Stanford Law Review
Copyright (c) 1996 The Board of Trustees of Leland Stanford Junior University
Stanford Law Review
48 Stan. L. Rev. 1109
LENGTH: 3123 words
SYMPOSIUM: SURVEYING LAW AND BORDERS: Comment on Professor Jerry Frug's
The Geography of Community
Vicki Been *
* Visiting Professor of Law, Harvard Law School; Professor of Law, New York
University School of Law. Financial assistance was generously provided by the
Filomen D'Agostino and Max E. Greenberg Research Fund at New York University
School of Law. I would like to thank Richard Revesz for comments on an earlier
draft of this comment. I would also like to thank Tom Cabellero and Adrienne
Wheatley, both students at Harvard Law School, for excellent research
assistance and for their suggestions and critique of this comment.
... Professor Frug has launched an extremely provocative assault on American
urban policy, and more particularly, American land use controls and urban
design. ... Once the idea of moving to help one's budget starts to work its
way into the subconscious, it leads people inexorably to a particular kind of
suburb. ... Why do fiscal motivations warrant more attention than Professor
Frug gives them? Because a solution needs to fit the problem, and I'm not sure
the solution Professor Frug offers fits the problem of fiscal motivations. ...
It's not at all clear that the new urbanism will lead to a greater tolerance
for redistribution, and thereby change people's demand for fiscal zoning. ...
Professor Briffault addresses many aspects of the regional legislature proposal
in his article, so I want to focus on three that are specific to land use.
First, I agree with Professor Frug that regional legislators who believe their
constituency is broader than a local government's are likely to structure
entitlements in a way that will lead to greater redistribution. ... Not all
land use is bad, and not all zoning is misguided or harmful to the poor and to
Professor Frug has launched an extremely provocative assault on American urban
policy, and more particularly, American land use controls and urban design.
Like all his works, this article is incredibly rich, drawing upon literatures
and disciplines that all of us aspire to follow, but regrettably few of us do.
Fewer still bring to the literature the breadth of knowledge and depth of
insight that Professor Frug brings to his study.
Some would take issue with Professor Frug's love for the feel of urban life
and profound skepticism about certain suburban landscapes and lifestyles. I
will not take that tack; I share completely Professor Frug's affection for city
life - for the diversity, challenge, vibrancy, and spectacle that cities offer.
My comment accordingly starts from the premise that Professor Frug is
absolutely right to want to replace cities and suburbs that are highly
segregated by race, class, ethnicity, and life-style with something different -
"new urbanism" that draws the best from the past, perhaps, or some other approach to urban
design that makes people get out of their cars and get into watching,
interacting with, learning from, and learning to appreciate, others.
My concerns about the paper are not about Professor Frug's goals, but about
his understanding of what lies behind the evils that need to be remedied, and
about the remedies he suggests. Despite its richness, Professor Frug's account
of why land use patterns are what they are is incomplete. There are many
culprits in the story, of course, and Professor Frug acknowledges all the usual
suspects in his paper. Nevertheless, in assessing why people move to suburbs,
where single family detached houses with unusable front yards are separated
from all other forms of life, stratified rigidly by the income, and even more
rigidly by the race of the occupants, Professor Frug focuses on people's desire
to avoid strangers who are
"others." He argues that
"the most important contemporary distinction between central cities and at least
some suburbs is heterogeneity," and draws on both psychology and sociology to show us that many, perhaps most,
people fear, and seek to avoid, the challenge heterogeneity
n1 That fear is especially acute when the
"other" is the poor African American who is inextricably linked in people's minds to
the city, or at least to the
There is no denying the influence of race on our land-use patterns. Much of
the urban policy that helped create, subsidize, and sustain suburbs was driven
by racism and other forms of fear and demonization of
"others." Many of those who move to the suburbs are pulled, consciously or
unconsciously, by racism. But racial discrimination and other forms of fear of
others are not the whole story. I would like to reemphasize the aspects of the
move to the suburbs that don't directly relate to fear of others, or to the
desire for racial, ethnic, and life-style homogeneity. It is important to do so
because solutions primarily aimed at issues of racism or other
"isms" won't necessarily work for the other factors that pull or push people to the
The factors I want to focus on are economic factors. There are two major ways
in which economics have mattered in shaping our landscape. First, economics
drives many people to move to the suburbs. When I talk to the mothers and
fathers of my children's friends about their inevitably impending move to the
suburbs, they talk about the higher standard of living they can enjoy there -
the increased space they can get for the same housing dollar,
n2 the savings of writing one check for property taxes rather than one for
property taxes and another for the private school tuition, the lower tax rates
in the suburbs, and the cheaper child care options available in the suburbs.
n3 Some of the economic calculations are naive - they undervalue the cost of the
time spent commuting, for example, or are overly optimistic about the viability
of having only one car in the suburbs. But the calculations are honest, and are
a large part of the basis of people's decisions. Of course, even realistic
economic calculations wouldn't come out the way they do if the government did
not subsidize so much of life in the suburbs, or if sufficient numbers of the
better off stayed in the city and worked together to improve the public
schools. But ending the subsidies and revitalizing the cities present an
enormous collective action challenge, not to mention a transition problem.
So personal economics pulls people to the suburbs, or pushes them out of the
city. Once the idea of moving to help one's budget starts to work its way into
the subconscious, it leads people inexorably to a particular kind of suburb. To
get the most bang for the buck out of the move to the suburbs, one needs to
move to a suburb in which one's property tax payments are no higher than a fee
for service, or even better, are a bargain for the services received because
clean industry or other
"good ratables" are subsidizing the service. So economics, or more precisely a desire to avoid
the redistribution of one's income, leads peo-
[*1111] ple to income-stratified suburbs. Suburbs are able to offer the economic
advantages of income homogeneity because they can engage in fiscal or
exclusionary zoning - zoning that ensures that everyone who lives in the town
pays taxes at least equal to the cost of the services they draw.
This is, of course, the theory of fiscal zoning, generalized from the Tiebout
hypothesis that local governments compete for residents, who vote with their
feet to select a community that offers the public service package they desire
at the least cost.
n4 There is a vast literature about the fiscal zoning thesis that provides
evidence that fiscal motivations are one of the important reasons that people
move to the suburbs and choose income-homogeneous communities when they make
Why do fiscal motivations warrant more attention than Professor Frug gives
them? Because a solution needs to fit the problem, and I'm not sure the
solution Professor Frug offers fits the problem of fiscal motivations. As I
understand his vision, he wants land use reformed to allow for the type of
development that goes by the name
"new urbanism," a form of development he believes would contribute significantly to community
building by forcing people to engage with others, and thereby come to
appreciate whatever it is that makes the others different.
n6 He suggests that the mechanism for achieving such reforms would be a regional
legislature that does not itself exercise land use powers, but rather serves as
a forum in which local governments would renegotiate, and thereby restructure,
land use powers.
n7 Will those solutions successfully dismantle fiscal zoning?
I fear not. It's not at all clear that the new urbanism will lead to a greater
tolerance for redistribution, and thereby change people's demand for fiscal
zoning. Getting people out of their cars and into the streets is a great
accomplishment, for all kinds of reasons. But mixing uses, reverting back to
grid street patterns, allowing granny or in-law flats, and reinventing the city
[*1112] won't guarantee that the pedestrians will see people very different from
themselves. One way of assessing the likelihood of greater diversity would be
to look to the towns that are the showcases for the new urbanism - are they
more economically (or even racially) diverse than their Euclidean-zoned,
cul-de-saced counterparts? Some of them, like Windsor, Florida are unabashedly
very upscale communities.
n9 The literature about others, like the showcase Seaside, Florida, is
conspicuously silent about the demographics of the town's residents.
Even if changing land use regulations to allow urban designs like those
proposed by the new urbanists does result in greater diversity on the streets,
will that diversity lead residents to be willing to pay more in taxes so that
the others they see - people who would pay lower taxes and present different
public service needs - can live there as well? Professor Frug references
evidence that city folks are more tolerant of other lifestyles and viewpoints
n11 But there is much anecdotal evidence that points in the other direction. Many
very diverse cities have been at the forefront of exclusionary, expulsive, and
n12 The history of urban renewal, of public housing siting in cities, of
gentrification, and most recently, of the siting of homeless shelters and other social service
facilities, makes clear that diversity within many cities hasn't promoted a
greater compassion for the poor or for
"others," or a greater willingness to share wealth with others. Indeed, many cities have
found over the last decade that day to day exposure to the poor may lead to
compassion fatigue, and make people even less willing to pay higher taxes to
help the poor.
But let's assume that better urban design would lead to greater diversity, and
that greater diversity would lead to increased tolerance and all the advantages
of tolerance. Can we get there from here through the vehicle of Professor
Frug's regional legislature?
As I understand his proposal, the regional legislature wouldn't be a
centralized regional government in the traditional sense, but would instead be
a forum in which the authority to engage in land use controls and other local
government activities would be renegotiated.
n14 Legislators would be elected, in one version, at a neighborhood level by
people whose votes were not constrained
[*1113] by boundaries - people would be given five votes, for example, to use in any
local election or elections they wanted.
n15 Given the unbounded nature of their constituency, regional legislators will
come to realize during the renegotiation process that fiscal zoning is a
tragedy of the commons, in which each town's pursuit of self-interest will
eventually lead to ruin for all. They will therefore begin to cooperate, and
restructure land use (among other things) so that every local government
shoulders its fair share of the burden of low and moderate income housing.
Professor Briffault addresses many aspects of the regional legislature
proposal in his article, so I want to focus on three that are specific to land
use. First, I agree with Professor Frug that regional legislators who believe
their constituency is broader than a local government's are likely to structure
entitlements in a way that will lead to greater redistribution.
n16 But as the regional contribution agreements that are the end result of Mt.
n17 show us, one can effect redistribution without achieving any greater
n18 Why then should we trust that the regional legislators will both integrate and
redistribute? Indeed, it could be the case that those goals come to be in some
tension. The beneficiaries of greater redistribution could prefer more
redistribution to more integration. If that's the outcome, will the regional
legislature have achieved its goals?
My second concern reflects my bias as a land use professor. Not all land use
is bad, and not all zoning is misguided or harmful to the poor and to
minorities. Indeed, it is ironic that one of the major forms of expulsive
zoning that poor African American and Hispanic neighborhoods complain about is
the mixing of uses - the very
"improvement" that forms one of the cornerstones of the new urbanism.
But how will the regional legislature separate good land use controls from bad
ones? One way would be to legislate through broad standards:
"Thou shalt not engage in fiscal or exclusionary zoning."
n20 Almost all zoning could be characterized as fiscal or exclusionary because it
raises the price of housing. How then would a community prove that its
preference for cul-de-sacs rather than a grid system, for example, meets the
standard? Could it prove that it was currently well integrated and therefore
could not have exclusionary intentions?
Because of the problems of interpreting, applying, and enforcing broad
standards, I fear that the regional legislature might succumb to the temptation
to instead legislate by rules:
"Thou shall not impose minimum lot size requirements that exceed X feet." But then the regional legislature will be a regional government, and threaten
the autonomy of local governments in very fundamental ways. The end result may
be a uniformity that is just as, or even more, stultifying than the current
predictability in suburban design. The grid-pattern may become the standard,
rather than the cul-de-sac, but the opportunity to improve upon both
grid-patterns and cul-de-sacs through the
"laboratory" of multiple local governments will be lost.
Lastly, I'm concerned that the regional legislature will be unable to do the
job Professor Frug envisions because it will be forced to work within an
existing system of state and federal powers, and will be able to bump the level
of redistribution up, at most, to a regional level. Unless regional
legislatures are imposed across the board in all states, wealthier people will
be able to escape to other income-stratified tax avoidance havens, although it
will be harder to do so. And unless all local government powers are strictly
controlled, the impetus behind fiscal zoning will lead local governments
stripped of land use powers to invent other ways to allow individuals to sort
themselves into anti-redistributive groupings. Or private land use restrictions
and private residential community associations, both of which would be beyond
the power of the regional legislature, will step in to fill the void.
I have the luxury of having run out of time, so that I don't have to offer an
alternative solution to the problem. That of course, is the challenge.
Professor Frug's paper has helped us get closer to a solution by illuminating
the deep-seated psychological, sociological, and socially-constructed nature of
the problem, by powerfully highlighting the myriad of ways in which government
policy has led to our current predicament, and by having a vision of
"decentered decentralization" that forces us to think in new ways about a very old and perplexing problem.
n1. Jerry Frug, The Geography of Community,
48 Stan. L. Rev. 1047, 1047-51 (1996).
n2. For evidence regarding housing price differentials between cities and their
suburbs, see James R. Follain, Jr.
& Stephen Malpezzi, The Flight to the Suburbs: Insights Gained from an Analysis
of Central-City vs Suburban Housing Costs, 9 J. Urb. Econ. 381, 389 (1981).
n3. For a survey of the evidence regarding whether and how families take fiscal
matters into account in determining where to live, see Vicki Been,
"Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional
91 Colum. L. Rev. 473, 523-28 (1991).
n4. Charles Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416
(1956). Tiebout's insights led directly to the theory of fiscal zoning. For
discussions of that theory, see, e.g., David King, Fiscal Tiers: The Economics
of Multi-Level Government 32-37 (1984); David F. Bradford
& Wallace E. Oates, Suburban Exploitation of Central Cities and Governmental
Structure, in Redistribution Through Public Choice 43, 51-60, 65-71, 84-86
(Harold M. Hochman
& George E. Peterson eds., 1974); James M. Buchanan, Principles of Urban Fiscal
Strategy, 11 Pub. Choice 1 (1971); Bruce W. Hamilton, Capitalization of
Interjurisdictional Differences in Local Tax Prices,
66 Am. Econ. Rev. 743 (1976); Bruce W. Hamilton, Zoning and Property Taxation in a System of Local
Governments, 12 Urb. Studies 205 (1975); Peter Mieszkowski
& Edwin S. Mills, The Causes of Metropolitan Suburbanization, 7 J. Econ. Persp.
135 (1993); Edwin S. Mills
& Wallace E. Oates, The Theory of Local Public Services and Finance: Its
Relevance to Urban Fiscal and Zoning Behavior, in Fiscal Zoning and Land Use
Controls 2-7 (Edwin S. Mills
& Wallace E. Oates eds., 1975); Mark Schneider
& John R. Logan, Fiscal Implications of Class Segregation: Inequalities in the
Distribution of Public Goods and Services in Suburban Municipalities, 17 Urb.
Aff. Q. 23 (1981).
n5. For a survey of the literature, see William A. Fischel, The Economics of
Zoning Laws: A Property Rights Approach to American Land Use Controls 293-315
(1985); Been, supra note 3, at 514-28.
n6. Frug, supra note 1, at 1089-94.
n7. Frug, supra note 1, at 1105-07; see also Jerry Frug, Decentering
60 U. Chi. L. Rev. 253, 294-300, 328-34 (1993).
n8. For discussion of the design principles reflected in the
"new urbanism," see generally Peter Calthorpe, The Next American Metropolis: Ecology,
Community, and the American Dream (1993); Andres Duany
& Elizabeth Plater-Zyberk, Towns and Town-Making Principles (Alex Krieger ed.,
1992); Peter Katz, The New Urbanism: Toward an Architecture of Community (1994).
n9. See Katz, supra note 8, at 60-77.
n10. See, e.g., id. at 2-17.
n11. Frug, supra note 1, at 1060-61.
n12. See, e.g., Jon C. Dubin, From Junkyards to
Gentrification: Explicating a Right to Protective Zoning in Low Income Communities of Color,
77 Minn. L. Rev. 739 (1993); Yale Rabin, Expulsive Zoning: The Inequitable Legacy of Euclid, in Zoning and
the American Dream: Promises Still to Keep 101 (Charles M. Haar
& Jerold S. Kayden eds., 1989).
n13. For recent discussions of how compassion fatigue has affected people's
willingness to allow their local governments to provide help for the less
fortunate, see, e.g., John A. Barnes, National Homeless Crackdown: Cities Get
"Compassion Fatigue' Sets In, Inv. Bus. Daily, Feb. 2, 1995, at A1; Steve Mills,
Evanston's Will to Care is Tested, Chi. Trib., Apr. 1, 1996, at 1, 7.
n14. Frug, supra note 7, at 295.
n15. Id. at 329.
n16. Id. at 330.
Southern Burlington County NAACP v. Township of Mt. Laurel, 456 A.2d 390 (N.J. 1983).
n18. See, e.g., Richard Briffault, Our Localism: Part I - The Structure of Local
90 Colum. L. Rev. 1, 56 (1990); Rachel Fox, The Selling Out of Mount Laurel: Regional Contribution Agreements
in New Jersey's Fair Housing Act,
16 Fordham Urb. L.J. 535 (1988); James J. Hartnett, Affordable Housing, Exclusionary Zoning, and American
Apartheid: Using Title VIII to Foster Statewide Racial Integration,
68 N.Y.U. L. Rev. 89 (1993); Harold A. McDougall, Regional Contribution Agreements: Compensation for
60 Temple L.Q. 665 (1987).
n19. See, e.g., Dubin, supra note 12, at 760-64; see also Robert D. Bullard,
Invisible Houston: The Black Experience in Boom or Bust 63-70 (1987)
(discussing the problem of commercial incursion into African American
residential neighborhoods in unzoned Houston).
n20. For a discussion of the difference between rules and standards, see Louis
Kaplow, Rules Versus Standards: An Economic Analysis,
42 Duke L.J. 557, 559-60 (1992); Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards,
106 Harv. L. Rev. 22, 56-69 (1992).
n21. For discussions of the advantages and disadvantages of various street forms,
see, e.g., Michael Southworth
& Peter M. Owens, The Evolving Metropolis: Studies of Community, Neighborhood,
and Street Form at the Urban Edge, 59 J. Am. Plan. Ass'n 271 (1993). For an
interesting discussion of the early reaction to the grid-patterned cities that
the new urbanists now herald, see, e.g., Elizabeth Hawes, New York, New York:
How the Apartment House Transformed the Life of the City 10-11 (1993).
n22. For recent discussions of the rise of residential community associations, and
the reasons for that rise, see, e.g., Timothy Egan, Many Seek Security in
Private Communities, N.Y. Times, Sept. 3, 1995, at A1.
Prepared: January 24, 2003 - 5:02:29 PM
Edited and Updated, January 25, 2003
Kristen A. Stelljes