Ordering (and order in) the city.

Author:Garnett, Nicole Stelle
  1. THE NEW POLICING AND PROPERTY REGULATION A. The Order-Maintenance Revolution B. Property Regulation as Disorder Suppression 1. Disorder suppression through regulatory inspections 2. Disorder suppression through property litigation C. Order Construction as Disorder Suppression II. RETHINKING THE DISORDER-SUPPRESSION/ORDER-CONSTRUCTION EQUATION A. Fostering Economic Vitality Through Deregulation: Enterprise Zones B. Zoning for Diversity: Jane Jacobs and the New Urbanism C. A Test Case in East Harlem III. PROPERTY REGULATION AND NORMS OF ORDER A. City-Suburb Competition B. The Norms of Work C. The Social Influence Effects of Law Avoidance D. Diffusing the "Us v. Them" Perception IV. LAND-USE REFORM AS A COMMUNITY-POLICING ISSUE CONCLUSION The walls of the Palazzo Publico in Siena, Italy, are graced with Ambrogio Lorenzetti's striking frescos contrasting the effects of "good government" and "bad government" on fourteenth-century city life. In the city under good government, men work to repair stately buildings, women socialize in the streets, and merchants sell their wares in a busy marketplace. In the city under bad government, the buildings are crumbling, men stand idle (save one crafting weapons), bandits terrorize the innocent, and the bodies of murder victims lie in the streets. (1) The goals of urban policy, it appears, have not changed in over six hundred years.

    Over the past two decades, however, the conventional wisdom about how to achieve these goals in American cities has been turned on its head. After years of attributing the problems of urban decay and disorder to intractable "root causes," city officials now embrace "root solutions" that seek to eliminate these problems directly, regardless of their causes. (2) A primary catalyst for this change was the articulation in 1982 of the "broken windows" hypothesis by George Kelling and James Q. Wilson. (3) This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. (4) The response to this theory, and to a growing disillusionment with modern policing practices generally, (5) has been a proliferation of policies focusing on public order, such as former Mayor Rudolph Giuliani's "quality of life" and "no tolerance" programs, as well as ubiquitous "community policing" efforts. (6)

    Broken windows policies have generated a vast legal literature, most of which focuses on police efforts to restore order by enforcing criminal laws. This scholarship falls into two broad, and overlapping, categories: First, "social norms" scholars argue that order-maintenance policing strategies are needed to shore up important nonlegal social controls. (7) As Dan Kahan has observed, "[c]racking down on aggressive panhandling, prostitution, open gang activity and other visible signs of disorder may be justifiable on this ground, since disorderly behavior and the law's response to it are cues about the community's attitude toward more serious forms of criminal wrongdoing." (8) Second, and in response, criminal procedure scholars concentrate primarily on the constitutional questions raised by the discretion afforded police officers by order-promoting criminal laws. (9)

    Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. (10) To be fair, broken windows scholarship concentrates primarily on policing strategies that are, in a sense, property regulations: they seek to restore order by regulating public places--streets, parks, etc. (11) But traditional private property regulations also affect order-maintenance efforts in important, and understudied, ways. This Article attempts to fill that property law gap in the public-order puzzle by tackling the complicated relationship between property regulation and order-restoration efforts.

    Property regulations shape the order of American cities in two very different ways. First, some--housing and building codes and nuisance laws--target the physical (and related social) disorders that signal, and contribute to, urban decline. Second, others--zoning laws--define and construct the proper ordering of urban land uses. It is hardly surprising that city officials eager to curb disorder have seized upon the first, "disorder-suppression" function of property regulation. Social scientists have long linked property conditions with community health. (12) (Put most simply, the presence of an "eyesore" is a negative indicator of neighborhood health, (13) as Wilson and Kelling's precursor to spiraling disorder--the broken window--suggests.) Furthermore, constitutional rules governing police discretion limit, for good or ill, a community's ability to curb disorder through flexible criminal laws such as loitering and vagrancy prohibitions. (14) Property regulation offers vast enforcement flexibility without raising the same constitutional concerns, making it all the more attractive to city officials.

    American property regulations, however, do far more than suppress disorder. Our most significant form of land-use regulation, Euclidean zoning, also reflects a longstanding value judgment that the appropriate way to order different land uses is to separate them from one another into single-use zones. (15) City officials schooled in this ideology may naturally tend to equate ordered land uses with the absence of disorder. (16) They also may be wrong. As Jane Jacobs observed many years ago, "There is a quality even meaner than outright ugliness or disorder, and this meaner quality is the dishonest mask of pretended order, achieved by ignoring or suppressing the real order that is struggling to exist and to be served." (17) In other words, as I have suggested elsewhere, when property is over- or misregulated, property regulations may impede efforts to restore a vibrant, healthy, and organic public order. (18)

    This Article begins, in Part I, with an overview of the "order-maintenance revolution" generally, and its connection with property regulation specifically. This Part discusses ways that local governments employ the tools of property regulation to suppress physical disorder (and the social disorders associated with it), such as the aggressive use of regulatory inspections and public nuisance lawsuits to eliminate harmful land uses (19) This Part further demonstrates that many city officials have long treated--and continue to treat--order-construction regulations (i.e., zoning laws) as another convenient weapon against the social disorders targeted by broken windows policies.

    Part II examines whether this longstanding tendency to equate property regulations' disorder-suppression and order-construction functions may prove counterproductive. The focus on curbing disorder comes at the same time that increasing numbers of land-use scholars, urban planners, and government officials are coming to endorse the view that some of our urban problems stem from land-use regulations demanding the wrong kind of "order." (20) That is, as Jacobs warned, the apparent "disorder" of a busy city neighborhood frequently makes it safer--and better--than a deserted, but "orderly," one. This Part examines arguments that the prevailing system of land-use regulation--zoning--may devastate city neighborhoods by stifling the entrepreneurial energies of inner-city residents and precluding the diversity of uses needed for a healthy street life. It concludes with a case study of zoning in New York's East Harlem, where efforts to use land-use reform to revitalize a struggling community are underway. (21)

    Part III of this Article turns to an important question: what if the traditional assumption that order-construction regulations serve to suppress disorder is correct? The broken windows hypothesis rests on the assumption that government efforts are needed to reinforce private norms of order. If a broken window sends a social signal that the community does not care about property maintenance, fixing the broken window will send the opposite signal. The community will begin to care about such things; windows will not remain broken, and property conditions will improve. If loitering gang members signal that a community does not--or cannot--address gang lawlessness, dispersing congregations of gang members signals that gang activity will not be tolerated. (22) The use of property regulations to suppress disorder, as discussed in Part I, should theoretically serve a similar norm-enforcing function.

    The claim underlying the regulatory reforms discussed in Part II of this Article is a very different one--namely, that the development of the economic and social climate necessary to make city neighborhoods healthy, vibrant places can be hindered by property regulations imposing the wrong kind of order. But city officials and residents weary of disorder may greet with significant suspicion the claim that the familiar order constructed by zoning laws is unrelated, or even harmful, to disorder-suppression efforts. These understandable anxieties reinforce strong public-choice impediments to needed legislative reform. The remainder of Part III discusses why overcoming such residents' fears and politicians' resistance may offer the best hope for struggling city neighborhoods.

    Untangling the order-construction/disorder-suppression equation is no small task. Thus, Part IV of this Article concludes with a practical suggestion about how to implement meaningful land-use reforms despite significant cultural and institutional resistance to them. Specifically, I suggest that local officials foster neighborhood-level discussions of land-use reforms, perhaps in the community-policing forums that have become central to the order-maintenance agenda. These discussions are unlikely to lead to a radical overhaul of the rules governing urban land uses. Indeed, the results...

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