You may recall my visit to this subject last year, when I told you about a commentator pushing the idea of limiting fast-food outlets as a means to combat the “obesity epidemic.” I hate to say I told you so, but check out this news item from the June 22, 2006, New York Post (I found it through Overlawyered.com, of course):

Call it the “McZoning Law.”

A powerful city council member yesterday proposed overhauling the city’s zoning rules to limit the number of fast-food restaurants in neighborhoods where obesity is epidemic among youths.

The fat-busting plan also would bar McDonald’s, Burger King, Dunkin’ Donuts and the like from locating near schools, said council Health Committee Chairman Joel Rivera (D-Bronx).

“We have to be as strong with obesity as with the cigarette campaign. More people die from obesity-related issues than smoking cigarettes,” said Rivera.

“We’re looking at the zoning resolution to limit the number of fast-food restaurants,” he added.

Rivera asked city Assistant Health Commissioner Lynn Silver, testifying before his committee, what she thought of his idea.

She said restrictive zoning seemed to be a “perfect example” of how government could help curb the fat epidemic.

“It’s one of the best ways to tackle the obesity issue,” Rivera told The Post. “In low-income areas, you find more fast-food restaurants. In more affluent areas, you find more mom-and-pop restaurants.”

In one of the city’s fast-food meccas – 125th Street in East Harlem – on-the-go eaters were divided on the issue.

“Trying to hide a donut won’t work. People will find it,” said Gary Londis, a Yonkers teacher.

Other critics blasted the idea as anti-business and big government run amok.

“This is what you call the ‘Nanny State’ at its absolute worst,” said Mike Long, head of the state Conservative Party.

Zoning has traditionally been used to keep apart uses of land that are incompatible with each other. Keeping away from residences land uses that generate lots of noise or pollution is one obvious example. More commonly today, zoning is used to keep away from residences any commercial use, and to segregate high-density uses (like apartments) from single-family residences.

It’s probably safe to say that most people think these basic zoning practices are beneficial to society. Nowadays, however, people looking for solutions to society’s many behavioral problems have decided that the way to keep people from doing things that negatively affect society is to keep the purveyors of those things away from the people who want them.

A recent local example of this phenomenon is the Tucson City Council’s adoption of a zoning ordinance limiting the locations that can be used by “payday loan” peddlers. Now, I am not for a moment suggesting that the presence of these lenders, whose practices are viewed by many as predatory, is good for society. I am merely pointing this out as another example of government attempting to control what people do by limiting where they can do it.

My name for this phenomenon is “behavioral zoning.” It is founded on the notion that land use should be regulated not (or not only) for the purpose of keeping incompatible uses apart, but for the purpose of encouraging or discouraging certain behaviors. As you might guess, I think this is a bad idea.

There are, of course, legitimate reasons for regulating the location of fast-food outlets. Most people would not want one next to their house because of potential traffic, noise, litter (which as far as I am concerned is the biggest negative impact of these businesses), and bright lights at night. Those are concerns that relate to the incompatibility of the use, however. Using zoning to limit the use as a way to discourage behaviors associated with it is an entirely different concept, a concept that in my view is disconnected from the fundamental purpose of zoning. It is, I think, a misuse of zoning.

The idea that behavioral zoning is a solution to certain societal problems plainly appears to be gaining favor. Almost completely forgotten in the discussions of behavioral zoning is the interest of the property owner. Yes, there should be limitations on what activities I can undertake on my property when those activities would be incompatible the neighbors’ activities. But how far should government be able to go in dictating how I can use my property?


Law professor Stephen Bainbridge, who blogs at ProfessorBainbridge.com: “What could be a more quintessential example of how gross government power has become than the idea that the government can take your home away from you and then turn around and give it to some real-estate developer just because the latter will pay higher taxes than you do? Ever hear the expression ‘your home is your castle?’ Not anymore.”