Mapped out of local democracy.

AuthorAnderson, Michelle Wilde

In the novel Sula, Toni Morrison describes a neighborhood known locally as the Bottom, where the black community lived. It was "the hilly land, where planting was backbreaking, where the soil slid down and washed away the seeds, and where the wind lingered all through the winter." We know such Bottoms. We have seen neighborhoods forsaken in the levees' breach, public housing blocks gaptoothed with boarded windows, and floodplain shantytowns for farmworkers. We know of homes on land scarred by contamination or dogged by natural adversity. But across the country are Bottoms of another, less familiar type. On the outskirts of small cities and incorporated suburbs across the country, hundreds of high-poverty neighborhoods of color lack rudimentary services like sewage systems, drainage, and streetlights. Integrated economically with city populations but excluded from participatory rights in city government, these unincorporated urban areas bear disproportionate numbers of landfills, municipal utility plants, and freeways that benefit urban populations but threaten local health and depress land values.

What to do with today's lost neighborhoods? It is the late dawn of the twenty-first century, when integration is stronger and civil rights laws are weaker, when local government budgets are dwarfed by demands. Suing local governments or lobbying them, two of the most important strategies of twentieth-century advocacy for social justice, have been weakened by judicial and political hostility to redistributive claims. Yet state and local government law retains malleability and promise. Laws governing the allocation of power among local agencies exert significant influence over unincorporated urban areas in particular and spatial polarization by race and class more generally.

In part a prescription for unincorporated urban areas specifically, in part an exploration of solutions for any problem of metropolitan inequality, Mapped Out of Local Democracy takes stock of today's tools. It argues for a new priority in metropolitan law and policy: state legislative reforms to empower and reshape county governments to represent regional interests and regional logic in intergovernmental negotiations. Strengthening counties to bargain with other local agencies over matters with redistributive consequences, like annexation, can bring an interlocal perspective to critical local decision making and create a promising corridor for addressing contemporary issues of urban inequality. By bringing counties--our most neglected, under-theorized layer of urban government--into sharper relief this Article offers a new direction in state and local government law in order to seek progress on economic and racial polarization in America's cities.

INTRODUCTION I. THE PROBLEM OF MUNICIPAL EXCLUSION A. Unincorporated Urban Areas and the Pattern of Municipal Underbounding B. The Potential Rewards and Downsides of Annexation as a Remedy II. COMMUNITY MOBILIZATION; SEEKING MUNICIPAL INCLUSION THROUGH LOCAL POLITICS A. Levers of Local Reform B. The Barrier: Borders for Sale in a Market for Entry and Residence III. SUING FOR CHANGE: ANTIDISCRIMINATION LAW IN AN ERA OF LOCAL AUTONOMY A. Federal Protection Against the Discriminatory Movement of Borders B. The Barrier: The Ascent of Local Control IV. EMPOWERING COUNTIES TO REFORM THE REGIONAL POLITICAL ECONOMY A. Overcoming County Powerlessness in Annexation Law 1. Specific reforms 2. Political interests and alignment 3. Problems, limitations, and questions with county annexation power B. Allocating the Costs of the Redistribution: Models from History CONCLUSION INTRODUCTION

During the hardscrabble years of the late nineteenth century, racially restrictive covenants pushed low-wage African-American workers to settle in White Level, a new residential enclave outside the town of Mebane, North Carolina. Across the country several decades later, Latino labor migrants and "Okie" exiles of the Dust Bowl planted ramshackle stakes in the segregated fringe outside Fresno, a fledgling urban node in California's heartland. And just as the industrial flurry of World War II was settling, black families working in Zanesville, Ohio built a neighborhood known as Coal Run Road on land they could afford beyond reach of the city's Ku Klux Klan: the earth atop a catacomb of disused mine shafts with poisoned groundwater, just beyond the city's edge. (1)

Fast forward in time, and these three neighborhoods, like numerous others across the West and South, remain in place today--as poor, in relative terms at least, as they have always been. Still majority black and Latino, these communities witnessed the long march from de jure to de facto segregation. Homes lack rudimentary urban services such as clean water, adequate sewage disposal, sidewalks, and streetlights. Landfills, industrial plants, municipal utility plants, and freeways threaten residents' health and depress their land values. Yet one thing has changed: neighboring cities have swelled, expanding urban boundaries and causing an increasingly complex latticework of municipal services to surround, but not include, these communities. Stopped in time, like air pockets of history, these neighborhoods have seen city growth pass them by. Residents continue to live without the right to vote in their adjacent city, because borders have mapped them out of local democracy.

Daily life in many unincorporated urban areas, as I call these understudied communities (2)--household greywater pumped into overflowing backyard pits, the stench of leaking septic systems during the rain, and children tip-toeing across flooded dirt streets--would inspire distress even in Jane Addams or Jacob Rijs. How could such communities have remained static so long? The thunder of the civil rights movement's call for voting rights and fair housing should have reached them, urban expansion should have absorbed them, and the ascent of suburban land values should have enriched them. Instead, the grounds for excluding unincorporated urban areas simply evolved, traveling an axis from race to class to transform spatial exile under segregation into a rational, seemingly unavoidable economic reality. As memories of these communities' origins atrophy, and as the costs of redress rise with worsening decay, what was once an expressly racial system has become a matter of plainspoken, race-neutral financing constraints.

A story like this is familiar. Unincorporated urban areas represent a paradigmatic problem of spatial inequality--pockets of concentrated poverty rooted in a racially ordered history. In the tradition of their times, residents of unincorporated urban areas and their advocates have deployed conventional tools of change: they have organized locally and they have sued. But for unincorporated urban areas, as for other segregated, high-poverty enclaves, local political economies and antidiscrimination protections have proven to be blunt instruments, filed down by twentieth century legal changes that diminished city financial reserves and weakened federal courts' remedial power to address racial segregation.

When familiar tools falter, what works as prescription? To confront that question, this Article probes for twenty-first-century means to address inherited twentieth-century problems of spatial inequality. It investigates solutions to the unincorporated urban areas problem as both an end in itself and as a model of modern redress for similar patterns. I argue that state laws governing local agencies retain flexibility and power--when successfully designed, they can incentivize desirable local government actions, facilitate negotiated bargains among local governments, and prevent harms with cross-border consequences. States allocate authority among cities, counties, special districts, and regional agencies, thus shaping the terms of regional cooperation. In the context of annexations, states have distributed authority in a way that renders counties largely passive in managing urban growth and remediating metropolitan patterns of spatial polarization by race and class. I argue that empowering counties in matters with redistributive consequences, like annexation, brings a regional perspective to critical local decisionmaking and provides the most promising corridor for addressing contemporary issues of spatial inequality. (3) Long neglected by most local government academics and legal reformers, counties have languished as a problematic manager of high-poverty urban enclaves with little thought for their potential to lead in regional progress.

This Article, part problem-solving mission and part road map for modem legal reform, explores three approaches to problems of spatial inequality: community organizing, civil rights litigation, and local government restructuring. Part I drops an anchor in the unincorporated urban areas problem, describing these neighborhoods, the pattern of selective annexation (known as municipal underbounding) that underlies their unincorporated status, and the potential risks and rewards of pursing annexation as a solution. Parts II and III explore traditional tools of change and their current constraints. The first of these barriers is cities' finance-driven rules for growth management and annexation, which block organizing efforts to lobby for inclusion and redistribution within existing local politics. Second is courts' reluctance to mandate the movement of a local border, a major barrier to remedying a pattern of discriminatory annexation through antidiscrimination litigation. Though restrictive in the context of unincorporated urban areas, the respect for local autonomy that underlies both of these two barriers has important virtues, including freedom for state and local experimentation over annexation and growth control.

Part IV seeks to harness this flexibility by proposing a new frontier in local government reform: the potential of county governments to alleviate...

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