Conversations with Advocates of Fair Growth
Overview | Conversations with Advocates of Fair Growth | Living on the Fenceline
Gerald E. Frug
Gerald E. Frug is a professor of Law at Harvard Law School. He is also the author of City Making: Building Communities Without Building Walls.
Interview
Steve Lerner (SDL): When I look at the way we do development in the United States it looks as if the rules and subsidies that govern land use are all tilted in favor of affluent, white suburbs and that changing these rules is very difficult politically. Is there any hope for reforming land use law in a way that is more equitable and takes into account the needs of low-income Americans? Do we not need a systemic reform that strikes down the ability of affluent suburbs to keep out the poor through the use of exclusionary zoning techniques?
Gerald E. Frug (GEF): I assign myself the task not of overcoming your sense that this work is daunting but of making it a little more upbeat. Of course I think a systemic approach is what we need. A lot of the smart growth people start from the environmental perspective. And they start with a purified image in which we are in wilderness, even if it is not actually wilderness. Just an expanse of lawn can be experienced as wilderness. And what you have to do is understand how to move people, to teach people how to move from exclusion to inclusion.
It is not that it can't be done; it is that we are not doing it. I think it requires a real education process. You have to get people to think about it. What I say in my book is that people think about these issues as consumers. They think: where do I want to live. And they have an image, which we have nurtured for 50 years, of what the good life means. They have a picture of the green suburbs. Not everybody buys it but a huge percentage of people buy it.
People ask themselves: "How they can find the money and resources to move out to the suburbs because that is where they can find the good life." They never think about issues as planners or as people who collectively need to think about what our world is going to look like for my brother and my children. If you say: "OK, you move there but then others will move there too." Then they don't want that. They want to be the last people out and then to close the door.
You have to spell it out so that people can begin to feel how there are problems with what they want both in terms of how other people moving [to the suburbs] but also in terms of the traffic it will engender and all the rest of it. You have to change their focus on isolation as the desired objective. It is an amazing thing: the more we built the more we are isolating ourselves and not just from the city but from each other. The houses are getting bigger and bigger [so we can live further apart from members of our family]. Even members of the family are becoming "other" at this point.
A lot of people really like [new urbanist developments] when they are elsewhere. This is what the new urbanists ask: Where do you want to park your car and take a walk; where do you want to be; where do you say: that looks like a fun place to spend some time.
Certainly a lot of people I teach have the urban image as their desire but then they have a story to tell themselves that it is [only for] a short period of time in their life. There is a history of life in which when the first child is born they move out [to the suburbs]. And then when the last child moves out they can then move back to the city. So there are two slices of life in which the urban sounds all right.
A lot of it is these ideas [about what is an ideal place to live] are extremely powerful and not thought about or discussed. People don't spend any time thinking about this Boston area. Sometimes the new urbanists ask: "Where would you put the next million people?" But then they are not consumers. They do not ask: "Where do I want to live?" They become planners.
SDL: In Salt Lake City Peter Calthorpe got people to vote on where to place the next million people by having them stack chips on a map. Where the most chips were stacked was where the zoning rules had to be changed to permit greater density. There are a number of interesting techniques that are being used to help groups of people visualize what they want their community to look like.
GEF: So some of it is land use issues but there are a lot of other issues as well. It is also an education issue, an environmental issue, and a design and planning issue. But we must ask: "Why do people want to move out [of the city] when their first child is born? The answer has to do with education more than land use. So one would have to talk about what is a good school, where they are, and why they are where they are. And why is it that good schools are some places and not others
Furthermore, crime is not adequately part of the discussion if you are just talking about land use and the environment. One of the things we don't know is people's reaction to more density. In many of these subdivisions and gated communities you live right next door to your neighbor. These ads you used to have in the New Yorker of walking across this huge lawn...they don't have that. There are such places but by-and-large the lawns are relatively small. And if you leave out Manhattan and very few other places in the country, most urban life just doesn't look like Manhattan.
In my book I talk more about fear and the sense of security one gets from feeling that these other people are like you. It used to be that we understood that people who are like me were Irish or Catholic because they went to my parish. Now society is very much organized by income level and the question of whether you are Irish wouldn't even come up. And income level at a lot of different slices. The idea that a $200,000 house would be built next to a $400,000 house would cause an allergic reaction in a way that it wouldn't have, dropping the numbers radically, in the Irish neighborhood.
SDL: Do you get the sense from the census data that the US is becoming a more racially and economically segregated society as a result of these economically stratified developments that are going up around the country?
GEF: There is some sense you get that the level of isolation of black Americans has leveled off rather than increased. But it has leveled off at an intolerable high level. My general sense is that there is an increased sense of isolation and segregation along income levels and along racial levels and ethnic levels. Even the maps of New York City, leaving aside the suburbs, if you look at them carefully, are quite striking. Then, when you add the suburbs back [into the map, the economic differences] becomes really intense. On top of that are the numbers of neighborhoods that are integrated because of immigrants coming in. There is an increase of minorities in the suburbs but these minorities are very often in their own suburbs. And when they are not in their own suburbs you can locate them. You can go to someone and say: where are they? They could tell you. So it is spatially written on the map. But very often the Palo Alto/ East Palo Alto line is replicated in a lot of these places. Unless they are separate jurisdictions because of the way the finances work.
SDL: I've been reading two book on gated communities entitled Privatopia. The book leaves one with a vision of the United States as a version of South Africa where there is an increased secession of the rich in these enclaves that are off limits to low-income Americans. You suggest through community building and reaching across these boundaries and coming up with novel coalitions of various groups that would benefit from a more regional approach that there is potential for dealing with exclusive enclaves. But if you were a betting man and were wagering on the direction in which the U.S. was heading, given the replication of economically stratified communities the developers are still building, what you bet on? What would you expect for your grandchildren in terms of greater or lesser economic exclusivity in the place where they lived?
GEF: It depends on your image of how we get from here to there. One image is that we are on an escalator and that is heading in one direction and that nothing changes as it goes up to the year 2100. If that is true then more and more segregation feels like the escalator we are on. But things change radically: political movements rise and fall. The escalator is not going to go all the way to the 21st century. The issue is: are there people who can intervene in the picture to shift it?
Here are a couple of ways it could happen. Twenty state courts have declared the school finance system in their states unconstitutional. That addresses the allocation of funding for schools, which is one of the big generators of inequality. And one of the reasons people move to the suburbs is for the image of the good school and the good school being exclusionary. They have never met one of these teachers. They don't know what the educational program I like. They can go and see what it looks like. It is white and physically modernized. It is the whirlpool bath feel. You know it when you see it. That is what a school is supposed to look like with computer labs. But that is all generated by a particular structure of how we finance these things. And you would have to be a lunatic not to take advantage of it if you could. So if you could exclude the poor, keep all the money for yourself, and build a new school, why wouldn't you? Well, they do.
But these 20 state courts have now declare it unconstitutional to organize the public school system this way. Now, how are we going to refinance schools; or, even more dramatically, how are we going to reorganize admissions to schools? You could begin to change the nature of schools by changing the incentive system. Things happen that can cause the background system to change. But we have not yet, on the schools, taken that particular escalator as far as we can take it. We could take it further.
We also think about these things in terms of private property imagery. The gated community is the ultimate private property image. It is collective property but there is the us v. them division, which you can see through the security guard. There is no question about who is "us" and who is "them." And it is very difficult for people to think that the suburb is not just another example same thing. Now, a suburb turns out to be a city and it is not collectively owned property and there is no property or contract law involved. But the image remains that this is our property and our money and our school and we do what we want with it. The whole imagery is so privatized that a lot of people have lost the distinction that we are talking about the organization of American democracy and that it is public.
If we start with the notion that we have a public system and the public schools are funded with public money, then there is no particular reason that we want to organize it through locally raised property taxes. Why would you want to finance through locally raised property taxes? It creates a particular incentive, which has a destructive influence. The founders of the public school system created the public school. They were not thinking of organizing public schools that were segregated along class lines. Quite to the contrary, they were thinking that the poor people were going to be with us and we had better educate them or else we are in trouble. They didn't think they could move out. That wasn't part of their discourse. The way to handle the problem of the poor was very condescending but it was nevertheless oriented towards integration. [The idea was: the poor would learn from the affluent how to behave and be civilized. So the public school was this [economically] open concept and we could still embrace that as a concept.
Where would the political constituency come from for this? A lot of people are unhappy with the public school across many of these lines. The funneling of money only into the most favored schools doesn't help the majority of people. It turns out that the majority of the people see each other as the enemies so it is like 1960s integration in terms of integrating the public schools.
The suburbs haven't been exempted by the Supreme Court of the United States. The only people who are involved [in school integration] are the working class in transitional neighborhoods and they find themselves totally in a squeeze. They can't move to the suburbs because we have a rule system that prevents them from being able to afford the house because we don't build apartments, rental housing, and multiple family housing in the suburbs. On the other hand, there is the black community moving into [these older, working class suburbs]. So they are in a squeeze and experience intense rage. It is all generated by a particular series of options [that we have chosen] but we don't have to have only those options.
I don't think we are going to be able to do it without some refinancing...changing the financing scheme. We have to change the financing scheme so there is no incentive to separately incorporate, get the mall in your jurisdiction, exclude the poor, and exclude people with children because they cost money when they go to school. Currently the incentive is to attract only those people who have no children. But also don't get people who are sick. That incentive system, which is built into the legal system, which is the way we organize American democracy, has to change. And we have to educate legislators who could change it tomorrow.
The state legislature could change it tomorrow. People say: "Well, they can't take away my right to go to a school designed like this. That is just not true.
SDL: Would they be voted out of office?
GEF: That is the question. So, the question is how you sell it to them. A lot of these things are not sold directly. I don't believe in selling directly. The suburbs were not sold as a great way to exclude the poor so you can isolate yourself and make sure your schools are all white. They were sold as natural, green open spaces, large lawns, and fresh air.
If you think about the creation of the Georgia Regional Transportation Authority in Atlanta, the impetus for that was traffic... the longest traffic jams in the nation. The federal government was bearing down on air pollution in Atlanta. What are we going to do about it? There is no way to deal with this problem if each of the 100 cities around Atlanta tries to solve it on their own. So the state legislature passed, quite rapidly, after a couple of weeks, a regional agency. They did not ask the suburbs permission. And this was not a surprising thing to do; it happens all the time. Regional authorities are passed by the state legislature because there is a problem which is experienced regionally
SDL: Is it elective?
GEF: It is easier to create an appointed than an elected body. Why is that? One of the things about the Georgia Regional Transportation Authority is that it is not designed to be remotely responsive to the people in the region. It is appointed by the Governor. And the people don't even have to be residents of anywhere in particular. The question is: why, if you lived in the region, would you think it would be better not to have us collectively control it; rather than have the governor appoint some ten or 20 people
SDL: If it is appointive you wouldn't have to fight about it.
GEF: Right. That is a particular idea of politics. One version is if we all get together then we will just hate each other. Rather than: if we all get together in this room and we have this common problem and we will have to work it out. One of the things that has happened in the last 20 years is that politics has become one of the nastiest words in our vocabulary and politicians are seen as just disgusting. And to imagine a political solution is to image corruption rather than resolution.
SDL: There is always the homeowners association version of government, which is to hire a bunch of experts who will tell everyone what is allowed and what isn't. We have 42 million Americans in homeowner associations. And in a way, they bitch and moan about it on radio, but part of the reason it took off is that people want the benefits of regulation without the responsibility. They wanted an expert as a buffer from their neighbors.
GEF: In a lot of these places it is slightly worse than that because the people who run the homeowners association are elected and they are elected by property owners by which we mean one property one vote. That is what we used to have in America in the early 19th century when the women didn't vote. We had one property one vote. Who voted then was obvious; who votes now, you would think, would be more complicated. And keep in mind it is the property owner and not the tenant.
SDL: It is set up by the developer.
GEF: Yes. And the developer organizes a board of directors, which the developer controls for a period. There are all those rules and regulations which ultimately can be changed by the directors once they are elected by the property owners unless there are super majorities built into the documents. And some developers will keep control long after everything is sold; others won't. A lot depends on these micro-structures. Who is in control? Can we organize it so my kids can live in this area or not? If this is an age restricted community is that permanent? So it is true that there is a real instinct not to be involved and let the experts deal with it. And the Georgia Regional Transportation Authority has that feeling to it. But the other side of the story is the environmental movement in which generated an enormous amount of individual enthusiasm about their own lives. The same was true of the feminist movement; the gay rights movement; and there is a lot of community organizing stuff around the country. So it is not just the story of deferring to experts. But what we don't have is a political institution in which you can filter these things into and out of to make a difference. So the environmental people, where do they go? They go to the same old places. There is no institution in the region that could actually begin to have a conversation about: what do we want to do about transportation in our region? Let's imagine a discussion within the region about transportation. Here would be the question: Do you think it would be just blood-curdlingly horrible; or do you think we actually could make some progress; or somewhere in between?. How do you imagine it? I'm not sure everyone would say: boy I wouldn't want to do that.
SDL: I think you would find some of the wealthier suburbs would be loath to hook up to the inner city transportation system.
GEF: I quite agree. But then the question is: why is it up to them? Under the Georgia Regional Transportation Authority it is not. The collective entity could decide to run the subway to your wealthy suburb. You think they will want to come in and talk now? In Washington, D.C. the subway doesn't go to Georgetown. Similarly the Bay Area Rapid Transit doesn't go to Marin County. These people know what they are doing. One of the background assumptions of what happens if they don't want to hook up is that under the current rule system you can't touch them then. They say: "I don't want to go to your meetings. We are doing fine." But there is no reason to assume that and it could be the opposite. The regional transportation authority has enormous amount of power to affect the lives of people in these fancy suburbs. They have a lot of power. Now, are they going to use it? Would they be more likely or less likely to use it if it were not an expert group but instead were elected?
I think there could be a deal between the black community and the fancy white community over money, because separatism in the black community is a very popular idea these days as it is in the white community.
SDL: The deal would be: you pay us and we will stay here?
GEF: It isn't quite that vulgar but a lot of it would be happening. While I know it is a shocking idea to the reader: imagine being able to go to any school in the region, no resident preference. If you had that system I don't think the blacks would flood the white schools because I don't think they want to go there. What they want is better schools. And a changed financial system that would give them better schools would lead to some integration but no where near the integration that a court order might have produced in some other era. So, yes, we need revenue sharing. But even the word revenue sharing assumes that it is their [the affluent suburb's] revenue that would then be shared, which is a privatized notion. The basic question is: why does the tax income from the mall go to the place where the mall is located? The mall is not used [exclusively] by people in that place. The people who own the mall do not live there. The sales taxes, which are one of the things raised there, are paid by people from the region.
SDL: But it is physically there. Isn't possession that nine tenths of the law?
GEF: It is physically there. So the idea would be that whatever is within the boundary is ours.
SDL: Isn't that pretty deeply ingrained. This is the US, this is Virginia, and this is Boston.
GEF: This is Massachusetts so whatever is here is ours. Yet our money is taxed away by the federal government and redistributed elsewhere and we don't have the experience that that is shocking. We are taxed at all different levels and the money goes various places and these assets are understood as regional assets. How do we pay for the airport? Who should pay for it? Do we think that is where it is? It would never occur to you to think that just because an airport is in a certain jurisdiction that it is theirs. Now, in American popular law a lot of things on your land are not yours. You very often do not own the mineral rights; someone else owns them. Or you want to build something up on your land that blocks my solar reflector? You can't do it. We have all sorts of limits about what you can do on your land. And there is a lot of the regional thing that is also in people's minds.
SDL: So the answer is in working on a regional basis and sharing the resources and burdens.
GEF: And having the legislature set that up which it has power to do. The state legislature is the key entity that has the legal power to set up an agency which would be the forum for these negotiations.
SDL: But would they not be slitting their own throat by creating another level of government which would make them largely irrelevant.
GEF: It depends on how you think they think. Maybe they want all the power. That is possible. But a lot of people might also think: Look this is a problem we want to solve. We'd be a lot better off solving it than not solving it. And a lot of times they want the hardest problems to be shifted over to someone else so they won't be blamed for them. That is why they create a lot of these agencies.
We are talking about real money being allocated here. And then the question is: why would the state want to do it? This is in fact a way the state is advancing. If you think about the advance of the economy of most places these days, or in the metropolitan area, it is extremely important, in the state legislature's point of view, to advance them. If we can make them better it will improve the state.
A number of these governors like Glendening in Maryland have a lot of that in their consciousness, that strengthening the region strengthens the state. Barnes in Georgia has the same idea. They see the region as a productive thing for the state and they want to make the region work.
What you say sounds right: It is our land, it is our property, and it is our money: exclusion is good. Get those people out. Good schools are white. We can have 20 such slogans. But we have opposite slogans too for every one of them. What we need to do is a real education job.
SDL: Diversity is good.
I'm not sure I would put it quite that way although I believe that sentence very much. But it is not the one I would sell. I ask my students: "Look, you have been raised in these exclusive suburbs and now you are in Cambridge. Are your parents worried? No. To what extent are you raising your child to be able to survive in a diverse world? If you don't want to leave your back yard, you don't want to talk to strangers, you don't want to meet anyone except the kid next door ever, and then it turns out that the child moves to New York City. Are they equipped? I think one of the things people can understand is that if we are going to be having a more diverse country you have to learn how to negotiate and navigate it.
Some will still say, "No, I'll just stay here." But none of these people are sure that their children will do that. And you are not sure that staying isolated is helping them. There is a real question about what is a good place to raise a family. Often it is a suburban place and a place of isolation and cul-de-sacs. But I am not convinced that my children were not better off being able to walk in Harvard Square. The danger was one intersection where they had to learn that cars turn and you don't see them. When they got here there were a lot of weirdoes. They got used to it and didn't pay a lot of attention after awhile. So that was good. You have to figure out what is it that people want. A lot has to do with very deep selling sound bites about the equation of blacks in bad schools, blacks and crime, blacks and deteriorating housing, and declining property values.
SDL: So a lot of it has to do with race.
GEF: Yes, a lot of it is dealing with race. But a lot of it is dealing with the ignorance about the nature of race -- ignorance that comes from isolation. I do not think that the segregated nation, the apartheid image, is a direction either that we should go in. Say you got up and said I have a great idea. We are going to segregate this country absolutely so that your children will never have to come in contact with blacks, Latinos, Asian-Americans or anybody else. What would the audience reaction would be?
SDL: They would be horrified. But I think their reaction would be hypocritical. I live in Washington, DC and there is a favored quarter. I live in it. I can tell you where the line is. I used to live on the line when I had my starter home. Now I don't live on the line I live deeper into the favored quarter and I have a child.
GEF: In a world in which there is radical poverty and wealth why would you not move to the favored quarter? You would. And that is how Prince George's County became a black suburb. It is not just the whites who move. But the races move in opposite directions, which I'm not sure is good for anybody. But they do in any event.
SDL: I have come to the conclusion that the only time we are truly integrated in Washington is when we are stuck in traffic because the poor people have to go over here to get the jobs and the rich people are trying to commute and we are all stuck in traffic. If we all got out of our cars we would have an integrated neighborhood.
GEF: I'm just about to publish my latest edition of my case book on urban law and there is a wonderful moment that has exactly that image in Silicon Valley. The only time the cheap Toyotas and the fancy cars are together they are stuck in the traffic jam. Other than that they have nothing to do with each other.
But if the extremes were not so extreme the feeling of being safer inside the nest would not be so extreme. In other words once you create the world of the welfare mother and Chevy Chase in DC, we know where all these lines are. But the number of people who are radically impoverished in this country is actually relatively small when you compare it to South Africa. South Africa is 90 percent radically poor. Here it is one in ten or one in 20. In South Africa the blacks live in the houses of the rich as servants in great numbers.
SDL: I get the Soweto express feeling in Cleveland Park in Washington. I work at home. What happens during the day is that all the owners leave and go to the office and all of the nannies, painters, and leaf blowers come in. There are these bus loads of colored people who come in to take care of the place. Then the five o'clock whistle blows and off they go. Now this is being institutionalized where the big corporations out in the fast growing wealthy suburbs that need workers have these buses that early in the morning pick up minority workers in the ghettos. On the bus in the morning they give them coffee and a donut; and when they come back in the evening and they get pizza. That is our new version of how to take care of this.
GEF: How do the Cleveland Park crowd and the people on the bus get constituted by the rule system? First you have to organize the world so that there are these pockets of poverty of wealth that are removed from one another. There have to be places where there are good schools and places where there are bad schools. You have to organize the world to have that system. What is the relationship between public and private schools? How is crime organized? Where is it located? Why is it located there? So I think a lot of these rule systems enrich the rich and impoverish the poor. We allow people to be locked into a place they can't escape with bad schools and crime. Then you struggle to raise your nine year old. It is hard enough to raise your children in the best of circumstances.
SDL: This gets me to the fair share affordable housing. There are two scenarios. One is the revenue sharing plan under which you take the money from the wealthier suburbs and say look you have a choice: either we are going to disperse the poor and some will live with you; or you pay a bucket of money and we will spend it in the poor neighborhood and upgrade the schools. There are books and arguments made about the inside and outside game saying we have tried for decades this strategy of trying to make the ghetto better and there are other experiments that involve moving poor people to middle class suburbs.
GEF: Do you know Paul Grogran's Comeback Cities. He was, until yesterday, the vice president of Harvard University. He has now gone to a foundation. Comeback Cities makes the opposite argument. It rejects the entire notion of moving poor people out. It says look at the South Bronx today and the South Bronx 20 years ago. It is now a radically better place to live and these people are still poor. My own view is that, fortunately, we don't have to make this choice because there is so much to do either way. You could add a bunch of affordable housing in the fancy suburb and they would never know the difference or experience the difference. And you could improve the other neighborhoods. In a hundred years if we implemented everything I want to happen I don't think we would end up with statistical integration. I think there would be a lot of neighborhoods that would be marked by race and by ethnicity and by income but it would be much less stark and it would be experienced more by the excluded as voluntary. You might want to raise your kid in an African American neighborhood which wouldn't be 100 percent African American. It could be 70 percent, which is a big difference in my opinion from 90 percent. Or you might want your kid go to some other school or move or whatever. It is the fluidity of the boundaries that is important, which would allow you to take a walk across the line without fear and you would not be an oddity. They see these people all the time it is not a big deal any more.
There are some people who want to raze the inner city...level it. They then want to move all these people. Where they would move them they don't want to say.
SDL: Some other undesirable place.
GEF: Yeah. Then, one of these guys says: Washington could be a dream town if we just get rid of the people because it is centrally located it has a subway system. We are never going to do that and we are never going to totally integrate the suburbs; and we are never going to get the central cities so that no one will ever want to leave them. A little more flexibility on both sides is what we want. To do that we have to deal with the fortified nature of the city suburb border line because, currently, the suburb can exclude the poor and make it financially impossible for them to move there.
SDL: And you hope to make it more permeable through this regional power sharing.
GEF: I want to change the rule system which now gives suburbs the power to not negotiate. They have power not to negotiate because we have given them certain authority. And I want to adjust the system so that we get them to the [negotiating] table. Here is an example: in a lot of places in the United States can be annexed. That is how a lot of places in the Southwest are growing. You can't do that here [in the Northeast]. What if you said to the suburbs: well, you don't want to talk to us, we will just annex you and then you will be part of our tax base. They would then say: "Well, maybe we should have a conversation." I'm not saying I am for annexation because I am not for centralization. I'm for the idea that suburbs are not immune.
SDL: So there is a lever there.
GEF: What is the background understanding of the negotiation? The negotiation people at Harvard Law School have this phrase: "Best Alternative to the Negotiated Settlement." The best alternative for a lot of these suburbs is to stay home because they have nothing to lose. So we could just change the annexation rule and apply it nationwide. It is a rule that used to be a rule nation-wide but it then became a rule that is in force in a lot (but not all) of the country. And there is nothing whatsoever that is unconstitutional about it.
SDL: The state legislature would have to do it.
GEF: Yes, the legislature sets the rule. So that is where the fight would happen.
SDL: And you have a lot of rich suburbs that would go to their state representatives to do battle on this.
GEF: I agree. It is not the only rule I would be working on. The assumption is the background of the rule system. A lot of it has to do with their authority to engage in selfish behavior.