Tuesday, April 30, 2013

Broadening Perspectives - a collective work (Part II)

(At the beginning of 2013, The Green Elephant embarked on a journey to look for other bloggers to engage them on various green topics. Our first topic was on "Sustainability and Education" and you can read the articles here. Our second topic for the months of March and April is on Green Buildings and as usual, in our research we invariably touched on topics such as community building, innovation, zoning, urban agriculture, and other relevant topics. Our research is limited but we came to some common conclusions about growing a worthwhile city and shifting our paradigm of industrialization. If you wish to contribute to our work or want to suggest a topic, please contact Lauren at contact@brainboxltd.com.)

1.    How to Make Great, Green Cities: People, Water, and Streets - by Stephen Wade  

2.    Trash is the New Green - by Lauren Campbell-Kong 

3.    Zoning and Regulations - by Jin Kong 

4.    Zoning and Urban Agriculture - by Jin Kong


How to Make Great, Green Cities: People, Water, and Streets
 - by Stephen Wade

“Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” – Margaret Mead

What does it mean to be green? In the modern era, its meaning has evolved from Rachel Carson’s documentation of pollution in Silent Spring, Teddy Roosevelt and and John Muir’s founding of the National Parks, and Henry David Thoreau’s solitary musings in Walden to a more complex, integrated, consumption-based, and urban meaning exhibited by Al Gore’s Inconvenient Truth, the emergence of the ecological footprint concept, and reports by the Environmental Protection Agency (EPA) about creating equitable, healthy, and sustainable communities.

Simply put, New York City, once considered the antithesis of green, now has some of the lowest per capita energy consumption in the USA because of its extensive reliance on public transit.[1] If green is now analogous to urban, what are the elements that make for great urban places?

As Harvard professor and New York Times contributor Howard Glaesar argues in his new book, “Triumph of the City”, the key to successful cities is clustering people close together. Agglomeration economies,[2] benefits that come from businesses and consumers locating near each other and reducing transportation costs, originally drove the growth of places like New York City, Detroit, and Chicago. However, as Glaesar argues, the entrepreneurial tradition of New York City has remained strong, especially in industries like financial services (whether that sector in particular contributes to sustainability is a whole other question), whereas a place like Detroit became more risk-averse and less entrepreneurial as the major auto industries consolidated and reduced competition. This thinking dovetails with other economists who see economic diversification as the key to economic resilience. The economic diversification index is a key measure for the progress the federal government is making towards sustainability. Therefore, one key to great, green cities is the clustering of entrepreneurial and diverse people, businesses, and ideas.

While a city does need clear rules allowing for buildings to cluster, the first steps are for a city to have clean water and be safe. Cities like Boston, London, and New York City made major public investments throughout their history to ensure access to clean water, thereby significantly increasing the sheer number of healthy people. Then, by increasing their residents sense of safety, the city smoothed the way for increased clustering of people and buildings. For developing countries today, Glaesar argues that these investments will lead to growth. In “The Travels of a T-Shirt in a Global Economy: An Economist Examines the Markets, Power, and Politics of World Trade”, the author, Pietra Rivoli, provides the context for urban, economic change. As countries have historically gone through industrialization, many started out as low-wage manufacturing economies, slowly growing their middle classes and infrastructure, and consequently increasing the workers’ demands for goods and better living and working conditions. As these demands increased, manufacturing moved to cheaper locations again, enabling and challenging the first country to find newer and more profitable industries. Glaesar’s and Rivoli’s arguments are optimistic in that they are hard to square with the current conditions for much of the world’s poor. Maybe if one compared the poverty of 19th century New York City with contemporary distressed cities, one would be similarly optimistic about their potential for change.

The other major element of a great, green city involves the place where people spend much of their time and their money, on the streets. While I have argued in the past that the design of streets reflect a community’s values, there is also strong evidence that making streets more “livable”, i.e. walkable, bikeable, is essential to green cities. The fundamental law of road congestion, that vehicle miles traveled increases one-to-one with the number of miles of new highway, makes it clear that cities can’t build more roads to reduce traffic. Building more roads grows car traffic and therefore pollution. Similarly, more fuel efficient cars aren’t a silver bullet. Efficiency improvements often result in more consumption, sometimes called Jevon’s paradox.[3] Finally, one of the seminal studies on road design by Donald Appleyard, “Livable Streets”, speaks to the social health of residents, another aspect of a green city. Residents who lived on light traffic streets had significantly more acquaintances than residents of heavily trafficked streets. The lighter the traffic, the larger the residents’ perceptions of their “home” territory. By building streets that offer more choices than simply driving, cities can reduce pollution and grow residents’ perceptions of their “home”.

There is little doubt the definition of green will continue to evolve as science continues to improve and cities continue to change. While the early efforts of Carson, Thoreau, Muir, and Roosevelt jump started a movement for a healthy environment, the work of many more thinkers and doers in ever widening fields will continue to reshape and grow our communities on a foundation of green thinking. My hope is that those efforts increasingly focus on the places where people and ideas have always congregated, cities.

[2] Id. at 46.

[3] Also referred to as Khazzoom-Brookes postulate (here is an updated version apparently of Jevon's paradox); similarly there's the so-called Snackwell Effect. 


Trash is the New Green
- by Lauren Campbell-Kong

Green building has been a growing industry for the past ten years and many companies and organizations recognize the long term benefits, ranging from environmental to health to financial benefits. Business buildings also have one of the largest environmental impacts on our planet, destroying green space and creating heat island effects where they are built. They account for 70% of electricity use in the United States, 40% of all energy use and generate 39% of all GHG emissions.[1]

Modern green building and construction has its roots in the USGBC, founded in 1998; in 2003 the council launched Leadership in Energy and Environmental Design (LEED). Today, LEED is at the epicenter of green building. It is widely accepted along the west coast of the United States where it made a huge impact in the construction industry.

We also saw other green building organizations and accreditations pop up in this area, some of which claim to be more rigorous than LEED. Some of the other organizations include: BREEM, Green Globes, and the Living Green Challenge started by the Cascadia Green Building Council.

Demographics on green building show that there is a high concentration of green buildings in the northwest region of the United States; there is also a more acceptance in the area in implementing green building designs.[2] This area has also seen a surge in new green building certifications, like the Living Green Challenge.

Currently the federal government requires all new federal buildings to be built to LEED standard, but according to a recent article, this might be changing. The U.S. General Services Administration (GSA) has been researching other green building certification schemes including the afore-mentioned Living Green Challenge and Green Globes.

Green Globes, originating from the Building Research Establishment’s Environmental Assessment Method (BREEAM), was created in 2000 and is operated by the Green Building Initiative here in the United States. It has recently been under scrutiny regarding its relationship with the lumber industry; some think that they aren’t tough enough with their requirements for wood use during green building. This offers us one of the many challenges facing green building initiatives: whose standard is the right one to follow? Who has the environment’s best interest at heart? Are the green standards being passed down the entire building process?

In addition to some of the problems associated with green building, such as a high upfront costs and the long term planning required to achieve “greenness,” there have been issues with project planning due to the difficulty in acquisition of green building materials.[3] Issues in the supply chain have been observed, especially on a global scale, and finding green suppliers is at the top of the list. The manufacturing and supply segments of the building chain have seen the largest changes in their operations than the other segments (contractor, subcontractor, designer). Going green in these sectors most often requires an overhaul in the way an organization obtains, tests, and profits from a resource and material. This suggests that green manufacturing is difficult to come by, and pricy when one does; yet it also demonstrates the necessity for such manufacturing to exist.

Contractors and subcontractors are hit hardest with the upfront financial costs and the delays that can be associated with green building.[4] Because they have to deal with the financial aspect from the bottom of the supply chain (manufacturing and supply) as well as the top (client), in addition to funding the necessary green building education needed to work in the green building industry, they take on the most burdens. Multiplied by the highly efficient time management needed for green building construction, contractors and sub-contractors don’t necessarily benefit financially from building green.

The long-term return on investment can sometimes jade the process of green building, leaving the question of ‘how effective is green building?’ looming, like a large elephant in a small room.

Catherine Mohr speaking during a TED conference about how ‘green’ is green building?

In her presentation she argues that green building doesn’t necessarily provide the energy savings and environmental impact relief that they claim. She considers operating energy use while building a green home and presents the amount of energy it took to tear down the ‘non-energy efficient’ home to start brand new. Even though materials were reused, rain water collection systems were installed, and FSC certified lumber was used, among other green construction materials, she found that it would still take her 4 years to gain back the energy that was used to tear down the old house; the same amount of energy she uses to drive each year. She ends her presentation stating that she used more energy flying to the Ted Talk than what she will be saving on her home; leaving the audience with the idea that some crucial behavioral changes can lend itself to a more positive environmental impact than green building.

While I can agree with her statement, behavioral changes are a necessity, her conclusion disturbs me. Yes, it did take a lot of energy use to build a green home, but what Mohr fails to address in her energy discussion are some key elements in addressing our environmental impact such as carbon emissions.

According to the EPA, residential homes account for 40% of an individual’s carbon footprint (much more than most individual’s driving) and 20% of our nation’s greenhouse gases come from residential homes (far more than an airplane ride) and while energy use is important in addressing our environmental problems, the sustainability movement takes a much more holistic approach to our livelihood; especially when we, as individuals, are given the opportunity to build a green home, not because the industry says it’s cool and all the rage, but because we want to.

It is amazing what human ingenuity can produce when we are given free reign over our homes.

Take for example, the House of Trash in Philo, Ohio. It is made entirely of trash and is one of the greenest buildings in the country. This home isn’t a LEED certified home, it isn’t a Green Globe initiative, it isn’t a Living Green Challenge; it is a couple of people, living in the Midwest, who want to make their impact on this planet a little smaller. They reused barn wood, tires, and plastic and glass bottles in the process. The energy that was put into creating and maintaining this home is human energy and they have diverted thousands of pounds of trash from a landfill and used it to their advantage; because they used post-consumed materials, they obviously did not have the supply chain issues that have been witnessed in the green building industry.

There was no demolition of a home, no expensive HVAC system installed, no wind turbines; just hard work and several pounds of trash. The ingenuity of Annie and Jay Warmke is a statement to the green building initiative and the green washing of the corporate industry. As a certified LEED GA, I can say that I appreciate what the USGBC has done for our construction industry, but as an environmentalist I must applaud the Warmke’s for using their creativity to produce a home that puts the green building industry to shame.


[1] J. Cidell, Building Green: The emerging geography of LEED certified buildings and professionals, (2009). See also The Professional Geographer, 61,(2). p. 200-15, USGBC, (2011).

[2] Id.

[3] P. X. W. Zou, & P. Couani, Managing Risks in Green Building Supply Chain Architectural Engineering and Design Management, 8. p. 143-158 (2012).

[4] Id. 


Zoning and Regulations 
- by Jin Kong

The common approach in the United States to zoning is Euclidean zoning. It is named after a famous 1926 Supreme Court case, Euclid v. Ambler Realty Co., in which Ambler Realty Co. challenged the Village of Euclid’s zoning code.[1] The Village of Euclid is a suburb of Cleveland. The Village council had then adopted a comprehensive zoning plan to regulate and restrict land use. The plan divided the area into different classes of use and Ambler Realty Co., challenged the enforcement of these zoning regulations on the ground that the enforcement would constitute as an unconstitutional deprivation of liberty and property without due process.

The issues presented to the United States Supreme Court were whether Village of Euclid’s zoning regulations were constitutionally valid; whether the zoning ordinances, which forbid industrial development in certain areas, was a violation of due process rights; and whether the zoning ordinances may forbid retail and apartment development in residential areas? The Supreme Court held in favor of the Village of Euclid in that such zoning ordinance is constitutionally valid when it bears a substantial relation to the health, safety, convenience, and general welfare of the inhabitants; municipalities may forbid industrial development in certain areas without violating due process rights of the landowner; and zoning ordinances may forbid retail and apartment development in residential areas. The Court reasoned that such zoning ordinances must find their justification in some aspect of the inherent police power, which remains with the local government, to regulate in the interests of citizen’s health, welfare, and safety. The validity of a given zoning ordinance thus must be considered in the context of the circumstances and locality.

After this decisive case, the term "Euclidean Zoning" emerged and influenced the content and design of zoning codes across the country for decades. Euclidean Zoning stereotypically regulates land development through land use classifications and dimensional standards. Typical land use classifications are single-family residential, multi-family residential, commercial, institutional, industrial and recreational. Each type of land use must comply with pre-determined dimensional standards that regulate the height, bulk and area of structures. These dimensional standards typically take the form of setbacks, sideyards, height limits, minimum lot sizes, and lot coverage limits.

The aim of Euclidean Zoning is to provide orderly growth, prevent overcrowding of land and people, alleviate congestion, and separate incompatible land uses such as insuring that factories and noisy airports are built far from a residential neighborhood.

However, Euclidean Zoning has since come under scrutiny due to its lack of flexibility and somewhat outdated planning theory. According to one legal scholar, Euclidean Zoning “is one of the great generators of suburban sprawl, with all of its environmental, economic, and social costs. These costs include pollution, loss of wilderness and farmland, racial and socioeconomic segregation of the population, and legal obstacles to effective urban rehabilitation."[2]

From criticisms such as these, other types of zoning codes emerged. Some prevailing ones include:

  • form-based zoning, which address the relationship between the form of buildings in relation to one another amongst scale and types of their surrounding streets and blocks; this type of zoning primarily regulate the character of development rather than only distinguish land use types; it is currently being employed by cities such as Miami and Denver;
  • incentive zoning, which incentivizes developers to consider community interest such as more open space or more affordable housing or better transit access; typical incentives include allowing developers to build large high-density projects otherwise not allowed under the existing zoning regulations, and there are also private sector credentialing that can be meet, such as LEED’s credit paths, so developers can enjoy the benefit of market incentives directly; this type of zoning emerged from cities such as New York and Chicago and has become more and more attractive to urban developers in the past two decades; 
  • performance zoning, which regulates the effects of land uses through performance standards as opposed to traditional Euclidean Zoning that regulates land use types; this type of zoning codes usually are more concerned with traffic flow, building density, access to light and air, and exposure to noise and other types of pollutions; this type of zoning regulation is flexible but is very difficult to administer; so far, no large cities have based their zoning completely on performance standards; Chicago has used this type of zoning in conjunction with Euclidean Zoning for its manufacturing districts;[3] 

There are other types of zoning codes that are used by municipalities. For example, modular zoning and green zoning are some of the emerging trends. Setting modular zoning aside, we now turn to consider Green Zoning and municipalities that adopts this approach and incorporates private third-party principles such as LEED principles into their zoning regulations.

Building Codes and Zoning regulations: Why Incorporating LEED into Local Zoning Regulations is a Non-Starter 

The building construction process and the energy it takes to operate those buildings contribute more than any other source to man-made carbon dioxide production. Here in the United States, buildings consume nearly 40% of all primary energy. Buildings and infrastructure also use up to 90% of all material that is extracted from the environment. In addition, storm water runoff from roofs containing asbestos degrades our water supply and construction activities causes erosion and sedimentation of lands. In their afterlife, construction and demolition wastes also account for about one-third of all landfill materials.[4]

LEED has been popular in the private sector to help reduce the burden placed on the environment by these buildings. LEED is an international standard that measures the sustainability of a building. It is a voluntary program originated in the United States and it was first designed to address commercial buildings and office spaces. But it has expanded its crediting system to private homes, neighborhood developments, and operations and management. Because it is a voluntary program, it’s fundamental philosophies are based on positive actions rather than passive obligations to the law. Incentivizing private action as opposed to enforcing more and more complicated government regulation is critical to the survival of our constitutional principles and the funding ideals of federalism of this country. We cannot stress enough the importance of the success of private voluntary initiatives such as LEED has shown.

In recent years, however, it has been a popular trend to incorporate LEED standards into local zoning regulations. This kind of Green Zoning expands on the authority of Euclid v. Ambler Realty Co. in that localities exercising their inherent power to regulate zoning for health welfare and safety by simply incorporating LEED requirements into their local zoning laws. Take City of Cambridge zoning ordinance (Massachusetts) for example, Section 22.23 requires that construction projects of at least 25,000 square feet of gross floor area but less than 50,000 square feet meet the requirements of the most current applicable LEED building rating system at level “Certified” or better.[5]

This kind of Green Zoning appears to be well intended and a good idea. But on closer inspection, there are serious problems.

First, LEED is a set of standards set by private parties and incorporating it into laws raises constitutional issues. Since LEED standards are always changing and not subject to voting or other public approval process, it is questionable if incorporating such a standard is even legal. It also raises a vagueness issue to the laws enacted: if the laws and regulations are enacted with a simple reference to LEED standards, which will invariably change without the general public’s vote, it may not have the force of law when challenged and therefore a moot point and waste of good legislative time and effort. It should be made clear that just because a local zoning regulation makes a reference to LEED, it does not render it illegal per se; rather, courts have held it is because of the changing nature of a private standard that warrants a closer inspection of the regulations that are in question.[6]

There are also preemption issues. Congress may enact laws that can expressively preempt local ordinances. If Congress should pass such a law creating standards that surpassing LEED standards, the local ordinance will no doubt not be enforceable. This is not much of an issue since builders will have to comply with the more stringent standard anyway, but it does put into doubt whether the incorporated LEED standard is stripped in total where even federal laws do not preempt certain aspect of the LEED standards that may apply, lower courts will nevertheless find the incorporation of LEED standards entirely void.[7]

Within the green building community, there is also a growing discomfort about local regulators adopting what is intended to be voluntary compliance programs.[8] The natural kind of discontent for regulations where unnecessary, especially when the industry is more than willing to embrace the standards voluntarily, perhaps runs deep in a country founded on the idea of limiting government interference into private affairs. Also, voluntary standards such as LEED are not designed as well drafted regulations; this may coerce builders to game the system and thus dilute the effect of the standard itself and reduce it to a mere paper chase. There is also limited data showing such zoning codes will actually improve building performance.[9]

There is also the question if it is even good politics to engage and decide which private green building standard is the gold standard to use in a local zoning regulation. Some have raised the issues that this kind of selective incorporation of private standards kills competition in the green building standardization industry. For example, there is an ongoing debate whether USGBC should give the monopoly on certifying wood for use in LEED projects to the Forest Stewardship Council (“FSC”).[10] According to reports, 60% of FSC certified wood comes from outside the United States and Canada; it has only 18% of the certified woodlands in North America. Compare this to the 80% of the certified woodlands Sustainable Forestry Initiative (“SFI”) has in North America, it doesn’t make sense to use FSC alone in the LEED process and neglect SFI. It also doesn’t make sense to incorporate this kind of LEED standard into local zoning regulations to give FSC a further monopoly.[11]

There are other serious questions to be answered when incorporating LEED standards into a local zoning regulation: Who should be the players in the green zoning and planning process and who should be regulating that process? Are some green building standards (LEED or otherwise) incompatible with good planning practices? Will the general public accept these green zoning implementations (green roofs, low flush toilets, etc.); will some of the LEED implementations stand-alone (mixed income housing) succeed without other government incentives? Can the local officials, with limited expertise and budget, properly oversee these green zoning laws?[12] The list goes on . . .

Perhaps one of the more important questions to ask, as pointed out by Michael Allan Wolf in A Yellow Light for “Green Zoning,” is can these Green Zoning regulations be incorporated on state wide or nation-wide basis, or is it inherently adaptive to local needs? Wolf suggests that in all of the difficulties of incorporating LEED into local zoning regulations, perhaps it is useful to think of zoning separately from building codes and adopt the California approach. [13] The California Green Building Code seeks to reduce energy use, water use, and aims to recycle or salvage non-hazardous construction and demolition debris. The California Codes does not make specific mentions of LEED standards; it does not incorporate LEED specifically. Although it does adopt some LEED prerequisites and requirements, the California legislature has taken the time to incorporate useful standards where applicable to avoid the pit-falls of whole-sale incorporation of third-party private standards into the forces of law.

California thus takes a hands-off approach in terms of Green Zoning but focuses on green building codes in its law making. There is also precedent in making this distinction: in 1995, the United States Supreme Court distinguished “between municipal land-use restrictions and occupancy restrictions” and stated that land-use restrictions designate compatible uses allowed and categorized uses as “single-family residential, multiple-family residential, commercial, or industrial” while things such maximum occupancy restrictions are considered building codes, which “cap the number of occupants per dwelling . . . [and] protect[s] health and safety by preventing dwelling overcrowding.”[14]


[1] Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[2] Eliza Hall, Divide and Sprawl, Decline and Fall: A Comparative Critique of Euclidean Zoning, 68 U. Pitt. L. Rev. 915, 916 (2007).

[3] See REVISE, RECREATE, REZONE: A NEIGHBORHOOD GUIDE TO ZONING PREPARED BY THE METROPOLITAN PLANNING COUNCIL, available at http://www.metroplanning.org/zoningGuide/index.html.

[4] Sarah B. Schindler, Following Industry’s LEED: Municipal Adoption of Private Green Building Standards, 62 FLA. L. Rev. 285 (2010).

[5] CAMBRIDGE, MASS., ZONING ORDINANCE § 22.000 (2011), available at http://www2.cambridgema.gov/cdd/cp/zng/zord/zo_article22_1341.pdf. See also Town of Normal, Illinois, SEC. 15.17-14, which requires LEED certification only within a targeted area—the central business district (the town mandates that all new construction with more than 7,500 square feet at the ground level in the B-2 [Central Business] District at least achieve enough LEED points to attain LEED “Certified” status).

[6] See N. Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1181 n.3 (Ala. 1977) (“Adopting a code written by a private national organization generally does not raise delegation of authority problems as long as the code, organization and edition are clearly specified, and no attempt is made to adopt future amendments.”).

[7] See Heating & Refrigeration Inst. v. City of Albuquerque, 2008 U.S. Dist. LEXIS 106706 (D.N.M. Oct. 3, 2008) (granting preliminary injunction that prevented the city from enforcing city’s code requiring LEED certification for compliance because the federal Energy Policy and Conservation Act preempted the standards in question).


[9] See Id.

[10] See Robert Cassidy, End the Battle of FSC vs. SFI Wood in LEED, BLDG. DESIGN & CONSTR., at 9 (Mar. 1, 2010). See also Stephen Del Percio, Revisiting Allied Tube and Noerr: The Antitrust Implications of Green Building Legislation and Case Law Considerations for Policymakers, 34 WM. & MARY ENVTL. L. & POL”Y REV. 239 (2009).

[11] See Michael Allan Wolf, A Yellow Light for “Green Zoning”: Some Words of Caution About Incorporating Green Building Standards into Local Land Use Law, 43 URB. LAW. 949, 966-67 (2012).

[12] Id.

[13] California Green Building Standards Code. CAL. CODE REGS. Tit. 24., pt. 11 (2010), available at http://www.documents.dgs.ca.gov/bsc/calgreen/2010_ca_green_bldg.pdf.

[14] City of Edmons v. Oxford House, Inc., 514 U.S. 725, 732 (1995).


Zoning and Urban Agriculture 
- by Jin Kong

Humanism, properly speaking, is not an abstract system, but a culture, the whole way in which we live, act, think, and feel. It is a kind of imaginatively balanced life lived out in a definite social tradition. And, in the concrete, we believe that this, the genuine humanism, was rooted in the agrarian life . . .

-- I'LL TAKE MY STAND, The Twelve Southerners

Urban agriculture has become popular these days.[1] The movement of growing our own food and raising our own farm animals has been embraced by locavors, foodies, hippies and anarchists alike. The reasons for urban agriculture’s increasing popularity are many: some advocates for relocalization of food production to reduce carbon footprints of food,[2] some think it’s about food safety and security,[3] some want to save money,[4] some believe it to be a patriotic duty,[5] some believe in food sovereignty thereby claiming a defiance of government regulations and embracing self-reliance as a virtue;[6] then there are people like me who enjoy the labor of growing something, the love for food and connecting with it on more intimate—and often muddy—terms, and the nostalgia for having helped my parents grow all sort of things as a kid.

Whatever your poison happens to be, urban agriculture invariably runs at odds with some of the traditional Euclidean Zoning ordinances that separate residential uses of land from agricultural uses.[7] Since the first days of Euclidean Zoning, municipalities have regulated urban agriculture in a number of ways. Reasons for justifying these kinds of regulations are barren—stuck in another era. Mostly because of the shift towards industrial farming, agriculture is seen as something that is intensively polluting (it is worth noting that agricultural runoffs from pesticides and fertilizers are serious sources of discharge of pollution into our waters and is not regulated as the EPA chose to exempt such runoffs from their regulations perhaps due to the weighty influences of industry lobbyists).

As population disappeared from rural America and as family farms consolidated, people moved into cities and suburbs. With the explosion of cookie-cutter homes built for the benefits of FHA and VA initiatives designed to help Americans become homeowners at the end of WWII, city dwellers simply forgot what it was like to put their hands into dirt and grow their food. The industrial revolution brought packaging and food regulations followed; Americans are further removed from the sources of their food and are made to believe that fishes have no eyes and chickens have no feet. As a result, farming and the food industry are industrialized, mechanized, and distanced from our daily lives; residential landscapes changed and yards replaced gardens. The iconic and uniformly green lawn became a status; food became boxed and vegetation became a nuisance.

For promoting public health, neighborhood aesthetics, and avoiding nuisances, zoning laws that banned urban agriculture slowly took shape. Some municipalities implemented ordinances that flat-out prohibits growing vegetables in certain zones; some municipalities take the opposite approach and expressly allowing certain use of the zone without mentioning vegetable gardens, therefore anyone who does use their land to grow vegetables in that zone will be subject to fines and sanctions. There are also some municipalities that limit growing vegetables in the backyard for sake of uniformity of appearances of their neighborhoods. Finally, there are those municipalities taking the approach of banning sales of produce for commercial gains in residential areas.[8]

At the same time our municipalities are erecting walls between us and our food, the industrial food complex has created food insecurity and food deserts, both of which can be blamed for our significant healthcare cost and problems: obesity, diabetes, and heart disease. Because the current U.S. agriculture policy rewards the overproduction of corn, much of the excess is turned into high fructose corn syrup and included in other types of processed foods. With our keen focus on calories and not nutrition, the fast food industry is engaged in an arms race to see who can produce the biggest burger for the least amount of money. This has created an unhealthy culture of industrialization of meat production in conjunction with our over production of corn. Cows are then fed corns, which makes them terribly sick and have to be injected with massive amount of anti-biotic to keep them alive long enough to reach slaughter weight. The reaches of this evil if far and wide: environmental problems, health problems, food safety problems—the complex interdependencies of our food industrial complex created a monoculture of agribusiness, coupled with heavy reliance on fossil fuel, has reaching implications in the inflexibility and lack of resiliency in our food system and hence our food security.

Recognizing the demand and the many problems of our current system, many municipalities are now looking for ways to encourage the so called “green” food economy.[9] Embracing sustainability and the new green movement, municipalities are shifting away from the traditional Euclidean Zoning format to mixed-zoning methods to allow households to grow and harvest. However, it is naïve to believe this kind of change in zoning regulations will resolve our problems overnight. The deeper issue is that we have so adopted ourselves to an industrial way of life that we forget the alternative advantages of an agrarian society. Therefore, the focus of any progressive movement is not on zoning per se or on farming alone; rather, the focus is on civic virtue—by cultivating behaviors in individuals that contributes to the strength of the community as a whole, by embracing the self-sufficient mindset to promote philanthropy and reciprocity, and by forging the community interest with legislative interest to shift the industrial interest into a “growing interest”; by these complex interactions of civic virtue of individuals and republicanism of municipalities we can then expect a robust sense of growth in communities that means more than industrialization and packaging. Thus progress reaches beneath the superficial level of comfort and riches; we the agrarians reach beyond what is offered on shelves because we will have grown something by ourselves for the good of others.

The world today is much too centralized and complicated. Individuals have been marginalized and stripped of their sense of responsibilities, democracy relegated to the most trivial of such an idea. In this modern world of ours, everything is institutionalized, industrialized, and imaginatively colonized by corporations, special interests, and big governments.

In the US, small and medium sized towns are declining; cities are growing and urban sprawls are destroying lands and concentrating man-made problems. The urban employment markets are over-saturated, the industrial sector over-mechanized. Yet, we seem to be more willing to build bigger and better machines than we are willing to build smarter and better communities.

In this context, we find the past not a mythical golden age, but a ruminant of our hope long forgotten. With the issue of slavery behind us and civil rights to some degree achieved, we now revitalized the idea in I’ll Take My Stand—that perhaps an agrarian society is a better option for us and for the world at-large. An agrarian society is one in which agriculture is the leading vocation, from which all other labor derive their philosophical purpose. To cultivate something, in a sense, should be elevated to the highest of our ontology; and the process of cultivation yields the highest form of our epistemological endeavors. To grow something, then, becomes the ultimate purpose in an agrarian society; and in our attempt to grow something, a process-type metaphysics takes over the idle existential one—religiosity is replaced by a broader sense of spiritualism, and pursuit of happiness takes on meaning. In the context of I’ll Take My Stand, the culture of nourishing earth becomes a priority; the culture of simply making more gadgets and widgets readily apparent as frivolous; and the culture of democracy—that the responsibility of a society rests with its people and not the separated rich and the powerful—takes shape. . .

Chú hé rì dāng wǔ.
Hàn dī hé xià tǔ.
Shuí zhī pán zhōng cān.
Lì lì jiē xīn kǔ.

Hoeing millet in mid-day heat,
Sweat dripping to the earth beneath,
Who should know the food in our bowls,
Each grain is born of trying endeavors.

[1] For a more detailed discussion on this topic, please see Sara B. Schindler, Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores, 87 Tul. L. Rev. 231 (2012).

[2] E.g., Top Twelve Reasons to Eat Locally, Locavores, http://www.locavores.come/how/why.php; Jeffery M. Brown, Black Internationalism: Embracing an Economic Paradigm, 23 Mich. J. Int’l L. 859 (2002) (discussing the primacy of local initiatives to combat the adverse effects of globalization); Marian Burros, Preserving Fossil Fuels and Nearby Farmland by Eating Locally, N.Y. Times (Apr. 25, 2007), http://www.nytimes.com/2007/04/25/dining/25loca.html; John Cloud, Eating Better than Organic, Time (Mar. 2, 2007), http://www.time.com/time/magazine/article/0,9171,1595245,00.html.

[3] E.g., Mary Wood et al., Promoting the Urban Homestead: Reform of Local Land Use Laws to Allow Microlivestock on Residential Lots, 37 Ecology L. Currents 68 (2010) (defining urban homesteading as the effort of transforming urban yards into food-producing lots); Katherine H. Brown & Anne Carter, Urban Agriculture and Community Food Security in the United States: Farming from the City Center to the Urban Fringe, Cmty. Food Sec. Coal. 3 (Oct. 2003), http://www.foodsecurity.org/PrimerCFSCUAC.pdf; Patricia E. Salkin & Amy Lavine, Regional Foodsheds: Are Our Local Zoning and Land Use Regulations Healthy?, 22 Fordham Envtl. L. Rev. 599 (2011).

[4] Recession Gardens Sprouting Up, Wash. Times (Mar. 17, 2009), http://www.washingtontimes.com/news/2009/mar/17/recession-gardens-sprouting-up.

[5] Greening Food Deserts Act, H.R. 4971, 111th Cong. Sec2(a)(20) (2010); Amy Bentley, Eating for Victory: Food Rationing and the Politics of Domesticity 117 (1998); Darrin Nordahl, Public Produce: The New Urban Agriculture 136 (2009).

[6] E.g., Deirdre Fulton, Free Our Food: Small Farmers Demand Independence from Agrobusiness Industry Rules, Portland Phoenix (May 4, 2011), http://portland.thephoenix.com/news/120146-free-our-food (arguing that the food sovereignty movement is aimed at restoring the direct relationship between producers and consumer while reducing government interference in local food production); Steve Martinez et al., U.S. Dep’t of Agric., Local Food Systems: Concepts, Impacts, and Issues 2 (2010), available at http://www.ers.usda.gov/media/122868/err97_1_.pdf (noting reasons for locavorism include reducing reliance on industrial agriculture, supporting the local economy, avoiding pesticides, supporting fair labor and animal welfare, and learning about the origins of food).

[7] Patricia E. Salkin, From Euclid to Growing Smart: The Transformation of the American Local Land Use and Environmental Controls, 20 Pace Envtl. L. Rev. 109 (2002) (“Almost a century later, local governments are finding themselves limited by zoning schemes . . . .”); Angie Basiouny, One Backyard Bounty Ruffles Some Feathers, News J., (Sept. 23, 2009) (“[D]ozens of local governments nationwide [are] dealing with the intersection of lifestyle and land use as a recession-fueled interest in urban farming collides with strict laws originally drafted to keep neighborhood clean and tidy.”). See also Internet Buzz: Concept of Jail Time for Growing a Vegetable Garden, MyFOXDetroit.com (july 12, 2011), http://www.myfoxdetroit.com/story/18456719/internet-buzz-concept-of-jail-time-for-growing-a-vegetable-garden (Julie Bass received a code-enforcement ticket followed by a misdemeanor charge for growing vegetables in her front yard and refusing to comply with the city’s demand to remove the garden; she faced 93 days of jail time).

[8] Sara B. Schindler, Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores, 87 Tul. L. Rev. 231, 239-44 (2012).

[9] See generally Nina Mukherji & Alfonso Morales, Am. Planning Ass’n, Zoning for Urban Agriculture, Zoning Prac., Mar. 2010; Arin Greenwood, New Zoning Laws for New Neighbors—Meet the Goats Next Door, A.B.A. J. (June 1, 2011, 2:10 AM), http://www.abajournal/com/magazine/article/got_your_goat/ (noting that cities from Austin to Miami to Little Rock to New York to Seattle have all recently changed land use laws to allow urban agriculture; and in Charlottesville, the Goat Justice League persuaded city officials to overturn a 30-plus-year-old law that banned goat keeping).

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