City Making by Gerald E. Frug

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13: East of Berlin: Postcommunist Cities Now

Review

The most important task of urban design now is to move beyond the outmoded “city/suburb” dichotomy in order to envision a unified metropolitan region. But any attempt to realize the economic, social, and ecological unity of a region must soon acknowledge that the scope for creative action is strictly limited by a system of local government law that empowers a hodgepodge of contending and contentious local jurisdictions. The New York City region alone has over 2,000 cities, boroughs, counties, towns, townships, and villages. One can excuse the hyperbole of the authors of the Regional Plan Association’s Third Regional Plan for New York when they complain that they are forced to design a 21st-century plan for “the world’s only remaining intact medieval English system of government.”¹

Even those who would reform local government law generally wish merely to bring it from the medieval era to the 19th century. They want to revive the era when cities could annex their suburbs, as in 1854 when the city of Philadelphia merged with its county to form a kind of regional city, or in 1898 when New York City (then essentially Manhattan) annexed Brooklyn, Queens, the Bronx, and Staten Island to become “Greater New York.” But in the age of the megalopolis, the idea of regional “super-govern-ments” or “cities without suburbs” inspires more fear than hope, as citizens worry that human-scale local governments will be overwhelmed by a massive new power structure.

City Making is particularly welcome both as a challenge to a branch of the law that desperately needs rethinking and as a starting point for a new dialogue between law and urban and regional design. Gerald E. Frug, Rosenthal Professor at Harvard Law School, combines an exhaustive knowledge of the law of cities with a rigorously critical stance toward that legal tradition. Half a century ago Lewis Mumford challenged transportation engineers to look beyond the technicalities of their field to ask: What is transportation for? Similarly, Frug challenges the members of his own field to consider: What is local government for?

Frug’s own response is admirably outspoken and responsive to the deepest concerns of contemporary urban design. He asserts that local government ought to contribute to “community building,” an endeavor whose goal he defines as increasing the capacity of metropolitan residents to live in a world composed of people different from themselves. This goal, he believes, requires the kind of face-to-face discussion and resolution of differences that only local-scale units of government can offer. Local government exists precisely to embody the public realm of discussion and difference. Yet this most basic form of American democracy is constantly threatened not only by centralized bureaucracies imposing uniform rules but also by the “privatization” of local government law that serves to “wall off” privileged suburbs from the rest of the region.

Frug freely acknowledges that existing law not only permits but also encourages suburban municipalities to be as selfish as they can manage to be: to use zoning to exclude the poor while drawing on an affluent tax base to provide their citizens with exclusive access to high-quality services. Frug sees such “privatized” governments as not much different from country clubs or similar voluntary organizations. By contrast, large central cities with their diverse populations are abundantly public, but they lack the legal powers to challenge suburban hegemony.

Frug’s solution is not to abolish local government but to rethink “the legal conception of a city from the ground up” (9). Without necessarily changing any borders, he wants to change the meaning of locality to connect central cities with suburbs, and suburbs with each other. His arguments draw as much from political theory and even literary criticism as from the law of cities. He compares the typical suburban municipality under present laws to the “autonomous individual” of classical liberalism, relentlessly pursuing self-interest. Recently both communitarian and postmodern theorists have attacked this “centered” conception of the self. For the communitarians, the self is “situated” or formed through associations with others; for postmodernists, the self has no stable core or boundaries but a host of different identities. In a highly original way, Frug takes up themes from both communitarian and postmodernist theory and applies them to the seemingly remote issues of city law.

In the communitarian mode, Frug argues that local governments, especially suburbs, are always “situated” in their regions and hence their powers must always take into account their “situated identities,” that is, their mutual reliance on neighbors throughout the region. This would mean, for example, the creation of regional legislatures that would substitute regionwide discussion for the self-interested decision-making of today. Frug also proposes regional “policy juries.” Just as juries are called upon to decide difficult issues in criminal and civil law, so a hundred-member “policy jury” of citizens drawn from around the region could examine controversial issues of regional policy. In these and other forums, the self-regarding city or suburb would be plunged into the metropolitan world of diversity.

Frug then proposes a series of legal strate-gies that would embody a “postmodern conception of local government law.” This involves deconstructing the idea of borders as determinative: “a person’s territorial identity should not be reduced to his or her address” (101). He would institutionalize a person’s multiple identities by giving people multiple votes throughout the region so they could vote where they worked, where they shopped—indeed where they wanted to live. He further proposes opening “local services” such as schools and hospitals to those living outside the borders of the municipality. In all these ways the significance of local borders would be transformed.

The potential impact of Frug’s rethinking of cities can perhaps be seen most clearly in his discussion of the crucial area of education. He proposes a system in which parents could send their children to any public school in the metropolitan region, so long as diversity was promoted by their choices. If the (not unexpected) results were that the best suburban school systems were overwhelmed with applicants, then the regional legislature would necessarily have to deal with equalizing schools throughout the region. What had been seen as a kind of property right—the right of privileged suburbs to use their taxes to support schools only for their own residents—would be transformed into the basis for region-wide action.

Such proposals are not likely to figure in suburban school board elections anytime soon. Nevertheless, Frug’s rethinking points to an important trend in regional policies. The powers of “the selfish suburb” have been increasingly limited, for example, by state supreme courts mandating equal school funding for cities and suburbs, by state growth management policies that override home-rule zoning, and by state fair housing requirements. In New Jersey, for example, the state Supreme Court ruled in the landmark Mt. Laurel decision of 1975 that exclusionary zoning was illegal and that each municipality must adjust its regulations to house its “fair share” of the region’s poor. When the municipalities ignored the ruling, the Supreme Court and the state legislature set up a complicated mechanism to quantify each suburb’s “fair share” requirements and to provide that up to 20 percent of new suburban housing qualify as “affordable.” Although such politics promote diversity, Frug is not enthusiastic about methods that centralize power in state governments whose bureaucracies then impose rules on the localities. Such top-down power (even for benevolent ends) short-circuits the local democracy that Frug regards as the essence of “community building.”

But if Frug underrates the importance of the few existing forms of state-sponsored regionalism, it is because he wants to move the debate from issues of restriction—how far can states go in limiting local power?—to issues of opportunity—what can empowered localities accomplish together? And by shifting the debate to the benefits of “city making,” he opens a dialogue with urban designers who also wish to remove planning from the realm of bureaucratic control-from-above and return it to face-to-face communication among small units. Frug’s brief discussion of New Urbanism only begins to indicate the connections between his legal theories and similar themes in urban design.

As he points out, the New Urbanist charrette is the design profession’s version of the kind of discussion and decision-making he wants to bring to all local government. Beyond that, one might observe that his form of “community building,” like the best regional plans, emphasizes change at both the macro level of the region and the micro level of the neighborhood. At the regional scale, it is as much about creating a “regional coalition” of diverse groups such as women, the elderly, residents of “inner suburbs,” and African-Americans as it about either new laws or new shapes on the ground. Perhaps most important, Frug’s emphasis on the public character of local government implies the need for vital public spaces where informal interaction with people different from oneself becomes the experiential basis for local democracy.

But Frug’s ideas also have cautionary implications about the limits of design. A neighborhood or even a town filled with wonderfully designed public spaces will nevertheless be a betrayal of democracy, if it is governed by privatized conceptions of local law that promote exclusion. One might hope, however, that the converse might eventually prove to be true—that turning local governments into genuine public forums could help to reenergize urban design as the public sphere widens.

Frug’s ideas fall squarely in the category of what political philosopher John Rawls has recently termed the “realistic utopia.” As Rawls puts it, “political philosophy is realistically utopian when it extends what are ordinarily thought of as the limits of practical political possibility.”² City Making is just such an extension of the possibilities of local government; similarly, the best urban design stretches the limits of the possible in pursuit of precisely that “community building” that Frug is seeking. For what is a regional plan, if not a “realistic utopia”?