Hall - 2007 - Divide and Sprawl Decline and Fall-A Comparative Critique of Euclidean Zoning - 915-952

NOTES
DIVIDE AND SPRAWL, DECLINE AND FALL: A COMPARATIVE

CRITIQUE OF EUCLIDEAN ZONING
Eliza Hall*
Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 916
II. Euclidean Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 918
A. Urban Sprawl and Decaying Cities . . . . . . . . . . . . . . . . . . . . . 920
B. Racial and Socioeconomic Segregation . . . . . . . . . . . . . . . . . 923
i. Historical Background: Euclid in Context . . . . . . . . . . . 923
ii. Euclid’s Legacy: A Great Divide . . . . . . . . . . . . . . . . . . 925
C. Environmental and Energy Problems . . . . . . . . . . . . . . . . . . . 927
D. Economic Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 929
E. Reduced Quality of Life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 932
III. Proposed Solutions: New Urbanism and Smart Growth . . . . . . . . 934
IV. The French Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 936
A. Smart Growth Is Normal; New Urbanism Is Nothing New . . 936
i. Lack of Urban Sprawl and Inner-City Decline . . . . . . . . 936
ii. Mixed Use: A Structural Approach . . . . . . . . . . . . . . . . 939
iii. Building(s) for People . . . . . . . . . . . . . . . . . . . . . . . . . . . 944
B. French Legal and Political Structures That Make This
Possible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951
* Eliza Hall, an associate at Kirkpatrick & Lockhart Preston Gates Ellis LLP, holds a JD from the
University of Pittsburgh. Her background includes BA and MA degrees in French and four years spent
living in France. She extends sincerest thanks to Dr. Vivian Curran, professor of comparative law, for her
advice on French legal research and for her inspiring perspectives on comparative legal studies.
915
916 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 68:915
I. INTRODUCTION
As many commentators have pointed out, the land use patterns prevalent
in the United States since the advent of Euclidean-style zoning1 have played
a direct role in the development of a surprisingly broad range of problems:
“[b]y fostering or requiring low density development with a high separation
of uses, Euclidean zoning is one of the great generators of suburban sprawl,
with all of its environmental, economic, and social costs.”2 These costs
include pollution,3 loss of wilderness and farmland,4 racial and socioeconomic
segregation of the population,5 and legal obstacles to effective urban
rehabilitation.6 Moreover, in combination with prevailing patterns of local
funding, the socioeconomic segregation caused by Euclidean zoning
perpetuates itself by channeling less well-off children into chronically under-
equipped public schools and stretching the resources of many urban
municipalities too thin, leaving them to choose between raising property tax
rates or allowing their infrastructure to decay. That devil’s bargain bolsters
the tendency of middle- and higher-income people to live in suburbs rather
than cities, deepening the downward spiral in which many American cities
find themselves. And the damage goes even further: “many current zoning
practices disregard or even work against crime prevention goals”7 in both
cities and suburbs. This is particularly problematic in light of the fact that
“Euclidean systems of separation—conventional zoning—have been
1. That is, since 1916, when New York became the first city to implement zoning laws of the type
later upheld in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). “Operating from the premise
that everything has its place, [Euclidean] zoning is the comprehensive division of a city into different use
zones.” JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND
DEVELOPMENT REGULATION LAW § 4.2, at 80 (1998) (cited in BLACK ’S LAW DICTIONARY under Euclidean
zoning). The terms “zoning” and “Euclidean zoning” will be used interchangeably here.
2. Jay Wickersham, Jane Jacob’s Critique of Zoning: From Euclid to Portland and Beyond, 28
B.C. ENVTL . AFF. L. REV . 547, 557 (2001). For an overview of the costs associated with sprawl, see Robert
H. Freilich & Bruce G. Peshoff, The Social Costs of Sprawl, 29 URB . LAW . 183, 184 (1997).
3. G.S. Kleppel, Urbanization and Environmental Quality: Implications of Alternative
Development Scenarios, 8 ALB . L. ENVTL . OUTLOOK J. 37, 40 (2002).
4. Id. See also Timothy Beatley & Richard C. Collins, Americanizing Sustainability: Place-Based
Approaches to the Global Challenge, 27 WM . & MARY ENVTL . L. & POL’Y REV . 193, 196-97 (2002).
5. See, e.g., Jerry Frug, The Geography of Community, 48 STAN . L. REV . 1047, 1048 (1996);
Richard H. Chused, Euclid’s Historical Imagery, 51 CASE W. RES. L. REV . 597, 605-06 (2001).
6. See, e.g., Nicole Stelle Garnett, Ordering (And Order In) The City, 57 STAN . L. REV . 1, 5 (2004)
(stating that “when property is over- or misregulated, property regulations may impede efforts to restore a
vibrant, healthy, and organic public order”) [hereinafter Garnett, Ordering].
7. Neal Kumar Katyal, Architecture as Crime Control, 111 YALE L.J. 1039, 1108 (2002).
2007] DIVIDE AND SPRAWL: EUCLIDEAN ZONING 917
implemented ubiquitously” in the United States:8 “[a]bout ninety-seven

percent of incorporated communities zone.”9
“[O]ne of the strongest criticisms of Euclidean zoning ever written,”10
Jane Jacobs’s seminal 1961 book The Death and Life of Great American
Cities, inspired the New Urbanism movement and an entire body of literature
suggesting solutions to suburban sprawl and its attendant problems.11
However, while some American municipalities have experimented with the
ideas advanced by New Urbanists and related theorists,12 no true legal solution
to the problem has emerged: “most of the old presumptions of Euclidean
zoning have remained in place,”13 with variances and other project-specific
exceptions being used to mitigate some of the problems in piecemeal
fashion.14 As a result, however persuasive the solutions of Jacobs and later
thinkers may be, with few exceptions they remain theoretical: either they have
not been tried in practice, or they have been implemented so recently, so
tentatively,15 or in such a small or unique area that it is difficult to determine
whether they actually solve the problems caused by Euclidean zoning.
This Note argues that the land use patterns that have prevailed in France
for most of the last century,16 as well as the legal mechanisms that underlie
them, integrate many of the most widely accepted theories on optimal land use
and thus provide a model that American urban planners can use when
considering changes to their existing zoning laws. In other words, the French
experience implementing a given theory of land use can illustrate whether the
theory works, while the law underlying that implementation can provide
guidelines on the legal and administrative framework most conducive to
putting that theory into practice. Because “Paris provides one excellent model
of urbanism,”17 and because extensive information is available about it, land
8. Andres Duany & Emily Talen, Making the Good Easy: The Smart Code Alternative, 29
FORDHAM URB . L.J. 1445, 1451 (2002).
9. Andrew G. Dietderich, An Egalitarian’s Market: The Economics of Inclusionary Zoning
Reclaimed, 24 FORDHAM URB . L.J. 23, 29 (1996).
10. Wickersham, supra note 2, at 548.
11. See, e.g., Nicole Stelle Garnett, The Public-Use Question as a Takings Problem, 71 GEO . WASH .
L. REV . 934, 953 n.119 (2003).
12. See, e.g., Beatley & Collins, supra note 4, at 201-06 (describing and critiquing approaches used
in Maryland, New Jersey, Texas, and Oregon).
14. Id.
15. See, e.g., Beatley & Collins, supra note 4, at 204 (explaining how low ambitions and half-
hearted implementation have limited the success of some attempts at limiting sprawl).
16. With the exception of the country’s post-World War II flirtation with Modernism.
17. Ray Gindroz, City Life and New Urbanism, 29 FORDHAM URB . L.J. 1419, 1420 (2002).
use patterns in Paris and the surrounding region will be the focus of
comparison. There will also be some discussion of France in general,
because, as a highly centralized country with regional, national, and even
transnational land use planning operating in tandem with local rules,18 many
statements about France also apply to Paris and vice-versa. Finally, a brief
overview of similarities and differences between relevant French and U.S.
land use law and political structures will be provided to indicate the extent to
which the principles underlying French land use law are compatible with and
feasible in the U.S. system.
II. EUCLIDEAN PROBLEM S
Euclidean zoning reflects a functionalist view of the city as a “machine,

rather than an ever-evolving organism.”19 The theory supports the view that
society functions best when cities and the surrounding land are segregated into
districts that strictly limit the uses to which properties there can be put:
“Euclidean zoning . . . reflects a longstanding value judgment that the
appropriate way to order different land uses is to separate them from one
another into single-use zones.”20 The legal rationale for zoning is simple:
“[r]estrictions upon the free use of private land must find their justifications
in some aspect of the police power,21 asserted for the public welfare.”22
However, while substantive due process challenges to zoning ordinances will
fail unless they show the ordinance has no rational relation to the police power
goals of public health, safety, or welfare,23 the courts have tended to stretch
18. See, e.g., Roger W. Wilkinson, 1998 And the Law Royer Turns Twenty-Five: Combatting the
Commercial Suburbanization of France, Since 1973, 21 SUFFOLK TRANSNAT ’L L. REV . 391, 395-97
(1998); Clifford Larsen, What Should Be the Leading Principles of Land Use Planning? German
Perspective, 29 VAND . J. TRANSNAT ’L L. 967, 997 n.136 (1996).
20. Garnett, Ordering, supra note 6, at 4.
21. The police power is, of course, “[t]he inherent and plenary power of a sovereign to make all laws
necessary and proper to preserve the public security, order, health, morality, and justice.” BLACK ’S LAW
DICTIONARY 1196 (8th ed. 2004).
22. Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 74 (1976) (quoting Euclid, 272 U.S. at 387-88).
In general, when the government restricts a property owner’s freedom in order to prevent a public harm, it
is an act of police power requiring no compensation to the owner; compensation is only required under the
Takings Clause when the restriction is imposed to confer a public benefit. ROBERT R. WRIGHT & MORTON
GITELMAN , LAND USE IN A NUTSHELL 103 (West Group, 2000).
23. Lingle v. Chevron U.S.A. Inc., 125 S. Ct. 2074, 2083 (2005) (citing Euclid for the proposition
that a zoning ordinance will “survive a substantive due process challenge so long as it was not ‘clearly
arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general
welfare.’”).
the zoning rationale to the absolute limit: “the line ‘which in this field
separates the legitimate from the illegitimate assumption of [police] power is
not capable of precise delimitation. It varies with circumstances and
conditions.’. . . But even those historic police power problems need not loom
large or actually be existent in a given case.”24 In other words, with some
exceptions, when it comes to zoning the police power is more or less whatever
the local legislature says it is. As a result, it is common for zoning codes to
define restrictions in such detail that the owner’s freedom to use the property
as she sees fit is reduced to almost nil.25
In addition to the clack of a clear relationship between the police power
and such narrow use restrictions, “[t]he fundamental problem with Euclidean
zoning is that it . . . ignores how cities actually operate.”26 Ample literature
supports the argument that the theory behind such zoning is simply wrong;27
it has been argued that the decline of American cities and the damaging
growth pattern we call sprawl “are caused by a failed regulatory code.”28 As
for the environmental impact of zoning and the resultant sprawl, “[t]here is no
other area in environmental law where the goals of the regulatory program are
not just indifferent, but actively hostile, to the best thinking in the field.”29
Yet further, Euclidean zoning provides a legal mechanism whereby certain
classes of people can be effectively barred from living in a neighborhood or
even an entire municipality without that exclusion violating any recognized
constitutional right.30 This is not a mere theoretical possibility, but a
statement of how zoning has been used in the ninety years since its inception;
24. Village of Belle Terre v. Boraas, 416 U.S. 1, 4 (1974) (quoting Euclid, 272 U.S. at 387)
(emphasis added) (citation omitted).
25. For example, in New York, owners of property designated as Use Group 12B in Manufacturing
Districts 2 and 3 can use their property only for “antique stores; art galleries, commercial; candy or ice
cream stores; cigar or tobacco stores; delicatessen stores; jewelry or art metal craft shops; music stores; and
newsstands.” New York City Zoning Resolution, art. 4, ch. 2, § 42-13 (2005), available at http://
www.nyc.gov/html/dcp/pdf/zone/art04c02.pdf. It is unclear what police power rationale could possibly
underlie such restrictions on property rights: if a commercial art gallery or a music store in this zone pose
no threat to public welfare, the proposition that a non-commercial art gallery or a bookstore would pose one,
and thus the justification for prohibiting it, seems difficult to support.
27. See, e.g., Garnett, Ordering, supra note 6, at 5; Wickersham, supra note 2.
28. Duany & Talen, supra note 8, at 1452.
29. Wichersham, supra note 2, at 554.
30. In addition to the fact that disparate impact is insufficient to invalidate a zoning ordinance,
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977), and that zoning ordinances
do not directly target any protected class, “zoning is, by tradition and by jurisprudence, a matter of local
concern, in which federal courts are reluctant to intrude.” Westhab, Inc. v. City of New Rochelle, 2004
U.S. Dist. LEXIS 9926 (S.D.N.Y. 2004), at *30.
this Note will primarily address the racial and socioeconomic segregation
perpetuated by zoning, but the same backdoor methods have been used to
discriminate against gay couples and straight couples who prefer, for whatever
reason, not to marry.31
To distinguish the effects of Euclidean zoning from those of the land use
law prevalent in France, this Note describes how zoning perpetuates five
major problems: (1) urban sprawl; (2) racial and socioeconomic segregation;
(3) environmental degradation and energy waste; (4) adverse economic
impact; and (5) diminished quality of life.
A. Urban Sprawl and Decaying Cities
Urban sprawl has been defined as “low-density, land-consuming,

automobile-dependent, haphazard, non-contiguous (or ‘leapfrog’)
development on the fringe of settled areas, often near a deteriorating central
city or town, that intrudes into rural or other undeveloped areas.”32 During the
sprawl process, “cities’ footprints . . . expand at much faster rates than
population growth, creating an increasingly scattered car-dependent
landscape.”33 This scattering of the population “requires significant
development of new facilities and services, with accompanying abandonment
and underutilization of existing facilities.”34 Those “existing facilities” are
America’s cities: “the story of suburban expansion is one of urban exodus,”35
31. For example, in February 2006, the town of Black Jack, Missouri denied an occupancy permit
to an unmarried couple with three children on the grounds that they did not meet the zoning ordinance’s
definition of a family. This made it illegal for them to live in the home they had just bought. Eun Kyung
Kim, Unwed Couple, Kids Face Boot by Black Jack, ST . LOUIS POST -DISPATCH , Feb. 21, 2006. The
children’s mother said, “I refuse to run down to the courthouse and get married just so I can live in my own
home.” Id. Such ordinances are common in that region, id., though it could be argued that they are
unconstitutional under Moore v. City of East Cleveland, 431 U.S. 494 (1977). As for gay couples, the Ohio
Court of Appeals recently noted with approval that “courts have already rejected Lawrence [v. Texas] as
a basis to challenge laws involving . . . the definition of ‘family’ for zoning purposes. . . .” Ohio v. Jenkins,
2004 Ohio App. LEXIS 6663, at *16-17 (2004). The definition of family is not the only contested territory
in the effort to use zoning laws to perpetuate discrimination against gays; in 1993, residents of a Charlotte,
N.C. neighborhood went to court over a zoning board decision allowing the opening of a church that
ministered to gay parishioners. Editorial, Gays and the Church Unless Laws are Broken, Gays Should Be
Allowed to Worship at a New Church in Matthews, CHARLOTTE OBSERVER , Dec. 9, 1993, at 22A,
available at 1993 WLNR 1622401.
32. Timothy J. Dowling, Reflections on Urban Sprawl, Smart Growth, and the Fifth Amendment,
148 U. PA. L. REV . 873, 874 (2000).
33. Beatley & Collins, supra note 4, at 197.
34. Freilich & Peshoff, supra note 2, at 184.
35. Nicole Stelle Garnett, Unsubsidizing Suburbia, 90 MINN . L. REV . 459, 491 (2005) [hereinafter
Garnett, Suburbia] (reviewing RICHARDSON DILWORTH , THE URBAN ORIGINS OF SUBURBAN AUTONOMY
in which the “more affluent . . . abandon[] central cities for the suburban
fringe.”36 But cities lose more than just people in this process: the costs of
the infrastructure needed to support suburbs, such as sewers, utility-line
extension,37 and road improvements, have been disproportionately borne by
cities.38
As a result of urban municipalities essentially being forced to underwrite
the departure of the middle class, sprawl goes hand in hand with the
socioeconomic decline of America’s inner cities. As the middle and upper
classes moved to residential suburbs, jobs followed: suburban municipalities
used zoning to turn former farmland and wilderness into commercial and
industrial parks, so in the 1980s alone, “suburbs received 95% of new office
jobs and 120% of net manufacturing job growth.”39 This shift in the location
of offices and manufacturing plants changed urban centers from ‘“centers of
production and distribution of material goods to centers of administration,
information exchange, and higher-order service provision.’ As a result, jobs
remaining in the downtown core require higher levels of education, which
many city residents do not possess.”40 Meanwhile, Euclidean zoning
“virtually guarantees that the automobile will be crucial in accomplishing
(2005)).
36. Martha A. Lees, Expanding Metropolitan Solutions Through Interdisciplinarity, 26 N.Y.U.
REV . L. & SOC . CHANGE 347, 347 (2001-01) (book review).
37. See, e.g., Mark Weiner, Water Agencies May Merge: Joining OCWA, Metropolitan Water
Board Could Save Money, Legislators Say, THE POST -STANDARD (Syracuse (N.Y.), Nov. 21, 2005, at B3,
available at 2005 WLNR 18832289 (stating that water distribution infrastructure funded by property tax-
backed bonds was built because the municipality “couldn’t serve new industry opening outside the city,”
but now “as suburban growth has fueled [the water authority’s] expansion . . . it may be unfair to continue
using property taxes to support the infrastructure”); State ex rel. City of Wheeling v. Renick, 116 S.E.2d
763 (1960) (permitting development company to bring action against city-owned sewer utility seeking to
compel it to extend sewer lines at city’s expense).
38. See, e.g., ANDRES DUANY ET AL., SUBURBAN NATION : THE RISE OF SPRAWL AND THE DECLINE
OF THE AMERICAN DREAM 8-15 (2000); Ed Bolen, Kara Brown, David Kiernan & Kate Konschnik, Smart
Growth: A Review of Programs State by State, 8 HASTINGS W.-N.W. J. ENVTL . L. & POL’Y 145, 147
(2002) (describing recent efforts by some cities to reduce or eliminate their spending on infrastructure
improvements for suburbs); John T. Marshall, Florida’s Downtowns: The Key to Smart Growth, Urban
Revitalization, and Green Space Preservation, 29 FORDHAM URB . L.J. 1509, 1510 (2002) (stating that
“Florida’s cities have paid for a disproportionate share of new roads and sewer systems to connect new
communities to surrounding metropolitan areas.”).
39. Jeremy R. Meredith, Note, Sprawl and the New Urbanist Solution, 89 VA. L. REV . 447, 458
(2003) (citing Michael E. Lewyn, Suburban Sprawl: Not Just an Environmental Issue, 84 MARQ . L. REV .
301, 302 (2000)).
40. Id. (quoting WILLIAM JULIUS WILSON , THE TRULY DISADVANTAGED : THE INNER CITY , THE
UNDERCLASS, AND PUBLIC POLICY 39 (1987)).
one’s daily business,”41 but “the absence of car ownership [among urban poor]
and the inadequacy of public transit systems combine to create a scenario
where city residents find it difficult to gain access to employment.”42 As a
result, today’s city dwellers find themselves trapped in “once vibrant,
economically integrated neighborhoods that [are now] . . . communities in
which almost everyone [is] poor.”43
It has been noted that “[t]his pervasive urban landscape is not simply the
result of individual choices about where to live or to create a business. It is
the product of a multitude of governmental policies.”44 While sprawl has been
called “the root cause of many land-use problems across the country,”45 this
Note argues that both sprawl and the associated decline of the inner cities are
more usefully analyzed as the primary symptoms and inevitable result of
Euclidean zoning. Zoning fuels sprawl
both because exclusionary techniques (such as minimum lot size and square footage
requirements) necessitate vast amounts of land and because . . . [wealthier suburbs [use
their zoning power to] exclude new development, especially of less desirable land uses,
effectively pushing it outward to communities with more lenient land use policies. Over
time . . . the cycle . . . repeats itself. The result is the sprawling “leapfrog” style
development that characterizes our municipal areas.46
By creating a legal framework uncannily conducive to sprawl47 and the

associated urban decline, Euclidean zoning imposes an enormous cost: it
“increases development costs to the suburbs, diminishes the quality of life
factors needed to sustain viable economic growth, and requires the
consumption of the greatest amount of land and resources.”48 Moreover, it
raises housing costs, which increases the financial strain on middle-class
families while further reducing the ability of lower-income families to
improve their lot in life.49 It also “generates traffic congestion, dependence
41. Kleppel, supra note 3, at 47.

42. Meredith, supra note 39, at 459.
43. Angela Glover Blackwell, It Takes a Region, 31 FORDHAM URB . L.J. 1303, 1304 (2004).
44. Frug, supra note 5, at 1048.
46. Garnett, Suburbia, supra note 35, at 487-88.
47. “[T]he current legal structure . . . provides significant incentives for local governments to adopt
land uses that lead to sprawl.” Harvard Law Review Association, Old Regionalism, New Regionalism, and
Envision Utah: Making Regionalism Work, 118 HARV . L. REV . 2291, 2293 (2005).
49. See, e.g., Scott T. Hall., Note, Fountain of Cities: An Examination of Urban Growth and
Growth Management with a Regional Proposal for Greater Kansas City, 13 KAN . J.L. & PUB . POL’Y 619,
624 (2004) (summarizing how sprawl and zoning raise housing costs); Randolph R. Lowell, Coastal Smart
on oil, extraordinary transportation costs for families, higher costs to deliver

municipal services, and pollution.”50 Smart Growth, discussed below,
proposes a persuasive solution to sprawl, but it cannot be implemented in
anything more than a patchwork and half-hearted fashion without a radical
change in American zoning law.
B. Racial and Socioeconomic Segregation
i. Historical Background: Euclid in Context
The hallmark of Euclidean zoning is its insistence on dividing the

landscape into zones segregated by use and building type:51 single-family
residential, multi-family residential, commercial, light industrial, and so on.
While separation of uses was “[i]nitially . . . a European idea intended to
remove factories from residential neighborhoods,”52 it was also almost
immediately understood as a means of excluding poor and minority
populations from middle- and upper-class neighborhoods. As Judge
Westenhaver put it when Euclid I was heard in District Court, “[t]he blighting
of property values and the congesting of population, whenever the colored or
certain foreign races invade a residential section, are so well known as to be
within the judicial cognizance.”53 While the Supreme Court spoke in more
veiled terms, nevertheless, in comparing Euclidean zoning to a codification of
common-law nuisance doctrine,54 it teetered on the edge of redefining
“nuisance” to include the mere presence of lower-income neighbors:
[T]he coming of apartment houses [to single-family areas] . . . has sometimes resulted in
destroying the entire section for private house purposes . . . very often the apartment
house is a mere parasite, constructed in order to take advantage of the open spaces and
attractive surroundings created by the residential character of the district. . . . Under these
Growth, 22 PACE ENVTL . L. REV . 231, 234-35 (2005) (citing a 1992 New Jersey study projecting that new
homes in sprawl developments would cost $12,000-$15,000 more than they would “in more compact
development[s]”).
50. James A. Kushner, Smart Growth, New Urbanism and Diversity: Progressive Planning
Movements in America and Their Impact on Poor and Minority Ethnic Populations, 21 UCLA J. ENVTL .
L. & POL’Y 45, 46-47 (2002-03).
51. Garnett, Ordering, supra note 6, at 4. She continues: “City officials schooled in this ideology
may naturally tend to equate ordered land uses with the absence of disorder. They also may be wrong.”
Id. at 5.
53. Ambler Realty Co. v. Vill. of Euclid (Euclid I), 297 F. 307, 313 (N.D. Ohio 1924).
54. Vill. of Euclid v. Ambler Realty Co. (Euclid II), 272 U.S. 365, 387-89 (1926).
circumstances, apartment houses, which in a different environment would be . . . entirely

unobjectionable . . . come very near to being nuisances.55
The Euclid Court apparently assumed that families unable to afford single-
family homes were so undesirable that zoning for the express purpose of
keeping such families out of middle-class neighborhoods was a reasonable
government response.
It has been suggested that “the racism of the era in which [Euclid II] was
decided” provides an important clue as to why a Court with “well-known
objections to many forms of government economic regulation” approved a
zoning system that greatly limited the rights of property owners to use their
property as they saw fit.56 The 1920s were a time of “unprecedented levels of
immigration . . . [as well as] migration from the southern United States.”57
Legislation passed in 1921 and 1924 had imposed a quota system favoring
immigrants “from northern Europe and severely limiting entry from other
parts of Europe and the rest of the world.”58 More ominously,
[t]he Ku Klux Klan was a major political force at the time. . . . Indeed, the power of the
Klan was the subject of debate in Congress just before Euclid came before Judge
Westenhaver. A movement favoring anti-lynching legislation . . . passed in the House
of Representatives, only to die in a Senate filibuster.59
Moreover, the Supreme Court had endorsed racially restrictive covenants the
same year it upheld Euclidean zoning.60 Although zoning ordinances
excluding specific ethnic groups from particular neighborhoods had been held
unconstitutional in 1917 on freedom of contract grounds,61 that case was
deliberately engineered by the parties to get around the racism of the
justices;62 the defendant, who entered into the real estate contract for the
55. Id. at 394-95.

56. Chused, supra note 5, at 597-98.
57. Id. at 599.
58. Id. at 608-09.
59. Id. at 608.
60. See Corrigan v. Buckley, 271 U.S. 323 (1926).
61. See Buchanan v. Warley, 245 U.S. 60 (1917), cited in Euclid I, 297 F. at 312.
62. Professor Chused describes the actions of the Buchanan parties as:
a clever strategic move . . . [that] placed the white seller at the forefront of the case and presented
the courts with a “simple” claim by a white man that he was entitled to seek specific
performance. . . . The Supreme Court took the bait, finding the racial zoning scheme invalid
[because] it infringed upon the . . . right of a white man to be free from unlawful constraints on the
enforcement of a contract. . . .
Chused, supra note 5, at 606.
specific purpose of challenging the zoning ordinance, was the president of the
local NAACP.63 But Euclid I made it possible to accomplish the same
discriminatory purpose more discreetly: simply removing the possibility of
economic diversity within a given neighborhood went a long way towards
preventing racial and ethnic minorities from moving in. Meanwhile,
separating residential use from any and all economic use, rather than just from
clear nuisances such as industrial compounds, obviously means there will be
no businesses in the neighborhood; this means lower-income outsiders, who
most likely already have no social connections in higher-income
neighborhoods, no longer even have a reason to visit.
ii. Euclid’s Legacy: A Great Divide
The decline of inner cities has had a disproportionate effect on

minorities.64 The separationist principles of Euclidean zoning have
“segregat[ed] populations by social class and undermin[ed] the mixed-use,
mixed-income characteristics of cities that . . . had been the wellspring of their
vibrancy and economic vitality. Mixed-use, mixed-income neighborhoods
turned into single-use, single-income enclaves connected by roads for
vehicles, not pedestrians.”65 This change in the American landscape was made
possible by zoning, “the point of [which]is to put ‘everything in its place,’ to
segregate economic from noneconomic activities, rich from poor.”66 Such
zoning “quarantines uses so that they will not infect one another,”67 an
approach that inevitably results in “quarantining” different populations.
Meanwhile, suburban zoning has created problems for the middle class:
“[t]he biggest challenge out there is affordable housing. Most towns pride
themselves on 2-acre zoning,”68 that is, laws that prohibit building homes on
lots smaller than two acres, making property too expensive for the average
family.69 Likewise, minimum square footage requirements for the houses
63. Josh Whitehead, Note, Using Disparate Impact Analysis to Strike Down Exclusionary Zoning
Codes, 33 REAL EST . L.J. 359, 363 (2005).
65. Gindroz, supra note 17, at 1423.
68. Douglas Foy, Massachusetts’ Chief of Commonwealth Development, quoted in Sam Allis,
Whither I-495?, BOSTON GLOBE , Aug. 22, 2004, at A2, available at 2004 WLNR 3586750.
69. “Exclusionary zoning is a common tool employed by local municipalities to exclude whatever
segment of the population they deem undesirable.” Michael Kling, Note, Zoned Out: Assisted-Living
Facilities and Zoning, 10 ELDER L.J. 187, 198 (2002). While exclusionary zoning in general is illegal in
themselves exclude buyers who cannot afford that much space; of course this
keeps out less-wealthy families of any race, but it disproportionately affects
minorities.70 “Perhaps the most significant aspect of the ‘white flight’ . . . [of]
the past fifty years is that much of that flight has been to independent
municipalities” with comprehensive zoning powers.71 Although “it is illegal
for towns to set a minimum house value, . . . zoning [and] subdivision
regulations . . . can implicitly have the same effect.”72
Even in more affordable areas, separating residential zones by housing
type dramatically reduces the ability of lower-income people, and by
extension minorities and new immigrants, to move into the area. For example,
neighborhoods restricted to single-family housing prohibit not only apartment
buildings but even duplexes, a housing type that enables lower-income owners
to afford their mortgage by renting out half the structure.73 It is also common
to impose minimum sizes for side yards and/or to create separate zones for
attached and detached single-family housing,74 preemptively segregating
families who can afford lawns from those who cannot. This is not mere
coincidence; “fear of what is euphemistically called ‘the inner city’—a fear
that has fueled the migration to the suburbs—has been a reference to the black
poor.”75 Having set the stage for socioeconomic segregation, the Euclidean
approach then perpetuates it into the next generation: zoning that keeps out
lower-income neighbors also helps prevent lower-income children from going
to the same schools as middle- and upper-class children.
some states, such as New Jersey, see, e.g., So. Burlington County NAACP v. Mount Laurel Tp., 336 A.2d
713 (N.J. 1975), the point at which a minimum lot size becomes “exclusionary” varies widely: even five-
acre minimums have been upheld. See, e.g., County Comm’rs. of Queen Anne’s County v. Miles, 228 A.2d
450 (Md. 1967).
70. See, e.g., Whitehead, supra note 63, at 371.
71. Id.
72. William T. Bogart, “Trading Places”: The Role of Zoning in Promoting and Discouraging
Intrametropolitan Trade, 51 CASE . W. RES. L. REV . 697, 709 (2001).
73. The problem with excluding duplexes is that buying a duplex and renting out half of it enables
a lower-income family to get a foothold in property ownership that they might not otherwise be able to
afford. See, e.g., Alex Mindlin, The Accidental Landlord, N.Y. TIMES, June 19, 2005 (profiling a working-
class Dominican man who parlayed his first home, a dilapidated $15,000 Brooklyn duplex he purchased
in 1980, into a small empire). Prohibiting duplexes cuts off this avenue to the American dream, and it does
so without providing any clear benefit to neighbors, since duplexes do not inherently cause more negative
impact (traffic, noise, etc.) than single-family homes. This fact can be illustrated by comparing the impact
of a quiet, one-car family of three renting half their duplex to an elderly relative with the impact of a three-
car family of two parents and four rowdy teenagers in a single-family house: the impact depends on the
residents themselves, not on the housing type.
74. See, e.g., PITTSBURGH , PA, ZONING CODE art. 1, § 902.01.A.1(a) (2006).
75. Frug, supra note 5, at 1064.
Perhaps surprisingly, America’s racially segregated pattern of land use is

relatively recent: “[i]n 1900 . . . [u]rbanized African Americans lived in
neighborhoods that, on average, were close to 90 percent white.”76 Given that
the U.S. population as a whole was 88% white at that time,77 city-dwelling
African Americans in 1900 were integrated into white neighborhoods at a rate
approximately identical to their proportion of the population. “[I]n the 1880’s
and 1890’s, racially integrated neighborhoods had flourished in many
American cities, especially in the South.”78 Obviously, that has changed. By
1930, in the wake of Supreme Court affirmation of restrictive covenants and
Euclidean zoning, the seeds of the urban black ghetto were sown.79 As the
ghettos grew and “white flight” accelerated, “[o]ver the past 50 years, most
large American cities have devolved from great economic engines that people
of all walks of life called home to forgotten, largely abandoned, warehouses
of the metropolitan poor.”80
C. Environmental and Energy Problems
“Despite the existence of distinct social and economic problems, the

direct link between environmental harms and urban sprawl is easier to
observe. Perhaps for this reason, environmentalists have been among the most
outspoken critics of sprawl.”81 The environmental criticisms of it are obvious:
sprawl “swallows prime agricultural land and often encroaches upon
environmentally sensitive areas.”82 While less than one-fifth of U.S. land is
high-quality farmland, between 1992 and 1997 urban sprawl consumed an
average of two acres of American farmland per minute.83 In addition to the
loss of virgin land, sprawl threatens to simply fill small states to capacity;
Maryland’s decision to implement a smart-growth pattern of land use84 rather
76. Id.
77. U.S. CENSUS BUREAU , UNITED STATES—RACE AND HISPANIC ORIGIN ; 1790 to 1990, 1 (2002),
http://www.census.gov/population/documentation/twps0056/tab01.pdf. Whites represented 87.9% and
blacks 11.6% of the total population in 1900. Id.
78. Whitehead, supra note 63, at 361.
79. See Frug, supra note 5, at 1064-65.
82. Bogart, supra note 72, at 713 n.61 (quoting ANTHONY DOWNS, NEW VISIONS FOR
METROPOLITAN AMERICA 14 (1994)).
83. AMERICAN FARMLAND TRUST , FARMING ON THE EDGE REPORT 1 (2006), http://www.farmland
.org/resources/fote/default.asp; http://www.farmland.org/farmingontheedge/Farming%20on%20the%20
Edge.pdf.
84. For a discussion of Maryland’s program, see Parris N. Glendening, Maryland’s Smart Growth
than the traditional urban sprawl rested in part on the state’s Department of
Planning “sobering prediction [that] [i]f growth patterns d[id] not change,
development w[ould] consume as much land . . . over the next twenty-five
years as it has during the entire 368-year history of the [s]tate.”85
In addition to obliterating farmland and wilderness, sprawl increases air
pollution and aggravates global warming86 by making people dependent on
cars: “[t]ransportation is responsible for one-third of all greenhouse gases
generated by Americans,” and “[b]etween 1969 and 1990, while the
population of the United States increased by 21 percent, the number of miles
driven per capita grew 72 percent.”87 Meanwhile, sprawl pollutes the
watershed via “runoff containing chemicals from asphalt, automobile
emissions, horticultural fertilizers and pesticides.”88 This problem is
exacerbated by “the extensive use of impervious surfaces, reduction of
vegetative buffers and inferior but mandatory approaches to storm water
management[, which] reduce[s] the ability of the landscape to manage
contaminant loading”; the development attributes that exacerbate the problem
are most prevalent in suburbs.89
Because these effects have been so thoroughly discussed elsewhere,90 this
Note will not dwell on them. The key point here is that the environmental
effects of sprawl arise from two factors: population density and energy waste.
Density, of course, is a direct result of zoning: minimum lot sizes define the
density of a development. Waste of energy is more complex, but zoning in a
way that obligates residents to use cars to accomplish the slightest errand is
clearly more wasteful than zoning for compact neighborhoods with schools
and small shops within walking distance. America is zoning for pollution and
global warming; we are zoning our farmland and wilderness out of existence.
Initiative: The Next Steps, 29 FORDHAM URB . L.J. 1493 (2002).

85. Id. at 1497.
86. See generally Peter Newman, Urban Design, Transportation and Greenhouse, in GLOBAL
WARMING AND THE BUILT ENVIRONMENT 69, 69-71 (Robert Samuels et al. eds., 1994) (discussing
environmental impact of sprawl and car dependence).
87. Anne Maurer, Smart Growth Principles and the Fair Housing Act: An Examination of the
Loudoun County Revised General Plan, 13 J. AFFORDABLE HOUS. & CMTY . DEV . L. 239, 241 n.31 (2004)
(citing David J. Cieslewicz, The Environmental Impacts of Sprawl, in URBAN SPRAWL: CAUSES,
CONSEQUENCES & POLICY RESPONSES 26 (Gregory D. Squires ed., 2002)).
89. Id.
90. See, e.g., Newman, supra note 86; Kleppel, supra note 3; Lowell, supra note 49, at 231.
D. Economic Impact
Jane Jacobs, one of the most famous critics of Euclidean zoning, “is an
economic libertarian who believes in the creative power of the market.”91 She
“criticizes the sorting out of functions into single-use districts . . . because it
stifles the cross-fertilization of ideas and experiences that is so important to
a city’s economic and social health.”92 Indeed, a central part of the land use
model she proposes “is the goal of economic diversity: the richness of
business ideas and opportunities that flourish in a city. . . . ‘Cities may fairly
be called natural economic generators of diversity, and natural economic
incubators of new enterprises.’”93 Her critique may sound theoretical, but it
rests on a solid base: Euclidean zoning and its aftereffects, namely urban
sprawl and declining cities, impose costs that “can be measured in dollars.”94
It adversely impacts the economy in several ways: by distorting the real estate
market; imposing massive infrastructure costs and associated tax increases;
increasing the cost of housing and transportation; and reducing the ability of
lower-income people—which includes, of course, not only those we normally
think of as “the poor” but also many artists and budding entrepreneurs—to
find work or create self-employment.
Euclidean zoning distorts the real estate market in so many ways that it
manages to simultaneously conflict with conservative, libertarian, and liberal
values. In addition to increasing the average price of housing,95 “[t]he fact
that a zoning map allows high density housing in some areas, only single
family housing in others, only industrial and commercial use in designated
locations, and high rise office buildings in downtown areas, creates great
disparity in value among a city’s many properties.”96 While “[a] local
regulation imposing a maximum land value would almost certainly be viewed
as a [Fifth Amendment] taking, . . . zoning laws that effectively impose a
maximum land value have been upheld. . . .”97 And because municipal zoning
authorities, rather than the market, dictate what housing types will be available

92. Id. at 550-51.
93. Id. at 549.
94. Lowell, supra note 49, at 234.
95. See, e.g., Dietderich, supra note 9, at 31.
96. Norman Marcus, New York City Zoning—1961-1991: Turning Back the Clock—But with an
up-to-the-Minute Social Agenda, 19 FORDHAM URB . L.J. 707, 717 (1992). The disparity of which Marcus
speaks has a direct effect on individual owners and, because it impacts property tax revenues, an indirect
effect on city finances.
97. Bogart, supra note 72, at 715.
and favor single-family homes, “profitable sites for [multifamily housing] are
artificially scarce”98 and thus artificially expensive. Such a situation is clearly
incompatible with free-market principles, and since affordable housing often
means some type of multi-family housing, it is also hostile to the goal of
increasing the access of lower-income families to affordable housing. In
addition, Euclidean zoning increases the burden on middle-class families:
while the artificial scarcity of multi-family sites might be expected to reduce
the cost of single-family homes by increasing the availability of single-family
sites, this possibility is nullified by the tendency of suburban municipalities
to require large minimum lot and house sizes.99 That “forces people to
consume land and improvements they do not want,”100 at a higher cost than
they would pay were they allowed to buy only the amount of property they
want. “This forced consumption is inefficient because the recipient could sell
the extra land and improvements on the market for more than what they are
worth to the recipient. . . .”101
It has already been mentioned that sprawl “leads to tremendous demand
for expanded public services and infrastructure, all of which cost substantially
more to provide”102 to a scattered population than to a more compact one. The
problem is enormous in scope: nearly fifteen years ago, “[a] New Jersey study
estimated that over a twenty-year period, capital costs associated with sprawl
would exceed $1.3 billion with annual maintenance costs of over $400
million.”103 Single-use zoning and urban sprawl are an expensive
combination: a 1989 Urban Land Institute monograph estimated that
“providing services to a three unit per acre development located ten miles
from central facilities and employment centers” would cost $48,000—in 1989
dollars—while “[t]he same costs for a home in a twelve-unit per acre
development, located closer in with an equal mix of townhouses, garden
apartments and single family [homes], would be 50% lower.”104 Current land-
98. Dietderich, supra note 9, at 32.

99. Ordinances setting a minimum floor area for single-family homes have been upheld. See, e.g.,
Builders Service Corp. v. Planning & Zoning Comm’n of Town of East Hampton, 545 A.2d 530, 536-38
(Conn. 1988); Lionshead Lake, Inc. v. Wayne Twp., 89 A.2d 693, 696 (N.J. 1952), cert. denied, 344 U.S.
919 (1953).
101. Id. Dietderich also notes that “[s]uch forced consumption is also inefficient if it stops producers
from substituting cheaper factors of production (such as technology and design) for land.” Id.
102. David C. Levy & Rachael P. Melliar-Smith, The Race for the Future: Farmland Preservation
Tools, 18 NAT . RESOURCES & ENV ’T 15, 17 (2003).
103. Lowell, supra note 49, at 235.
104. Shelby D. Green, The Search for a National Land Use Policy: For the Cities’ Sake, 26
FORDHAM URB . L.J. 69, 76 n.42 (1998).
use policies “forc[e] our citizens to pay higher and higher taxes to cover the
infrastructure costs created by sprawl.”105 Moreover, the way suburban
municipalities use Euclidean zoning “segregates the tax base into wealthy
suburban and poor urban components, creating a greater disparity between
property tax rates and the return in public services per tax dollar paid.”106
But single-use zoning has even more direct effects on the financial
situation of American families. It reduces people’s ability to respond
efficiently to economic developments, such as by starting a business in their
garage to seize a new opportunity or renting out rooms in their home to get
through a difficult period.107 Separating residential use from any and all
economic uses, rather than just from clear nuisances such as heavy industry,
not only makes it more difficult for lower-income people to get to work by
locating the workplace farther away, it eliminates the option of supporting
themselves entrepreneurially by preventing them from living and working in
the same space. Live/work spaces are increasingly popular, but Euclidean
zoning tends to banish them to undesirable areas108 and to prevent people from
starting a business in their home unless they already live in such a space.109
Zoning thus effectively snuffs out small-scale entrepreneurialism in residential
zones; meanwhile, the transportation costs necessary to get to jobs located in
other zones fall “disproportionate[ly] . . . on working families of low or
modest incomes.”110 Those costs can make employment virtually impossible
for lower-income city dwellers: if they cannot afford a reliable car and public
105. Glendening, supra note 84, at 1496.

107. In addition to the fact that renting out a room in one’s home might be considered an
impermissible business activity, the right of a homeowner to do so depends on the local zoning code’s
definition of “family.” For example, in Pittsburgh, no more than three unrelated people can live together
in a single-family home, and they can only do so if they “share[] common facilities as considered
reasonably appropriate for a family related by blood, marriage or adoption.” PITTSBURGH , PA, ZONING
CODE art. 9, ch. 926, § 76(b) (2006). Thus a homeowner who already has two relatives in his house cannot
take in a boarder, and a boarder who does not share use of the kitchen is unlawful.
108. See, e.g., Suzanne Hamlin, The Benefits of Living Above the Store, N.Y. TIMES, Sept. 19, 2004,
at § 11, Col. 1, Real Estate Desk, at 1 (stating that, while mixed-use property in New York City is primarily
in less-desirable locations such as “big commercial strips, often in what would be considered fringe
residential neighborhoods,” the market for such property is rising).
109. Even when people live in such a space, their use of it may be rigidly regulated. For example,
New York City defines live/work artists’ lofts as “one or more rooms in a non-residential building . . .
occupied . . . and arranged and designed for use by, and . . . used by, not more than four non-related artists,
or an artist and his household”; it further states that “[a]n artist is a person so certified by the New York
City Department of Cultural Affairs.” NEW YORK CITY ZONING RESOLUTION art.1, § 12-10 Definitions,
available at http://www.nyc.gov/html/dcp/pdf/zone/content.pdf.
transport is inadequate, their only hope is to find work within walking

distance,111 but zoning removed that option long ago.
In cities zoning thus “encourage[s] the concentration of poverty,” which
is “economically significant if, as some argue, it creates destructive ‘feedback’
effects such as abandonment cycles, landlord milking, speculative
disinvestment, and ‘red-lining.’”112 And people living in city centers are not
the only ones affected: “zoning that is too rigorous can actually destroy the
possibility of employment in a suburb.”113 The former governor of Maryland,
Parris Glendening, who spearheaded that state’s Smart Growth policy,
implicitly criticized single-use zoning when he noted “the importance of
developing housing opportunities in proximity to real job opportunities.”114
E. Reduced Quality of Life
Although quality of life has no legal definition, it can fairly be called a

hot topic, and as a result some general parameters have emerged.115 Good
quality of life is associated with the presence in one’s everyday life of positive
factors such as health, pleasant surroundings, fulfilling work and educational
opportunities, satisfying recreational activities, proximity to friends and loved
ones, and, of course, enough time to enjoy these positive factors. Bad quality
of life is associated with the presence of negative factors such as crime,
pollution, and anything else that could be described as the opposite of a
positive factor: poor health, lack of time, etc. While quality of life is
obviously important for individuals, its importance to the city, region and state
should not be underestimated: it is emerging as a critical factor in the post-
millennial economy. “[A] Wall Street Journal article highlighted ten factors
that high-tech industry leaders consider when making location decisions. . . .
The third factor was . . . a good quality of life. In contrast, financial

112. Dietderich, supra note 9, at 32-33.
113. Bogart, supra note 72, at 712 n.55.
115. See generally Douglas M. Hershman, Quality of Life Issues in Relation to the Homebuilding
Industry, 18 DEL. LAW . 19 (2000) (noting the importance of one’s immediate surroundings to quality of
life and the detrimental impact of urban sprawl); James R. Rasband, The Rise of Urban Archipelagoes in
the American West: A New Reservation Policy?, 31 ENVTL . L. 1, 22 (2001) (stating that quality of life
includes access to a wide range of recreational opportunities, access to the great outdoors, and an absence
of pollution); Beatley & Collins, supra note 4, at 218 (citing health and education as factors); Bob Cindrich,
Work, Love, Play and the Quality of Life, 5 LAWYERS J. 6 (2003) (discussing satisfying work, time with
family and friends, health, and other factors).
incentives—long the mainstay of state economic development strategies—

came in last.”116
Euclidean zoning is not conducive to quality of life. To take one obvious
example, its “isolationist patterns that separate[] uses” have created a
landscape in which “we no longer walk anywhere. Our kids are bussed or
driven, and every little venture from home becomes a voyage.”117 For elderly
people in particular, this is a nightmare: in a city or suburb whose very
structure makes people dependent on cars, becoming unable to drive is
synonymous with becoming unable even to accomplish everyday errands, let
alone enjoy social and recreational activities. Meanwhile, “the psychological
and financial cost of long commutes”118 takes a toll on working adults,
particularly parents, whose commutes rob them of time with their children.119
This dependence on cars also has health consequences, because it removes all
but the briefest walking from most people’s daily lives. When Maryland
launched “a statewide campaign to encourage walking as a means of
preventing obesity, cardiovascular disease, and other chronic diseases” as part
of its 2002 Smart Growth initiative, the legacy of Euclidean zoning placed
considerable obstacles in the way: the state had to “help local communities
better understand methods to design more walkable neighborhoods”120 and
“aggressively retrofit[] existing roads with long-needed sidewalks.”121 As the
governor put it, Maryland’s Smart Growth “effort is more than a fight against
. . . sprawl. It is a fight for . . . a better quality of life.”122
Euclidean zoning also interferes with other factors associated with quality
of life. While the definition of a pleasant environment is clearly subjective,
it is worth noting that Euclidean “biases make it nearly impossible to create
a new development that replicates the qualities that make historic
neighborhoods like Boston’s Beacon Hill or Back Bay so attractive,”123 but
zoning-mandated lot sizes, square footages, and other regulations minutely
116. Glendening, supra note 84, at 1496, citing Chen May-Yee, The Global Battle: ‘Let’s Make a
Deal,’ WALL ST . J., Sept. 25, 2000, at R. 10.
119. See, e.g., Peter T. Kilborn, “Relos”: America’s Domestic Expatriates, INT ’L HERALD TRIB .,
June 2, 2005, at 3 (describing high-income new arrivals to suburbia who “found good schools, safe streets,
neighbors they like and a big house and a yard. But they did not count on the grueling traffic, on how far
away everything seems . . . or on the stresses of a breadwinner’s travels.”).
121. Id. at 1506.
122. Id. at 1495.
dictating the physical features of the homes in a given zone strongly promote
cookie-cutter suburbs with identical homes on identical cul-de-sacs.
Meanwhile, the sheer distance between the various locations of everyday life
complicates social and recreational activities and wastes time: the average
American spends fifty-five minutes a day driving.124
As for crime, the Euclid court speculated that zoning would reduce it:
“[a] place of business in a residence neighborhood furnishes an excuse for any
criminal to [enter] . . . where, otherwise, a stranger would be under the ban of
suspicion.”125 This is simply incorrect: first, most crimes are not committed
by strangers or outsiders.126 Second, “[m]ixed-use districts that provide
housing, offices, shops, and other services, attract a far wider range of people,
while spreading out their activities over longer periods of time. Consequently,
the streets . . . are . . . safer both day and night, while being less congested at
peak periods.”127 Euclid’s legacy is visible in the quality of life in America’s
inner cities, where “[a] crisis of economic stagnation deprives our poorest
neighborhoods of the commercial activity that might promote a healthy street
life . . . [and] public spaces once filled with busy shoppers have become the
‘turf’ for gang members and drug dealers.”128
III. PROPOSED SOLUTIONS : NEW URBANISM AND SM ART GROW TH
“New Urbanism reflects an American version of the European compact

city, where the mixing of shops and residence in the urban center is designed
to generate city life and attract pedestrians toward a higher density, less
automobile-dominated community.”129 In direct contrast to Euclidean zoning,
“[t]he foundational planning principle of new urbanism . . . is . . . that
relatively dense, mixed-use development is necessary for healthy community
life.”130 Indeed, “a growing number of scholars, planners, and architects have
124. U.S. DEP ’T OF TRANSP., BUREAU OF TRANSP. STATISTICS, NAT ’L HOUSEHOLD TRAVEL SURVEY
DAILY TRAVEL QUICK FACTS (2005), http://www.bts.gov/programs/national_household_travel_survey/
daily_travel.html.
125. Village of Euclid v. Amber Realty Co., 272 U.S. 365, 393 (1926) (citation omitted).
126. See, e.g., FBI, U.S. DEP ’T OF JUSTICE , CRIME IN THE UNITED STATES 2002, available at
http://www.fbi.gov/ucr/cius_02/html/web/offreported/02-nmurder03.html (stating that 75.6% of murder
and manslaughter victims knew their assailant); Press Release, Bureau of Justice Statistics, U.S. Dep’t of
Justice, Women Usually Victimized By Offenders They Know (Aug. 16, 1995), available at http://
www.bedfordcountyso.org/resources/domestic/DOJstat.htm.
128. Garnett, Ordering, supra note 6, at 33-34.
129. Kushner, supra note 50, at 52.
rediscovered Jacobs’s objection to zoning laws’ segregation of land uses.”131

They contend that Euclidean fragmentation of uses is detrimental to safety, to
residents’ sense of community, and to economic vitality;132 in designing the
most livable, efficient cities, then, “the challenge is to zone actively for
density and a mixture of uses.”133 Smart Growth, meanwhile, is not a type of
city design but a way of organizing overall development at the regional level.
It “envisions a reduction in the extension of low-density suburban
subdivisions as the predominant pattern of development[,] . . . embrac[ing]
policies that target infrastructure subsidies to designated growth areas and that
direct government investments to . . . renovation and revitalization [rather
than] . . . new development on the suburban periphery.”134
The two approaches support and amplify each other. Because a major
premise of Smart Growth is that “[o]nly through revitalizing urban centers can
growth be accommodated without further urban sprawl and a rising threat to
the urban ecology,”135 the urban center it advocates is essentially a New
Urbanist one, “characterized by mixed-use, compact, walkable communities,
built onto existing towns and communities, where open space is protected.”136
Smart Growth “generally involves [public] transit-oriented development,
walkable communities, mixed land uses and housing types, higher densities,
and open space preservation.”137 It “is based on the recognition that sprawl
can no longer deliver either affordable or accessible housing without terrible
traffic congestion and that cities failing to adopt Smart Growth systems will
miss out on economic development and the sought-for opportunities that come
with growth.”138 A land-use code that followed Smart Growth principles,
then, would “permit accessory buildings to be used as dwellings, dwelling unit
types to be mixed, home occupations and live or work units, and housing in
commercial zones.”139 It would be designed to achieve a “balanced urban
development pattern that creates inclusive housing, supports home-based
business, defines the public realm, facilitates pedestrian accessibility, and
minimizes the use of the car while supporting public transit.”140
131. Id. at 32.

132. See generally Frug, supra note 5; Wickersham, supra note 2.
135. Id. at 52.
136. Beatley & Collins, supra note 4, at 198-99.
137. Harvard Law Review Association, supra note 47, at 2291.
140. Id. at 1447.
The potential benefits to the environment and the economy are clear, and
it has also been argued that implementing Smart Growth and New Urbanism
together is “the best feasible strategy for reforming American urban design
and rejuvenating its cities and suburbs . . . [while also] offering minority and
poor communities the best opportunity for enhanced access to employment,
community destinations, and an improved urban living environment.”141
Whether these arguments are true or not cannot be demonstrated by any
American city, because zoning law and local government structure have
hampered efforts to implement these ideas; existing Smart Growth efforts are
pilot projects established too recently to show definitive results, and true New
Urbanism has not been tried on a large scale, since “most communities enact
New Urbanism on a parcel-by-parcel basis through an overlay zoning
amendment enacted at the developer’s request.”142 But “[t]he New Urbanist
approach is really not new; it comes from observations of cities that work.”143
We now turn to one such city: Paris.
IV. THE FRENCH EXPERIENCE
A. Smart Growth Is Normal; New Urbanism Is Nothing New
i. Lack of Urban Sprawl and Inner-City Decline
Paris is the capital of Ile-de-France, a region covering 4,648 square miles

with a population of 10,952,011.144 By comparison, the New York metro area
covers 13,847 square miles145 and contains 21,923,089 people.146 It is clear at
first glance that the Paris area is more densely populated than the New York
area: 2,361 inhabitants per square mile for Paris versus 1,583 for New York.
However, these numbers do not account for open land. New Jersey, which has
thirteen counties considered part of the New York metro area, is sprawling so
rapidly that it is projected to become “the first state . . . to exhaust its supply

142. Id. at 64.
144. As of the 1999 census.
145. The definition of the New York metro area used here is that of the U.S. Geological Survey,
which includes a total of twenty-nine counties in the states of New York, New Jersey, and Connecticut.
See U.S.G.S., NEW YORK METRO . REGION : MAPPING CHANGE THROUGH TIME , available at http://l
andcover.usgs.gov/urban/info/new_york/index.asp.
146. Based on the 2004 Census. See http://www.nyc.gov/html/dcp/html/census/popcur.shtml.
of land available for development.”147 The situation in the Paris metro area is
quite different: fully 80% of Ile-de-France is farmland, woods, or forest.148
That leaves only 20% of the region—929.6 square miles—as land used for
housing, industry and commerce, infrastructure, etc., which gives the region
a much higher density of 11,781 people per square mile. Interestingly,
Manhattan, which as an island measuring under twenty-three square miles is
by far the most densely populated city in America, is much denser than Paris:
it houses 66,429 people per square mile,149 while Paris intra muros houses
52,387.150 New York thus manages to have both extreme population density
at its core and sprawl everywhere else. In contrast, despite its population
density, the Paris region is not a stifling megalopolis surrounded by empty
land. Big-city life is obviously an option for residents interested in that
lifestyle, but those who prefer the quiet life can find it: Paris has upscale
single-family home sections,151 and 60% of the municipalities in Ile-de-France
have populations of less than 2,000 people.152 Obviously, they use their land
very differently than we do: we sprawl, they don’t.153
As for inner-city decline, there is no such thing in Paris. The center of
Paris contains the Louvre, the Latin Quarter, and residential areas whose value
147. Laura Mansnerus, New Jersey Is Running Out of Open Land It Can Build On, N.Y. TIMES,
May 24, 2003.
148. INSTITUTE FOR URBAN PLANNING AND DEVELOPMENT OF THE PARIS-ILE -DE -FRANCE REGION ,
ATLAS DES FRANCILIENS VOL. I, summary available at http://www.iaurif.org/fr/ressources_doc/
publications/publicationsrecentes/atlas/somatlas1.htm.
149. Manhattan island is 22.4 square miles, with a population of 1,488,000. Greater New York
Chamber of Commerce, New York City Facts and Figures, http://nyc.chamber.com/NYC_FACTS.html.
The fact that New York is more densely populated than Paris is no doubt due to the fact that it permits
much taller buildings in the urban core. For purposes of comparison, Chicago has only 12,603 people per
square mile and the city of Los Angeles just 8,198. WORLD ALMANAC 417, 420 (2006).
150. WORLD BOOK ENCYCLOPEDIA 160 (2006).
151. Article UG.1.2 of the Paris zoning code, noting that the zoning map defines a few areas within
Paris’s General Urban zone that happened to develop as primarily single-family homes and villas (i.e. small
mansions), forbids new construction for industrial use, small craft workshops, warehouse or office purposes
in those defined areas, except in two such areas, where small craft workshops may still be built. Note that
the uses themselves are not forbidden, only new construction designed for those uses; also, commercial
activities other than those specified are apparently permitted.
ATLAS RURAL ET AGRICOLE DE L’ILE -DE -FRANCE , summary available at http://www.iaurif.org/fr/
ressources_doc/publications/publicationsrecentes/atlas/atlas_rural.htm.
153. In offering lifestyle options ranging from apartments in the densely-populated urban core to
single-family homes in rural areas, the organization of the Paris region resembles the “sequence of
environments [that] . . . eliminates the ‘urbanizing of the rural’ . . . [and] the ‘ruralizing of the urban,’”
precisely as Duany and Talen have argued American cities should. Duany & Talen, supra note 8, at
1453-54.
and desirability is indicated by their price per square foot: according to a

2005 senate report, on average residential real estate in Paris intra muros is
worth 4,745€/m2 , or $525/sq. ft.154 The oldest, most central parts of the city
are not only the ones built along the most traditional French lines (i.e.
ubiquitous mixed-use neighborhoods and mixed-income buildings, as
described in (ii) below); they are also the most expensive. In late 2004/early
2005, the average sale price for real estate in the Latin Quarter was 6,387 €/m2
and on the Ile Saint-Louis, a small island just east of the island on which Notre
Dame is located, April 2005 prices were 6,000-9,000€/m2 for most properties,
rising to 8,000-15,000€/m2 for apartments overlooking the Seine or situated
in former mansions.155
It is quite telling that Paris’s closest socioeconomic equivalent to
America’s inner cities are the few areas that were not planned or built in the
traditional French mode: namely, the suburbs where social housing was built
during the 1960s and the 1970s in strict Modernist style, which, in a radical
departure from French urban tradition, separates uses and housing types,
thereby segregating and isolating the population. Just as the buildings in these
areas resemble American ghetto housing projects, the history of these troubled
suburbs resembles that of the American inner cities subjected to the mid-
twentieth century Urban Renewal movement, which “is now widely thought
to have been a disaster for the low-income people and communities it
purported to assist.”156 These suburbs are not familiar to tourists, but their
names—e.g., Seine-Saint-Denis, Seine-et-Marne and Val-d’Oise—should ring
a bell for American readers who followed the November 2005 news stories
about rioting among Paris’s urban poor: these places were the tinderbox for
social unrest.157 It might almost be said that they were designed for that.
154. FRENCH SENATE REP ., QUEL RETOURNEMENT POUR LE MARCHÉ IMMOBILIER ?, available at
http://www.senat.fr/rap/r05-006/r05-0065.html. One square meter equals 10.76 square feet, making the
price 441€/sq. ft. The exchange rate used is that of Feb. 16, 2006.
155. KHS apartment rentals, citing Paris Chambre des Notaires, Le marché immobilier, ventes—avril
2005, available at http://www.khs.fr/ParisArchives.cfm?IDTexteNewsArchives=154.
156. David J. Barron, The Community Economic Development Movement: A Metropolitan
Perspective, 56 STAN . L. REV . 701, 706 (2003).
157. Kim Willsher, A country in flames . . . French cities teeter on the edge of anarchy, THE DAILY
TELEGRAPH (London, UK), Nov. 6, 2005.
ii. Mixed Use: A Structural Approach
In contrast to the Euclidean approach, Paris has generally tolerated or

even explicitly encouraged mixed uses within a single district.158 The
Euclidean approach is visible in almost all American cities and towns. New
York City’s zoning code is a model of typically American complexity: it not
only distinguishes residential, commercial and manufacturing use zones, it
subdivides them into eighteen different “use groups,”159 each of which may be
further subdivided into between three and ten subgroups.160 The subgroups
are further distinguished by varying requirements on features such as parking,
setback, and “floor area ratio,”161 such that two otherwise identical sub-
subgroups may differ in one or more of those requirements.162 In contrast, the
most recent Paris zoning code divides the city and surrounding greenspace
into just four zones, three of which are neither residential nor commercial;163
the city’s houses, apartment buildings, shops, cafés, offices, and other
commercial establishments thus fall within a single zone, General Urban.164
Obviously, General Urban is by definition mixed use.
The previous Paris zoning code, passed in 1977,165 was somewhat more
complex; it divided the city into eleven zones and supported some
specialization where it already existed, “favoring, for example, employment
158. Paris is not alone in this: France’s Code of Urbanism requires municipalities to adhere to the
principle of “diversity of urban functions,” i.e. mixed use, and to pay particular attention to the balance of
jobs and housing in a given area. C. Urb. Art. L. 121-1(2).
159. See “NYC Zoning Glossary,” http://www.nyc.gov/html/dcp/html/zone/glossary.shtml#
use_group.
160. See, e.g., “New York City Zoning Residence Districts,” http://www.nyc.gov/html/dcp/html/
zone/zh_resdistricts.shtml (stating that the residential use groups are subdivided into the basic categories
R1 through R10, each of which may be further subdivided).
161. See, e.g., “New York City Zoning Commercial Districts,” http://www.nyc.gov/html/dcp/html/
zone/zh_commdistricts.shtml (stating that the numerical suffix used in some zoning classifications indicates
variations in parking, floor area ratio, and other such requirements).
162. In most New York City zones, special permits, variances, and similar methods of bureaucratic
waiver may allow for exceptions to one or more general rules. This is also typical of American zoning
codes, whose detail and complexity make it necessary to create a bureaucratic apparatus by which at least
a minimal degree of flexibility can be introduced into the system.
163. Those three are Zone N (Nature and Forests); Zone UV (Green Urban), i.e. parks and other
public landscaped areas; Zone UGSU (Major Urban Services), i.e. train stations and rail lines, hospitals,
waste treatment centers, water reservoirs, riverside ports, convention centers, and major centers of industrial
distribution. Detailed descriptions of each zone are available at http://www.v2asp.paris.fr/v2/urbanisme/
PLU/Reglement/Default.ASP.
164. In French, “zone urbaine générale.” This covers everything not covered by the previous three
zones.
165. The Plan d’Occupation des Sols. Law of 28 Feb. 1977.
where it was already strongly present.”166 However, the Paris definition of

favoring one use did not include absolutely barring others: efforts to favor
residential use in already heavily residential areas, for example, only forbade
commercial uses that involved “significant job creation.”167 In some 400 years
of urban planning, Paris’s 1967 Plan d’Urbanisme Directeur law was the first
attempt to zone for use, defining business, residential, university and
administrative (government) zones.168 This law lasted only a decade; the 1977
reforms redefined most areas not in terms of use but in terms of the density of
the built environment.169 As any visitor to the city can confirm, the result of
allowing owners the freedom to use their buildings as they see fit is that the
basic necessities of everyday life—stores, schools, banks, cafés, churches,
doctor’s offices, cultural amenities, etc.—are all within easy walking distance
of residences. This dispersal of commercial activity throughout the city also
means that many people’s jobs are within walking distance, and indeed, many
Parisians actually do walk to work.170 Paris exemplifies Jane Jacobs’s belief
that “[t]he most effective mixture of uses are fine-grained: each block should
bring together different uses, and not be dominated by a single activity, no
matter how thriving.”171
Many American planners, accustomed to the strict control Euclidean
zoning gives U.S. municipalities, might wonder how a major city could allow
owners so much freedom over such a long time without descending into chaos.
The expected result might be a proliferation of nuisances and of jarring
buildings that conflict with the surrounding neighborhood. A visit to Paris
will demonstrate that chaos has not occurred, and the reasons it has not should
be familiar to any American lawyer. Uses that are or tend to be nuisances
have been prevented, of course, but not by barring up front any use that might
conceivably disturb the residents; instead it is done through a combination of
166. Paris City Hall, Zonage et destinations, http://www.paris.fr/portal/Urbanisme/Portal.lut?

page_id=971&document_type_id=5&document_id=962&portlet_id=2416.
167. Paris City Hall, Zonage et destinations, http://www.paris.fr/portal/Urbanisme/Portal.lut?
page_id=971&document_type_id=5&document_id=962&portlet_id=2416 (emphasis added).
168. Law of 6 Feb. 1967.
169. The 1967 law is also responsible for certain details of the Paris skyline: it set 31 meters as the
maximum height for buildings in the city center and 37 meters for buildings on the outer edges of Paris
intra muros, apart from a tiny number of Modernist projects in southern Paris.
170. Paris City Hall has published charts illustrating that, with the exception of a few areas at the
city’s outskirts, at least 10% of Parisians walk to work, and in about one-third of Paris neighborhoods,
including some of the wealthiest areas in the center-west of the city, more than 19% of people do.
DIAGNOSTIC DÉPLACEMENTS, at 65, fig. 44 [hereinafter Paris, DÉPLACEMENTS], available at http://
www.v2asp.paris.fr/fr/urbanisme/plu/rapport_presentation/diagnostic/Diagnostic_Deplacements.pdf.
servitudes,172 rudimentary zoning for use,173 and appropriate civil or

administrative action, e.g., nuisance suits or environmental enforcement. In
other words, Paris uses a system that roughly parallels the one most American
states used prior to the advent of Euclidean zoning: it explicitly prevents a
few obvious nuisances or hazards, and it gives affected parties the option of
enforcing servitudes or shutting down less-obvious nuisances themselves by
bringing suit. Beyond those limits, unless an owner buys a copropriété
(condominium) with contractually agreed restrictions, she is free to use her
property as a home, an office, an art studio, or whatever else she pleases.174
Paris testifies to the truth of Jacobs’s statement that “[i]ntricate minglings of
different uses in cities are not a form of chaos. On the contrary, they represent
a complex and highly developed form of order.”175
As for the relative absence of unsightly buildings, this is at least in part
due to the fact that Paris has historically tended to zone for structures rather
than uses. Between 1607 and 1902, zoning was used to set maximum building
heights,176 to regulate building materials due to fire risk,177 and to impose
172. French law recognizes three types of servitudes: public servitudes (e.g. for protection of natural
resources or historically significant sites, or for public utilities such as underground cables; see Code de
l’Urb., Art. R. 126-1); servitudes of urbanism (e.g. imposing maximum building heights); and private
servitudes (e.g. to ensure that owner A does not build a structure that impedes owner B’s enjoyment of B’s
property). It is worth noting that as a general rule all three types address structures rather than uses. The
first two types are discussed in JACQUELINE MORAND -DEVILLER , DROIT DE L’URBANISME , at 23-24 (Dalloz
ed., 6th ed. 2003). Private servitudes in France function very similarly to the U.S., in that they run with the
land unless the parties agree otherwise and they are enforceable by affected parties (i.e. neighbors) rather
than by the government. All the public servitudes in Paris are listed in a single document, available at
http://www.v2asp.paris.fr/fr/urbanisme/PLU/Annexes/ANN1.pdf.
173. I.e., the classification of major industrial and similarly large-scale, high-impact uses (train
stations, hospitals, etc.) into the Major Urban Services zone. See supra note 161.
174. The few exceptions to this freedom affect a comparatively tiny number of owners: in the Paris
region (Ile-de-France), most new non-residential uses that require very large spaces, and thus might create
traffic, noise, or similar nuisances if left unregulated, require an agrément (official permission) in addition
to construction permits. Agrément is theoretically required for construction, expansion or rehabilitation of
any space used for industrial, commercial, professional, administrative, technical, scientific or teaching use.
C. Urb. Art. R. 510-1. However, the exceptions nearly swallow the rule: certain municipalities, certain uses
(e.g. retail stores, see Art. 510-6-I(2), and movie theaters, see Art. 510-6-I(2)), all industrial and warehouse
properties under 5000m2 (53,820 sq. ft.), and all other non-residential uses occupying less than 1000m2
(10,764 sq. ft.), are exempted. Art. 510-6-I. Likewise, Art. 510-6-I(5) exempts mere changes in use or
changes of users/owners from this requirement. In fact, when a law was proposed that would have required
mayoral permission for owners of buildings used in commerce or trade to change their buildings to a
different use, the Constitutional Counsel declared it unconstitutional as a violation of property rights and
the right to do business. Cons. Const. no. 2000-436, 7 Dec. 2000, J.O. 14 Dec. 2000.
175. Cited in Wickersham, supra note 2, at 563.
176. The Royal Declaration of 10 April 1783 and the Patent Letters of 28 August 1784 fixed the
maximum building height—defined as the height of the façade, not including rooftop rooms—at the width
minimum courtyard sizes to promote access to sunlight and free circulation of

air.178 This has continued to the present day, with Paris’s General Urban
district subdivided not into use zones but into areas of different maximum
heights and structure types.179 This focus on structures explains not only the
ubiquity of mixed-used property, since the government is only minimally
attentive to uses, but also the visual harmony of the city; aesthetic
considerations have long been a high priority.180 In both old and new parts of
Paris, aesthetic façade restrictions are enforced181 and new construction is
conditioned on the requirement that the building envelope harmonize with
surrounding structures.182 This requirement explains the near-total absence of
skyscrapers in Paris: the city proper has only six buildings over 110m (361
feet), five of which are shorter than 140m (459 feet), and all of them were
built under the short-lived 1967 zoning law.183 Paris’s skyscrapers are located
primarily in La Défense, an area just west of the city proper that was
of the street on which the façade faced.

177. Wooden elements on the exterior of buildings must be covered with plaster. Edict of 1607,
promulgated by King Henri IV. Fire safety measures seem to have been in vogue in the seventeenth
century: New York’s first such law was passed in 1648. RICHARD PLUNZ , A HISTORY OF HOUSING IN NEW
YORK CITY 1 (1990).
178. Decree of 13 Aug. 1902.
179. Articles UG.10 and UGSU.10 describe colored lines on the city’s planning maps that “define,
according to their color, the vertical height of the building envelope applicable to buildings that front on
the street, and, according to their type (continuous line, dotted line . . .), the shape of the roofline.” Paris
City Hall, Local Urban Plan Definitions: Filet de couleur, available at http://www.v1.paris.fr/V2/
urbanisme/PLU/Lexique_PLU.asp. The height of buildings with no setback from the street is generally still,
as in the eighteenth century, defined relative to the width of the street (including sidewalks). Figures 5-9
in the following document illustrate the relationship between street width and the maximum façade height
of buildings fronting on streets, while figure 10 illustrates additional allowable rooflines and total heights.
http://www.v1.paris.fr/fr/Urbanisme/PLU/Reglement/Reglement_Figures.pdf.
180. Safety and aesthetic concerns can combine: the classic Paris roof, with its Mansard style and
graceful tilt back from the façade, is an example. This roof style derives from the Royal Declaration of
10 April 1783 and the Patent Letters of 28 August 1784, which regulated the angle at which rooftop rooms
had to lean back from the façade. These laws were made because people whose poverty relegated them to
living on rooftops built precarious dwellings there, and in addition to being unattractive, there was concern
that the flimsy structures might fall into the street; tilting them back made them both less visible and less
likely to fall.
181. Façade restrictions are not only architectural in nature: for example, antennae and satellite
dishes are only permitted on roofs and must be set back far enough to make them impossible to see from
any public space, while air conditioning units must be placed so as to limit their visual impact. Paris
Zoning Code, Art. UG11.1.3(3).
182. Paris Zoning Code, Art. UG11.1.3 (stating that new construction must integrate with the existing
neighborhood, taking account of proportion, scale, and façades of surrounding buildings, but specifically
stating that new construction can be contemporary in style).
183. See Paris: High-Rise Buildings (Completed), http://www.emporis.com/en/wm/ci/bu/sk/li/
?id=100603&bt=9&ht=2&sro=1.
constructed specifically for such structures. The point of separating structure

types is to create architecturally coherent neighborhoods: Paris intra muros
is built largely from limestone and plaster, or concrete treated to look like
plaster,184 and with few exceptions it caps building heights at the width of the
street plus a variable but small number of meters.185 La Défense, meanwhile,
is all tall buildings in steel and glass.186
Even in the context of plans to improve quality of life for Paris residents,
city authorities remain preoccupied with structures, particularly their beauty
and character: “the harmony of the city, of its colors, shapes, and materials
. . . the specificity of its neighborhoods, the coherence of their organization
. . . [and] the nature of the shops that increase the charm of Paris streets
necessitate particular attention and careful work on the part of construction-
industry actors.”187 This approach could be described as a vision of the city
as a work of art that is perpetually in progress; the question is not where
unwanted uses should be banished to, but what architectural techniques can
be used to harmoniously blend all uses into the surrounding landscape.
Construction or rehabilitation of industrial shipping ports on the river Seine,
for example, “must be accompanied with a particular effort to integrate them
into this sensitive site . . . [and] must be compatible with the continuity and
quality of leisurely walks along the banks of the Seine.”188 In a nutshell, Paris
city planning lets owners put their property to virtually any use they want, so
long as they do so within structures that are regulated to enhance safety,
beauty, and quality of life for everyone. Aesthetically pleasing mixed-use
neighborhoods are the natural result.
184. The Paris Zoning Code states that “limestone and plaster are dominant in Paris and give the city
its general tonality,” and while this should be respected, the use of other materials and colors that coordinate
with the existing urban fabric is not forbidden. It notes, however, that materials and colors may be
restricted if construction is within an architecturally homogenous area. Art. UG.11.1.3(4).
185. See, e.g., Paris Zoning Code Art. UG.10.3-10.4. Defining maximum building heights according
to the width of the street on which the buildings face, as Paris has long done, could be based on safety
concerns such as reducing traffic congestion by limiting the number of people living on narrow streets, but
it also has the aesthetic result of inciting all the owners on the street to make their buildings the maximum,
and thus the same, height.
186. Even La Défense is mixed use, with 150,000 jobs and 20,000 inhabitants. See the web site of
the Hauts-de-Seine county council, http://www.hauts-de-seine.net/portal/site/hds, click on Cadre de Vie,
then Urbanisme, then La Défense.
187. Paris City Hall, Local Urbanism Plan, Planning and Durable Development, Ch. 1 (Improving
the Quality of Life for All Parisians in a Lasting Way), at 3, http://www.v2asp.paris.fr/fr/urbanisme/PLU/
PADD/PADD_CadreVie.pdf. Note, “durable development” is a literal translation of a French term
describing city, regional and national planning that aims to coordinate economic progress, social welfare,
and environmental protection.
188. Id. at 6.
iii. Building(s) for People
This Note has listed five key consequences of Euclidean zoning: (1)
urban sprawl and the corresponding deterioration of city centers; (2) racial and
socioeconomic segregation; (3) environmental and energy problems; (4)
adverse economic impacts; and (5) reduced quality of life. While Paris’s lack
of urban sprawl and its vibrant city center have already been discussed, an
analysis of the environmental status or energy usage of the Paris region is
beyond the scope of this Note; suffice to say that French law has “provisions
requiring consideration of traffic-minimization measures in . . . land use
planning,”189 Paris proper averages only 0.5 cars per household,190 and the
less-wasteful, less-polluting energy policies of France and of Western Europe
in general are well known.191 What remains, then, is a brief discussion of
economics, segregation, and quality of life. They will be treated together.
Though an examination of the Paris economy is beyond the scope of this
article, it should be clear by now that since sprawl has not happened in Paris,
the associated economic impact—such as massive infrastructure expenses and
the displacement of jobs to areas many people have trouble getting to—is a
non-issue there. Again, it is only in the Modernist social-housing wastelands
outside the city proper that people are physically isolated from economic
activity. The government recently responded to that problem by designating
every neighborhood in France that is characterized by deteriorating residential
buildings and “a marked imbalance between housing and jobs”192 as a
“Sensitive Urban Zone,” which qualifies businesses relocating there for a
subsidized incentive package.193 In effect, the government is trying to make
189. Richard L. Ottinger & Mindy Jayne, Global Climate Change Kyoto Protocol Implementation:
Legal Frameworks for Implementing Clean Energy Solutions, 18 PACE ENVTL . L. REV . 19, 35 n.101
(2000).
190. Paris, DÉPLACEMENTS, supra note 170, at 58. The Paris region as a whole, meanwhile, averages
0.9 cars per household. Id.
191. For example, the U.S. Department of the Environment’s E.I.A. INT’L ENERGY ANNUAL shows
that Western Europe produces only somewhat more than half as many carbon dioxide emissions as North
America. See Table 2, Global Carbon Dioxide Emissions by Region from 1980-2002, http://www.calvert-
henderson.com/energy-table2.htm. This is despite an equivalent quality of life and a population that
exceeds North America’s by some 50 million people.
192. The French phrase is “un déséquilibre accentué entre l’habitat et l’emploi.”
193. FRENCH SENATE REP ., LE PROJET DE LOI D ’ORIENTATION ET DE PROGRAMMATION POUR LA
VILLE ET LA RÉNOVATION URBAINE : UNE RÉPONSE AUX INSUFFISANCES DE LA POLITIQUE DE LA VILLE ,
http://www.senat.fr/rap/a02-403/a02-4032.html. The French term for these neighborhoods is “Zone
Urbaine Sensible.”
those areas mixed use to repair the economic—and hence, social—damage

done by experimenting with single-use, Urban Renewal-style housing projects.
Meanwhile, newer social housing has been integrated into the ordinary fabric
of Paris life rather than being banished to outside the city proper.194
As for socioeconomic segregation, building structure emerges as the key
issue. “Only 26% of homes in Ile-de-France are single-family homes; 7 out
of 10 are apartments.”195 The Paris area thus offers classic big-city living,
with an unusual quirk: “[a] substantial part of the city’s greatness derives
from the fact that the upper floors of the buildings in all districts are
residential and that each structure has a mixed-income population.”196 This
is due to building design: in buildings that predate elevators, the best
apartments—that is, the largest ones with the highest ceilings and the most
elaborate decorative details—are in the first two floors above ground level,
where wealthy families live.197 Smaller apartments that require residents to
climb more stairs are correspondingly less desirable; these intermediate floors
house the middle class.198 At the top are garrets, small rooms whose ceilings
follow the roofline; these were once used for storage and servants’ quarters199
and are now rented to artists and students.200 “All of these residential spaces
sit on top of public uses. The approach offers an abiding principle for
contemporary development of urban spaces.”201
This basic concept of a single building containing apartments of very
different values has persisted even when legal or technological changes have
194. For example, the new Paris zoning code defines certain neighborhoods as lacking affordable
rental housing, and requires new residential developments that exceed 1000m2 in those areas to set aside
25% of the development for affordable housing. Paris Zoning Code, UG2.3(1). There are, of course,
incentives for such construction; see, e.g., Construction Code, Title 3 (describing subsidies and favorable
loans for construction, acquisition, and renovation of social housing).
ATLAS DES FRANCILIENS VOL. II, summary available at http://www.iaurif.org/fr/ressources_doc/
publications/publicationsrecentes/atlas/somatlas2.htm. The term translated here as “single-family homes”
is maisons individuelles.
196. Gindroz, supra note 17, at 1421. This is generally true in Paris, with the unfortunate exception
of the 1960s-70s era Modernist housing projects: they typically dedicate all floors, not just the ones above
ground level, to residential use, and contain apartments too similar to each other to permit notable variation
in value.
197. Id. With the introduction of elevators, the hierarchy was altered. See notes 202-03, infra, and
accompanying text.
199. Id. at 1421.
200. Attic apartments are called “chambres de bonne,” literally “maid’s rooms,” and are commonly
rented to students. LAROUSSE FRENCH -ENGLISH ENGLISH -FRENCH DICTIONARY UNABRIDGED 144 (1993).
altered building structures. The city’s control over building structure enables
it to impose minimum standards, like the 1902 rule setting the minimum area
of an interior courtyard at thirty square meters,202 that have sometimes
modified the pattern of desirable apartments: those facing the courtyard were
left for servants and the poor in pre-1902 buildings whose cramped courtyards
inhibited access to fresh air, but in post-1902 buildings, particularly with the
rise of street noise due to cars, street-facing apartments became cheaper and
courtyard-facing ones more expensive.203 The advent of elevators likewise
shifted the pattern without destroying it; for example, since the city’s planning
regulations still impose some form of Mansard-style roof in most districts, and
thus top-floor rooms whose ceilings follow the roofline,204 the top floor alone
may not be suitable for American-style penthouse apartments, but developers
can give upper floors a different value in other ways. They can make them
more desirable by turning the top two stories into a loft with a mezzanine
under the roofline, placing less desirable apartments underneath; or they can
keep them cheaper by focusing their construction or renovation budget on the
apartments below, which become correspondingly more desirable and
expensive.
This pattern contrasts powerfully with the American approach: a century
before the ill-fated Urban Renewal movement, New York City developers
were already building poorly-constructed residential developments consisting
of a concentrated mass of identical homes targeted exclusively towards the
poor—that is, slums.205 Euclidean zoning, which New York City invented in
1916, simply provided a legal framework that set this pattern of segregation
in stone by providing municipalities with a mechanism to prevent future
development that did not follow the principle of separating uses and housing
types, and, by extension, socioeconomic groups.
In contrast, avoiding socioeconomic segregation is an express goal of
France’s Code of Urbanism, which requires city plans and municipal maps—
the rough equivalent of American zoning maps—to adhere to the principle of
202. Decree of Aug. 13, 1902.

203. Antoine Le Bas, Maison, immeuble et compagnie: le singulier pluriel du logement de banlieue:
enquêtes dans les Hauts-de-Seine 1840-1940, http://www.culture.gouv.fr/culture/revue-inv/insitu-
ns/lebas/html/lebas.html.
204. Paris City Hall. Figures 5-10 illustrate the relationship between street width, façade height, and
the size and shape of rooflines. http://www.v1.paris.fr/fr/Urbanisme/PLU/Reglement/Reglement_
Figures.pdf.
205. For example, the Gotham Court complex, built in 1850 to house 140 poor families, consisted
of tenements each of which faced an alley and “contained two dwellings measuring ten feet by fourteen feet
. . . subdivided into two rooms, both without cross ventilation.” PLUNZ , supra note 177, at 6.
mixité sociale, or socioeconomic diversity.206 The concept of mixed-income

residential areas does not, of course, imply a complete intermingling of all
possible social classes in one building or even one neighborhood. However,
in Paris, a notable degree of socioeconomic diversity exists even in the most
expensive areas—that is, even in neighborhoods whose residents presumably
have the resources, knowledge and clout to exclude unwanted neighbors to the
greatest extent the law allows. The Ile Saint-Louis, originally built up in the
17th century as mansions and villas for the wealthy,207 is now largely
apartments built within these original structures; the real estate prices cited
above208 suffice to show that there are no poor people living there. However,
the price range is very wide: the highest-priced residences, at 15,000€/m2 , or
$1663/sq. ft., are worth 250% more than the lowest-priced ones. Given that
the entire island is only approximately 720m long by 200m wide209 (787 x 219
yards), this is the equivalent of an American neighborhood measuring a block
and a half by four blocks in which prices for homes of the same size range
anywhere from $400,000 to $1 million.210 Of course, since homes on Ile
Saint-Louis come in a range of sizes and some apartments are available for
rent, the income mix is even greater than this price range would suggest.211
As for quality of life, “France . . . meets or exceeds the United States on
many measures of health and well-being. French life expectancy is higher,
child mortality is lower, and education levels are about the same.”212 Paris’s
walkability is demonstrated by the fact that 54.4% of all trips Parisians take
within the city are on foot.213 And while education levels may be roughly
equal, the results are not: mixed-income neighborhoods mean mixed-income
schools,214 and in international comparisons, French elementary and high
206. C. Urb. Art. L. 121-1(2).

207. See, e.g., MSN Encarta encyclopedia entry for Paris, § II-A, “Islands.”
208. See footnote 156, supra, and accompanying text.
209. http://fr.wikipedia.org/wiki/%C3%8Eles_parisiennes (French Wikipedia page comparing the
sizes of all the islands in Paris).
210. Those who have difficulty imagining how values per square foot could vary that widely within
a tiny, fairly homogenous area that is all part of the same school district need only consider the variables:
e.g., ordinary apartment with low ceilings, no parking and no view on a relatively busy street versus
perfectly restored 18th-century apartment with parking, fourteen-foot ceilings, marquetry floors, and gilded
woodwork located in a former mansion on a quiet pedestrian street with a river view.
211. In March, 2006, perusal of French real estate web sites such as www.district-immo.com and
www.seloger.com showed Ile Saint-Louis studio apartments for rent as low as 490€/month, and sales with
asking prices ranging from studios at 240,000€ to five-room apartments at 2,630,000€.
212. Beatley & Collins, supra note 4, at 218.
213. Paris, DÉPLACEMENTS, supra note 170, at 58.
214. Note that, due to differences in the way schools are funded, even socioeconomically segregated
schools in France would not be as underfunded as in the U.S.: local and regional governments are
school students consistently outperform Americans. A 2004 comparison of

fourth-graders’ attitudes to reading found French children to be the most
enthusiastic, while Americans tied with English children for least
enthusiastic.215 In a 1998 international study of the advanced mathematics
skills of high school seniors in forty-five countries, “the United States’ score
of 442 was below the international average of 501. Only Austria (436) scored
lower. France, with a score of 557, finished atop the rankings in this
category.”216 This is despite the fact that France actually spends 23% less per
student than the United States on primary and secondary education.217 The
factors that go into educational performance are obviously very complex, but
studies in America have shown that underprivileged children learn better in
mixed-income classrooms.218 This supports an inference that, whatever other
factors may be interacting to give French students such good results, their
average scores on international comparisons are not dragged down by large
numbers of seriously underperforming peers, since in France more lower-
income children get a good education—simply because they get the same
education as their wealthier neighbors.
B. French Legal and Political Structures That Make This Possible
While the political and legal framework underlying land use in France is
different than in the U.S., similar principles underpin both systems. An in-
depth discussion is beyond the scope of this article, but a few points may help
illustrate that Paris’s approach to land use is not totally alien to American
ways. At least one scholar has noted that “[t]he word ‘police’ as used in
‘police power’ may have . . . entered English from French,”219 a point
responsible for only 26% of education spending in France, versus 92% in the U.S. Nat’l Ctr. for Educ.
Statistics, U.S. Dep’t of Educ., COMPARATIVE INDICATORS OF EDUCATION IN THE UNITED STATES AND
OTHER G8 COUNTRIES: 2004, at 19. http://nces.ed.gov/pubs2005/2005021.pdf [hereinafter N.C.E.S.,
COMPARATIVE ]. The point here is thus not so much that Paris’s mixed-income residential areas give lower-
income children access to better-funded schools, although that is to some extent the case, but that lower-
income children get the exact same curriculum, teachers, and materials as middle-class children.
215. N.C.E.S., COMPARATIVE , supra note 214, at 31.
216. Mark Sullivan, Study Finds U.S. High School Seniors Lag Behind Global Peers in Math and
Science, THE BOSTON COLLEGE CHRONICLE , vol. 6, no. 12, Feb. 26, 1998, available at http://www.bc.edu/
bc_org/rvp/pubaf/chronicle/v6/f26/timss.html.
217. N.C.E.S., COMPARATIVE , supra note 214, at 16.
218. See, e.g., David Rusk, Classmates Count: Housing Policy is Also School Policy (Gamaliel Fdn.
1999), available at http://www.gamaliel.org/Strategic/StrategicpartnersRuskChatauqua.htm.
219. David A. Thomas, Finding More Pieces for the Takings Puzzle: How Correcting History Can
Clarify Doctrine, 75 U. COLO . L. REV . 497, 501 (2004).
confirmed by the Oxford English Dictionary;220 usage of the phrase pouvoir

de police in French law illustrates that it is the same concept.221 Land use law
as a means of enforcing the principle that “one may not use one’s own
property to the injury of another” has been traced back to an English legal text
written in 1187,222 some five generations after the 1066 Norman Invasion
imposed French language and customs on England, and the same concept is
found in a French-language text dating from 1290.223 Even some aspects of
French land use law that appear quintessentially French are perfectly at home
on U.S. legal soil: although American cities generally do not consider
aesthetics to the extent Paris does, zoning laws passed solely for aesthetic
reasons have been held to be a valid exercise of the police power so long as
the standards used are adequate and appropriately applied.224 And as for
Smart Growth, the Paris region uses incentives to channel growth into certain
areas,225 which is obviously compatible with American traditions: Maryland’s
initiative does likewise, albeit with different incentives.226
In many American zoning cases, the key argument is that the ordinance
so reduces the owner’s property value that it amounts to a taking requiring
compensation under the Fifth Amendment.227 The French concept of
expropriation is similar to takings, but it is simpler and in some ways more
favorable to owners.228 For example, if the owner and the state cannot agree
on a purchase price, the decision will be made by a judge, as in the U.S., but
the costs of that civil action are borne entirely by the state regardless of the
220. COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY VOL. II 2227 (1971).
221. See, e.g., CODE GÉNÉRAL DES COLLECTIVITÉS TERRITORIALES, Art. L-2211-1 (stating that
mayors’ pouvoir de police is what gives them the ability to act in the name of public safety); Cour adm.
d’appel de Douai, Nov. 29, 2004, N° 02DA00265, unpublished (analyzing a lawsuit over a construction
permit in terms of the Code of Urbanism and the pouvoir de police of the municipal authorities who granted
the permit).
222. Thomas, supra note 219, at 502-03.
223. Id. at 503.
224. See, e.g., Hoeck v. City of Portland, 57 F.3d 781 (9th Cir. 1995); Parking Ass’n of Georgia, Inc.
v. City of Atlanta, 450 S.E.2d 200 (Ga. 1994).
225. C. Urb. Art. L. 510-1(III) and R. 510-6 (requiring official permission—a complex bureaucratic
process—for development of commercial, industrial, and similar uses in Ile-de-France, but exempting
development in certain targeted areas).
227. E.g., Nollan v. California Coastal Com., 483 U.S. 825, 836 (1987) (holding it to be a taking if
the municipality conditions a building permit on the granting of a public easement across the owner’s
private beach).
228. This may be part of the reason such lawsuits are much less common in France. One study
indicates that suits by developers seeking zoning approval are about nine times less common than in the
U.S. Jefferey M. Sellers, Litigation as a Local Political Resource: Courts in Controversies Over Land
Use in France, Germany, and the United States, 29 LAW & SOC ’Y REV . 475, 486 (1995).
outcome.229 The state must also pay moving costs for those displaced by the
expropriation230 and incidental damages such as lost rental income,231 and
displaced owners have preferential status for certain benefits that help mitigate
the impact of their property loss, such as low-interest construction loans.232
And while the concept of expropriation does not apply to acts by the state that
merely diminish the value of property without physically affecting it,233 such
acts are by definition much less common: what typically provokes takings
lawsuits in America is rezoning a parcel to a less profitable use, but that
cannot often happen in a country that barely zones for use at all. The other
common trigger for takings lawsuits in the U.S. is the placing of uniquely
onerous conditions on construction permits,234 but the French Code of
Urbanism prohibits conditioning building permits on anything other than
mitigating risks that the construction itself would pose to public safety or
health.235 As such, many widely cited U.S. land use cases would probably
never have arisen in France.
The key political difference in French land use law is that the power to
regulate land use is diffused between the nation, each region, and each
municipality.236 In contrast, “[l]and use control in the United States
traditionally has been the domain of local government[;] . . . most states have
passed enabling statutes that grant zoning power to municipal and county
governments, which then may choose to exercise the powers granted,”237 and
as evidenced by the fact that 97% of incorporated communities in the U.S. use
Euclidean zoning,238 municipal and county governments offered that power
229. C. Exprop. Art. L13-5.

230. C. Exprop. Art. L13-26.
231. Michel Huyghe, Expropriation pour cause de l’Utilité Publique, JCP G 2004, I 143, ¶ 17.
232. C. Exprop. Art. L14-2.
233. However, if a partial taking makes the owner unable to continue using the remaining property
in the normal way, she can force the state to expropriate the remaining property with full compensation.
C. Exprop. Art. L13-10. Interestingly, expropriation law does apply if the state’s act in physically taking
part or all of someone’s property immediately raises the value of what was taken: in that case, the state
must compensate the owner not only for the loss of what she had, but for the lost profit. C. Exprop. L13-12.
234. E.g., Nollan v. California Coastal Com., 483 U.S. 825 (1987).
235. C. Urb. Art. R. 111-2.
236. The effects of this diffusion are seen in the margin within which local and regional authorities
can operate; for example, in cases where an agrément (official permission from the city) is required before
a building permit may issue, the decision to grant or deny it must be compatible with Paris’s official
planning and growth policy. Art. 510-7.
237. Thomas R. McKeon, State Regulation of Subdivisions: Defining the Boundary Between State
and Local Land Use Jurisdiction in Vermont, Maine, and Florida, 19 B.C. ENVTL . AFF. L. REV . 385,
387-88 (1991).
238. Dietderich, supra note 9, at 29 (citing CHARLES M. HAAR , LAND -USE PLANNING 185 (1977)).
almost universally take it. Such statutes, based on the 1922 Standard Zoning
Enabling Act, were of course necessary because under the U.S. system, the
power to regulate the land within a state inheres in the state itself, not in
municipalities. During the 1960s and 1970s some states began a “quiet
revolution” to take some of these powers back; the American Law Institute
promulgated a Model Land Development Code, which, inter alia, “submit[ted]
any development that is of regional impact or affects an area of critical
concern to extra scrutiny under a state-mandated procedure before
approval.”239 This new approach was adopted by several states, but never
caught on; where it was implemented, the question of where local power stops
and state power begins continues to be an issue.240 France’s political structure
is quite different from America’s, but for those interested in exploring how a
similar approach to zoning can be implemented within a federal system more
structurally similar to the U.S., Germany offers an intriguing example.241
V. CONCLUSION
The French example seems to demonstrate that proponents of New

Urbanism and Smart Growth are right: a planning process that incorporates
these principles “produce[s] an urbanism that is fundamentally unlike
conventional sprawl, featuring urban areas that are compact, pedestrian-
oriented, and containing mixed uses. It . . . produce[s] viable urban settings
that people . . . want to live in,242 thereby reducing pressure to consume natural
habitats and convert more land to low-density sprawl.”243 The unfortunate
experience of Paris’s Urban Renewal-style social housing, meanwhile,
demonstrates that even in a country with a renowned social safety net and an
excellent, centrally-funded education system, single-use, socioeconomically
segregated neighborhoods have a devastating impact on their residents in both
human and economic terms.
In other words, city planning really does matter: welfare and more
equitable funding for education cannot compensate for an urban landscape
that is designed to make people fail. “Smart Growth [advocates] must better
engage the public, stakeholder groups, and governmental institutions in
understanding the relationship between land use issues and our overall quality
239. McKeon, supra note 237, at 389.

240. Id. at 391.
241. See Larsen, supra note 18, for an in-depth examination of German land use.
242. As evidenced by real estate values in Paris intra muros.
of life.”244 Clearly, legal and political changes must take place in order for
this solution to be workable in the United States. The alternative, however,
is to maintain a status quo that is at odds with all parts of the political
spectrum: Euclidean zoning violates conservative principles by distorting the
market and restricting property rights to an absurd degree, and it offends
liberal ones by perpetuating America’s decades-long slide into stark racial and
socioeconomic segregation. In most American municipalities, “conformity
with the [zoning] ordinance has . . . become an end rather than a means of
achieving a better quality of life or addressing some greater community
vision.”245 It is time for this to change.


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NOTES

DIVIDE AND SPRAWL, DECLINE AND FALL: A COMPARATIVE

implemented ubiquitously” in the United States:8 “[a]bout ninety-seven

II. EUCLIDEAN PROBLEM S

Euclidean zoning reflects a functionalist view of the city as a “machine,

A. Urban Sprawl and Decaying Cities

Urban sprawl has been defined as “low-density, land-consuming,

By creating a legal framework uncannily conducive to sprawl47 and the

41. Kleppel, supra note 3, at 47.

on oil, extraordinary transportation costs for families, higher costs to deliver

B. Racial and Socioeconomic Segregation

i. Historical Background: Euclid in Context

The hallmark of Euclidean zoning is its insistence on dividing the

circumstances, apartment houses, which in a different environment would be . . . entirely

55. Id. at 394-95.

ii. Euclid’s Legacy: A Great Divide

The decline of inner cities has had a disproportionate effect on

Perhaps surprisingly, America’s racially segregated pattern of land use is

C. Environmental and Energy Problems

“Despite the existence of distinct social and economic problems, the

Initiative: The Next Steps, 29 FORDHAM URB . L.J. 1493 (2002).

91. Wickersham, supra note 2, at 548.

98. Dietderich, supra note 9, at 32.

105. Glendening, supra note 84, at 1496.

transport is inadequate, their only hope is to find work within walking

E. Reduced Quality of Life

Although quality of life has no legal definition, it can fairly be called a

111. Meredith, supra note 39, at 459.

incentives—long the mainstay of state economic development strategies—

III. PROPOSED SOLUTIONS : NEW URBANISM AND SM ART GROW TH

“New Urbanism reflects an American version of the European compact

rediscovered Jacobs’s objection to zoning laws’ segregation of land uses.”131

131. Id. at 32.

IV. THE FRENCH EXPERIENCE

A. Smart Growth Is Normal; New Urbanism Is Nothing New

i. Lack of Urban Sprawl and Inner-City Decline

Paris is the capital of Ile-de-France, a region covering 4,648 square miles

141. Kushner, supra note 50, at 74.

and desirability is indicated by their price per square foot: according to a

ii. Mixed Use: A Structural Approach

In contrast to the Euclidean approach, Paris has generally tolerated or

where it was already strongly present.”166 However, the Paris definition of

166. Paris City Hall, Zonage et destinations, http://www.paris.fr/portal/Urbanisme/Portal.lut?

servitudes,172 rudimentary zoning for use,173 and appropriate civil or

minimum courtyard sizes to promote access to sunlight and free circulation of

of the street on which the façade faced.

constructed specifically for such structures. The point of separating structure

iii. Building(s) for People

those areas mixed use to repair the economic—and hence, social—damage

202. Decree of Aug. 13, 1902.

mixité sociale, or socioeconomic diversity.206 The concept of mixed-income

206. C. Urb. Art. L. 121-1(2).

school students consistently outperform Americans. A 2004 comparison of

B. French Legal and Political Structures That Make This Possible

confirmed by the Oxford English Dictionary;220 usage of the phrase pouvoir

229. C. Exprop. Art. L13-5.

The French example seems to demonstrate that proponents of New

239. McKeon, supra note 237, at 389.