton County had 22 "Red" days and 9 "Purple" days. Id. at 8-9.

[FN30]. See, e.g., Kevin J. Klesh, Urban Sprawl: Can The "Transportation Equity" Movement And Federal Transportation Policy Break Down Barriers To Regional Solutions?, 7 Envtl. Law. 649, 656 (2001) (federal General Accounting Office has "highlighted" federal policies causing sprawl, including highway-oriented transportation policies); Lewyn, supra note 2, at 305-29 (discussing pro-sprawl federal policies, but also emphasizing state pro-sprawl policies; for example, state education laws encouraged middle-class families to move to suburbs by requiring children to attend school in locality of residence).

[FN31]. See, e.g., Mark S. Davies, Understanding Sprawl: Lessons from Architecture for Legal Scholars, 99 Mich. L. Rev. 1520, 1525-26 (2001) (reviewing Andres Duany et al., Suburban Nation, the Rise of Sprawl and the Decline of the American Dream (2000)) ("the desire to live in a [suburban] home has overcome the well-known disadvantages caused by sprawl's reliance on the car"); Michael J. Stewart, Growth and Its Implications: An Evaluation of Tennessee's Growth Management Plan, 67 Tenn. L. Rev. 983, 994 (2000) ( "defenders of sprawl assert that sprawl is a result of people's preferences: Suburban sprawl exists because Americans want to live in these types of developments.").

[FN32]. Walter F. Roche, Jr., Federal Program Has Caused Angst Amid Hope, Balt. Sun, Sept. 24, 2001, at 4A (describing Keating's credentials, and quoting his views on public housing); David Goldberg, Boom & Doom, Atlanta J. Const., Jan. 20, 2002 at F1 (describing Keating's credentials, and quoting his views on The City In Mind, by James Howard Kunstler).

[FN33]. This is not to deny, however, that state and federal government policies have also contributed to suburban sprawl and urban decline. See Lewyn, supra note 2, at 305-29 (focusing on state and federal pro-sprawl policies, including massive highway spending, educational policies that contributed to urban schools' unpopularity with middle-class families, and housing policies that encouraged sprawl); Allen, supra note 16, at 143-44 (suggesting that city's compliance with federal desegregation requirements spurred white flight from city of Atlanta); Keating, supra note 2, at 195-96 (describing Georgia Department of Transportation as "the single entity with the most far-reaching power and influence" over Georgia development, because "its constant expansions of the region's highway system disperse new development and...largely determine where that development will occur.")

[FN34]. See supra note 33, infra note 35.

[FN35]. See Mann, supra note 4, at 1378 n.185 (federal General Accounting Office admits that "interstate highways improved access to developable land on the edge of metropolitan areas, supporting [suburban] sprawl development"); Klesh, supra note 30, at 656 (quoting General Accounting Office, Rep. No. GAO/RCED -99-87, Community Development: Extent of Federal Influence on "Urban Sprawl" is Unclear 10 (1999).) ("experts and much of the research agree that federal spending by the Department of Transportation and for the Interstate Highway System...supported the expansion of metropolitan areas by increasing access to suburban locations").

[FN36]. See Keating, supra note 2, at 91; Clarence N. Stone, Regime Politics: Governing Atlanta, 1946-88 32-33 (University Press of Kansas 1989).

[FN37]. See Keating, supra note 2, at 91 (transportation plan intended "to improve access to the city's central business district"); Stone, supra note 36, at 32 (to "preserve the central business district as a hub of economic activity...business leaders concluded, it would be necessary to link downtown with the suburbs by means of expressways").

[FN38]. See Allen, supra note 16, at 32-33, 69.

[FN39]. I use the term "white flight" because in the 1960s Atlantans who moved to suburbia were in fact disproportionately white. See Stone, supra note 36, at 77 (city lost whites during 1960s); Allen, supra note 16, at 163 (city gained blacks while losing whites during 1960s). But in recent decades, blacks have followed suit. See Cashin, supra note 8, at 741-42.

[FN40]. See Stone, supra note 36, at 77 (statistics re loss of whites); cf. Kelly Simmons & Dan Chapman, Sentenced to Commute, Atlanta J. Const., July 5, 2000 at D1 ("shopping centers and commuters followed new roads, particularly the interstates, starting in the 1950s"). Because the city of Atlanta was so heavily black by 1970, additional annexations were politically impossible: white suburbanites successfully fought any proposals to annex additional suburbs to the city. See Allen, supra note 16, at 147 (in 1966, voters in Sandy Springs, an unincorporated suburb, rejected annexation by Atlanta by 3-1 margin).

[FN41]. See supra note 38.

[FN42]. See Allen, supra note 16, at 199 (migrants followed I-75 to Cobb County, and I-85 to other two counties). Although metropolitan Atlanta contains twenty counties, the majority of the region's residents live in these three counties and in Fulton County (which contains the city of Atlanta and numerous suburbs). See 2001 Abstract, supra note 6, at 896 (listing county populations); infra note 73 (just under half of Fulton County population within city of Atlanta).

[FN43]. See Keating, supra note 2, at 23 (construction of highways during 1950s and 1960s accelerated dispersal of industry to suburbs, causing "serious decline in the market for industrial space in and around the downtown area").

[FN44]. Alfred R. Light, Bush v. Gore- Georgia Lived it Before: Pickrick and the Warren Court, 18 Ga. St. U. L. Rev. 449, 467-68 (2001) (discussing 1961 Atlanta mayoral election).

[FN45]. See Keating, supra note 2, at 69. Before Allen was mayor, he was president of the Atlanta Chamber of Commerce. Id. at 88.

[FN46]. Id. at 88.

[FN47]. Jim Auchmutey, The Perimeter at 25 Years: The Road We Love to Hate, Atlanta J. Const., May 9, 1995, at E1. Plans for I-285 were first unveiled in the mid-1950s. See Allen, supra note 16, at 69.

[FN48]. See David Beasley, Northlake/I-285 Area Has Matured Gracefully, Atlanta J. Const., Nov. 17, 1997, at E10, (describing one suburban office submarket as follows: "A new perimeter highway opened in 1969, transforming the LaVista Road intersection from sleepy suburbia to major retail center"); Hannah Kamenetsky, Trying to Save Clogged "Strip": Architect Must Please Residents and Retailers with Revitalization Plan, Atlanta J. Const., July 24, 1994, at G1 (suburban Sandy Springs "was woods and farmhouses until the 1960s, when I-285 opened it up to commercial development").

[FN49]. See Auchmutey, supra note 47.

[FN50]. See Keating, supra note 2, at 14, 18-19 (describing districts).

[FN51]. See Stone, supra note 36, at 250.

[FN52]. See Allen, supra note 16, at 199.

[FN53]. See Stone, supra note 36, at 82 (citation omitted).

[FN54]. See Keating, supra note 2, at 19-20 (describing Buckhead), 14 (map showing Buckhead's location vis-a-vis downtown and suburbs).

[FN55]. Although the Buckhead expressway was built to link Buckhead with a suburban road known as Georgia 400, the extension of this highway through Buckhead was sometimes colloquially referred to as "Georgia 400 extension." See, e.g., Stone, supra note 36, at 123 (using term); Keating, supra note 2, at 85 (highway would in fact link Buckhead with Georgia 400). Before the new highway was built, Georgia 400 ended at I-285 and did not extend into the city of Atlanta. See Stone, supra note 37, at 124 (Georgia 400 "connect[ed] the Buckhead area with the perimeter highway to the north").

[FN56]. See Stone, supra note 37, at 124.

[FN57]. See Stone, supra note 36, at 124 (noting that Georgia 400 would link Buckhead with I-285, and predicting that highway would stimulate development in northern suburbs).

[FN58]. Id. at 32.

[FN59]. See Stone, supra note 36, at 124 (report by Georgia Power Company asserted that highway would link Buckhead with northern suburbs).

[FN60]. Id. at 122 (admission "off the record").

[FN61]. Jim Newton, City Vote Clears Way for Work on Georgia 400: Opponents of Extension Vow to Continue Battle in Court, Atlanta J. Const., May 16, 1989, at A01. Cf. Keating, supra note 2, at 85 (noting that City Council approval required for highway to open).

[FN62]. Mike Morris, "Essential" Traffic Corridor was 41 Years in the Making, Atlanta J. Const., July 2, 1993, at F5.

[FN63]. See Keating, supra note 2, at 19; see also Tony Wilbert, UPS Unit Joins Corporate Exodus to Alpharetta, Atlanta J. Const., Feb. 14, 2001, at E1 (because of "easy access to Georgia 400", a "string of companies [moved] to Alpharetta from areas such as Buckhead" because executives "moved their offices close[r] to their homes").

[FN64]. William A. McGeveran Jr., ed., The World Almanac and Book of Facts 2002 at 397 (Roswell grew from 47,986 people to 79,334; Alpharetta grew from 13,002 people to 34,854).

[FN65]. See 2001 Abstract, supra note 6, at 35 (city population increased from 394,000 to 416,000 during 1990s).

[FN66]. Id. (city's 2000 population was lower than its pre-1980s population).

[FN67]. See Stone, supra note 36, at 133 ("the city's governing coalition has used public authority to connect the central business district with a growing and spreading hinterland"). Georgia's state government followed similar policies. See Keating, supra note 2, at 196 (Department of Transportation responded to traffic congestion with "constant expansions of the region's highway system").

[FN68]. Dick Williams, Other Voices: Part-Time Pay For Full-Time Government, Atlanta J. Const., May 4, 1996, at A10.

[FN69]. Keating, supra note 2, at 109. See supra notes 17-20 and accompanying text (describing weakness of downtown Atlanta as commercial center and after-dark destination)

[FN70]. See supra notes 20-22 and accompanying text (discussing absence of public transit in Atlanta suburbs).

[FN71]. See Keating, supra note 2, at 115 (citation omitted). At that time, Atlanta had bus service provided by a private company, but no intracity rail service. Id. at 218 n. 3.

[FN72]. Id. at 88.

[FN73]. Fulton County is both urban and suburban. About 381,000 of the county's 816,000 residents live in the city of Atlanta, and the rest live in surrounding suburbs. See McGeveran, supra note 64, at 425 (Fulton County had just over 816,000 residents in 2000, and Atlanta is its county seat); 2001 Abstract, supra note 6, at 35 (city of Atlanta had 416,000 residents in 2000); Stacy Shelton & Julie B. Hairston, City Folks Want Either Out or In Taxes spur cry to bolt Atlanta or link to Fulton, June 3, 2001, at F1 (35,000 City of Atlanta live in DeKalb County rather than in Fulton County).

[FN74]. Shelton & Julie B. Hairston, supra note 74 (35,000 City of Atlanta live in DeKalb County); McGeveran, supra note 65, at 425 (DeKalb County has just over 665,000 residents).

[FN75]. See Keating, supra note 2, at 115.

[FN76]. Id. at 127.

[FN77]. Id. at 113.

[FN78]. See Cox, supra note 22, at Ch. 1.

[FN79]. See Keating, supra note 2, at 115 (describing system first proposed by regional planning commission), 118, 128 (Gwinnett, Clayton and Cobb Counties rejected MARTA service); see also Sheryll D. Cashin, Survey, City Making: Building Communities Without Building Walls, by Gerald E. Frug, 98 Mich. L. Rev. 1704, 1722 (2000) ("the predominantly white outer counties long opposed expansion of MARTA, Atlanta's rail transport system, because of their fear of a connection to the predominantly black central city"); Orlyn O. Lockard, III, Solving the "Tragedy": Transportation, Pollution and Regionalism in Atlanta, 19 Va. Envtl. L.J. 161, 179-80 (2000) ("MARTA has not been extended from Fulton and DeKalb, counties with large minority populations, into other counties.... It has been repeatedly argued that suburban residents' desires to prevent minority residents from the urban core from gaining access to the suburban counties are to blame for the lack of a coherent, regional transportation planning system in Atlanta").

[FN80]. Cobb County began to operate a separate bus system in 1989, and Gwinnett and Clayton's bus systems (which are also separate from MARTA) opened in 2001. See Staff, County's Transit System Rolls Today, Atlanta J. Const., Nov. 5, 2001 at JJ1 (noting that Cobb County's system had opened 12 years earlier, Clayton County's system was a month old, and that Gwinnett launched system on day of story). The suburban bus systems are quite small: for example, Clayton County's system began with two bus routes, and Gwinnett County's with only three--despite the fact that Clayton County has over 200,000 inhabitants and Gwinnett over half a million. See McGeveran, supra note 64, at 425 (population figures); Joey Ledford, Piece By Piece, Regional Transit Becomes a Reality, Atlanta J. Const., October 28, 2001 at E5 (noting number of routes).

[FN81]. Kelly Simmons, Census Finds Metro Area In A Jam, Atlanta J. Const., Nov. 21, 2001, at A1 (citing Census Bureau estimate that 4% of metro Atlanta commuters use public transit).

[FN82]. See Keating, supra note 2, at 123; see also Stone, supra note 36, at 101 (population density lower in Atlanta than in most other cities with intracity rail); 2001 Abstract, supra note 6, at 35-37 (Atlanta had only 3161 people per square mile in 2000, less than majority of cities with over 400,000 people); Cox, supra note 18 (Atlanta suburbs also less densely populated than those of other cities).

[FN83]. Keating, supra note 2, at 123.

[FN84]. Id. at 124.

[FN85]. Id. at 129.

[FN86]. Id. at 125 (MARTA's initial financing scheme drafted by biracial group of business leaders); see also Stone, supra note 36, at 101 ("Atlanta's business elite remained centrally involved in promoting MARTA").

[FN87]. See Keating, supra note 2, at 114, 129.

[FN88]. Id. at 129-30; see also David Pendered, MARTA Aims to Help Shape Development, Atlanta J. Const., Oct. 19, 1998 at E1 (study underwritten by Georgia State University showed that "MARTA had no significant impact in the 1980s on the way the Atlanta region had grown...developers chose to build in areas close to highways the state Department of Transportation widened").

[FN89]. See Keating, supra note 2, at 131.

[FN90]. Id. at 133.

[FN91]. Id. at 132.

[FN92]. Id. at 22.

[FN93]. See supra note 22 and accompanying text (most suburban jobs inaccessible to transit-dependent city poor).

[FN94]. See supra notes 11-12, 15-16 and accompanying text. But cf. Sohmer & Lang, supra note 15, at 5-6 (noting that downtown regained population in 1990s).

[FN95]. See Keating, supra note 2, at 91.

[FN96]. Id. at 91-92.

[FN97]. Id. at 92.

[FN98]. Id. at 91; see also Lisa A. Kelly, Race and Place: Geographic and Transcendent Community in the Post-Shaw Era, 49 Vand. L. Rev. 227, 294 n. 217 (1996) ("In Atlanta, urban policy planners used highway design and construction to regulate black mobility and residential patterns").

[FN99]. See Stone, supra note 36, at 38 (defining "urban renewal" as "federal financial assistance for locally planned and executed redevelopment projects" under which land was often acquired by cities through eminent domain and sold to developers); cf. Lewyn, supra note 2, at 310-11 (describing history of federal urban renewal program). Although urban renewal was a nationwide program, id., Atlanta displaced residents more readily than (for example) the city of Baltimore. See Stone, supra note 36, at 162, 176.

[FN100]. See Keating, supra note 2, at 92. The city has two north-south expressways (I-75 and I-85) but near downtown they merge into one highway. Id. at 90.

[FN101]. Id. at 92.

[FN102]. See Allen, supra note 16, at 131 (in 1963 Atlanta voters approved bond referendum allocating $9 million for new civic center).

[FN103]. See Keating, supra note 2, at 103-05.

[FN104]. Id. at 104.

[FN105]. Id. at 107.

[FN106]. Id. at 109.

[FN107]. Id. at 108. Even outside downtown, the city sometimes sought to move blacks away from white areas. Id. at 44-45, 46-48 (describing numerous examples of elimination of black neighborhoods by city and county governments).

[FN108]. Id. at 109.

[FN109]. See Keating, supra note 2, at 93 (estimating that 68,000 Atlantans were displaced by highways and urban renewal); see also Stone, supra note 36, at 202 (estimating 67,000 Atlantans displaced); Allen, supra note 16, at 162 ("By one calculation, some 75,000 black Atlantans had been swept out of their homes").

[FN110]. See Keating, supra note 2, at 93 (estimating that between 19,000 and 22,000 households displaced).

[FN111]. See Stone, supra note 36, at 250 (city had 331,000 residents in 1950).

[FN112]. About 95% of the people displaced by redevelopment and highways, or at least 63,000 people, were black. See Keating, supra note 2, at 93. In 1950, 121,295 Atlantans were black. Bureau of the Census, Census of Population: 1950, Characteristics of the Population: Part 11, Georgia at 11-64 (1952) (city had 54,905 black males, and 66,380 black females). Thus, at least 51.9% of Atlanta's blacks (63,000 of 121,295) were displaced by urban renewal - and perhaps over 60% if one accepts Allen's higher estimate of the number of blacks displaced. Allen, supra note 16, at 162 (75,000 black Atlantans displaced).

[FN113]. See Keating, supra note 2, at 93.

[FN114]. Id. at 104 (Mayor Allen knew that after Buttermilk Bottoms was razed, its "displaced black families would be seeking housing in nearby white neighborhoods"); Allen, supra note 16, at 93 (blacks moved into white neighborhoods because "[u]rban renewal was wiping out slums and displacing thousands of families without providing replacement homes" and "[n]ew highways were cutting through parts of existing black neighborhoods").

[FN115]. Allen, supra note 16, at 199 (noting Atlanta whites' desire to move away from blacks); see also Stone, supra note 37, at 41 ("Nonaffluent whites on the southside and, as displacement mounted, on the eastside paid the main social costs of rapid racial turnover"). In fact, Mayor Hartsfield appointed a "housing coordinator" to regulate which neighborhoods would stay white and which would undergo a "conversion to black." Allen, supra note 16, at 92.

[FN116]. See Stone, supra note 36, at 86-87 (emphasis in original).

[FN117]. See Allen, supra note 16, at 198 ("Blacks now lived to the west, south and east of downtown Atlanta, as if holding the central business district in a cupped hand.").

[FN118]. See Sohmer & Lang, supra note 15, at 8.

[FN119]. Carrie Teegardin, Poor Areas Rich in Tickets, Atlanta J. Const., July 18, 1993 at D1 (30303 is downtown zip code); See Haines & Company, Criss Cross Haines 2001 Directory: Atlanta, Georgia City at 1 (zip code 30303 has third lowest household income, and second highest percentage of households earning under $10,000, among 25 Atlanta zip codes); id. at 675, 787-89 (same zip code includes many of state's governmental offices and law firms);

[FN120]. See Keating, supra note 2, at 52. Other municipalities require that individual apartments be unusually large. Id. at 51 (some suburban cities prohibit apartments with under 1000 square feet).

[FN121]. H.M. Cauley, Neighborhood of the Week, Atlanta J. Const., March 2, 1997, at H8, ("two-acre zoning" common in Buckhead); H.M. Cauley, New Home Communities: Close-in Communities Command Top Dollar, Atlanta J. Const., February 23, 1997 at H26 ("30327 area of Buckhead north of West Paces Ferry Road...[is] a neighborhood where two-acre zoning can support high-priced homes.").

[FN122]. See Keating, supra note 2, at 52. In fact, some Atlanta-area counties have 3- and 5-acre minimum lot sizes. Id.

[FN123]. Arthur C. Nelson, Exclusionary Practices and Urban Sprawl in Metropolitan Atlanta, 17 Ga. St. U. L. Rev. 1087, 1089 (2001).

[FN124]. See Keating, supra note 2, at 51-53 (suggesting that racial and economic exclusion is, in fact, the purpose of low-density zoning). Because Atlanta-area blacks are poorer than whites, id. at 37-40, zoning laws that exclude low-income renters and buyers disproportionately affect blacks. See Rolf Pendall, Local Land Use Regulation and the Chain of Exclusion, 66 J. Am. Plan. Ass'n 125142 (2000) (surveying localities in 25 largest U.S. metropolitan areas and finding that "low-density-only zoning, which restricts residential densities to fewer than eight dwelling units per acre, consistently reduced rental housing; this, in turn, limited the number of Black and Hispanic residents"); Nelson, supra note 114, at 1096.

[FN125]. Nelson, supra note 124, at 1095 ("low density housing is normally associated with greater dependency on the automobile"); see also Lewyn, supra note 18, at 285 (same).

[FN126]. John McCosh, Atlanta Building a New Approach, Atlanta J. Const., May 15, 2000, at E1 (making point, and noting that "[p]lanners point to the area surrounding this station as falling far short of its development potential").

[FN127]. See Allen, supra note 16, at 147 (describing Sandy Springs as an "unincorporated white enclave just north of Atlanta").

[FN128]. See Committee for Sandy Springs, Sandy Springs - Our Future City, http://www.sandysprings.net/city.html (last visited Dec. 20, 2002); Tony Wilbert, Mass Transit Draws IRS to Sandy Springs, Atlanta J. Const., May 31, 2001 at G1.

[FN129]. See Cheryl Crabb, "Smart Growth" Plans Near MARTA Stations Draw Opposition, Atlanta J. Const., August 19, 1999, at JH1.

[FN130]. See Tinah Saunders, Plan For Towers at North Springs Still in Dispute, Atlanta J. Const., July 5, 2001 at JH1 (developer originally proposed "850,000 square feet of space"); Sandy Eckstein, Sandy Springs Project OK'ed, Atlanta J. Const., August 2, 2001 at F3 (county approved "210,000 square feet of office space; 56,000 square feet of retail"). Cf. McCosh, supra note 126 (other transit-oriented developments have inspired opposition from neighbors).

[FN131]. Keating, supra note 2, at 210.

[FN132]. Id.

[FN133]. See supra notes 9-10 and accompanying text.

[FN134]. See Lewyn, supra note 2, at 339 n.283.

[FN135]. See Reed v. Rhodes, 1 F. Supp. 2d 705, 738 (N.D. Ohio 1998) ("children reared in lower socioeconomic status [households] tend to be less prepared for school which ultimately impacts on the child's achievements"); Lewyn, supra note 2, at 322-25 (discussing relationship between poverty and "bad schools" in more detail). Atlanta's school-related white flight has also been caused by factors beyond the control of local government, such as the federal courts' desegregation orders. See Michael Lewyn, The Courts v. The Cities, 25 Urb. Law 453 (1993) (describing Supreme Court desegregation doctrine); Allen, supra note 16, at 143-44 (describing white flight that resulted from Atlanta school desegregation plan; for example, one school had 470 white children on the last Friday of January 1965, and after school board announced that school would be integrated, only 7 white children present on following Monday).

[FN136]. See Lewyn, supra note 2, at 336 n.260 (citations omitted).

[FN137]. Allen, supra note 16, at 224.

my University of Colorado L. Rev. piece
74 U. Colo. L. Rev. 651

*651 TWENTY-FIRST CENTURY PLANNING AND THE CONSTITUTION


Michael Lewyn [FNa1]

Introduction
The American Planning Association (APA), a nationwide organization of land use planners, [FN1] recently published the "Growing Smart [FN2] Legislative Guidebook" (hereinafter *652 "Guidebook") [FN3] containing over 1,450 pages [FN4] of model laws governing zoning and other land use-related issues. "Property rights" activists and some business groups [FN5] vigorously attack the Guidebook because of its pro-regulatory positions on a variety of issues. [FN6] For example, the libertarian Heartland Institute [FN7] describes the Guidebook as a "refutation of the American tradition of individual property rights." [FN8] Similarly, *653 twenty-one members of Congress wrote Housing and Urban Development (HUD) Secretary Mel Martinez urging him to attack the Guidebook on the grounds that it "would trample the rights of private property owners by seizing their land without the just compensation that our Constitution requires." [FN9] The most detailed criticisms of the Guidebook come from a group known as Defenders of Property Rights (DPR), [FN10] a conservative public interest legal foundation that represents landowners in disputes with government agencies. [FN11] DPR suggests that the Guidebook violates the First, Fourth, Fifth, *654 Tenth, and Fourteenth Amendments [FN12] and its executive director recently called the Guidebook a "federal zoning code." [FN13]
This Article focuses on the question of whether the Guidebook's model statutes, if enacted by a state legislature, would violate the federal Constitution under existing case law. [FN14] Part I of this Article discusses the history of the Guidebook, explaining why and how it was drafted. Part II analyzes the Guidebook's constitutionality under the First, Fourth, Fifth, Tenth, and Fourteenth Amendments and concludes that no part of the Guidebook is unconstitutional on its face under existing case law. The Article concludes that as a general matter, the Guidebook's most controversial provisions (and thus state laws patterned on those provisions) are constitutional on their face if correctly interpreted.


I. Background: The History of Model Land Use Laws
The Guidebook is not the first attempt to standardize state zoning laws. To date, the most ambitious and successful attempts [FN15] to standardize land use regulation consist of two *655 model planning and zoning statutes drafted in the 1920s, the Standard State Zoning Enabling Act (SZEA) [FN16] and the Standard City Planning Enabling Act (SPEA). [FN17] These statutes continue to dominate most states' land use laws [FN18] and the Guidebook seeks to cure their defects. [FN19]

A. In the Beginning: SZEA and SPEA
Model zoning statutes are almost as old as zoning itself. Los Angeles enacted the first American zoning ordinance in 1909. [FN20] Just a dozen years later, the federal Commerce Department created an advisory committee on zoning and drafted the first version of the SZEA. [FN21] In 1926, the Commerce Department drafted a revised version of the SZEA. [FN22] Adopted in some form by all fifty states, [FN23] this revised SZEA, in modified *656 form, is still in effect in forty-seven states. [FN24] The Commerce Department's interest in zoning arose from Secretary of Commerce Herbert Hoover's concerns that without zoning, cities would lack adequate public infrastructure to serve their growing populations and that property values in residential neighborhoods would be threatened by the growth of incompatible uses. [FN25]
The SZEA included provisions granting local governments power to enact zoning ordinances dividing cities into districts, as well as language setting forth procedures for establishing, enforcing, and amending zoning laws, and for granting variances from those laws. [FN26] After states enacted SZEA-type laws authorizing municipal zoning, local governments began to enact SZEA-inspired zoning ordinances that courts generally upheld. [FN27] Today, Houston is the only large city without zoning. [FN28]
In 1928, the Department of Commerce drafted SPEA, a statute intended to complement the SZEA. [FN29] This model statute authorized local governments to appoint a planning commission [FN30] and required the commission to create a master plan that includes, among other things, the recommended locations and character of public improvements such as streets, playgrounds, and open spaces. [FN31] SPEA proved to be far less *657 influential than SZEA, [FN32] however, because the SPEA did not give planning commissions the power to ensure that zoning laws conformed to the master plan. [FN33] In fact, the SPEA limits municipal power over private land use by implying that a master plan is to be taken into account by the municipality only to the extent that it governs the construction of public facilities. [FN34]

B. History of the Guidebook
The call for a new model land use code originated from two sources at about the same time. [FN35] In 1991, a HUD advisory commission on barriers to affordable housing recommended that HUD "work with government and private-industry groups, such as the American Bar Association, the American Planning Association . . . and others to develop consensus-based model codes and statutes for use by State and local governments." [FN36] Specifically, the commission recommended, inter alia, a new model state zoning enabling act. [FN37] Also in 1991, the APA decided to create a task force to draft new model planning and zoning enabling legislation based on the group's "concern [] about the number of bills to [reform] planning and land development control being introduced in state legislatures without an overall body of evaluative research to offer *658 guidance." [FN38] The task force decided to draft a model code setting forth alternative approaches to land use regulation rather than mandating a one-size-fits-all code for all states. [FN39] The APA sought funding from HUD and the Henry Jackson Foundation [FN40] in 1992 and 1993, [FN41] finally receiving funding in 1994. [FN42]
At the request of HUD, the APA created an advisory board, known as the "directorate", comprised primarily of representatives of APA and of numerous national associations representing state and local government officials. [FN43] The directorate also included three private sector members-at-large: the executive director of the International Municipal Lawyers Association, [FN44] an attorney for the Environmental Law Institute designated as a representative of environmentalists, [FN45] and a home builder [FN46] designated as representative of the "Built Environment" [FN47]--that is, "home builders, office and industrial developers, real estate agents, general contractors, road builders, engineers, architects, and others who are generally *659 classed as the built environment." [FN48] The directorate met twice a year during the duration of the project and succeeded in reaching a consensus on most issues. [FN49] In addition, the APA began an outreach program, mailing a semi-annual project newsletter to numerous interest groups and maintaining a project website. As a result, the APA received hundreds of pages of comments and recommendations [FN50] from environmental groups, organizations representing builders and developers, organizations representing the sign industry, historic preservation groups, and numerous other organizations. [FN51] The APA later adopted eighty-five percent of those suggestions in some form. [FN52]
The APA released an interim edition of the Guidebook in 1996. This first edition focused on state and regional planning, as well as affordable housing. [FN53] A second edition replaced the first in 1998 [FN54] and was more extensive, containing model legislation on local land use planning, state review and approval of local land use plans, and integration of local land use plans with state environmental law. [FN55] Finally, the APA published the final edition of the Guidebook in 2002. [FN56]

C. The Guidebook: Why It Exists, What It Does
The final edition of the Guidebook explains in its preface that SZEA and the SPEA "are incapable of meeting the challenges of the twenty-first century." [FN57] Specifically, the Guidebook asserts that these 1920s model statutes:
*660 1. Fail to discuss the states' role in land use regulation because at that time land use planning was generally a local, rather than a state, activity. [FN58] By contrast, state legislatures now take an active role in land use regulation in order to ensure uniformity and to address issues spilling across jurisdictional boundaries; [FN59]
2. Do not address environmental issues such as the value of preserving vacant, developable land or the environmental consequences of the form and relative compactness of metropolitan areas; [FN60]
3. Provide inadequate opportunities for citizen participation in the zoning process; [FN61] and
4. Fail to consider the courts' increased scrutiny of land use regulation in recent decades. [FN62] The Guidebook contains fifteen chapters, covering the topics addressed in the earlier editions and adding detailed discussion of zoning, subdivision regulation, smart growth legislation, state biodiversity conservation plans, environmental protection, procedures for siting controversial state facilities, development oriented towards public transit, development moratoria, judicial review, public records of plans and regulations, and a wide variety of other issues. [FN63] Accompanying the Guidebook is a User Manual that, by means of checklists and case studies, seeks to help government officials use the Guidebook and in particular, "to tailor a program of statutory reform that will meet the unique needs of their state." [FN64] The User Manual also instructs readers that each chapter in the Guidebook follows the following format: first a chapter outline identifying the major topics in the *661 chapter, then an introduction setting forth a general discussion of the subject matter covering and summarizing its contents, then commentary to individual model statutes, and finally draft statutory language and alternatives. [FN65]
What the Guidebook does not do is directly address the federal role in land use regulation; that issue is left to Congress. [FN66] Instead, the Guidebook seeks to guide state and local land use law.


II. Analysis: The Guidebook and the Constitution
Guidebook critics allege the following constitutional infirmities in the Guidebook's model statutes:
1. The Guidebook's model sign regulation law violates the First Amendment by restricting businesses' right to advertise; [FN67]
2. Guidebook provisions regarding zoning-related searches violate the Fourth Amendment; [FN68]
*662 3. A wide variety of Guidebook proposals violate the Fifth Amendment, [FN69] especially the "Takings Clause" of that Amendment; [FN70]
4. The Guidebook's model statutes violate the Tenth Amendment by increasing federal power over land use; [FN71] and
5. The Guidebook's model statute governing design districts violates the Equal Protection Clause [FN72] of the Fourteenth Amendment. [FN73] Each of these issues will be addressed in turn.

A. The Guidebook and the First Amendment
Section 8-201(2)(h) of the Guidebook states that local zoning laws may regulate "location, period of display, size, height, spacing, movement and aesthetic features of signs, including the locations at which signs may and may not be placed." [FN74] This statute closely resembles Hawaii's statute allowing counties to "adopt ordinances regulating billboards *663 and outdoor advertising devices not prohibited by [state law]" [FN75] and in particular to "[r]egulate the size, manner of construction, color, illumination, location, and appearance of any class of billboard or outdoor advertising device." [FN76]
Other states' laws give local governments even more leeway to regulate outdoor advertising. [FN77] For example, Maine law not only limits the number, [FN78] location, [FN79] and height [FN80] of on-premise signs, [FN81] but also provides that state law "shall not supersede the provisions of any other statute, regulation, ordinance or resolution, the requirements of which are more strict than those of this chapter and not inconsistent therewith." [FN82] Vermont and Rhode Island likewise allow local governments to enact sign regulations stricter than those implemented by state government, without limiting local discretion as to the nature of such regulations. [FN83] While the Guidebook limits municipal sign regulation to "location, period *664 of display, size, height, spacing, movement and aesthetic features of signs," [FN84] the laws of Maine, Rhode Island, and Vermont do not include even this bit of protection for landowners. Rather, all three states apparently give local governments unlimited power to regulate billboards.
Nevertheless, DPR argues that the Guidebook's model statute violates the First Amendment, [FN85] primarily because it "allows local governments virtually unlimited control over the ability of a businessperson to advertise in his or her place of business." [FN86] In other words, DPR asserts that by giving local governments power to regulate on-premise signs, Section 8- 201(2)(h) violates landowners' First Amendment right to advertise their businesses. [FN87] This argument is unlikely to prevail in court because the most relevant state and federal district court decisions generally uphold the government's right to regulate on-premise signs. In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, [FN88] and more recently in Lorillard Tobacco Co. v. Reilly, [FN89] the Supreme Court held that under the First Amendment, even truthful advertising concerning lawful activity may nevertheless be regulated if (1) a "substantial" government interest justifies regulation, [FN90] (2) the regulation at issue "directly advances the *665 governmental interest asserted," [FN91] and (3) the regulation is "not more extensive than is necessary to serve that interest." [FN92] Later decisions make clear that traffic safety and aesthetic rationales for on-premise sign regulation [FN93] are "substantial" within the meaning of Central Hudson. [FN94] Thus, only the last two prongs of Central Hudson create controversy in cases involving regulation of on-premise signs.
As a rule, "[r]easonable restrictions governing size, setbacks, lighting, color, placement, orientation, design, number, height, spacing, or otherwise regulating the manner of advertising devices, will be upheld." [FN95] Although local governments generally regulate on-premise commercial signs less strictly than off-premise commercial signs, [FN96] courts usually uphold zoning ordinances regulating on-premise signs under the Central Hudson test. For example, in Brewster v. City of Dallas, [FN97] the plaintiff asserted that a zoning ordinance restricting "the location of signs . . . [and] the size, luminance and movement of signs; their projection from building walls; the size and number of words they may contain, and the number of signs at a given location" [FN98] violated the First Amendment as it pertained to on-premise commercial signs. [FN99] The court rejected the plaintiff's First Amendment claim, *666 holding that, as required by Central Hudson, [FN100] the city's ordinance (1) directly advanced the city's legitimate interests [FN101] and (2) reached no further than necessary to satisfy those interests. [FN102] As to the former issue, the court held that the ordinance directly advanced the city's substantial interests in "promoting traffic safety, communications efficiency, and landscape quality and preservation." [FN103] The court based that conclusion on the city's finding that "the restrictions promoted efficiency by ensuring that persons exposed to signs are not so overwhelmed by the number of messages presented that they cannot find the information they seek," [FN104] and on the absence of evidence contradicting the city's finding that its ordinance promoted traffic safety [FN105] and created "some positive aesthetic effect." [FN106] As to the latter issue, the court found that the city's zoning ordinance "reach[ed] no further than necessary to accomplish its objectives" [FN107] because it "merely regulates, without prohibiting, on-site advertising" [FN108] and was "content neutral." [FN109] The ordinance was thus probably constitutional [FN110] *667 because "[it] does not select the messages the public can see; it merely regulates the non-communicative aspects of signs. Sign owners can still display their messages; the only change is in the way they can display them." [FN111]
In some respects, Brewster is directly on point. Just as the Guidebook allows regulation of signs' location, size, height, and other non-communicative aspects, [FN112] the ordinance upheld in Brewster regulated signs' location, size, and similar aesthetic features. [FN113] It follows that if Brewster is still good law, Section 8-201(2)(h) of the Guidebook is clearly constitutional. It could be argued, however, that the Brewster court erred in one important respect. The Brewster court deferred to the city's judgment that its zoning laws directly advanced its goals of safety, aesthetic values, and efficiency, [FN114] based on that court's assumption that "as plaintiff, Brewster bears the burden of proof." [FN115] But Supreme Court precedent holds that "the party seeking to uphold a restriction on commercial speech carries the burden of justifying it." [FN116] Thus, Brewster does not answer the question of whether, given that the government has the burden of proof, Section 8-201(2)(h) and similar regulations are constitutional.
To meet its burden of justifying a restriction on commercial speech, a state or local government need not supply the court with "a surfeit of background information." [FN117] Instead, the Supreme Court "[permits] litigants to justify speech restrictions by references to studies and anecdotes pertaining to different locales altogether or even . . . to justify restrictions based solely on history, consensus, and simple common sense." [FN118] In other words, a state or municipality can *668 constitutionally regulate commercial speech, such as signs, as long as it gives the court some reason to believe that the sign restrictions at issue do in fact advance aesthetics, traffic safety, or some other public goal.
Two California cases suggest that where government seeks to regulate on-premise signs, its burden of proof is easily met. In Rodriguez v. Solis, [FN119] a city denied an auto dealer's request for a permit to erect on-premise signs within fifty feet of a freeway "on the ground that the signs would not be compatible with the landscaped environment of Freeway 41 [the freeway in question]." [FN120] Thus, the question presented was "whether a municipality can constitutionally restrict a property owner from erecting an onsite business sign oriented towards a landscaped freeway." [FN121] The plaintiff argued that the city "failed to establish that the ordinance advances aesthetic interests." [FN122] Put another way, the plaintiff asserted that the city failed to meet its burden of proving that the city's regulation directly advanced a substantial government interest (as required by Central Hudson). [FN123] The court did not deny that the city had the burden of proof, but nevertheless found that "[b]y characterizing signs along Freeway 41 as visual blight and then taking measures to limit or prohibit such signs, the city council took steps to advance the governmental interest of controlling that visual blight." [FN124] In other words, the Rodriguez court held that because the city characterized plaintiff's on-premise signs as "visual blight," any regulation of those signs directly advanced the city's substantial [FN125] interest in controlling visual blight. So even if the city had the burden of showing that its regulations directly advanced its aesthetic interest, the city met this burden. The Rodriguez court went on to hold that the city satisfied the Central Hudson [FN126] Court's requirement that "the ordinance reaches no further than necessary to accomplish the city's objective." [FN127] In support of this conclusion, *669 the court pointed out that the city "has not banned all onsite billboards . . . . The only type of sign advertising disallowed is that which can be reasonably construed as contributing to visual blight." [FN128] Thus, Rodriguez suggests that as long as a city's restrictions on on-premise signs merely regulate "visual blight" rather than outlawing all onsite signs, such regulations are not overbroad under Central Hudson. It logically follows that the Guidebook's model statute (which also seeks to regulate rather than to eliminate on-premise signs) is also constitutional under Central Hudson.
The Rodriguez court relied partially on dicta from City of Indio v. Arroyo. [FN129] In Arroyo, the city sought to remove a mural painted on the location of a small convenience store on the ground that the mural was larger than allowed by the city's sign ordinance. [FN130] The court implicitly acknowledged that the municipality had the burden of proof, stating that if "the city could demonstrate, for example, that the mural posed a traffic hazard . . . then abatement would be proper." [FN131] The court further held that the city's ordinance was unconstitutionally overbroad because the mural was a noncommercial depiction of the owners' Mexican heritage rather than a commercial advertisement [FN132] and aesthetic judgments that might justify regulation of commercial speech could not justify suppression of such artistic speech. [FN133] But the court added in dicta, "[t]he city's interest in its esthetic environment is directly advanced by the ordinance's regulation of commercial speech. We have little doubt that if, for example, the Arroyos' wall advertised 'Cold Beer, Come Inside!' it could properly be regulated in the precise fashion contemplated with regard to the mural as it exists." [FN134] In other words, Arroyo states that the size of an on-premise sign or mural may be limited on aesthetic grounds--a proposition completely consistent with the Guidebook's position *670 that local governments may regulate the "size, height, spacing, movement and aesthetic features of signs." [FN135]
Both Arroyo and Rodriguez support the proposition that even if a municipality has the burden of justifying its regulations, it nevertheless may limit the size and location of on-premise commercial signs. It follows that under these cases, the Guidebook's model statute limiting the size, location, and other aesthetic features of on-premise signs does not violate the First Amendment.
It could be argued that In re Deyo [FN136] compels a contrary outcome. In Deyo, the owner of commercial office space challenged a city ordinance that "prohibited on-premise signs advertising the sale or lease of real estate." [FN137] The Vermont courts found that the ordinance was unconstitutional for two reasons. First, "by permitting other types of signs that are distracting to motorists, the traffic safety benefits of the ordinance were undermined." [FN138] Second, "the sign ordinance substantially limited property owners' ability to market their property because the alternatives available - listing with real estate agents or advertising in the classified section of newspapers - were less than satisfactory." [FN139] The law invalidated in Deyo completely prohibited on-site signs related to real estate transactions. By contrast, the Brewster and Rodriguez courts implicitly distinguished cases such as Deyo, by emphasizing that the ordinances at issue were constitutional because they "merely regulate[d], without prohibiting, on-site advertising." [FN140] In other words, Deyo held that a city government could not completely prohibit the erection of on-premise signs, whether for one type of business *671 or for all local businesses. Brewster and Rodriguez addressed an entirely different question: whether a city government could regulate on-premise signs, without prohibiting them, by regulating the size and location of such signs.
Section 8-201(2)(h) of the Guidebook resembles the ordinance upheld in Brewster rather than the ordinance struck down in Deyo. The Guidebook statute apparently does not allow local governments to prohibit on-premise signs altogether, either for all commercial enterprises or for one particular type of business. Instead, the Guidebook authorizes regulation of the "location, period of display, size, height, spacing, movement and aesthetic features of signs" [FN141]--just as the ordinance upheld in Brewster regulated "the location of signs" and "the size, luminance and movement of signs; their projection from building walls; the size and number of words they may contain, and the number of signs at a given location." [FN142]
One might argue that by allowing local governments to regulate the "location" of signs, the Guidebook in fact allows the prohibition of such signs because a zoning ordinance providing that "there shall be no advertising signs in city X" not only prohibits the erection of such signs but also regulates their location by excluding them from city X. But such an interpretation of the Guidebook is probably incorrect, for three reasons. First, if the Guidebook's authors intended to allow local governments to prohibit signs, they could have used the term "prohibit," which they did not do. Second, as noted above, the Brewster court interpreted an ordinance that regulated the "location" [FN143] of signs as an invitation to regulate signs rather than prohibiting them entirely. [FN144] It follows that the Guidebook should be similarly interpreted. Third, Supreme Court precedent holds that if "a statute is susceptible of two constructions, by one of which grave and doubtful *672 constitutional questions arise and by the other of which such questions are avoided, [the court's] duty is to avoid the latter." [FN145] So if lower courts can possibly interpret Section 8-201(2)(h) to authorize mere regulation of on-premise sign location and aesthetics rather than citywide [FN146] prohibitions of such signs, they will do so and thus uphold that statute and similarly worded state statutes against a First Amendment challenge.
Because no federal appellate case is on point, the constitutionality of local regulation of on-premise signs is not yet clear beyond all dispute. However, relevant district court and state cases hold that statutes that regulate the size, location, and similar aesthetic features of on-premise signs are consistent with the First Amendment. It follows that if Section 8-201(2)(h) is correctly interpreted to allow such regulation, it too is probably consistent with the First Amendment under existing case law. But any statute that seeks to outlaw on-premises signs is constitutionally questionable.

B. The Guidebook and the Fourth Amendment
The Fourth Amendment provides that persons' rights "against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." [FN147] The Fourth Amendment applies to both the federal government and to state and local governments [FN148] and its purpose is "to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." [FN149] As a general rule, "a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." [FN150] Section 11-101 of the Guidebook *673 provides that a municipality may obtain a warrant to search a landowner's property [FN151] after proving to a court "that there is probable cause to believe that the property is not in compliance with land development regulations." [FN152] DPR asserts that Section 11-101 violates the Fourth Amendment's prohibition of "unreasonable searches and seizures" [FN153] because, inter alia, [FN154] that statute (1) does not require municipal inspectors to give landowners advance notice of searches, [FN155] (2) allows police officers to accompany zoning inspectors on searches, [FN156] and (3) allows local governments to act upon communications from any person. [FN157] Each of these contentions will be addressed in turn.
1. Notice
Section 11-101(7) of the Guidebook provides that local government officials "may notify or warn persons that they are or may be violating land development regulations" [FN158] before searching their property. The Guidebook's use of the word *674 "may" indicates that such notice is not mandatory--a proposition that, according to DPR, is contrary to the Fourth Amendment. [FN159] Two Supreme Court cases are highly relevant. In Camara v. Municipal Court, [FN160] the Supreme Court held that building inspectors must obtain search warrants in order to engage in housing-related administrative searches. [FN161] But under Camara, "there is no obligation on the inspector to give advance notice, or, if he is denied entry, to indicate his intention to return with a warrant, make the time of his return known in advance, or arrange a time convenient to the occupant." [FN162]
In Marshall v. Barlow's, Inc., [FN163] the Court extended Camara by holding that under the Fourth Amendment, agents of the Secretary of Labor must obtain search warrants in order to inspect employment facilities for safety hazards. [FN164] In support of this decision, the Court pointed out that a warrant requirement would not cripple the Labor Department's ability to perform surprise inspections because "warrants may be issued ex parte and executed without delay and without prior *675 notice, thereby preserving the element of surprise." [FN165] Thus, Barlow suggests that the Fourth Amendment allows government inspectors to search land "without prior notice." [FN166]
2. Police Searches and Administrative Searches
Section 11-101(4)(d) of the Guidebook provides that zoning inspectors "may be accompanied by one or more sworn officers of the [local] police department." [FN167] These officers "shall not participate in the inspection, and an entry and inspection pursuant to this paragraph shall not, by the mere presence of police officers pursuant to this paragraph, be considered to be a search by police officials." [FN168] The commentary to this provision explains that police officers "should accompany planning agency or code enforcement personnel only when it is believed there is a possibility of violence against the personnel in performance of their duties" [FN169] and may not participate in searches. [FN170] DPR complains that even though Section 11-104(4)(d) explicitly prohibits police officers from participating in zoning inspections, their mere presence creates a risk that the police might "surreptitiously gather evidence for possible criminal charges against a property owner." [FN171] Thus, the question presented is whether police officers may constitutionally accompany zoning inspectors on a search.
The case of Alexander v. City and County of San Francisco [FN172] is nearly on point. Alexander arose out of the following facts: City health inspectors visited a homeowner's residence in order to search the premises. [FN173] The homeowner shot at police officers who accompanied the inspectors and was in turn fatally shot. [FN174] The executor of the homeowner's estate sued the city, alleging that the officers violated the homeowner's Fourth Amendment rights because they "entered [the homeowner's house] for the purpose of arresting him, but *676 had only an administrative inspection warrant in their possession." [FN175] The trial court granted defendants' motion for summary judgment, but the Ninth Circuit reversed. [FN176] The court initially noted that "as an initial matter a forcible entry warrant provides a lawful basis for entry," [FN177] without making a distinction between police officers and health inspectors. Thus, Alexander suggests that a valid administrative warrant may justify entry by both administrative inspectors and police officers.
The court nevertheless went on to hold that summary judgment was inappropriate because "if in fact the officers' primary purpose in storming the house was to arrest [the homeowner] rather than to assist the health officials in executing the inspection warrant, then [the homeowner's] Fourth Amendment rights were violated." [FN178] It logically follows from this statement that if the officers' primary purpose was to assist the health officials rather than to make an arrest, no Fourth Amendment violation occurred. Thus, Alexander stands for the proposition that police officers may accompany zoning inspectors on searches if their goal is to protect the inspectors, but may not do so if their goal is to act as criminal investigators (i.e., to arrest landowners or perform searches that might lead to such arrests). Because the Guidebook allows police to pursue the former goal but not the latter, [FN179] its language accurately tracks that of Alexander and thus does not violate the Fourth Amendment.
3. Who Can Complain
Section 11-101(6) of the Guidebook provides that a municipality "may receive from any person informal communications alleging that a person or persons are or may be violating land development regulations . . . [and] may act upon communications as defined in this paragraph as it deems appropriate." [FN180] DPR complains that under this model statute, local governments may obtain inspection warrants based on *677 allegations "by anyone, such as neighbors, nearby businesses, or other 'interested citizens."' [FN181] It is well settled that even searches based on anonymous tips do not automatically violate the Fourth Amendment, both in the criminal context [FN182] and in the administrative context. [FN183] Thus, Section 11-101(6) presents no Fourth Amendment problem.

C. The Guidebook and the Fifth Amendment
The Fifth Amendment provides that no person may be "deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation." [FN184] Pursuant to the Due Process and Takings Clauses of that amendment, Guidebook critics attack the Guidebook's provisions regarding (1) development moratoria; [FN185] (2) design review districts; [FN186] (3) historic preservation; [FN187] (4) rezoning of existing land uses; [FN188] (5) local government approval of subdivisions; [FN189] (6) transferable development rights; [FN190] (7) criminal sanctions for violation of zoning laws; [FN191] (8) dedications of property in exchange for building permits; [FN192] and (9) amortization of nonconforming uses. [FN193] Each of these issues will be addressed in turn.
*678 1. Development Moratoria
a. The Guidebook's Rules
Eight states authorize local governments to impose development moratoria, which are temporary prohibitions on new development or on connection of newly developed property to publicly owned water and sewer lines. [FN194] Typically, moratoria are imposed when municipal officials are preparing an extensive amendment of land use regulations and seek to have pending requests for development considered under the new rules they wish to adopt [FN195] or when public facilities such as roads and sewers are not yet adequate to serve new development. [FN196]
Rather than adopting a one-size-fits-all provision on moratoria, Section 8- 604(3) of the Guidebook proposes three model state statutes. Alternative One allows moratoria (1) where development presents a "significant threat to the public health or safety or general welfare" [FN197] or (2) where a municipality is in the process of preparing or amending either a local comprehensive plan or land development regulations implementing a new or amended local comprehensive plan. [FN198] Alternative Two allows a moratorium in the situations listed in Alternative One [FN199] and also to prevent "a shortage or overburden of public facilities that would otherwise occur during the effective term of the moratorium or that is reasonably foreseeable as a result of any proposed or *679 anticipated development." [FN200] Alternative Three allows moratoria only to prevent the shortage or overburden of public facilities referred to in Alternative Two [FN201] or to prevent "a significant threat to the public health or safety." [FN202] Moratoria are limited to 180 days unless a municipality enacts extensions. [FN203] The Guidebook gives legislatures the option of further restricting moratoria in already-developed areas. [FN204]
b. Moratoria Are Constitutional . . .
The Supreme Court recently upheld a development moratorium in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency. [FN205] In Tahoe-Sierra, the question before the Court was whether "a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause." [FN206] The Supreme Court flatly refused to ban moratoria, holding that "the extreme categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking surely cannot be sustained." [FN207] Instead, the Court held that the constitutionality of moratoria, like the constitutionality of most other land use regulations not involving a physical occupation of property, [FN208] or elimination of the property's economic value, [FN209] is governed by the balancing test generally used to decide whether a government regulation constitutes an *680 unconstitutional taking. [FN210] Under this test, the courts weigh "the regulation's economic impact on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action." [FN211] Thus, Tahoe-Sierra bars any claim that development moratoria are always unconstitutional. [FN212]
c. But Not If They Are Permanent
However, under Tahoe-Sierra, a moratorium may be an unconstitutional taking if it is permanent rather than temporary. [FN213] DPR asserts that the Guidebook in fact endorses permanent moratoria, and is thus unconstitutional under Tahoe-Sierra, because it contains "no meaningful time limit for moratoria when the local government still perceives that a need for moratoria exists." [FN214] Section 8-604(5) of the Guidebook states that a moratorium's term "except as otherwise provided herein, shall not be more than [180] days." [FN215] Section 8-604(8) states that a local government "may extend an ordinance establishing a moratorium on the issuance of development permits for [only one or up to two] additional [180]-day *681 period[s]." [FN216] The existence of brackets in the Guidebook's language could be interpreted either to mean that local governments may adopt no more than two 180-day extensions or that legislatures may, by deleting these brackets, allow unlimited moratoria.
But the Guidebook's commentary clarifies this ambiguity, explaining that a "moratorium ordinance must state a duration for the moratoria not in excess of 180 days, but a moratorium may be extended by ordinance . . . An extension may not last over 180 days, and the Section provides for either only one extension or two at the adopting legislature's option." [FN217] Thus, the Guidebook's authors intended to limit moratoria to 180 days for an initial moratorium and 180 for each of two possible extensions. This yields a grand total of 540 days, a length of time contemplated by the Tahoe-Sierra Court's statement that "we could not possibly conclude that every delay of over one year is constitutionally unacceptable." [FN218] It follows that the Guidebook, if properly interpreted, authorizes temporary rather than permanent moratoria. Because temporary moratoria are constitutional, the Guidebook's moratorium provisions are constitutional as well.
2. Design Review and Historic Preservation
Design review regulations attempt to "promote community character by insuring that a certain *682 architectural style or styles are followed . . . or, in contrast, that architectural diversity is encouraged." [FN219] The former type of regulation seeks to ensure that new buildings are compatible with nearby buildings, while the latter type of regulation seeks to avoid monotony. [FN220] Historic preservation ordinances similarly seek to protect the character of neighborhoods, but are generally limited to districts "that may be associated with an important historic event or person or are representative of a certain architectural type or period." [FN221] Section 9-301 of the Guidebook authorizes both forms of regulation.
a. Design Review
Section 9-301 of the Guidebook authorizes local governments to designate "areas by ordinance as design review districts" [FN222]--areas with structures "united aesthetically by development or that, in the determination of the local legislative body, [have] the potential to be united aesthetically by development." [FN223] Within such areas, property owners must obtain a "certificate of appropriateness" [FN224] - a written decision by a local design review board that their development conforms with the design review ordinance [FN225] - for "all proposed development removing, destroying, adding, or altering exterior [and interior] architectural features of properties located in a . . . design review district." [FN226] Design review board decisions must be based on "standards of review to be applied . . . in reviewing applications for the certificate of appropriateness. These criteria shall include such matters as are consistent with the desired character of the exterior [and interior] architectural features of buildings and structures and their surroundings." [FN227] One Guidebook critic suggests that Section 9-301 violates the Fifth Amendment by giving government veto power over "changes to the interior or exterior of [a] business--a process involving layers of bureaucracy and subject to the personal opinions of government officials." [FN228]
*683 Both the United States Supreme Court and the majority of state courts allow government to regulate land use to promote aesthetic values. [FN229] Nevertheless, the Guidebook commentary itself concedes that design review ordinances may violate due process under case law invalidating such statutes as "an improper delegation of power or because they were unconstitutionally vague and thus it was difficult for a board to make a decision based on the standards in the ordinance." [FN230] *684 As a rule, a land use "ordinance is void for vagueness if it fails to give persons of ordinary intelligence fair notice that their contemplated conduct is proscribed by the ordinance" [FN231] and is an unconstitutional delegation of power to administrative agencies if it is not "accompanied by discernible standards, so that the delegatee's action can be measured for its fidelity to the legislative will." [FN232] In other words, both the "delegation doctrine" and the "vagueness doctrine" prohibit government from granting unlimited discretion to design review boards.
One might argue that Section 9-301 is unconstitutional under both doctrines because it does not establish substantive criteria to govern design review boards. But the Guidebook directs local governments to create such criteria by stating that a local "design review ordinance adopted pursuant to this Section shall include . . . standards of review to be applied by the historic preservation board and/or design review board in reviewing applications for the certificate of appropriateness." [FN233] In other words, if State X enacts a zoning enabling statute patterned on the Guidebook and a local zoning ordinance authorized by that section fails to include "standards of review to be applied by the . . . design review board," [FN234] the ordinance violates both Section 9-301 and the Due Process Clause. [FN235] *685 Therefore, Section 9-301 is not itself unconstitutional and a landowner who wishes to challenge a design review board decision on constitutional grounds should assert that the local ordinance authorizing that decision is unconstitutionally vague, rather than challenging the vagueness of the state law authorizing that ordinance.
Cases invalidating overly vague design review ordinances indirectly support this view; those cases invalidated local zoning laws, rather than attacking state zoning enabling statutes that authorized local governments to enact those laws. [FN236] And wisely so because if state enabling acts had to be as specific as a local ordinance must be in order to pass constitutional muster, states would have to micromanage local zoning boards by dictating what sort of building designs should be allowed and which should be forbidden. [FN237]
*686 b. Historic Preservation
Section 9-301 also authorizes historic preservation ordinances that designate areas as historic preservation districts and designate individual properties as historic landmarks. [FN238] If a property or district is so designated, "a certificate of appropriateness [must] be obtained from a historic preservation board for development affecting the . . . architectural features of all or specified proposed development therein." [FN239] A historic preservation board's decision as to issuance of such certificates must be governed by municipally enacted criteria dictating the "desired character of the exterior [and interior] architectural features of buildings and structures and their surroundings in a historic district . . . or on properties that have been designated as historic landmarks." [FN240]
Over time, all fifty states and over five hundred local governments enacted historic preservation legislation [FN241] and in 1978 the Supreme Court held that historic preservation "is an entirely permissible governmental goal." [FN242] Nevertheless, DPR suggests that the historic preservation portion of Section 9-301 may be unconstitutional because it authorizes not only regulation of historic buildings, but also regulation of undeveloped private land in historic districts. [FN243] "[T]he courts have consistently rejected the notion that nonhistoric structures are exempt from control [under historic preservation laws]." [FN244] And just as local governments may regulate nonhistoric buildings within historic districts, they may regulate undeveloped land within historic districts. For *687 example, in A-S-P Associates v. City of Raleigh, [FN245] the owner of a vacant lot within a historic district [FN246] asserted that "even if the [city's historic preservation] Ordinance is a valid exercise of the police power insofar as it applied to historic structures, it is invalid when applied to new construction on property such as [plaintiff's] vacant lot." [FN247] The landowner asserted that such zoning was unreasonable and thus was unconstitutional under the doctrine of "substantive due process," under which all arbitrary regulation of liberty or property constitutes a regulation without due process and thus violates the Fourteenth Amendment. [FN248]
The North Carolina Supreme Court rejected the landowner's substantive due process claim, for two reasons. First, "preservation of the historic aspects of a district requires more than simply the preservation of those buildings of historical and architectural significance within the district. . . . 'just as important is the preservation and protection of the setting or scene in which [structures of architectural and historical significance] are situated."' [FN249] Second, the zoning law did not totally prohibit development of new structures, but merely required the plaintiff "to construct them in a manner that will not result in a structure incongruous with the historic aspects of the Historic District." [FN250] DPR suggests that Section 9-301 may be unconstitutional because it applies to "undeveloped private land." [FN251] But in A-S-P Associates, the court held that a vacant lot within a historic district could be regulated. [FN252] In other words, "undeveloped private land" within historic districts may be regulated. Thus, DPR's argument was *688 rejected by the A-S-P Associates court and is unlikely to bar enforcement of Section 9-301.
3. Rezoning
Section 8-201(3) of the Guidebook contains a list of provisions that must be included in a zoning ordinance. DPR attacks this section not for any of its provisions, but for a sin of omission: that it "authorizes zoning of land uses and structures within the local jurisdiction without regard for current uses." [FN253] But the text of the SZEA shows that a zoning enabling act need not endorse existing land uses. Section 9 of that statute provides that "[w]herever the regulations made under the authority of this act . . . impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under authority of this act shall govern." [FN254] By allowing local governments to create "higher standards" for land use than authorized by other statutes, Section 9 of SZEA allows municipalities to use their zoning powers to overturn existing land use statutes. And if a municipality can reject existing statutes, it is by definition ignoring "current uses" of land. It logically follows that if Section 8-201(3) is unconstitutional, SZEA is also unconstitutional. This would be an absurd result given the courts' repeated approval of the many zoning laws patterned on SZEA. [FN255] In other words, SZEA shows no more regard for current uses than does the Guidebook. Thus, the continued survival of SZEA-inspired zoning laws suggests that Section 8-201(3) is constitutional.
4. Subdivision Approval *689 A subdivision is "any land, vacant or improved, which is divided or proposed to be divided into two or more lots, parcels, or tracts for the purpose of offer, sale, lease, or development, whether immediate or future." [FN256] Section 8-301(4) of the Guidebook provides that no person "shall subdivide any land until the . . . [map] designating the areas to be subdivided has been approved pursuant to this Section by the local government having jurisdiction over the land." [FN257] Subsection (b) of that model statute provides that "[a]ny purported subdivision of land or plat recordation of a minor subdivision, resubdivsion, or final plat that has not been so approved is void." [FN258]
DPR interprets Section 8-301(4) to mean that "[c]urrent subdivisions . . . that have not been approved by the local government pursuant to the Guidebook's recommendations are considered void." [FN259] Supreme Court precedent holds that government regulation is especially likely to constitute an unconstitutional "taking" if such regulation interferes with a landowner's "reasonable investment-backed expectations." [FN260] If a zoning enabling statute provides that a subdivision approved long ago is "void," obviously that statute interferes with subdividers' reasonable expectations and thus may well be an unconstitutional taking.
*690 Such an interpretation of Section 8-301(4), however, is probably incorrect. Subsection 8-301(4), as noted above, provides that no person "shall subdivide any land" without municipal approval. [FN261] The phrase "shall" is in the future tense. That is, it probably means that no one may subdivide land in the future without municipal approval and therefore does not mandate municipal re-approval of existing subdivisions. It logically follows that Section 8-301(4), if narrowly interpreted, is not constitutionally problematic. If Section 8-301(4) or a similarly worded state law is challenged in court, the court is likely to adopt such a narrow interpretation based on the principle that if "a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the court's] duty is to adopt the latter." [FN262]
5. Just Compensation and Transfers of Development Rights
A transfer of development rights (TDR) is a landowner's "yielding of some or all of the right to develop or use a parcel of land in exchange for a right to develop or use another parcel of land, or another portion of the same parcel of land, more intensively." [FN263] In the twenty-five states allowing TDR programs, [FN264] a local government may limit development of land it wishes to protect from development without paying cash compensation, as long as it compensates the landowner in-kind by allowing higher densities on other districts or parcels. [FN265] The Guidebook defines the land on which a TDR limits development as a "sending" district or parcel of land [FN266] and *691 defines the land that may be developed more intensively due to the TDR as the "receiving" district or parcel. [FN267] The receiving parcel need not be owned by the burdened landowner; instead, the landowner may sell her [FN268] TDR to a developer who wishes to exceed density limits on the receiving parcel. [FN269] Thus, "burdened landowners are paid market value for the property rights they lose and developers pay market value for the additional development rights they purchase." [FN270]
Section 9-401 of the Guidebook authorizes TDRs, providing that a "local government may adopt local land development regulations and amendments that include provisions for the transfer of development rights." [FN271] Section 9-401 defines a "transfer of development rights" as a procedure "whereby the owner of a parcel in the sending district may convey development rights to the owner of a parcel in the receiving district, whereby the development rights so conveyed are extinguished on the sending parcel and may be exercised on the receiving parcel." [FN272] The Guidebook seeks to protect landowners' finances by providing that "receiving districts" may not be "downzone[d] . . . to the degree that owners cannot make a reasonable use of their property." [FN273] Thus, under the Guidebook, TDRs may not be used to render private land completely valueless.
DPR argues that TDRs violate the Takings Clause by violating the Fifth Amendment's demand "that just compensation be paid in money." [FN274] In other words, the group *692 contends that TDRs are an attempt to compensate landowners for the taking of their land, but are not constitutionally acceptable because they are in-kind transfers rather than transfers of money. By contrast, the Guidebook's authors reason that by allowing landowners to make "a reasonable use of their property" [FN275] in the receiving district, a TDR-adopting municipality commits no taking requiring just compensation.
The Arizona Court of Appeals' decision in Corrigan v. City of Scottsdale [FN276] supports the former view. In Corrigan, a property owner challenged a zoning ordinance that prohibited new development within his land but awarded TDRs allowing development in adjacent land owned by the plaintiff. [FN277] The court found that the TDRs were a taking, reasoning: "[t]he city claims this action is a legitimate exercise of [zoning] police power and yet it attempts a form of compensation by way of transfer of density credits. If this were a valid exercise of police power there would be no need for any form of compensation." [FN278] The Corrigan court went on to hold that the TDRs did not constitute "just compensation" as required by the Arizona Constitution because that constitution "requires compensation for such a taking to be made by payment of money in an amount that has been judicially determined" [FN279] and TDRs thus violate that constitution by compensating landowners in land rather than in money. [FN280] Corrigan, standing alone, suggests that Section 9-401 may violate a constitutional requirement that "just compensation be paid in money." [FN281]
It is not clear, however, whether Corrigan is good law even in Arizona. The Arizona Supreme Court, in a decision addressing the proper measure of damages for the alleged taking, stated: "[w]e express no opinion as to the legality or *693 constitutionality of [the city's] scheme." [FN282] More importantly, Corrigan is of questionable relevance to cases interpreting the federal Constitution; the court's narrow interpretation of "just compensation" is based on the Arizona Constitution's requirement that "[n]o private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the State treasury . . . ." [FN283] The Arizona Constitution's references to compensation being "paid into court for the owner," "secured by bond," and "paid into the State treasury" imply that compensation may only be paid in cash. By contrast, the federal Constitution merely requires "just compensation" without adding details, thus arguably giving governments more flexibility in choosing the manner of compensation.
Finally, United States Supreme Court precedent [FN284] is inconsistent with Corrigan. In Penn Central Transportation Co. v. City of New York, [FN285] the Supreme Court rejected a Takings Clause claim by a landowner whose request to build a fifty-five-story office tower atop a historic train terminal was denied pursuant to New York City's historic landmark ordinance. [FN286] The landmark ordinance contained a TDR provision that allowed the owners of landmark sites to transfer development rights from a landmark parcel to other parcels owned by the same landowner. [FN287] The Court found that the historic landmark ordinance was not a taking, partially because of the TDR provision. The Court reasoned that even if the city outlawed all attempts to build above the terminal, [FN288] the TDR law precluded a finding that plaintiff had been denied all economically beneficial use of its air rights because the TDRs:
*694 made [plaintiff's rights] transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings. . . . While these rights may well not have constituted 'just compensation' if a 'taking' had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on [plaintiffs] and, for that reason, are to be taken into account in considering the impact of regulation. [FN289]
In other words, Penn Central held that because the city's historic preservation law included a TDR, plaintiff's air rights were not worthless and thus no taking occurred. [FN290] If the presence of TDRs precludes an otherwise unconstitutional regulation from being a taking, it logically follows that TDRs are not themselves unconstitutional under the Takings Clause and that Corrigan is not relevant to federal constitutional claims. It could be that Penn Central is no longer relevant to most cases involving TDRs, based on Justice Scalia's concurrence in Suitum v. Tahoe Regional Planning Agency. [FN291] In Suitum, a landowner challenged a regional planning agency's decision that her lot was ineligible for development because it was in an environmentally sensitive area. [FN292] The regional planning agency sought to mitigate the harshness of its development restrictions by granting affected property owners TDRs; [FN293] rather than seeking to use those TDRs, plaintiff filed suit alleging a Takings Clause violation. The lower courts dismissed her claim on the ground that her claim was not ripe for judicial consideration, [FN294] reasoning that because plaintiff had not yet applied to use those TDRs, the value of her TDRs, and thus her economic losses caused by the TDRs, were not yet known. [FN295] The Supreme Court disagreed, reasoning that the *695 case was ripe for review because the parties agreed that the plaintiff did in fact have the right to sell her TDRs [FN296] and the valuation of plaintiff's TDR was an issue of fact, which could be resolved in federal court. [FN297]
Justice Scalia wrote a separate concurrence, joined by Justices O'Connor and Thomas. [FN298] In that concurrence, Justice Scalia wrote that the case was ripe for judicial action because a takings claim is ripe for review as soon as "the government had finally determined the permissible use of the land." [FN299] Justice Scalia added that in his view, the landowner's TDRs were irrelevant to the question of whether a taking occurred because even if the TDRs were equal in value to plaintiff's land, she had lost the right to use her own land. She thus suffered a taking even if she received the right to develop other land in exchange. [FN300] Instead, "the marketable TDR, a peculiar type of chit which enables a third party not to get cash from the government but to use his land in ways the government would otherwise not permit, relates not to taking but to compensation." [FN301]
More importantly, Justice Scalia added that he was not opposed to TDRs; rather, TDRs "may also form a proper part, or indeed the entirety, of the full compensation accorded a landowner when his property is taken." [FN302] By asserting that a TDR may constitute "just compensation," Justice Scalia bluntly repudiated the Corrigan court's suggestion that because a TDR is not in cash, it may not constitute "just compensation." [FN303] In sum, both the Penn Central Court and Justice Scalia's Suitum concurrence held that land use regulations that include TDRs do not automatically violate the Takings Clause. The Penn Central court so held because TDRs may prevent an *696 otherwise confiscatory regulation from constituting a "taking;" Justice Scalia because TDRs may constitute "just compensation" for such a taking. Either way, Section 9-401 and other statutes authorizing TDRs are constitutional on their face.
6. Crime and Punishment Under the Guidebook
Section 11-302(1) of the Guidebook provides that it is "a criminal offense to intentionally [or knowingly] violate the land development regulations of any local government." [FN304] This statute does not, however, specify the appropriate penalties for such criminal violations. Nevertheless, DPR suggests that Section 11-302 is unconstitutional because it "criminalizes and allows imprisonment for anyone who intentionally or knowingly violates any land development regulation." [FN305]
The Guidebook's criminal enforcement procedures are hardly unique; for example, the SZEA provides that a "violation of this act or of [any ordinance authorized thereby] is hereby declared to be a misdemeanor, and [a] local legislative body may provide for the punishment thereof by fine or imprisonment or both." [FN306] More importantly, courts usually uphold such statutes. For example, in Hadachek v. Sebastian, [FN307] the Supreme Court upheld a conviction of a petitioner "[who] was convicted of a misdemeanor for the violation of an ordinance of the city of Los Angeles which makes it unlawful for any person to establish or operate a brickyard or brick kiln, or any establishment, factory or place for the manufacture or burning of brick within described limits in the city." [FN308] The Court rejected claims that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment [FN309] and constituted "the taking of property without compensation." [FN310]
*697 Because Hadachek fails to directly address the distinction between criminal and civil liability, that case is not directly on point. More recent state court decisions, however, explicitly allow criminal punishment for zoning violations. In City of North Royalton v. Vodicka, [FN311] police arrested the defendant for having an overly high fence, a misdemeanor offense under the city code. [FN312] The defendant asserted that "the classification of his [zoning code] violations . . . as fourth degree misdemeanors somehow violates his constitutional rights to equal protection and due process." [FN313] An Ohio court disagreed, finding no "constitutional infirmity in the application of these city zoning ordinances . . . [or] on the face of this legislative scheme." [FN314] In Calhoun v. Town Board Saugerties, [FN315] a New York court stated that where municipal law made violations of zoning ordinances a misdemeanor, those ordinances could be enforced as long as the state provided "minimal due process protections." [FN316] In sum, both common practice and case law support the conclusion that criminal punishments may be assessed for violation of zoning laws. It logically follows that the Guidebook's endorsement of such criminal penalties is constitutional.
7. Exactions
Rather than flatly granting or rejecting an application for a building permit, a government agency will sometimes grant permits on condition that "a developer provide certain improvements in a new development or, in some cases, pay a fee to cover the expense of the local government providing those improvements off-site." [FN317] These conditional permits are known as "exactions." [FN318] Local governments mandate exactions for two reasons. First, some improvements, such as streets, streetlights, and utilities, are "reasonably necessary for the public health, safety [and] welfare." [FN319] Second, "the *698 development itself is creating the demand for the improvements, and the public as a whole should not bear the cost of constructing improvements for new development." [FN320] Exactions are hardly new; SPEA [FN321] allows local governments to impose exactions for streets, open spaces, and utilities. [FN322]
Section 8-601(4) of the Guidebook provides that exactions for improvements "shall be in reasonable proportion to the demand for such improvements that can be reasonably attributed to developments subject to the ordinance." [FN323] Guidebook critics contend that this provision differs materially [FN324] from the rule set forth by the Supreme Court in Dolan v. City of Tigard. [FN325] In Dolan, a city allowed a landowner to double the size of her plumbing and electric supply store. [FN326] The municipality conditioned that approval upon flood control and traffic improvements, including the dedication of land for an easement/" greenway" [FN327] that recreational users could use to enter her land [FN328] and a pedestrian/bicycle pathway. [FN329] The plaintiff raised a Takings Clause claim, asserting that "the city has forced her to choose between the building permit and her right under the Fifth Amendment to just compensation for the public easements." [FN330]
The Court held that the city's exaction was constitutional only if "the degree of the exactions demanded by the city's permit conditions bears the required relationship to the projected impact of [the] proposed development." [FN331] Thus, the decisive legal issue was the nature of this "required relationship." The Court rejected the view that the city need only show "the 'reasonable relationship' test adopted by a majority of the state courts . . . because the term 'reasonable relationship' seems confusingly similar to the term 'rational basis' which describes the minimal level of scrutiny under the *699 Equal Protection Clause of the Fourteenth Amendment." [FN332] Instead, the appropriate test was "rough proportionality," meaning "the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." [FN333] Some Guidebook critics assert that Section 8-601 of the Guidebook, which authorizes exactions of various types, is inconsistent with the Dolan Court's "rough proportionality" test and instead endorses the "reasonable relationship" test rejected by the Supreme Court. [FN334]
But a careful reading of Section 8-601(4) suggests otherwise. Under this model statute, all improvements "required by an improvements and exactions ordinance shall be in reasonable proportion to the demand for such improvements that can be reasonably attributed to developments subject to the ordinance." [FN335] In other words, to satisfy the requirements of Section 8-601(4), a local government must do more than show that an exaction is somehow related to a development; instead, the burden of the exaction upon a developer must be "in reasonable proportion" to the impact of the development at issue. This language apparently tracks the Dolan Court's "rough proportionality" test.
*700 To the extent that Section 8-601(4) and similar state statutes are ambiguous on this point, such statutes are likely to be upheld based on the well-settled principle of statutory construction that if "a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the court's] duty is to adopt the latter." [FN336] Under this rule, the courts will uphold Section 8-601(4) because it is "susceptible" of being construed to affirm the Dolan Court's "rough proportionality" test. In other words, if Section 8-601(4) could reasonably be interpreted either to adopt the (incorrect) "reasonable relationship" test or the "rough proportionality" test endorsed by the Dolan Court, the courts will assume that that statute has the latter meaning in order to uphold its constitutionality. Because Section 8-601(4) requires that exactions "be in reasonable proportion to the demand for such improvements," that statute could reasonably be construed to adopt the "rough proportionality" test endorsed by the Dolan Court. Thus, Section 8-601(4) is constitutional.
8. Amortization of Nonconforming Uses
A "nonconforming use is a land use, or a structure, which was allowed under local land development regulations when established, but [which] would not be permitted under current development regulations." [FN337] States and local governments generally adopt one of two methods for dealing with nonconforming uses. The majority of states and local governments "grandfather" nonconforming uses. Thus, the locality allows a land use to continue as long as it was legal at the time it was commenced. [FN338] When the nonconforming use is terminated, the protection of grandfathering is lost and resumption of the nonconforming use is not allowed. [FN339] Some states, however, authorize "amortization" of nonconforming uses. Amortization requires "the termination of a nonconforming use after a period of time." [FN340] The Guidebook concedes that amortization is "a controversial land use *701 regulation technique, as owners of nonconforming uses can claim that the removal of a nonconforming use at the end of an amortization period, without compensation, is unconstitutional." [FN341]
Section 8-502(4) expressly authorizes amortization, providing that local governments may "state a period of time after which nonconforming land uses . . . must terminate" [FN342] or set forth criteria that designated local officials may, on a case-by-case basis, use to establish "a period of time after which a nonconforming land use . . . . must terminate." [FN343] Guidebook critics assert that Section 8-502(4) violates the Takings Clause by allowing local governments to terminate land uses without compensation. [FN344] Although the majority of courts uphold amortization in principle, [FN345] a few courts find amortization to *702 be unconstitutional under state versions of the Takings Clause. [FN346] Thus, amortization is unconstitutional under several state constitutions.
Although the Supreme Court has not yet explicitly addressed the status of amortization under the federal Constitution, the Court's case law is highly relevant. It is well-settled that under the federal Takings Clause, a land use regulation is generally [FN347] a compensable taking when a *703 landowner has suffered a total taking of her property. Such a total taking requires "[a] permanent 'obliteration of the value' of a fee simple estate." [FN348] This occurs "when no productive or economically beneficial use of [the] land is permitted." [FN349] But when a land use regulation diminishes the value of a landowner's property by less than 100 percent, [FN350] the federal courts apply the balancing test enunciated in Penn Central [FN351] and endorsed in more recent cases. [FN352] Under this "partial takings" test, federal courts weigh the "economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations . . . [as well as] the character of the governmental action." [FN353] The phrase "character of . . . government action" means that a regulation must be "reasonably necessary to the effectuation of a substantial public purpose." [FN354] It follows that unless amortization of nonconforming uses always deprives a landowner of one hundred percent of her property's fair market value, it is not per se unconstitutional under the federal Constitution and is subject to the case-by-case balancing test enunciated in Penn Central.
The few amortization cases that reveal any awareness of Penn Central hold that zoning ordinances amortizing nonconforming uses are "partial takings" requiring application of the Penn Central balancing test rather than unconstitutional "total takings." For example, in Board of Zoning Appeals, Bloomington, Indiana v. Leisz, [FN355] two landlords (a husband and wife) challenged a zoning ordinance that "limited the occupancy of dwellings in certain neighborhoods to a maximum *704 of three unrelated adults per unit." [FN356] The ordinance, enacted on June 8, 1985, provided that owners of nonconforming properties could continue to rent to more than three tenants per unit only if they registered with the city by October 1, 1985. [FN357] Thus, the ordinance combined (1) an amortization period of several months for landlords who failed to register and (2) grandfathering for landlords who chose to register. The plaintiffs failed to register and asserted that the ordinance was an unconstitutional taking because "any ordinance which bans an existing lawful use within a zoned area is unconstitutional as a taking of property." [FN358]
The Leisz court rejected the plaintiffs' argument that "amortization provisions are unconstitutional per se . . . [as] an issue of federal constitutional law" [FN359] for three reasons. First, the ordinance "involved no physical invasion of the [plaintiffs'] property." [FN360] Second, the ordinance "does not deny [the plaintiffs] all economically beneficial or productive use of their land . . . [but merely] denies them at most 25% to 40% of the rental income that they might otherwise receive." [FN361] Third, "state courts that have found amortization provisions unconstitutional have done so on the basis of their state constitution," rather than the federal Constitution. [FN362] The court went on to reject plaintiffs' claims under the Penn Central balancing test. [FN363] Thus, Leisz presents a classic example of a situation where a zoning law amortizing nonconforming uses did not deprive landowners of all economically beneficial use of their land. [FN364]
*705 Federal courts as well as state courts apply the Penn Central test to amortization-related cases. In Georgia Outdoor Advertising, Inc. v. City of Waynesville, [FN365] a city sought to "effectively prohibit all off-premise outdoor signs in the city" [FN366] by enacting an ordinance containing a four-year amortization period. [FN367] The Fourth Circuit rejected claims that amortization provisions either immunized zoning laws from constitutional scrutiny or automatically invalidated such laws. Instead, the court held that courts should apply the Penn Central balancing test [FN368] and that amortization provisions are "only 'one of the facts that the district court should consider"' [FN369] in deciding whether a zoning regulation constitutes an unconstitutional taking. [FN370]
*706 Similarly, in Naegele Outdoor Advertising, Inc. v. City of Durham, [FN371] a district court cited Penn Central in support of its holding that "the benefit conferred by the grant of an amortization period may be taken into account in considering the economic impact of the regulation." [FN372] Specifically, the court found an outdoor advertising company who challenged a city ordinance limiting off-premise signs "has not been deprived of all economically viable use of its property." [FN373] This was so partially because of the amortization period and partially because even after the amortization period ended, the plaintiff's revenue from signs in the relevant market would only be reduced by 29.75 percent. [FN374] The court went on to find that no taking occurred because the other elements of the Penn Central test also did not support the plaintiff's claim: the plaintiff's investment-backed expectations were either unreasonable or nonexistent [FN375] and the city's regulations were justified by a legitimate aesthetic purpose. [FN376] Thus, Naegele, like Georgia Outdoor, holds that amortization is not always an unconstitutional taking and that the Penn Central balancing test must be applied to amortization ordinances.
Although many opinions discuss amortization, only a few bother to consider Penn Central. Those cases suggest that zoning laws that (like Section 8-502(4)) provide for amortization of nonconforming uses are subject to the Penn Central balancing test and thus do not on their face breach the Takings Clause in every conceivable case. This does not mean, however, that such laws are always constitutional as applied. A municipal land use decision that renders a landowners' property economically useless or that otherwise goes "too far" [FN377] under the Penn Central test creates a compensable taking, amortization or no amortization. [FN378] So even though the *707 Guidebook's authorization of amortization is not per se unconstitutional, a municipality that chooses to amortize nonconforming uses may be at risk for Takings Clause lawsuits.

D. Tenth Amendment
The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." [FN379] The purpose of this amendment is to "allay lingering concerns about the extent of the national power" [FN380] by reserving to the states "a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status." [FN381]
DPR suggests that the Guidebook creates "uniform national standards" [FN382] and thus violates the Tenth Amendment. But the Guidebook is not a model federal statute, but a set of model state statutes. [FN383] Although the Guidebook is federally funded, the Guidebook's opening pages state that it does not "reflect the views of HUD, the U.S. government, or any other project sponsor," [FN384] and the Secretary of HUD said that the Guidebook "does not have an imprimatur of the federal government, it does not have any sort of guidelines and there'll be no coercion for states or localities to adopt it." [FN385] Indeed, some Guidebook critics complain that the Guidebook increases, rather than decreases, state power. For example, one critic complains that the Guidebook forces localities to "abide by state-dictated land controls." [FN386] Because the purpose of the Tenth Amendment is to protect state power rather than local power, such concerns have no significance under the federal Constitution.
*708 The Guidebook may nevertheless constitute a federal intrusion into state prerogatives because it is funded by the federal government. Yet the SZEA was not only funded by the federal government, but drafted by the federal government. [FN387] So if the Guidebook is unconstitutional because of its federal support, the SZEA, and thus every state zoning enabling statute enacted pursuant to the SZEA, is unconstitutional. Given the courts' consistent endorsement of post-SZEA zoning, [FN388] this is an absurd result.

E. The Fourteenth Amendment
The Fourteenth Amendment provides, in relevant part, that no state shall "deny to any person within its jurisdiction the equal protection of the laws." [FN389] In the context of land use regulation, courts usually interpret the Equal Protection Clause to require "that classifications promote a legitimate government end in a rational way." [FN390] In zoning-related cases, this "restraint is more theoretical than real since [zoning] ordinances are reviewed under a highly deferential standard. Distinctions between commercial and residential use or types of commercial use, or between single-family and multi-family use are not likely to be invalidated." [FN391] Similarly, courts generally apply minimal scrutiny to local governments' aesthetic decisions and uphold findings by design review boards that certain structures are inharmonious with surrounding neighborhoods. [FN392]
*709 Nevertheless, DPR suggests that Section 9-301 of the Guidebook (which, as noted above, allows local governments to designate areas as "design review districts") [FN393] violates the Equal Protection Clause. DPR argues that the Guidebook allows local governments to "arbitrarily designate any area as a 'Design Review Districts' [sic] and subject property owners in just those areas to mandatory standards on the design and aesthetics of . . . their property." [FN394] According to DPR, the distinction between design review districts and other areas creates irrational "different treatment" [FN395] between property owners in design review areas and property owners in other areas.
If the Guidebook told local governments to randomly designate certain blocks as "design review blocks" this argument would be persuasive. But in fact, the Guidebook itself both includes criteria for designation of design review districts and orders local governments to enact such criteria. Section 9-301 of the Guidebook, which authorizes local governments to establish "design review districts," [FN396] limits local discretion to arbitrarily establish such districts by requiring that a design review district be a "geographically definable area possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united aesthetically by development or that, in the determination of the local legislative body, has the potential to be united aesthetically by development." [FN397] This provision is not the only limit upon local discretion. Section 9-301 requires that local governments themselves establish "criteria to be applied . . . in selecting areas to be designated by ordinance as design review districts." [FN398] Thus, a municipality that arbitrarily designates a *710 block or neighborhood as a "design review district" violates not only the Fourteenth Amendment, but the Guidebook as well.
Moreover, courts generally defer to aesthetic decisions by design review boards. For example, in Breneric Associates v. City of Del Mar, [FN399] a city design review board denied plaintiffs' building permit application on the ground that their proposed design "was inconsistent with the residence's architectural style and was inharmonious with the surrounding neighborhood." [FN400] The controversy revolved around plaintiffs' proposal to use glass on a house's roof deck and their proposed siting of an addition to the house. [FN401] A California court rejected plaintiff's equal protection claim, reasoning that the "denial of a permit bore a rational relationship to a permissible government objective because . . . the proposed development was rejected for transgressing aesthetic considerations, which are legitimate state objectives." [FN402] Further, "the facts cited in the resolution as the basis for [the city's] determination show that the 'wisdom [of the decision] is at least fairly debatable."' [FN403] Thus, Breneric Associates suggests that courts will uphold "fairly debatable" aesthetic decisions by local governments.
Sievert v. City of Mill Valley [FN404] also merits discussion. In that case, a city refused to allow plaintiffs to modify their home because the modification would "increase the apparent mass of the structure" [FN405] and thus violate a design review ordinance's requirement that a proposed structure not create "substantial disharmony with its locale and surroundings." [FN406] Plaintiffs raised an equal protection claim against the city, asserting that the city "arbitrarily denied plaintiffs' application while approving applications for other similarly situated applicants." [FN407] The court rejected that claim on two grounds. First, although the city approved building permits for nearby structures, plaintiffs failed to show that those structures were *711 "similarly situated" [FN408] in any way. Second, "building restrictions based upon visual impact are well within the legitimate objectives of local government" [FN409] and thus generally "rationally related to a legitimate government objective" [FN410] absent some evidence that the city acted for an improper purpose.
Breneric and Sievert are not directly on point because they involve municipal decisions that structures within areas governed by design review were inharmonious with their surroundings, while DPR questions the constitutionality of decisions that a given block or neighborhood should be within a design review district at all. Nevertheless, these cases do suggest that design-related decisions by local governments will generally be upheld under the Equal Protection Clause. Because Section 9-301 allows local governments to make design-related decisions, Section 9-301 and similarly worded state laws will also probably be upheld under the Equal Protection Clause.

F. Enabling Statutes and Unconstitutional Applications
"Historically, states are enablers. They authorize local governments to plan and regulate land use, but do not usually tell them how to do it." [FN411] The Guidebook's model statutes, if enacted by the states, will not change this pattern. Even if the Guidebook provisions referenced above are not unconstitutional on their face, they give local governments so much discretion that some applications of some municipal ordinances will create constitutional problems. For example, a municipal zoning decision, enacted pursuant to an otherwise constitutional state law or municipal ordinance, will violate the Takings Clause if the city totally eviscerates an individual landowner's property values. [FN412] Does the city's use of its zoning code to enact an unconstitutional taking mean that the state law authorizing municipal zoning is itself unconstitutional?
Again, SZEA is on point. SZEA is so broadly written that it could allow any number of unconstitutional decisions: it *712 allows local governments to regulate buildings in a wide variety of ways, [FN413] but does not explicitly limit the extent to which local governments may reduce a landowner's property values. But it does not follow that the dozens of state laws based on SZEA are unconstitutional. [FN414] Thus, the possible unconstitutionality of municipal zoning decisions does not render the Guidebook or similarly phrased state zoning enabling acts unconstitutional.


Conclusion
None of the Guidebook's most controversial provisions are unconstitutional on their face. Thus, state legislatures can safely enact the Guidebook into law if they please, especially if courts narrowly construe the Guidebook's more ambiguous and controversial provisions. This does not mean, however, that by doing so, states will immunize local zoning decisions from constitutional challenges. The Guidebook, like SZEA, authorizes local governments to enact zoning ordinances, but those ordinances will be subject to the same constitutional requirements that already limit government regulation of property rights.
Although the Guidebook may not raise significant constitutional concerns, its provisions implicate a variety of significant policy concerns. These issues include whether on-premise billboards create enough visual blight to justify local regulation, whether development moratoria are necessary to solve the problems occasionally created by new development, and whether amortization of nonconforming uses adequately protects landowners from the impact of zoning laws that outlaw preexisting land uses. As the Guidebook makes its way through state legislatures, legislators will have the responsibility of deciding whether the Guidebook correctly addresses these issues.
Because the Guidebook merely authorizes local governments to address these issues, rather than commanding them to do so, local governments, too, may be faced with difficult policy choices if states enact Guidebook-inspired enabling statutes--choices involving the balancing of private *713 property rights against the aesthetic and environmental concerns justifying many of the land use regulations discussed above.

a very old St. Louis Post-Dispatch op-ed
February 18, 1991

HEY, ST. LOUIS, YOU'RE OK


By Michael E. Lewyn

In 1990, shortly after I moved to St. Louis, my former hometown of Atlanta was selected to host the 1996 Olympic Games. Because St. Louis is about the same size as Atlanta, local commentators suggested that St. Louis couldn't measure up to that winning Southern city. For instance, Ray Hartmann of The Riverfront Times wrote that Atlanta is a "world-class city" because its "citizens believe in each other," while "in St. Louis, unity doesn't even seem to extend beyond one's own limited sphere of activity." Hartmann claims that Atlanta is "unbeatable" because of its "biraciality," while St. Louis is doomed by its divisiveness. In fact, St. Louis has several advantages over Atlanta.

First, St. Louis is far safer than Atlanta. The table printed on this page shows 1989 crime rates per 100,000 people for St. Louis and Atlanta. If St. Louis had as much crime as Atlanta, 75 more city residents and 91 more suburbanites would have been murdered in 1989.

Not surprisingly, St. Louis residents are friendlier and less fearful than Atlantans. For instance, St. Louisans are more willing to live near poorer neighborhoods than Atlantans. In St. Louis, as in Atlanta, most whites do not want to live in or near heavily black neighborhoods. However, white St. Louisans are at least willing to live in the same city as blacks. Between 1960 and 1980, the white percentage of St. Louis' population dipped to 53 percent from 71 percent, a 18-point drop. By contrast, Atlanta's white population nosedived to 32 percent in 1980 from 62 percent of the city's population in 1960. As the city of Atlanta encompasses a much larger land area than St. Louis (131 square miles as opposed to 61), city population statistics understate the amount of "white flight" from Atlanta.

Indeed, some white Atlanta suburbanites will undergo considerable personal sacrifice to avoid contact with blacks. In 1980, Gwinnett County, one of metro Atlanta's fastest growing areas, voted to keep Atlanta's public transportation system out of the county. Why? According to USA Today, public transit opponents claimed that public transit would "bring crime many Gwinnett residents fled Atlanta to avoid. Some call that argument a subtle way of saying blacks aren't welcome in Gwinnett." In other words, many Atlanta suburbanites apparently believe that public transportation equals blacks, and blacks equal crime. Can anyone imagine Clayton (or even Creve Coeur) trying to keep out Bi-State buses?

Second, St. Louis is easier to get around in. Although Atlanta has a beautiful light-rail system, some areas within the city of Atlanta have virtually no access to public transit. For example, my parents live within the Atlanta city limits, just six or seven miles from downtown, but have no access to public transit. Here in St. Louis, I know people who live 10 to 20 miles from downtown and take the bus to work. Commuting by car is also somewhat easier in St. Louis. According to the 1980 census, the average St. Louis-area resident commutes 23 minutes to work; the average Atlanta-area commute is 26 minutes.

Third, St. Louis is much less of a two-class city than Atlanta. Although per capita income in Atlanta is higher ($10,341 as opposed to St. Louis' $8,799), Atlanta's poverty rate is also higher (27 percent as opposed to 21 percent). Thus, Atlanta has greater extremes of wealth and poverty than St. Louis. If St. Louis consisted solely of north city and West County, it would look like Atlanta.

Finally, St. Louis is much cheaper than Atlanta. I know a woman who just bought a house in South St. Louis for $45,000. To buy a house for that price in Atlanta, one would have to live in a drug infested slum or in a rural area 10 or 20 miles from the city.

As a past (and possibly future) Atlantan, I would not deny that Atlanta has some advantages over St. Louis: It is richer, more dynamic and has nicer weather. Nevertheless, St. Louis is better than St. Louisans think it is.

an old Washington Post op-ed
November 5, 1995


OUTLOOK


CLOSE TO HOME


Myths About Metro

By reducing the number of cars on the road, public transportation reduces both air pollution and traffic congestion. Moreover, public transportation reduces welfare dependency by allowing the poor to get to work without having a car. Yet local politicians have raised Metrorail and Metrobus fares by 25 percent during the past five years while cutting service, because those politicians have been unwilling to invest in the Metro system.

Politicians base their hostility to Metro on the following five myths.

Myth 1: We don't have the money.

According to a recent study conducted by Price Waterhouse for the Metropolitan Washington Council of Governments, a one-cent-per-gallon increase in the gas tax (or reallocation of gas tax revenues from other services to Metro) would yield $24 million in revenue, enough to roll back Metro's most recent round of fare increases and service cuts.

Similarly, a 2 percent regional sales tax would yield $355 million in revenue, enough to make all Metro rides free. Furthermore, the same governors and state legislators who claim that there is no money for Metro improvements are willing to spend taxpayer funds on costly highway projects such as an inter-county connector and an outer Beltway.

Myth 2: Money spent on public transportation is wasted, because Metro ridership has been stagnating despite heavy federal support.

In fact, government has discouraged transit use in two ways. First, in the past several years Metro has raised Metrobus/Metrorail base fares twice while gas prices have remained stagnant. Not surprisingly, driving increased while transit use didn't. It logically follows that if government stopped punishing transit users, Metro ridership would increase.

Second, the federal government has indirectly encouraged driving by spending far more money on highways (which create development in auto-dependent suburbs) than on mass transit. In recent years, federal highway spending has exceeded mass transit spending by about a 5-1 margin.

Myth 3: Americans won't use mass transit, because they love the flexibility of cars.

Despite our government's highway mania, public transit is heavily used in many cities. For example, most New Yorkers (and about one-third of D.C. residents) use public transportation to get to work. By contrast, residents of cities with minimal mass transit systems usually drive to work. Thus, it appears that if mass transit is convenient, many workers will use it.

Indeed, this "flexibility" argument actually supports increased investment in Metro, because if a car gives a commuter flexibility, a car and a bus or Metro stop gives the commuter even more choices.

Myth 4: Metro (unlike highways) doesn't pay for itself, and drivers shouldn't have to subsidize bus riders.

Few government services "pay for themselves," making this argument frivolous. For example, in 1991 government at all levels spent $65 billion on highways but took in only $38 billion in fuel taxes. Thus, government subsidized about $27 billion in highway spending. Moreover, the taxpaying public pays for other driving-related government expenses such as the social costs of air pollution, the cost of police to enforce traffic and parking laws and to investigate vehicle accidents and auto theft, the cost of street maintenance and the cost of military spending to protect Persian Gulf oil supplies.

Myth 5: Because most new jobs are in the suburbs, Metro is obsolete.

This argument is a self-fulfilling prophecy. Mass transit makes traffic-choked downtowns and older suburbs (like Bethesda and Silver Spring) more convenient, while highways make newer, more distant suburbs easier to reach. Thus, Metro cuts will increase the economic gap between cities and suburbs and may eventually redistribute wealth from older suburbs like Bethesda to newer suburbs in outlying counties.

Continued investment in public transportation will increase labor force participation while controlling air pollution and traffic congestion. With a little money and a little leadership, we can save our investment in the Metro system rather than turning it into an overpriced, underused monument to governmental waste and incompetence.

-- Michael E. Lewyn

old Buffalo News op-eds
October 24, 1998

EAST AURORA ESTABLISHED ITSELF AS A NEW URBANIST COMMUNITY DECADES BEFORE IT WAS COOL


MICHAEL E. LEWYN

Not long ago, "Nightline" ran a segment on New Urbanism -- a school of architecture that aims to replicate the sort of pedestrian- friendly "Main Street U.S.A." development that dominated American suburbs and small towns before World War II. This type of development is noticeable in Seahaven -- the mythical location of the film "The Truman Show" -- and Seaside, Fla., the real-life resort town on which Seahaven is based.

In New Urbanist communities, cars are part of the streetscape to a greater extent than in dense areas like midtown Manhattan, but they do not dominate the land to the extent that they do in most modern suburbs.

Thus, sidewalks are universal and residences and shops are in close proximity to a compact neighborhood center or "main street" so that children can walk to each other's houses or to shops.

In addition, shops are close to the street so that pedestrians can walk to them without spending 10 minutes walking through a parking lot; streets are narrow enough to be easily crossable by pedestrians; and on-street parking makes driving convenient while creating a buffer between pedestrians and traffic.

By contrast, in many American suburbs, residences and shops are rigidly separated from each other so that nobody can walk to anything, sidewalks are rare, parking lots are enormous and children are slaves to their parents' cars.

While watching the "Nightline" segment, I noticed that both New Urbanists and their critics acted as if New Urbanism was something new. But right here in Western New York, we have suburbs and neighborhoods that are quite similar to New Urbanist communities, built many decades before a few architects invented the term in the 1980s.

For example, East Aurora was New Urbanism before New Urbanism was cool. East Aurora has many of the New Urbanist elements: a compact neighborhood center (Main Street) a few blocks from most homes, shop entrances that front the street rather than parking lots, sidewalks everywhere and quaintness galore. East Aurora is not unique: Niagara- on-the-Lake is basically East Aurora with theaters and more shopping, and Chagrin Falls, Ohio, a suburb of Cleveland, is East Aurora with a waterfall and better shopping.

But East Aurora is not the only Western New York village with New Urbanist elements. Although Kenmore is less quaint and Disneyish than East Aurora, it, too, includes some elements of New Urbanism. Children roam the sidewalk-clad residential streets, all of which are within a few blocks of the main commercial street -- Delaware Avenue. On-street parking creates a buffer zone between pedestrians and traffic, and parking lots are less overwhelming than on the Buffalo side of Delaware Avenue. By contrast, just a few blocks away on Sheridan Drive or Niagara Falls Boulevard, the wide streets and huge parking lots have turned the roads into a jumble of cars, sky and not much else.

Obviously, the City of Buffalo also has neighborhoods that resemble New Urbanist communities, most notably the area around the Elmwood Strip -- Elmwood Avenue between Allentown and Delaware Park. The census tract where I live -- bounded by Main, Elmwood, Utica and Ferry -- is far more affluent than the average Buffalo neighborhood, yet a third of its households get by without cars, and can do their shopping on Elmwood rather than in suburbia. But the Elmwood Strip is a much more diverse, Bohemian area than Kenmore and East Aurora, with all the advantages and disadvantages that such diversity brings.

Areas like East Aurora illustrate not only our tradition of New Urbanism but also its success. One of the speakers on "Nightline" claimed that New Urbanism would create communities as congested and crime-ridden as cities. But East Aurora proves otherwise. The Town of Aurora, which encompasses East Aurora, had only one robbery in 1996, and otherwise compares favorably with most suburbs. Although Kenmore is a bit less perfect due to its relative proximity to poorer city neighborhoods, its crime rates are lower than those of the average suburb of Atlanta or Washington, D.C.

Similarly, an ABC reporter asked one architect whether the typical strip-mall dominated suburban landscape wasn't really "what people want." But in fact, communities like East Aurora appear to be as desirable as other affluent suburbs. Although East Aurora and, to a greater extent, Kenmore have had stagnant population in recent years, the same is true of more typically suburban Erie County communities like Hamburg and West Seneca.

And throughout the country, other older communities with New Urbanist features like Chagrin Falls are still prestigious areas. "What people want" is determined not by allegiance to some abstract school of urban design, but by the absence of poverty and the ills that come with it, such as crime and poor schools. And if people can find those advantages in New Urbanism-type communities, they will happily move to such communities.

Sunday, October 5, 1997

WHAT BUFFALO CAN LEARN FROM CLEVELAND

MICHAEL E. LEWYN -

When I moved from Cleveland to Buffalo a couple of months ago, I was surprised by Cleveland's favorable image here. Although I had always thought of Cleveland as an aging industrial city much like Buffalo, I learned that many Western New Yorkers think of it as a role model.

The fascination seems to come about because Cleveland has a couple of downtown museums and a couple of thousand middle-class downtown residents -- not as many as in larger cities, but more than in Buffalo (at least if one counts the areas within walking distance of most office buildings, as opposed to neighborhoods two or three miles away).

Unfortunately, some people have drawn the wrong lessons from Cleveland's improvements. I therefore submit for Buffalonians' consideration a few lessons I learned from living in downtown Cleveland:

Lesson 1: No museums, no zoos Some Western New Yorkers think that Buffalo can acquire a "24-hour downtown" by building a museum at the site of the downtown auditorium, or by moving the zoo to the waterfront. This view is incorrect because museums and zoos, like office buildings, are generally open only during 9 to 5 daylight hours. It follows that even if museums and zoos increase area tourism, they will do nothing to contribute to downtown's nighttime vitality.

Cleveland's Rock Hall of Fame and Science Center are on the northeastern tip of downtown -- one of downtown's duller areas after the museums' closing hours. Most of Cleveland's new residential development has been in the western half of downtown, far from the Rock Hall.

Lesson 2: No new sports Occasionally it's argued that bringing the Bills downtown might revitalize downtown Buffalo. This claim is meritless. Sports facilities are only open for a few days a year (81 for baseball, fewer for other sports) -- not enough to encourage residential construction around those facilities.

Cleveland has always had its sports stadiums downtown yet has only recently had a surge in downtown residential construction -- most of which is at the other end of downtown from the stadiums -- like the Rock Hall, they're at the east end.

Lesson 3: Housing variety Both downtown Cleveland housing and Buffalo Theater District housing are dominated by loft apartments, because existing buildings can easily be renovated into lofts. Yet I lived in downtown Cleveland but not in downtown Buffalo. Why? Because Cleveland had other options. I wanted to live in the sort of high-rise, high-security building that dominates midtown Manhattan and central Philadelphia (or that some of our office buildings could become). I found the right building in downtown Cleveland -- but in Buffalo, it was a few miles farther north.

The downtown should offer a variety of housing options.

Lesson 4: Build near work Buffalo should be encouraging development in the blocks closest to downtown office buildings. The city already has some housing within a mile or so of where I work -- townhouses on the waterfront and lofts in the Theater District. But there is almost no housing within a few blocks of most downtown office buildings. That means walking to work in downtown Buffalo would be very inconvenient -- especially when the winter winds begin to explode.

By contrast, in Cleveland I found an apartment a block and a half from work -- a far more attractive option. If Buffalo had housing within true walking distance of work, downtown would be far more appealing.

Lesson 5: Put cops on foot I lived at the east end of downtown Cleveland, in a block which (although otherwise quite dull and deserted) was unusually well policed. By contrast, on Buffalo's Main Street I have seen a few panhandlers but no police officers -- not a reassuring sign.

Lesson 6: Not just downtown Saving downtown won't, by itself, save a city. Despite downtown Cleveland's revitalization, the rest of Cleveland is arguably in worse shape than Buffalo -- probably because Cleveland has five major highways within city limits, making suburban living unusually convenient.

Fewer than 10 of the attorneys in my Cleveland firm lived in the City of Cleveland. By contrast, I would guess that as many as a third of the attorneys in my Buffalo firm live in the City of Buffalo. My perusal of high school, college and alumni directories suggests that both firms are typical of the professional classes of Buffalo and Cleveland.

Buffalo has some attractive neighborhoods, but its downtown is still pretty dull after 5 p.m. If Western New Yorkers want to equal or improve upon Cleveland's record, they need to learn from Cleveland's successes and from its failures.

My amazon.com book reviews (for those of you who wonder what I've been reading)
http://www.amazon.com/gp/cdp/member-reviews/ARD5I31J12UU8/ref=cm_aya_rev_all/002-9220984-8362452

Planetizen op-eds (reprinted by permission of planetizen.com)
Zoning Without Zoning
By Michael Lewyn
Nov 24, 2003

Houston, Texas is the only large American city with no formal zoning code -- yet Houston has all the sprawl and associated ills of other Sunbelt cities. Houston is less dense than most big cities, and Houstonians drive more than in most big cities. Does it then follow that sprawl is the result of consumer choice rather than of government meddling?

Not necessarily -- because what other cities achieve through zoning, Houston achieves through several land use regulations.

Like other cities' zoning codes, Houston's municipal code creates auto dependency by artificially spreading out the population. Until 1999, the city required all single-family houses to gobble up 5,000 square feet of land. Although this limit is less rigid than minimum lot sizes in most suburbs, the city's statute nevertheless insures that many residents will be unable to live within walking distance of a bus stop, which in turn means that those residents will be completely dependent on their cars. In 1999, the City Council partially deregulated density in neighborhoods closer to downtown. But since 98% of the city's housing was built before 1999, this change in the law is of little importance.

Houston's parking regulations also create automobile dependency by encouraging driving and discouraging walking. Under Houston's city code, virtually every structure in Houston must supply plenty of parking. For example, apartment buildings must have even more parking spaces than residents; landlords must supply 1.25 parking spaces for each efficiency apartment and 1.33 parking spaces for every bedroom. Offices, supermarkets, and other businesses are subject to similar restrictions. Such parking regulations discourage walking by forcing pedestrians to navigate through massive parking lots (and to dodge the vehicles driving them) to reach shops or jobs. And where walking is uncomfortable, most people will drive. In addition, minimum parking requirements, by taking land for parking that could have been used for housing or businesses, also reduce density, thus making the city less compact and more auto-dependent.

Houston's street design rules also make life more difficult for pedestrians. The city code requires most major streets to have a 100 foot right-of-way and residential streets must have a 50-60 foot right-of-way. Thus, Houston's streets can be up to 100 feet wide. By contrast, most modern streets are 32-36 feet wide, and pre-World War II streets are usually 28-30 feet wide. Such wide streets are difficult for pedestrians to cross because a wider roadway takes longer to cross, thus increasing the amount of time a pedestrian is exposed to traffic. And because wider roadways are designed for faster speeds, such roads are more dangerous for pedestrians.

Houston's block designs are equally unhelpful to pedestrians. The city code mandates that intersections on major streets be 600 feet apart. By contrast, a recent Environmental Protection Agency report recommends that for "a high degree of walkability, block lengths of 300 feet...are desirable." Houston's long, intersection-free blocks deter walking because a block with few intersections gives pedestrians few places to cross the street and few means of reaching a destination on a side street.

Finally, government at all levels has accelerated sprawl by building more roads to the urban fringe in Houston than in other cities. For example, Chicago has more than twice as many residents as Houston, yet has only 10% more freeway miles. Big Brother's reckless road building has encouraged development to shift to newer areas with minimal bus service -- but apparently has done little to reduce traffic congestion. According to the Texas Transportation Institute, Houstonians lost 36 hours per person in 1999 to traffic congestion, more than all but three other American cities (Los Angeles, San Francisco and Dallas).

In sum, Houston's land use regulations have historically been nearly as meddlesome, as pro-sprawl, and as anti-pedestrian as zoning in other American cities -- and have yielded similar results. The good news is that Houston is beginning to change its ways: minimum lot size requirements were loosened in 1999, and widened roads are actually beginning to become controversial. But it may take decades of real deregulation to undo the damage caused in the late 20th century.

Campaign of Sabotage
By Michael Lewyn
Mar 31, 2003

Transit users are second-class citizens in most American cities and suburbs. For example, the Boston metropolitan area has a subway system serving its urban core and a commuter train system serving its suburbs - yet even in metropolitan Boston, just 32% of entry-level employers are within one-quarter mile of a transit stop.1 And the situation is even worse in smaller cities, many of which have no bus service after rush hour.2

Why do American communities have so little transit service? Pundits and politicians justify the status quo on the grounds that, in the words of Tom DeLay, public transit "has failed in this country . . . despite a taxpayers' investment of over $100 billion."3 The story told by transit critics is a simple one: government spends money on public transit, yet most Americans don't use it. Thus, public transit is a waste of money.

But this story overlooks an important fact: far from encouraging Americans to use buses and trains, government at all levels has inadvertently sabotaged public transit by:

*Funding the competition. Until the 1960s, the federal government spent billions of dollars on highway building,4 but did not support trains and streetcars (which were generally run by private companies until competition from government highways made them into money-losers).5 And today, the federal governments spends more than four times as much money on highways as on transit (over $30 billion per year for highways, about $7 billion for transit).6 New and widened roads often go to suburbs without significant transit service, and thereby open up those areas for development.7 Thus, highway spending shifts people and jobs to areas without public transit, thus gutting transit ridership.


*Unfunded mandates. The federal government has effectively reduced transit service by loading down transit agencies with unfunded mandates. For example, the Americans with Disabilities Act (which requires transit systems to provide accessible service to the disabled) costs transit providers $1.4 billion per year,8 and Section 13-c of the Federal Transit Act (which limits transit systems' ability to reduce labor costs by laying off employees)9 costs transit providers $2-3 billion per year.10 Thus, about half of federal transit subsidies are canceled out by the costs of federal regulation.


*Paying Americans to move to auto-dependent suburbs. Since 1934, the Federal Housing Administration (FHA) has insured home mortgages. For the first few decades of its existence, FHA insured mortgages only in "low-risk areas" (usually defined as newer, whiter areas, i.e., suburbs), thus making suburban homes cheaper than urban homes.11 Because suburbs usually have less transit service than cities, FHA policies reduced transit ridership.


*Packing poverty into cities. New Deal-era public housing legislation encouraged cities to build public housing for the poor, but gave suburbs veto power over public housing,12 and in fact discouraged suburbs from building public housing by mandating that one unit of substandard housing be eliminated for each unit of public housing built13 (thus ensuring that suburbs with little substandard housing could not build public housing). By packing public housing for the poor into cities, federal law packed poor people into cities. Because middle-class people tend to avoid the poor and problems associated with poverty (such as crime), federal public housing law encouraged middle-class flight to suburbia, which in turn reduced transit ridership as families moved from transit-packed cities to auto-dominated suburbs.


*Using school systems to drive commuters into suburbia. Most states mandate that students be assigned to schools based on their home address ? which means urban children go to urban schools and suburban children go to suburban schools.14 Because cities tend to have more poverty than suburbs, city schools tend to have more children who are from low-income backgrounds (and thus harder to educate) than suburban schools. Thus, state laws effectively mandate that cities have worse schools than suburbs, thus encouraging middle-class flight from cities, thus reducing transit ridership.


*Using zoning laws to make suburbs as auto-oriented as possible. Many American municipalities have enacted minimum lot size laws to reduce population density; for example, the average Atlanta-area acre contains no more than a home or two.15 Public transit is less feasible in low-density areas: as residences are spread farther apart, fewer commuters can walk convenient distances to bus and train stops. Thus, zoning in its current form reduces transit ridership.

In sum, a wide variety of government policies have had the effect of sabotaging, rather than promoting, public transit. Nevertheless, transit ridership has actually been growing since 1995 - and if government ever reduces its anti-transit activism, this trend might continue.


Footnotes

1. Conservation Law Foundation, City Routes, City Rights 20 (1998). See also Michael Lewyn, Thou Shalt Put No Stumbling Blocks Before The Blind, 52 Hastings Law Journal 1037, 1041-43 (2001) (citing similar statistics for other cities and metropolitan areas).

2. Id. at 1042-43. See also David G. Oedel, The Legacy of Jim Crow in Macon, Georgia, in Just Transportation 97 (Robert D. Bullard and Glenn S. Johnson, eds. 1997).

3. 137 Cong. Record H8199-02 (1991), available at 1991 WL 213667.

4. Lewyn, supra at 1045-47 (discussing history of federal highway spending in more detail).

5. Paul Weyrich & William S. Lind, Conservatives and Mass Transit: Is It Time For A New Look? 10 (1996).

6. See Budget Plans to Shape TEA-21 Renewal, Transfer, March 14, 2003, available online at http://www.transact.org/transfer/trans03/03_14.asp#3 (noting current budget baseline of $31.6 billion for highways, $7.2
billion for transit).

7. See Lewyn, supra at 1048-51 (making argument in more detail, and in particular citing National Association of Home Builders survey showing that 55% of home buyer would move to a newer area if highway access improved); Sierra Club v. US DOT, 962 F. Supp. 1037, 1043 (N.D. Ill. 1997) ("Highways create demand for travel and [suburban] expansion by their very existence").

8. Testimony of the American Public Transportation Association, Subcommittee on Surface Transportation of the House Committee on Transportation and Infrastructure, Sept. 26, 1996, 1996 WL 10831544. See also Brian Doherty, Disabilities Act: Source of Unreasonable Accommodations, San Diego Union-Tribune, July 16, 1995 at G1 (ADA's paratransit provisions alone cost transit agencies $1.1 billion per year). Because these figures are several years old, they may underestimate the ADA's costs.

9. Editorial, Untied, Houston Chronicle, June 29, 1995 at 36, available at 1995 WL 5912413 (statute mandates that transit agencies pay six years' wages and benefits to employees affected by layoffs).

10. John-Walters, Bus-Jacking the Revolution, Policy Review, Jan/Feb. 1996 at 8.

11. Kenneth Jackson, Crabgrass Frontier 207 (1985).

12. Id. at 224.

13. Michael H. Schill & Susan Wachter, The Spatial Bias of Federal Housing Law and Policy, 143 U. Pennsylvania Law Review 1285, 1293 (1995).

14. Lewyn, supra at 1058.

15. Arthur C. Nelson, Exclusionary Practices and Urban Sprawl in Metropolitan Atlanta, 17 Ga. St. U. L. Rev. 1087 (2001) (discussing exclusionary zoning in Atlanta, and noting that as a result average lot size in metro Atlanta over 3/4 of acre).

Sprawl = Injustice
The sprawling suburbanization of America has implications for both planning and social justice -- it penalizes the millions of Americans who are too poor to drive. Mr. Lewyn calls for a "no roads without transit" policy.
By Michael Lewyn
Apr 09, 2001

When Americans argue about suburban sprawl (that is, the movement of people and jobs from cities to thinly populated auto-dependent suburbs), they typically argue about the convenience of the middle class. Environmentalists argue that the growth of suburbia lengthens the commutes of the middle class, and turns suburbs into congested clones of the cities that suburbanites fled; developers and their political allies call suburbia the "American Dream" and swear that sprawl means less congestion rather than more.

But there are larger issues at stake. For over 3000 years, the Judeo-Christian tradition has condemned those who sought to make the poor poorer. For example, the Bible dictates to ancient Israel's legal authorities: "Ye shall do no unrighteousness in judgment; thou shalt not respect the person of the poor, nor favor the person of the mighty" (Leviticus 19:15). These words of wisdom do not mandate abolition of poverty -- but they do warn that the coercive arm of the state may not be used to impoverish the already poor in order to make life more convenient for the affluent majority.

But sprawl-promoting government policies do exactly that. For the past century, government has built highways to suburban areas with minimal or nonexistent public transit, thereby making it convenient for businesses and civic facilities to abandon transit-friendly cities and move to car-dependent suburbs. By making car ownership a necessity for work and play, sprawl penalizes the millions of Americans who are too poor to drive and the 24 million disabled Americans who are physically incapable of driving, freezing them out of the labor market and out of civic life.

For example, a few years ago Georgia's government built a road called Georgia 400, which made a suburb called Dunwoody far more convenient to businesses and homeowners. Atlanta's Jewish Community Center, taking its cues from Big Brother, abandoned midtown Atlanta and moved to a Dunwoody road where bus service ends two hours before the center closes and evaporates on weekends. So unless the JCC decides to provide shuttle service on its own, the 39% of Atlanta's African-American households that own no vehicle can't reach jobs at the JCC, and the children and elderly who the center is meant to serve can't reach the JCC without begging the powers that be for rides. Other Atlanta jobs have moved to Gwinnett County, a suburb of 500,000 people which has no public transportation whatsoever. Nevertheless, the Atlanta Regional Commission, the region's transportation planning agency, plans to widen thirteen roads and build or extend three more in Gwinnett County, thus ensuring that even more people and jobs will move there. (To be fair, the ARC does claim that it will institute a bus system in Gwinnett--but it may take decades for bus service to catch up with the area's highways).

In Rust Belt metro areas like Buffalo and Cleveland, rich and poor live in separate municipalities. In such areas, the poor are even worse off than in Sun Belt cities that have annexed suburban areas. This is so because in growing Sun Belt cities like Charlotte and Albuquerque, rich and poor share one tax base and one set of city services. All citizens therefore share minimally decent city services, and city taxes are low because the tax base includes rich and poor alike. By contrast, in most Rust Belt cities, the rich get to live in suburbs with superb tax bases and fine services, while the poor get penned up in cities with weak tax bases that force municipal politicians to choose between high taxes and poor services. In other words, sprawl (combined with state laws restricting cities' ability to annex their suburbs) creates not just unequal justice for rich and poor, but entirely separate governments for rich and poor.

Just as the Judeo-Christian tradition condemns American suburban sprawl, that tradition also suggests possible solutions, solutions based on equity rather than competing values such as shaving a few minutes off suburbanites' commutes.

A public policy based on justice would not eliminate suburban development or force people to move back into older cities, but would require that some of the so-called benefits of government-generated sprawl trickle down to the powerless.

For example, state and federal governments could implement a "no roads without transit" policy, requiring that any new or widened roads be accompanied by bus service that allows the poor, the disabled, the young and the old to reach business development generated by those roads and their interchanges. A more ambitious proposal would be to compensate transit-dependent Americans for past roadbuilding sprees, by require some minimal level of bus service to every significant employer. According to one staffer at the American Public Transportation Association (who opposed the proposal), hourly bus service to every employer with 15 or more employees would cost $1 billion (only 1% of government transportation spending). Such proposals are a logical extension of current law. Today, the Americans with Disabilities Act requires that the disabled be given bus service comparable to that given to the citizenry as a whole, regardless of cost. If we can disregard efficiency considerations to make disabled bus riders equal to other bus riders, we can do the same to make them equal to the citizenry as a whole.

We could also eliminate the system of suburban governments that creates one government for the rich and another for the poor. Specifically, states could mandate city-county mergers so that rich and poor would share the same government services, or at least mandate some form of regional tax sharing to limit fiscal disparities between richer and poorer cities.

It could be argued that since rich people pay more taxes, they are entitled to better government. Leaving aside the moral problems with this argument, it is based upon an incorrect factual assumption: our tax system as a whole is not particularly progressive, because the progressive federal income tax is offset by state sales taxes and Social Security taxes (both of which make the poor pay more than the rich) and by to some extent by local property taxes (which often hits people living in poor cities the hardest, because those towns have smaller tax bases and thus higher taxes or worse services). It could be also argued that the division of metropolitan areas into dozens of governments reduces taxes by creating competition between cities. But the high taxes of Buffalo and its suburbs belie this argument.

Whenever any scheme to improve the lot of the disadvantaged is proposed, some will cry "redistribution." But curing the impacts of government-financed sprawl does not require that the market be tampered with or that poverty be abolished, but only that government stop redistributing income away from the poor--that is, that government stop segregating the poor into poor cities and stop using transportation policy to steer jobs away from the poor.

old journal of Israel trip
Below is a journal I wrote after visiting Jerusalem in 2002. If you don't like what I wrote or thought then, just remember that it was some time ago, and I'm sure I'd do a better job now!

In the summer of 2002, I went to Jerusalem as part of a group tour, the Rally in Israel (www.rallyinisrael.org). The idea was that a few Jewish organizations would subsidize a mass trip to Israel, and thousands of young Americans would come to a big rally that would get worldwide publicity, and pump some money into the local economy while they were doing it. They didn't raise as much money as anticipated so Rally was not as big as hoped - maybe next year will be better.

Sunday August 11: Arrived Sunday morning at JFK. Spent an hour at security, mainly because they xray checked baggage (worthwhile seeming but apparently Americans too cheap to do it) and asked weird questions ("why are you in Israel?"). Then got in another line to get to gate - but unlike in America no random repetitive searches (unlike AirTran flight back in LaGuardia). Everyone gets their coat searched, but they don't do it twice, since El Al has odd notion that purpose of security is to detect bombs rather than prove political correctness. (In NYC AirTran flight, American govt. pinheads searched shoes once at beginning of C course and then searched every third passenger or so at gate).

Flight took off 12ish--biggest plane I have ever seen. First class was upstairs, rest of us downstairs. I was in row 52 and there were 8 or 10 rows back of me, so there must have been at least 600 passengers. I sat next to Assemblies of God fellow from Lufkin, Tx. We discussed God, theology, other light stuff - pretty civil though, no attempt to convert me. Apparently this man had had some sort of mystical born again experience. He thinks God has sent Bush to save day from terrorists; I am somewhat less optimistic.

Despite size of flight, El Al flight definitely less unpleasant than US flights. People were wandering around halls, going to middle aisles to get food themselves from attendants. Flight to Israel more sociable than flight from - my suspicion was that flight to had lots of people from same yeshiva or something, since I saw kids in back hats. Whole thing generally clubby. Didn't hurt that wine and beer was free.

One interesting thing: REAL forks and knives at meals. In fact I cut myself; my suspicion is that there were enough well-armed air marshals that no one cared about kitchen knives.

Monday August 12- Got into airport around 5:30 or 6, but bus didn't leave for airport till around 7 - partially because of security (we had to stand in line to flash passport, answer silly-seeming questions). Bus from Tel Aviv to Jerusalem ran mostly through agricultural territory - it seemed like there were a lot of different crops, not nearly as monotonous as most American farmland. Guide says sunflower seeds, cotton some of crops. As I got further from airport, land grew more lush, more forests closer to Jerusalem (more evergreens than in most of USA). However, I later learned that there was not enough trees to support wood houses and things like that; all houses in Jerusalem are of stone.

Guide said that people routinely packed firearms; certainly when I was in Jerusalem I saw plenty of security guards packing heat, and in fact there was one on our tour bus.

When we enter Jerusalem (hereinafter "J" to save me typing time) I understood why the term "aliyah" means "going up" - J. on higher elevation then nearby areas, so if you are going to J. you are going up physically as well as (perhaps) spiritually. Outskirts of J seemed thinly populated; I guess J is a hyperelastic city (i.e. one that annexes suburbs, like Houston or Oklahoma City, rather than one trapped inside its 1950s boundaries, like Buffalo). Traffic jam very serious, because of (1) absence of rail system and (2) fear of buses due to bus bombings. Also, people who used to take country roads scared off by drive by shootings, so they were all packed onto relatively secure main highway. Cars VERY small by USA standards, no SUVs etc.

Got to hotel (Dan Panorama Hotel, formerly Mariah, in modern urban area near a bunch of other hotels) around 8, spent an hour bathing, changing clothes etc. Spent morning trying to get connection for razor (success after 3 tries). Hotel nice enough, but a little less opulent than American hotels, in ways you don't notice until you've stayed there a day or two (e.g. no soda machines, fewer newspapers in gift shops, trivial stuff). Area around hotel has lots of bus service, walkable narrow streets, but not very mixed use (in terms of restaurants nearby other than one or two places that looked expense account oriented)

As tour bus drove through city I got some initial impressions:

*Climate VERY dry; we were told to drink LOTS of water to avoid dehydration, more of an issue than in humid environment like Atlanta I guess. First time I had ever been in dry heat; not much fun because of constant need to drink.

*architecture incredibly monotonous. EVERYTHING made of stone, either brown or light gray. Tour guide says British mandated this, my cousin Dov (70 something prof at Hebrew University) blames absence of wood nearby. J has around 500-750,000 people, same as DC or Baltimore.
Contrast with Buffalo (where I spent previous week) was especially stark; parts of Buffalo full of Victorians with all different colors, a vivid purple or two, a bright blue/purple here and there, though of course many that weren't as exciting.

*City has beautiful vistas; because it is so hilly there are plenty of places with magnificent views. This allowed me to notice that there was a ton of undeveloped land close in, unlike in American cities. Tour guide says that hilly land is more expensive to build on, more issues re water sewer etc. - seemed to think problem was affluence (not enough of it) rather than political situation.

*Street signs all in Arabic and English as well as Hebrew.

*City streets very narrow, seemed very walkable (as in fact they are) though lots of parking on sidewalk.

*A fair amount of street trees, but since buildings taller than trees no feeling of lushness--I guess newer areas were desert until recent decades, so maybe trees not that old.

*Lions (plastic I think) everywhere. Lots of American cities have animal statutes spread through city for fun (Buffalo with bisons, kind of like baseballs in Atlanta). Eventually they will be auctioned off much like Buffalo statutes.

At 11, bus went to Gilo, technically a West Bank settlement, but so close to J. really an inner ring suburb. Shows how close everything is to each other, city neighborhoods very close to some so-called settlements, both very close to Arab areas - one reason peace difficult perhaps, not a lot of space to separate enemies or create natural boundaries. Physical look at Gilo like rest of J. - everything light brown, everything multifamily (I don't think I ever saw a detached single family house).

After Gilo got dropped off at Ben Yehuda Street (intown pedestrian mall/fastfood area). Had fast food lunch (boring chicken shawarma), bought some souveniers, was bothered by sea of panhandlers eventually. Ben Yehuda street lively, lots of apartments above shops,kind of a New Urbanist dream. All types of people--university kids, a few black hatted very Orthodox types (not just confined to a few neighborhoods as in USA) . Took long nap.

Spent ALL Monday from 5:30 at Western Wall of Temple (built around 70 years before end of 2nd Temple by Herod). Did long tour of newly excavated tunnel, which is part of western wall that had been sealed up until 1967 war (was under Muslim Quarter of Old City, that is the part of Jerusalem that was entire city until 19th century or so). Most amazing thing is this: in theory, holiest area of Wall should be area closest to Holy of Holies (part of Temple where even High Priest could rarely go)--and that part was in the tunnels so we got to go there.

As some of you know, visitors to the Wall like to write out little prayers and put them in cracks of Wall. Friends & family had given me prayers to put in, or asked me to write some paraphrasing their wishes, so I did. I put them in part of tunnels closest to Holy of Holies.

Then we prayed at Wall. Prayer was not in tunnels, but at part of Wall that had been open to public for most of past 2000 years or so. There wasn't one big group, but instead several little minyans that sprouted up informally. (A minyan, 10 or more people, is required for most Jewish prayers). (Men and women separated, as in Orthodox synagogues). Prayer books all in Hebrew of course. We could see Dome of Rock (part of Muslim mosque on Dome of Rock, fairly holy Muslim site) from Wall--on site of Temple itself, and site of Ariel Sharon visit that first provoked Arab riots in fall 2000.

After brief dinner in Jewish Quarter of Old City (which I saw only tiny bit of that day, saw more of on Tuesday) (dinner was falafel - most interesting part is toppings very different from in USA. In USA falafel usually goes with tehini sauce - in Israel with french fries, pickles, hummus, and weird spices).

After dinner we went to first part of Rally, welcoming ceremonies. Chief rabbi of Israel spoke on "love thy neighbor as thyself." He said that this Biblical passage means loving your neighbor because he is LIKE yourself, i.e. person like you, etc. And in particular, Jews part of same corporate body of Judaism so we should love each other especially. Michael Melchior (deputy foreign minister) also spoke about why we were here (to comfort Israelis, to let them know world Jewry cares, etc.)

After Melchior spoke we prayed again at Wall. (Explanation for non - Jews: during weekday, very devoted Jews pray three times - morning, late afternoon, evening. This was the evening service).

The most elevating part of the whole trip was here, on Monday night. I said the prayer (in Hebrew) "Holy, Holy Holy is the Lord of Hosts" - and remembered that I was doing this just a few yards (well, OK, hundred yards from here) Isiah had (if you believe Bible) had vision of angels saying the exact same thing. Talk about being in presence of history! Wow! (I apologize for not talking about spiritual elevation, etc. much here but there's nothing I can say that has not been said better by someone else).

Tuesday: Tour guide bragged about new highways around Jerusalem, thought it would get Israelis to dead sea in ? hour- sad to see Israelis making same mistakes as Atlantans, more roads leading to more sprawl etc. Of course given iffy condition of nation it may not make difference in long run.

First we went to Ramat Rachel kibbutz, south of city. Good views of desert, Bethelehem, etc. Was reall.y surprised that I could see desert from city (though collapse of my camera means I can't describe it effectively). Atop Ramat Rachel lies archaeological dig from First Temple types (600 BC or earlier). We walked around site, saw bottom of walls from what we think was ruins. Just think - on this very spot Jews may have been worshipping idols 2700 years ago. (On other hand truth may resemble sign I once saw in New Orleans: "On this spot in 1890 nothing of importance happened").

Visited Yad Vashem- only real disappointment of trip. Thought we would see full museum; instead just listened to boring speech by Israeli ambassador to Poland, and had brief service in Hall of Remembrance (dark room with names of death camps on it). Walked briefly through sculpture garden. Then we had lunch at Jerusalem Mall (not real interesting - had wretched attempt at Pad Thai), went straight to rally.

Rally was in Jewish Quarter of Old City, mostly settled in Middle Ages. Totally fascinating. Rally had about 250 paying customers, plus Israelis just hanging around. In Hurva Square, main square of Jewish Quarter. Misc. people spoke briefly. Star of show (in terms of substance) was Rabbi Shlomo Riskin, Orthodox rabbi whose email list I am on and who emigrated from NYC to Israel. Riskin said (according to my notes) that "one of the most immoral sentences ever written was turn the other cheek. And one of the most moral sentences ever written was if a man comes to kill you, kill him first." Other speakers included mother of bombing victim, Natan Sharansky (Soviet refusenik turned Israeli pol), Sen. Torricell of NJ- none of them said anything I considered memorable.

Looked through papers online the next day. Major Israeli papers had small stories on Rally; no international coverage though. Maybe next year they will do better.

Before rally learned that Israel has own conspiracy theorists: some guy was selling table full of books with titles like "Who Killed Yitzchak Rabin?" (His conclusion: Shimon Peres did it, or more specifically got his former bodyguard, who later become Rabin's bodyguard, to fire fatal shots).

Then walked through Jewish Quarter- fascinating! No obvious space for cars, though I saw one or two. Most could barely accommodate one car, and streets are maze not grid or cul de sac. Typically street pattern: each street flanked by numerous courtyards containing apts. Most residents (except richer ones) live in walkups. A few had apt entrances directly accessible from street; looked to me like latter group richer, had more space. (Not like USA where due to security concerns apt. dwellers want common entrances etc. to protect them from street crime). Lots of mini shuls, most interesting looking were Karaite synagogue (which I suspect was usually closed) and Ramban synagogues (founded by great Jewish Bible commentator Ramban, aka Nachmanides). Bought some souveniers here too of course.

So by 5:30 I remembered I had dinner date w/cousin--no vehicles inside Jewish Quarter, instead one goes to gates. So I bailed out of group, went to gate. Was tempted to take cab, but saw bus and pounced. Now you might ask "isn't it dangerous to take buses"? Tis true that terrorists do like to bomb them. But odds really pretty minimal if you are talking about just a ride or two. 1 million people board Israeli buses each day, and maybe 50 a year get blown up (100 over two years, in fact). So even if I was doing this every day my odds would be one in 20,000. But I wasn't. Real odds are 1 in 20,000 divided by 365 (about 1 in 7 million), which is very low indeed. I figured odds would be equally high of cab driver being terrorist, kidnapping me and killing me (i.e. almost zero).

I also wanted to take the bus for a couple of political reasons. First of all, I figured the bus company needed my solidarity and my money just as much as the souvenir sellers, maybe more so since it had gotten worse press. Second, as a transit activist at home I felt a special desire to support buses. (P.S. I wasn't only American riding bus either). Fare was 5.2 shekels, or about 1.25 in American dollars, cheaper than in most big American cities (Atlanta is 1.75, Buffalo 1.45, NYC 1.50)

Then I walked to Dov's apt., about a 40 minute walk. Went through relatively lush area called Talbiya, lots of street trees, cute little shops, presidential house nearby. Got sense this was upper class area. Housing stock still not that much different from rest of J, small apartment houses, probably 3 or 4 stories. President's house surrounded by walls and bushes, totally invisible from street unlike US White House. Not sure whether this improves security. At any rate, had dinner w/Dov and family and had nice time--noticed apt. a bit small, and that bathroom in separate room from shower/tub, which struck me as kind of a nuisance. Dov & his wife don't drive, but his son had car, dropped me off at hotel. I noticed that J. at night looks better than in day, in sense that lighting of signs conceals monotony of architecture (i.e. that everything brown). Noticed place named "Caf? Hillel"--amused me, because I realized that if Hillel alive today could sue for misappropriation of name.

After getting home went to supermarket to get soda, extra gifts. Price higher than in US for most but not all items. Among things I've seen in kosher shops in America, prices in US comparable to prices in Israel, instead of being higher due to import costs- I guess this means exchange rates don't favor tourists.
Again, I was happy to be supporting the non-souvenir parts of the Israeli economy - I figure most American tourists pretty much limit their spending to hotels and Judaica, hardly my idea of the perfect foundations for a viable economy. (On the other hand, I'm not sure supermarkets are any more critical).

Noticed no pay phones- there were street phones but they only accept (1) phone cards or (2) collect phones. What a pain! (I almost made a collect call to Dov when I could not find his apt within the building address he had given me- but then I remembered I had address book which had better directions)

Wed. the 13th- Began with faux pas. We (Rally visitors) mostly ate breakfast together at hotel, since it was included in price. Someone asked me what it was like to be Jew in Arkansas. Told him I had no anti-Semitism issue, but that I was slightly put off when I went to public events and heard the Jesus' name mentioned at end of prayer. I later learned that the fellow I was speaking to was a Jew for Jesus (Messianic Jews, I believe they call themselves today). Oops!

Thought about blowing off rest of group, taking bus to Yad Vashem and seeing whole place. Instead I decided to go with group; BIG mistake.

First place group went was Shaarey Zedek hospital. Incredibly nauseating and depressing; I listened to nurse talk about her experiences with suicide bombings, how some hospital staffers had had relatives die (she even brought out victim who survived one, talked about what it was like - feeling body bursting into flame, thinking this was last moment of life, praying, then being rescued),

Listening to nurse was emotional low point of trips - not just because of specific stuff she said, more the tone - I could tell she couldn't numb herself, her emotional nerve endings were totally raw. It seems to me that if you can't be desensitized to horrors of war you are probably not going to be able to win it - especially since Israelis, to a greater extent than their enemies, can always bail out and lead more comfortable lives in America. Unless there is peace soon, I feel confident in saying that that nurse will, by 2005, be either in America or in a mental hospital (assuming of course that she doesn't get blown up).

One or two things she said did grab me, and made me feel very depressed about Israel's chance of survival. She yammered about how every human life is precious; it struck me that if Americans had had that attitude in WW 2 (when, as I recall, we dispatched 100,000 each in Hiroshima and Dresden) Americans would now be speaking German and Japanese. She said war had been going on for TWO WHOLE YEARS! In Afghanistan, and probably in other places, war has gone on for 30 years and people deal with it (albeit not happily, I am sure). My spin: Israelis (and maybe even affluent societies generally) have a limited ability to handle this sort of horror; their comfort makes them soft compared to people in Third World nations like Afghanistan (though not necessarily compared to Americans). All in all, I began to wonder if Israel had much of a chance to survive if things continued in present vein.

Then we went on tour of hospital - we saw bomb shelters (now used for storage of stuff usable for chemical attacks) and parking lot (which can be used for chemical decontamination). Doctor who took us there seemed a bit less messed up than nurse, mentioned that there were occasional bombings in 70s.

While all this was going on I was getting dehydrated, starting to feel lightheaded--even though hospital inside, air conditioning was not in every corridor. I guess climate like this does not agree with me.

After all this, went to Ir David (City of David)- archaelogical site technically outside Old City, but really (according to tour guides) where Jerusalem started. Not sure whether this is supported by real archaeological evidence; guides said they identified this place based on calculations from Bible, which troubles me because relevant portions of Bible (Kings and Chronicles) probably written more for theological purposes than for historical purposes. At any rate, this area is supposedly where David built Jerusalem and made it his capitol. Every IDF soldier, after enlisting, is brought here, as if to show them: "This is why we're fighting - to preserve the Jewish state that began here." (Not sure if non-Jewish IDF soldiers brought here). Ir David was kind of a disappointment- everything we saw was reconstructed, kind of like Colonial Williamsburg. I liked the Ramat Rachel site better, it was more real, or at least looked more real--I thought I was seeing things that actually were 2800 years old (not that I really know a darn thing about it).

Then went to Hebrew University, site of last big suicide bombing. We had little service where various people (most notably embassies of Korea, Japan, USA) had sent condolence wreaths. Service was in courtyard where victims brought immediately after bombing. Rabbi gave brief speech, lit memorial candle. On the way back to tour bus I noticed Hebrew University law school, which was of course unscathed. (This fact begs for tasteless lawyer joke, I suppose - but I'm not going to be person to create it, at least not here, not now).

Interesting fact (according to tour guide, whose veracity may be iffy): 25% of slots at Hebrew Univ. reserved for Arabs.

After HU, we listened to one of Sharon's assistants yammer; man spoke very well but was totally self-contradictory. On one hand, he vowed to bring terrorists to justice. On the other, he said that if Israel just "isolated" Arafat, maybe he'd go away (and presumably be replaced by someone nicer, ha ha ha). I was filled with contempt for Israeli politicians after listening to him - thought they had no idea what they were doing. But to be fair they may be in impossible situation; they might be afraid of wrath of USA if they played by USA type rules (i.e. bombing the hell out of Arabs till their cities are total rubble a la Dresden or Hiroshima). He said Israel "presenting a model of a fighting democracy", "democracy has a future", urged us to move to Israel. Unfortunately, none of these comments made me more hopeful.

Wed. night was more uplifting by far. Forgot about politics, went to wedding of distant cousin (who lived in Hebron, I think) south of city with cousin Dov- first Orthodox wedding I had ever been to (actually only 4th wedding I had been to in life, unless there are weddings I have been to as kid and forgot about). Took bus to wedding- that seemed to be what Dov wanted, and I sure wasn't going to more of a wuss than my 70 something cousin (plus as a foreigner, I figured I wasn't knowledgeable enough to exercise my own judgment if I had a native to defer to). Very different in a variety of ways from what I was used to:

*Almost nobody wearing a tie. I saw no tuxes, 2 men wearing dark suits (one from St. Louis, one was groom's father), 3 or 4 others (myself included) in sport coats and ties. Groom wore open white shirt and white robe (called a kittel) over it. Most people didn't even tuck in shirt; dominant uniform untucked white shirt.

*So many guests with long hair and beards (more likely Hasids than Hippies) that I thought I was at a Jesus impersonators convention. (In fact, I thought bride's father looked roughly like Jesus would look like if he had lived to be 50 and was balding and wearing glasses).

*Groom walked down steps, accompanied by men playing music. Rabbi (also no tie) said something in Hebrew (I think reciting marriage contract terms), various other people said other stuff in Hebrew (I think prayers). Then we sat down and ate.

*No coed dancing- men dance with men in long circle, women with women. I participated. (Dov later explained that this was customary in Orthodox weddings, but it was not "ultra-Orthodox"--at ultra-Orthodox weddings, men and women don't just dance in separate rooms, they eat in separate rooms).

Met numerous distant relatives, whom I liked in varying degrees.

Thurs, the 15th- Began day with intense weirdness. Sat at hotel breakfast table with various missionaries, Jews for Jesus, etc. (they were only people in hotel restaurant at time). They were all anoiting each other with olive oil; I accepted this not to be rude, but wiped it off as soon as I went to the buffet table since I suspected that even though I wasn't enough of a Talmud scholar to KNOW it wasn't appropriate, I guessed that I was on the wrong side of a line here. Then they started debating whether they wanted Third Temple to come or not; one said yes because it was necessary for Christ to come again, another said no because she did not like animal sacrifices and because Antichrist might come. Rather than presenting the Jewish perspective, I thought this would be an excellent time to declare self finished.

Read Israeli papers (or English language edition of same) in morning: saw poll that 50% of Palestinians Arabs optimistic about future, only 30% pessimistic. (By contrast, Israelis less optimistic- obviously Arabs think they are winning). Same poll showed when asked who was winning, Israelis split evenly about "us", "the Arabs", and "no one." My interpretation: Arabs think that if they randomly murder enough Jews without fear of collective retaliation, Jews will get demoralized and move. Nothing convinced me that they are wrong.

Then walked to Yehid Moshe, first Jewish area outside Old City (built in 1840s by British philanthropist). Red roofs, so only hint of non-brown color in J. housing. Very comfortable looking area- lots of small gardens outside apts. (not as good as Buffalo gardens to be sure, but climate not great for gardening I guess). Still apartments rather than detached houses. Housing in courtyards; people had cars but they were all in parking lot far from apts. - J. very much a walking city, as you can guess (though lots of jerks park on sidewalk).

Saw Old City from Yehid Moshe- walked up, discovered Armenian Quarter. I walked about a block, was set upon by would-be tour guides in search of my money. Decided that since I had to leave for airport in a couple of hours and was running out of shekels, I had neither the time nor the $ for this sort of thing, so I quickly bailed out. Based on my Guidebook, Armenian Quarter wasn't all that interesting anyhow- general urban design seemed pretty much same as Jewish Quarter.

Then walked towards hotel, tried to think of something interesting I could see in last hour or two. Went to Skirball Museum (tiny archaeological museum near Reform rabbinical seminary) and saw a few artifacts from Biblical times. Most interesting- a "victory stele" by some local pagan king talking about how he defeated and killed king of Israel (northern kingdom of Isreal) and of "house of David." (presumably southern kingdom, covered southern half of what is now Israel) Bible says, by contrast, same two kings were killed by palace coup. Wonder who's lying? I suspect pagan- he might have defeated them in battle, claimed to have killed them just to brag. But I guess we will never know. At any rate, this stele does corroborate that these kingdoms existed.

Also saw idols from territory of Jewish tribe Dan. Concrete evidence of idolatry, or just evidence that pagans lived nearby? I guess we will never know.

Then went to airport- much less security on way back than on way to Israel. El Al equally careful re checking checked bags, but didn't make us take off sport coats or even empty pockets (by contrast, at LaGuardia you have to empty ALL pockets and take off shoes twice). Sat next to American turned Israeli on flight; my sense was that war had pretty much gotten to her hard--bolstered my lack of confidence in Israel's fighting spirit. Got home to NYC Thursday night, spent night w/friend, came home Friday night.

Overall, glad I went.