1 2006 CDC Diabetes and Obesity Conference May 18, 2006 The Use of Zoning to Restrict Access to Fast...

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2006 CDC Diabetes and Obesity Conference

May 18, 2006

The Use of Zoning to Restrict Access to Fast Food Outlets:

A Potential Strategy to Reduce Obesity

James G. Hodge, Jr., J.D., LL.M. Associate Professor, Johns Hopkins Bloomberg School of Public Health;

Executive Director, Center for Law & the Public’s Health at Georgetown and Johns Hopkins Universities

The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities

CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights



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Principle Objectives• Discuss (briefly) the connections between

fast food and obesity• Examine the legal theories for regulating

fast food• Explore the legal bases for zoning• Determine possible effects of zoning on

consumption of fast food• Assess zoning as a tool for creating

incentives to healthier eating habits• Highlight case law supporting zoning of fast

food outlets





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Major Resource: Center for Law and the Public’s Health, The Use

of Zoning to Restrict Fast Food Outlets: A Potential Strategy to Combat ObesityJulie Samia Mair, Matthew Pierce, Stephen P. Teret See also the Center’s Companion Manuscript:

City Planner’s Guide to the Obesity Epidemic: Zoning and Fast Food

Funded by CDC’s National Center for Environmental Health

Available online at: www.publichealthlaw.net/Research/Affprojects.htm#Zoning





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Fast Food - Defined

Inexpensive food that is prepared and served quickly to consumers, often through drive-thru or curbside service, that tends to be high in fat and low in nutritional value

Alternatively stated, fast food is fatty food served fast





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Connecting Obesity and Fast Food

Fast foods contribute to the obesity epidemic for many reasons, including:

large, inexpensive portion sizes

high energy density coupled with poor nutrition

frequency of consumption

by the average American

ease of availability





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Legal Approaches to Limit Fast Food Consumption - 1

There are many legal theories and approaches to regulate or limit fast food consumption among consumers.





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Create Financial Incentives to Encourage Healthier Behaviors

Example - Use of tax incentives to control purchases

Shown to be effective in limiting consumption of tobacco products

Recall the proposed Seattle “coffee” tax





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Require Improvements in Food Quality or Diversity

Example 1 – federal regulations to limit additives to foods served in fast food environments (and elsewhere)

Example 2 – threats of potential regulation can result in similar benefits (e.g., Oreo cookies, sodas in public schools)





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Litigate to Compensate Injured Persons Seeking Recourse Against Fast Food Outlets or other Suppliers of Unhealthy Foods

Example – proliferation of “fast food” suits in recent years

While the success of these claims is limited to date, they raise awareness of the poor quality and effective marketing of fast foods, especially related to children





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Control Marketing/Advertising of Fast Food Outlets

Example – FCC limits on content and amount of advertising during children’s programming, including ads related to fast food outlets

Though potentially useful, First Amendment “commercial speech” protections limit scope





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Limit Access to Fast Food Outlets through Zoning Requirements at the Local/Community Level





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Essential Questions

What is the supporting scientific evidence for zoning laws that address fast food outlets?

What underlies the enactment of zoning laws that limit, restrict, or regulate fast food outlets?

Have these zoning laws withstood judicial scrutiny?





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Basic Definitions - 1 Zoning- action by the state, or by a

city under delegated authority, to control: the heights of buildings or structures

(e.g., signage) the amount of free space in a

community legitimate uses of buildings and lots

(aka. “use zoning”).





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Basic Definitions - 2 Police Power- the inherent authority of

government to protect the health, safety, and general welfare of the public, which may involve imposing restrictions on private rights.

Home Rule – the delegated authority of a local government to regulate on matters of local concern

“Arbitrary or Capricious”- laws that are not rationally related to a legitimate governmental purpose under due process.





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Zoning as an Incentive to Healthier Eating Habits - 1

• Zoning options can lead to improvements in human nutrition through enabling (+) and limiting interventions (-)





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Zoning as an Incentive to Healthier Eating Habits - 2

• Enabling interventions (+) – zoning that leads to or encourages placement of groceries or other food suppliers offering healthy products

• Limiting interventions (-) – zoning that limits or restricts the placement or operation of entities, like fast food, that offer less healthy choices





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Zoning to Create a Healthier Food Retail Market

Conditional

Types of Use Zoning

Incentive

Performance





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Conditional Zoning Definition: site-specific designation of

uses of buildings or properties Example: rezoning of a residential

area to only allow the development of restaurants that are not fast-food restaurants

Challenges: “spot zoning,” “contract zoning”

Justification: “Public interest test”





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Incentive Zoning

Definition: construction or offering amenities that benefit the public

Example: provision of incentives to developers to build a health food store

Challenges: “contract zoning” Justification: trade-offs are

predetermined





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Performance Zoning Definition: delineate specific standards that

any user of the land must adhere to Example: require a fast food restaurant to

offer a minimum number of healthy choices

Challenges: standards must be rationally related to a legitimate governmental objective

Justification: promotion of public health and general welfare





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Two Major Themes of Zoning Laws to Limit Fast Food Outlets

Bans Restrictions

Fast Food Outlets/Drive-through Service

“Formula” Restaurants

Application to Certain Areas

Quotas

Density of Fast FoodOutlets

Distance from Other Uses





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Banning Fast Food Outlets or Drive-through Services

Example:Zoning Bylaw of the City of Concord, MA bans fast food and/or drive-through restaurants

Justification: Lessen traffic congestion Preserve the aesthetic qualities of the

community





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Banning “Formula” Restaurants Example:

City of Calistoga, CA bans “formula” restaurants (e.g., franchise or chain establishments)

Justification: Preserve the uniqueness of the community to preserve viable visitor industry





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Banning Fast Food in Certain Areas Example:

San Francisco, CA prohibits “formula retail uses” (including fast food outlets) in its Hayes-Gough Neighborhood Commercial District

Justification: Protect vibrant small business sector Preserve the distinctive character of the

district





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Restrictions through Quotas Example:

Berkeley, CA restricts number of fast food restaurants in its Elmwood Commercial District

Justification: Preserve the shopping area that serves

the surrounding community Preserve the character of the

neighborhood





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Restrictions - Density Requirements Example:

Town of Warner, NH: “No fast-food or drive-in restaurant shall be located on a site, lot or parcel within two thousand (2,000) feet of any other site, lot or parcel occupied by another fast-food or drive-in restaurant....”

Justification: Encourage the growth of

other businesses Maintain compatibility with

rural character of the community





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Restrictions - Distance from Other Uses Example:

Detroit, MI: certain, fast food restaurants may not be built within 500 feet of an elementary, junior high, or senior high school

Justification: Potential to create a nuisance (e.g., litter, noise, odors, loitering, traffic)





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Constitutionality of Zoning Laws Courts have upheld these zoning laws on

the basis of: public health objectives (e.g., traffic

concerns, pedestrian safety) non-public health objectives

(e.g., preserving neighborhood characteristics, economic considerations)





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Cases Concerning a Public Health Objective Bellas v. Planning Board of Weymouth

(Massachusetts, 2002)

Appellate court affirmed that the Planning Board of Weymouth was justified in denying a drive-through window permit for a Dunkin Donuts that would jeopardize pedestrian safety (specifically children at nearby elementary school)





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Cases Concerning a Non-Public Health Objective Bess Eaton Donut Flour Company, Inc. v.

Zoning Board of Review of Town of Westerly (Rhode Island, 2000)

Superior Court of Rhode Island upheld the decision of the Westerly Zoning Board of Review to deny a request by Bess Eaton Donut Flour Co. to develop a bake shop with drive-through services because it would adversely impact the neighborhood.





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Recent Developments - 1

Nantucket, Mass.

“Formula” restaurants banned from downtown “in order to maintain a unique retail and dining experience” (April 2006) http://www.newrules.org/retail/nantucket.html





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Recent Developments - 2

Cape Elizabethtown, Maine

Proposal to amend zoning ordinance to prohibit “formula” or fast food restaurants in the business districts (March 2006) http://www.capeelizabeth.com/news/fastfood.html





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Recent Developments – 3

Ogunquit, Maine

Voters approve a zoning change banning all “formula” restaurants from the town (November 2005)www.mainetoday.com





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Challenges to Increased Use of Zoning to Combat Obesity - 1

Will legal support for zoning to restrict access to fast food outlets continue if express purpose is to help American consumers improve their choices of food intake?





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Will additional constitutional concerns (e.g., due process, equal protection, commerce clause) arise if zoning is recast principally as a tool for public health improvement?





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To counter extreme variation in local zoning practices, can (or should) a national standard or model for use zoning be developed?





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Final Thoughts

• For more information about these issues or the Center please contact me or my Center colleagues.

• James Hodge – [email protected]

• Julie Samia Mair – [email protected]

• Stephen P. Teret – [email protected]

• Please also visit our website at: www.publichealthlaw.net





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