Friday, October 28, 2011

Friday Read: Fogelson on Restrictive Covenants

Although Robert Fogelson's Downtown: Its Rise and Fall is his best known work, the 2005 follow-up Bourgeois Nightmares, the title a play on Robert Fishman's 1989 book is a quick read which provides, so far as I know, the only book-length history of restrictive covenants in the United States.

Although race restrictions seem to be the focus of most studies in this area, Fogelson looks at other aspects of this history as well, examining how courts reacted to the imposition of use-based restrictions in the late 1800s, and how the public's conception of property rights came to be transformed over this period in ways which have remained more or less unchanged down to the present day. 

One of the more interesting points I thought was Fogelson's explanation as I've argued here before in the context of zoning that the main purpose of the restrictions was not to increase property values, but ultimately to constrain them:
"The suburbanites were confident that most people would refuse to sell to an African- or Asian-American or other "undesirable" person even if offered a very high price. ... But the suburbanites were far from confident that most people would turn down a good offer from a desirable person, a well-to-do white Christian like themselves, who intended to use the property for an undesirable purpose. They were afraid that most people who owned a corner lot would sell to a builder who wanted to erect an apartment house (or, even worse, open a store, saloon or gas station) and was ready to offer five or ten times what the lot was worth as the site for a single family home. ... They were afraid that was what most people would do because they knew that if they found themselves in the same position that was what they would do." p. 143.
The early 20th century restricted suburb was, as Fogelson shows, the result of a process of elimination as much as it was a positive vision: an elimination of "undesirables," a group which could comprise over 95% of the population, an elimination of commercial uses, of attached houses, of multi-family residential buildings, of houses too close the front property line, or too close to the sides, of houses that were too big, or too small, or too ugly, or too cheap, an elimination of fences, of farm animals, and even of household pets.  Above all, there was a fear of market forces, and an inability to conceive of change and urbanization in anything other than apocalyptic terms. 

From the residents' perspective, the scenario that Fogelson describes was essentially perceived as a market failure. Although the seller might reap a windfall, the thinking went, the remaining residents believed that the arrival of a saloon heralded the beginning of the end of their way of life, and would send homeowners stampeding for the exits.  That this was a self-fulfilling prophecy didn't render its effects any less real.

Although Fogelson observes that it was often fear that gave rise to these restrictive covenants, it's worth noting that their existence was not necessarily incompatible with a dense residential environment.  Boston's Back Bay, as Fogelson describes, was deliberately planned as an urban domain for the well-to-do, and was subject to numerous use-based restrictions from the outset. Giving up a degree of urban flexibility in order to retain, at fairly high density, high-income residents who might otherwise have fled to the suburbs apparently seemed a reasonable trade to Boston's Public Land Commissioners. 

In spite of this success, the Back Bay, as a literal infill project, was unusual in that it provided a blank slate close to the city center.  In general, late 19th and early 20th century America produced very few examples of compelling urban environments for the wealthy.  The Back Bay was one.  New York's Upper East Side was another.  Apart from those, and a handful of others, there was little to curb the flight of large numbers moneyed citizens out of cities and into restricted suburban communities.  A belated realization of the harm done to cities by this emigration occurred decades later and played into urban renewal schemes for the demolition of downtown working class neighborhoods, but that part of the story is beyond the scope of Fogelson's book.

At some point I'll have some additional thoughts on Fogelson's magnum opus, Downtown, but if you've been through that one and haven't yet discovered Bourgeois Nightmares, it’s a quick read that's worth your time.

1 comment:

  1. For some background, it's worth noting Fishman's thesis in Bourgeois Utopias: developers of these communties sought to create ideal environments for the Victorian family.

    Fogelson enumerates intrusions to the bourgeois utopias, such as industrial or retail development, and by people from "the dangerous classes." Restrictive covenants were intended to prevent these intrusions, and to ensure permanence of the bourgeois utopia. I don't recall if Fogelson characterized constraining residential property values as a purpose of deed restrictions, or merely a consequence.