Cleveland State Law Review Volume 58 Issue 2 Note 2010 The Wholesale Decommissioning of Vacant Urban Neighborhoods: Smart Decline, Public-Purpose Takings, and the Legality of Shrinking Cities Ben Beckman Follow this and additional works at: https://engagedscholarship.edu/clevstlrev Part of the Land Use Law Commons, and the Property Law and Real Estate Commons How does access to this work benefit you? Let us know! Recommended Citation Note, The Wholesale Decommissioning of Vacant Urban Neighborhoods: Smart Decline, Public-Purpose Takings, and the Legality of Shrinking Cities, 58 Clev. 387 (2010) This Note is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.
THE WHOLESALE DECOMMISSIONING OF VACANT URBAN NEIGHBORHOODS: SMART DECLINE, PUBLIC-PURPOSE TAKINGS, AND THE LEGALITY OF SHRINKING CITIES * BEN BECKMAN I. WHOLESALE DECOMMISSIONING AND RESPONSIBLE URBAN LAND-USE STRATEGY. The Emergence of the Urban Fiscal Mismatch. Smart Decline Helps Rectify the Fiscal Mismatch Confronting Vacating Cities.
Eminent Domain and the Case for Shrinking Vacant Cities. Kaldor-Hicks Efficiency and the Legitimacy of Condemnations. PUBLIC-PURPOSE TAKINGS AND THE LEGALITY OF SHRINKING CITIES. Public-Purpose Takings Are Consistent with American Positive Law.
Plain Meaning and Property Rights. Public-Purpose Takings and Supreme Court Precedent. The Supreme Court and the Promotion of Economic Growth. The Court’s Incorporation Blunder.
Judicial Equation of Public Purpose and Public Use. A New Role for the Court—Economic Regulation. Promoting Economic Growth and the Resulting Judicial Conundrum., Cleveland-Marshall College of Law (expected May 2010). I welcome all comments at beckman12@gmail.
This Note benefited immensely from comments by Professor Alan Weinstein and Professor Christopher Sagers. Parker provided an engaging exploration of the topics in American intellectual history that appear in the paper. The deft editorial guidance of Margaret Sweeney and Emily White Kirsch was an immeasurable aid. I fleshed out the piece’s central idea in several extremely helpful conversations with my good friend and classmate, Ed Herman.
Lastly, this paper owes a great debt to my enduringly patient wife, Alison Day. Thank you all. All mistakes are mine alone. 387 Published by EngagedScholarship@CSU, 2010 1 388 CLEVELAND STATE LAW REVIEW [Vol.
Natural Law Permits Public-Purpose Takings. Property Rights and Democratic Citizenship. Property and Civic Identity. Locke, Political Legitimacy, and Property.
American Republicanism in the Absence of a Landed Gentry. Property Rights, Natural Rights, and Natural Law. Property Rights and the Rule of Law. The American Tradition Should Not Prevent Smart- Decline Takings.
Public-Purpose Takings—The Public-Policy Concerns. Procedure-Focused Policy Objections. Benefit-Focused Policy Objections. Cost-Focused Policy Objections.
SMART DECLINE, JUST COMPENSATION, AND KALDOR-HICKS EFFICIENCY. Public Use, Judicial Competence, and a Proposed Solution. The Political Utility of Smart-Decline Takings. Identification and Resolution of the Dispositive Legal Issues.
Fair Remuneration for the Property Owner. A Legitimate Boon to Society. 459 Rather than a permanent construction, one must take American urbanism as an essentially temporary, provisional, and continuously revised articulation of property ownership, speculative development, and mobile capital. —Architects Charles Waldheim and Marilí Santos-Munné1 Forget what you think you know about this place.
Detroit is the most relevant city in the United States for the simple reason that it is the most unequivocally modern and therefore distinctive of our national culture: in other words, a total success. This makes Detroit the revealed “Capital of the Twentieth Century,” and likely the century ahead. —Wayne State University Professor Jerry Herron2 If they stay where they are I absolutely cannot give them all the services they require. 1 Charles Waldheim & Marilí Santos-Munné, Decamping Detroit, in STALKING DETROIT 104, 108 (George Daskalakis et.
2 Jerry Herron, Three Meditations on the Ruins of Detroit, in STALKING DETROIT, supra note 1, at 33, 33.edu/clevstlrev/vol58/iss2/7 2 2010] THE WHOLESALE DECOMMISSIONING 389 —Detroit Mayor Dave Bing3 I. INTRODUCTION Detroit has lost nearly one million residents since 1950,4 and over one-third of its residential parcels languish unoccupied.5 Mayor Dave Bing has publicly declared his intent to relocate residents from the most woefully vacant areas so that the city can direct its infrastructure and service investments to more-viable neighborhoods.6 Should the law permit fiscally stressed cities like Detroit to shut down obsolete neighborhoods by compelling their citizens to move? In a word, yes. When population density plummets and the available tax base can no longer support the oversized infrastructure of an earlier era, cities owe their citizenry a reorganized urban geography. An analogy to commercial real estate is helpful.7 Faced with rising vacancy rates and falling demand for retail space, smart shopping-mall owners consolidate their remaining tenants into adjacent suites and shutter or demolish the vacant portion of the property.8 Landlords hope that these measures will align supply with demand and promote synergies among the remaining tenants.9 Unlike private landlords, city officials typically respond to rising vacancy rates and falling demand for urban real estate by raising taxes, cutting back on basic services, or both.
Tax increases are no longer an effective option for cities struggling with outmigration-induced10 budget 3 Christine MacDonald, Bing: I’ll Move Some Residents, DETROIT NEWS, Feb. BUREAU OF THE CENSUS, RANK BY POPULATION OF THE 100 LARGEST URBAN PLACES, LISTED ALPHABETICALLY BY STATE: 1790-1990 (1998), http://www.gov/population/www/ documentation/twps0027/tab01. 5 John Gallagher, Many Are Gone, But More Remain, DETROIT FREE PRESS, Feb. Kellogg, Detroit’s Smaller Reality: Mayor Plans to Use Census Tally Showing Decline as Benchmark in Overhaul, WALL ST.
27, 2010, at A3; MacDonald, supra note 3. 7 The analogy between the operational context of a shrinking city and the management imperatives of a shopping-mall landlord is Rybczynski and Linneman’s. Witold Rybczynski & Peter D. Linneman, How to Save Our Shrinking Cities, 135 PUB., Jesse Tinsley, New Look, Stores Boost Center: Wal-Mart Store Joins the Lineup at Severance Mall, PLAIN DEALER (Cleveland), Jan.
9 Shrinking Cities, supra note 7, at 35-36; see also Jesse Tinsley, Chain Stores Say Mall Isn’t in Their Plans: Future Uncertain for Severance Town Center 3 Years After Anchors Left, PLAIN DEALER (Cleveland), Apr. 10 The Oxford English Dictionary defines the intransitive verb “outmigrate” to mean “[t]o leave one country or place to make one’s home in another.” OXFORD ENGLISH DICTIONARY 1025 (J. I use “outmigration” in this sense but specifically use it to refer to the population exodus from vertical cities—both to those Published by EngagedScholarship@CSU, 2010 3 390 CLEVELAND STATE LAW REVIEW [Vol. 58:387 gaps, just as landlords in weak markets cannot sustainably redistribute fixed operating costs by raising rents.11 Similarly, service cutbacks exacerbate the exodus from central cities in the same way that a nonresponsive landlord drives tenants away.
These municipal responses further skew the already troublesome supply/demand imbalance in the urban land market, stranding remaining occupants in deepening geographic isolation.12 Accepting that population does not inexorably increase over time, proponents of smart decline argue that the scope of government should contract when population levels fall. Popper and Frank J. Popper define “smart decline” as “leaving behind assumptions of growth and finding alternatives to it.”14 They also state that “smart decline requires thinking about who and what remains. It may entail reorganizing or eliminating some services and providing different ones.
It may involve promoting certain land uses and landmarks more as historical remnants than as sources of growth.”15 One example of smart decline is the proposal that we shrink central cities that exhibit significant vacancy rates.16 Professors Witold Rybczynski and Peter D. Linneman argue that the geographic size of older American cities is no longer sustainable, given today’s low demand for urban land.17 In cities with significant vacancy problems, shrinking the municipal jurisdiction would conserve public resources by streamlining service delivery and reducing oversized infrastructure systems.18 cities’ suburbs and to the horizontal cities of the demographically growing American South and West. 11 Shrinking Cities, supra note 7, at 36; see also Ebony Reed, East Side Vote Can’t Carry School Tax; Pinkney Advises Against Trying for Tax Again in February, PLAIN DEALER (Cleveland), Nov. 24, 2003, at A1 (reporting mayoral intent to lay off police, fire, and EMS workers because of falling municipal revenues and loss of population); Mike Tobin & Lila J.
Mills, Layoff Talk Took Toll on Tickets: Some Arrests Fell, Sick Time Soared Before Safety Forces Lost Jobs, PLAIN DEALER (Cleveland), Mar. 12 See Olivera Perkins & Tom Breckenridge, Our Shrinking City Looks Down the Road, PLAIN DEALER (Cleveland), Aug. 13 See generally Deborah E. Popper, Small Can Be Beautiful, PLANNING, July 2002, at 20.
16 See generally Shrinking Cities, supra note 7.edu/clevstlrev/vol58/iss2/7 4 2010] THE WHOLESALE DECOMMISSIONING 391 The contradiction between smart decline and the American infatuation with growth often breeds resistance to the prospect of shrinking our vacant cities.19 For instance, despite some observers’ approbation of Mayor Bing’s announcement,20 cynics have already accused him of bad faith.21 But smart decline has a strong internal logic, and a few American cities have preceded Detroit in considering municipal contraction as a smart-decline strategy.22 For instance, officials and local stakeholders in Youngstown, Ohio have collaboratively developed a plan to shrink the urban footprint through voluntary owner relocation and targeted municipal investment.23 With any municipal-contraction plan, however, a small number of unwilling owners could destroy the projected efficiency gains by refusing to relocate. Eminent domain is a legitimate last-resort strategy in support of well-conceived plans to contract municipal boundaries. By raising the possibility of eminent domain, the proposal that we shrink our cities does more than merely challenge 19 See, e., Ken Dilanian, Some Voice Concern Over Mayor’s Priorities, PHILA. 24, 2001, at B1 (chronicling criticisms of Philadelphia mayor for spending on blight removal rather than emphasizing population growth to increase municipal tax yields); Tony Dokoupil, Cutting Down to Size, NEWSWEEK, Nov.com/id/224646 (describing public castigation of Genesee County Treasurer Dan Kildee, a prominent advocate for decommissioning of abandoned buildings through land banking); Brentin Mock, Can They Save Youngstown?, NEXT AM.
CITY, Fall 2008, http://americancity.org/magazine/article/ can-they-save-youngstown/. 20 Editorial, Bing’s Detroit: An End to Illusions, But Room for Hope, DETROIT FREE PRESS, Mar. 24, 2010, at A8; Editorial, Bing’s Vision, DETROIT NEWS, Mar. 24, 2010, at A12; Daniel Howes, Bing Sets Sights on 4 Detroit Priorities, DETROIT NEWS, Mar.
25, 2010, at B4; Kellogg, supra note 6 (quoting Rip Rapson, president of a national foundation active in community-development work in Detroit, in support of Mayor Bing); Darren A. Fleming, Mayor Bing: “Together We Can Reinvent Detroit,” DETROIT NEWS, Mar. 24, 2010, at A1 (noting that a majority of the Detroit City Council support the mayor’s land-use vision); Rochelle Riley, Detroit Missing a Larger-Than-Life Leader, DETROIT FREE PRESS (Mar. 24, 2010), at A2; Thinking About Shrinking: Detroit’s Future, ECONOMIST, Mar.
21 MacDonald, supra note 3 (quoting Ron Scott, a community activist who contends that the mayor is working to provide business interests with large tracts of urban land); David Whitford, Postcard: Downsizing Detroit, TIME, Mar., Tom Breckenridge, A New Take on Urban Renewal; Plans Build on Anchor Projects in 6 Parts of City, PLAIN DEALER (Cleveland), Nov. 25, 2007, at B1 (describing targeted community investment in Cleveland); Cynthia Burton, City Spells Out Plan to Take Philadelphia Beyond Blight: Demolition of Eyesores, Better Neighborhood Maintenance, and Community Involvement Are Part of a $250 Million Effort, PHILA., Youngstown Embraces Its Future, PLANNING, Aug. 2003, at 14, 14 (describing planned voluntary obsolescence of vacant neighborhoods in Youngstown, Ohio); Carolina Reid, Neighborhoods in Bloom: Measuring the Impact of Targeted Community Investments, COMMUNITY INVESTMENTS, Winter 2006, at 24, 24 (describing targeted community investment in Richmond, Va. 23 Finnerty, supra note 22, at 14.
Published by EngagedScholarship@CSU, 2010 5 392 CLEVELAND STATE LAW REVIEW [Vol. 58:387 American assumptions about growth.24 Such municipal-contraction proposals also threaten cherished understandings of property rights, particularly thoughts about the sanctity of the home.25 Nonetheless, in appropriate urban contexts, smart decline through municipal contraction is good policy, and eminent domain is needed to execute it. A few words on vocabulary are in order. In legal discourse, the terms “eminent domain,” “condemnation,” “expropriation,” and “compulsory purchase” are synonymous.