On Engineering Urban Densification

ON ENGINEERING URBAN DENSIFICATION

Steven J. Eagle, George Mason University School of Law

Brigham-Kanner Property Rights Conference Journal, Vol. 4 (forthcoming)

George Mason University Law and Economics Research Paper Series

15-06

This paper is available on the Social Science Research Network at http://ssrn.com/abstract=2568717

On Engineering Urban Densification

By Steven J. Eagle*

Abstract

City planning in America began as a Progressive Era exercise, intended to pre- serve property values and implicitly incorporate the social norms of officials and planners. Over time, rigid zoning was replaced by flexibility, accompanied by opaque bar- gaining between localities and developers. Still, even in vibrant large cities, homeowner preferences for low density largely prevailed over attempts to enhance agglomeration through increasing density. The effect is to reduce economic opportunity for individuals, and cities less prosperous.

One method of increasing agglomeration is the imposition of densification, utiliz- ing the assembly of transient coalitions that could impose grand bargains between al- derman and strong mayors. Expert planners would devise detailed quotas for desirable and undesirable uses in different parts of the city, and recipients of favorable zoning would receive regulatory property that is locked in place by procedural and constitution- al requirements. Roderick Hills and David Schleicher advocate this approach in City Replanning.

This Article reviews the history of idealistic, and later pragmatic, comprehensive planning and zoning. It then analyzes the case for agglomeration, and how it might be obtained through density mandates. The Article subsequently reviews undesirable conse- quences of such mandates. It asserts that grand bargains attenuate democratic deci- sionmaking, significantly reinforce the perceived evils of the current system, and are apt to be ineffective.

* Professor of Law, George Mason University School of Law, Arlington, Virginia 22201, sea- [email protected]. This Article first was presented at the Eleventh Annual Brigham-Kanner Property Rights Conference, on October 31, 2014. It is written in honor of Michael M. Berger, the 2014 Brigham-Kanner Property Rights Prize recipient, the first practicing attorney to be so recognized, and one of America’s most distinguished takings lawyers. More important, in the more than 20 years that I have known him, Mike Berger has personified integrity and compassion.

This Article considers the engineering the densification of vibrant American cities. By “engineering,” I refer to something contrived or devised,1 as opposed to something arising from spontaneous growth, as Jane Jacobs or F.A. Hayek might have under- stood it.2 By “densification,” I mean increasing population density. “Densification” is an ugly word, having the sole merit of accuracy.3

The Article has three themes. Densification has beneficial effects on societal productivity to the extent coincident with positive agglomeration. The process of engineering densification exacerbates some of the same problems that it was intended to overcome. The detriments of agglomeration, conventionally lumped together with the label “congestion,” are more broad and deep than generally realized.

I. THE BENEFITS AND LURES OF AGGLOMERATION

Agglomeration theory has its roots in the observation of Alfred Marshall a century ago that the agglomeration of firms in the same industry within limited geographical con- fines conferred great benefit.4 From this beginning, subsequent scholars explained how

1 The word is comes from the Latin ingenium, meaning “cleverness.” OXFORD ENGLISH DIC- TIONARY (3rd ed., 2011). 2 See JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES (1961) (envisioning cities as naturally growing communities not marked by sterile over-planning); 1 FRIEDRICH A. HAYEK, LAW, LEGISLATION AND LIBERTY: RULES AND ORDER (1973) (generalizing theories of regu