Zoning: Fast Food Facts

In today's Crain's In$ider there is a post done on the proposal by Councilman Rivera to use the zoning laws to restrict the proliferation of fast food outlets. In the view of Crain's the research done on the issue at The Bloomberg School of Public Health demonstrates that zoning hasn't been use to address obesity but only to "enhance neighborhoods' aesthetic appeals." The heading on the post reads, "Fast-food fight data muddied up."

That conclusion, however, is unwarranted. What the study underscores is that the use of zoning to restrict fast food has been done all over the country on the basis of "community character" concerns, a basis that the authors feel is much less substantial and justifiable than an underlying concern with obesity.

The premise here is that the real justification for any zoning legislation hinges primarily on the police powers of a municipality. Historically health and safety concerns have been the primary variable, under the rubric of police powers, that have been cited for justifying any zoning changes. In fact the first comprehensive zoning laws were enacted in 1916 by New York City precisely to address health issues that were attendant to both the pervasiveness of slum housing as well as the proximity of residential buildings to more noxious industrial uses.

In other words zoning has always been about health and safety and the authors of the report (a collaboration of Hopkins public health folks and Georgetown law professors) are saying very clearly that if fast food outlets can be restricted on the basis of community character, with the restrictions being upheld by the courts, than the more serious health rationales should be able to withstand any legal challenge.