Mapped out of local democracy

Stanford Law Review

Volumn 62, Issue 4, 2010, Pages 931-1004

  Anderson, Michelle Wilde ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 70349823709     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (312)

1. For more on the histories of these communities, see generally Plaintiffs' Combined Opposition to Defendants' Motions for Summary Judgment at 9-13, Kennedy v. City of Zanesville, 505 F. Supp. 2d 456 (S.D. Ohio 2007) (No. 2:03-cv-1047)
2. Wallace Smith, Garden Of The Sun: A History Of The San Joaquin Valley, 1772-1939, at 611-12 (2d ed. 2004)
3. W. END REVITALIZATION ASS'N, EPA ENVIRONMENTAL JUSTICE STUDY: FAILING SEPTIC SYSTEMS AND CONTAMINATED WELL WATERS: AFRICAN-AMERICAN COMMUNITIES IN MEBANE, NORTH CAROLINA (2002), available at http://www.wera-nc.org/News/epa/epaej_1202.htm.
4. In a prior article, I provided a vocabulary and a conceptual baseline for understanding the problem of unincorporated urban areas, arguing that the dependence of these areas on diffuse, underfunded, and overburdened county government helps to explain the history of these communities and the particular challenges they face. I defined unincorporated urban areas to be neighborhoods that are: (1) unincorporated (lying outside the borders of any incorporated city, and thus reliant on counties as the most proximate tier of general purpose local government); (2) contiguous on one or more sides with the border of a city or lying within the area legally designated for a city's expected growth; (3) primarily residential, with densities greater than or similar to adjacent, incorporated land; and, (4) low-income, as defined by census track data. Michelle Wilde Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. REV. 1095, 1101 (2008).
5. This Article thus furthers the increased attention in the legal community on the power of existing local governments to address social problems in innovative ways, when and if they are empowered and liberated by law to do so. See, e.g., GERALD E. FRUG & DAVID J. BARRON, CITY BOUND: HOW STATES STIFLE URBAN INNOVATION (2008) (arguing that state law often prohibits cities from addressing problems, especially regional ones, like housing and crime)
6. David J. Barron, The Promise of Cooley's City: Traces of Local Constitutionalism, 147 U. PA. L. REV. 487 (1999) (exploring local governments' powerful ability to give shape and life to constitutional principles)
7. Richard C. Schragger, Cities as Constitutional Actors: The Case of Same-Sex Marriage, 21 J.L. & POL. 147 (2005) (arguing that local governments can, and perhaps should, hold responsibility for making marriage eligibility determinations)
8. A. Dan Tarlock, Local Government Protection of Biodiversity: What Is Its Niche?, 60 U. CHI. L. REV. 555 (1993) (examining the role of local governments, particularly through their land use authority in protecting biodiversity).
9. Jacqueline Leavitt, White Town in Town, but an Outhouse for the Blacks: Belle Glade, Florida, 54 U. DET. J. URB. L. 765, 766-67, 769 (1977).
10. Burton v. City of Belle Glade, 178 F.3d 1175, 1183 n.1 (11th Cir. 1999) (observing that de jure segregation ended under court order in 1977), reh'g en banc denied, 193 F.3d 525 (11th Cir. 1999).
11. Id. at 1184.
12. Id. at 1184-85 (describing formal annexation efforts by tenants in 1961, 1973, 1980-85, and 1995).
13. Id. at 1185 & n.6.
14. Burton v. City of Belle Glade, 966 F. Supp. 1178, 1179, 1181 (S.D. Fla. 1997). Plaintiffs argued that the failure to annex amounted to vote denial for black tenants of the excluded development, vote dilution for black voters within city lines, and discriminatory expenditure of federal funds by the City of Belle Glade and its housing authority. Their claims arose under the First, Thirteenth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution, § 2 of the Voting Rights Act of 1965, and Title VI of the Civil Rights Act of 1964.
15. Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960).
16. Belle Glade, 178 F.3d at 1183.
17. Id. at 1185-86, 1185 n.6, 1193, 1195, 1200.
18. Victor Rubin et al., Unincorporated Communities in the San Joaquin Valley: New Responses to Poverty, Inequity, and a System of Unresponsive Governance 12 (Nov. 27, 2007) (unpublished report, on file with author).
19. Charles S. Aiken, Race as a Factor in Municipal Underbounding, 77 ANNALS ASS'N AM. GEOGRAPHERS 567 (1987).
20. Allan M. Parnell ET AL., The Persistence Of Political Segregation: Racial Underbounding In North Carolina (2004), http://www.mcmoss.org/CedarGrove/Docs/regional_underbounding.pdf. Additional studies of poverty in unincorporated areas more generally (not necessarily near a city border) have identified thousands of low-income unincorporated subdivisions in the Southwest-including at least 1800 in Texas alone.
21. PETER M. WARD, COLONIAS AND PUBLIC POLICY IN TEXAS AND MEXICO: URBANIZATION BY STEALTH (1999) (documenting colonias neighborhoods in Texas)
22. Jane E. Larson, Free Markets Deep in the Heart of Texas, 84 GEO. L.J. 179 (1995)
23. Vinit Mukhija & Paavo Monkkonen, What's in a Name? A Critique of 'Colonias' in the United States, 31 INT'L J. URB. & REGIONAL RES. 475, 476 (2007) (documenting colonias communities in Southern California).
24. Anderson, supra note 2, at 1101-02.
25. Id. at 1101.
26. In a small minority of states and cities, unincorporated urban areas will not occur, by definition. These areas include consolidated city-county governments, "independent" cities not encompassed by any county's territory, areas in which a city has subsumed one or more county governments and all land is incorporated within that city, and the few New England states in which all territory lies within a municipality and there is no functioning unit of county government. Anderson, supra note 2, at 1103 n.17.
27. CHARLES S. AIKEN, THE COTTON PLANTATION SOUTH SINCE THE CIVIL WAR 319-27 (1998)
28. Aiken, supra note 14, at 564-65; Anderson, supra note 2, at 1113.
29. Clingermayer and Feiock conducted a multivariate analysis of annexation patterns in the 1980s across most metropolitan cities (as defined by populations greater than 25,000 in 1990) in the country. JAMES C. CLINGERMAYER & RICHARD C. FEIOCK, INSTITUTIONAL CONSTRAINTS AND POLICY CHOICE: AN EXPLORATION OF LOCAL GOVERNANCE 101-05 & tbls.6.1, 6.2, 6.3 (2001). While their study offered valuable insights with respect to other variables in annexation (such as the annexing city's form of government and expenditures on services), the study's racial demographic variables were so imprecise as to be misleading. Their study accounted for two racial variables: the percent black of the annexing city and the percent black of the surrounding county-the latter measure thus capturing the racial demographics of all unincorporated land in the county as a whole rather than the unincorporated areas eligible for annexation. Yet the racial demographics of non-fringe unincorporated areas in the county (such as scattered rural populations, distant unincorporated subdivisions, the fringe areas surrounding other cities, etc.) are irrelevant to understanding a city's annexation choices. Furthermore, the study failed to compare the racial demographics of the fringe land annexed with the fringe land not annexed in order to capture racial preferences in annexation, and its use of "percent black" as the sole measure of racial diversity is inappropriate for a national study in which other racial groups are overrepresented at the urban fringe. As a result, the authors' claim that race did not significantly influence annexation, see id. at 105, is not substantiated. Lichter et al. offers a substantially more specific methodology by identifying (using finer census block level data), land "at risk" for annexation, and analyzing the racial demographics of both annexed and non-annexed land in that at risk area. See Daniel T. Lichter et al., Municipal Underbounding: Annexation and Racial Exclusion in Southern Small Towns, 72 RURAL SOC. 47, 52 (2007).
30. See Lichter et al., supra note 20, at 47.
31. Id. at 59, 66.
32. Id. at 60, 67.
33. Id. at 64, 67. This finding included a control variable for the black population in contiguous fringe areas, i.e., comparing annexations when the white and more diverse towns had similarly sized black populations at their fringe. Id. at 64-65.
34. Id. at 62-63.
35. See D. Andrew Austin, Politics vs. Economics: Evidence from Municipal Annexation, 45 J. URB. ECON. 501, 528 (1999) (testing the assumption that cities' desire to expropriate suburban tax bases motivated annexations, and finding that economic considerations alone could not rationally justify annexations during the 1950s)
36. Thomas R. Dye, Urban Political Integration: Conditions Associated with Annexation in American Cities, 8 MIDWEST J. POL. SCI. 430, 441 (1964) (investigating the effect of "social distance," including socioeconomic differences, between cities and the neighborhoods they annexed, and finding that annexations were much more likely to come to fruition if the central city's population was more "middle class" than the areas it annexed-a finding that undermines any claim that annexations were merely animated by the preference for wealthier communities).
37. Austin, supra note 26, at 528
38. see also id. at 504-05.
39. Id. at 528; see also id. at 520 (finding that, during the time period of study, "the 'capture' of existing suburban tax base [did] not motivate annexation").
40. Sheryll D. Cashin, Drifting Apart: How Wealth and Race Segregation Are Reshaping the American Dream, 47 VILL. L. REV. 595 (2002) [hereinafter Cashin, Drifting]
41. Sheryll D. Cashin, Localism, Self-Interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism, 88 GEO. L.J. 1985 (2000)
42. David Dante Troutt, Ghettoes Made Easy: The Metamarket/Antimarket Dichotomy and the Legal Challenges of Inner-City Economic Development, 35 HARV. C.R.-C.L. L. REV. 427 (2000). Cashin, for instance, has warned of a mutually reinforcing dynamic in which spatial segregation expands racial and socioeconomic inequality by privileging a suburban professional class and engendering political indifference to low-income neighborhoods in social distress. See Cashin, Drifting, supra, at 596.
43. See Third Amended Complaint para. 3, Comm. Concerning Cmty. Improvement v. City of Modesto, 2007 WL 4365584 (E.D. Cal. 2007) (No. CIV-F-04-6121)
44. Class Action Complaint para. 3, Kennedy v. City of Zanesville, 505 F. Supp. 2d 456 (S.D. Ohio 2007) (No. 2:03-cv-1047).
45. See, e.g., UNIV. OF N.C. LAW SCH., CTR. FOR CIVIL RIGHTS, 2008-09 ANNUAL REPORT, http://www.law.unc.edu/documents/civilrights/annualreport200809.pdf
46. Cal. Rural Legal Assistance, Inc., Community Equality Initiative, http://www.crla.org/index.php?page=community-equity-initiative (last visited Jan. 28, 2010)
47. S. Coal. for Social Justice, Municipal Exclusion, http://www.southerncoalition.org/node/22 (last visited Jan. 28, 2010)
48. Tex. RioGrande Legal Aid, Economic and Social Justice: Colonias & Real Estate Law, http://www.trla.org/sections/teams/index.php?page=ess_colonias (last visited Jan. 28, 2010).
49. This was the approach taken by the fair housing movement, in which civil rights reformers (particularly in the North) reacted to the racial and economic divergence of incorporated suburbs from central cities. To overcome this newly polarized landscape of jurisdictional segregation, they advocated for the free movement of individuals across fixed municipal borders, targeting housing and land use practices that violated individual rights. The combined import of the Fair Housing Act and Jones v. Alfred H. Mayer Co. established the right of individuals to rent, buy, or sell housing in any jurisdiction, free from both public and private acts of discrimination. The Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3619
50. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968). A long trajectory of cases confronted the power of cities to exclude minorities by blocking affordable housing. See, e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003)
51. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)
52. Warth v. Seldin, 422 U.S. 490 (1975). The progress towards free movement of individuals within a landscape of jurisdictional segregation reached its apex (however briefly) in cases that prevented cities from selectively approving municipal service extensions as a way of discouraging desegregation. See United Farmworkers of Fla. Hous. Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974) (effectively protecting minorities' rights to locate within affordable unincorporated urban areas at the city's edge by holding that although a municipality has no obligation to extend services across its borders, once it elects to do so, race cannot factor in its services decisions); Kennedy Park Homes Ass'n v. City of Lackawanna, 436 F.2d 108 (2d Cir. 1970) (holding that a city's refusal to approve a municipal service extension to a low-income housing development for blacks, to be located in a white area, constituted racial discrimination in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment).
53. This approach was, of course, the heart of mid-century slum clearance programs that demolished older, mixed-use urban neighborhoods to make way for publicly-accessible or revenue-generating uses (such as transportation infrastructure, shopping malls, and parks) and provided high density replacement housing on-or off-site-housing that quickly became concentrated ghettos of joblessness, crime, despair, and dilapidation. For the history of such programs in specific cities, see generally ARNOLD R. HIRSCH, MAKING THE SECOND GHETTO: RACE & HOUSING IN CHICAGO 1940-1960, at 100-34 (1998)
54. ROBERT O. SELF, AMERICAN BABYLON: RACE AND THE STRUGGLE FOR POSTWAR OAKLAND 139-55 (2003)
55. THOMAS J. SUGRUE, THE ORIGINS OF THE URBAN CRISIS: RACE AND INEQUALITY IN POSTWAR DETROIT 48-50 (1996)
56. Raymond A. Mohl, Race and Space in the Modern City: Interstate-95 and the Black Community in Miami, in URBAN POLICY IN TWENTIETH-CENTURY AMERICA 100, 100-58 (Arnold R. Hirsch & Raymond A. Mohl eds., 1993).
57. The results of efforts to relocate individual low-income families of color in white, middle-class suburbs under court-ordered programs to distribute public housing have yielded small (albeit important) gains. See, e.g., LEONARD S. RUBINOWITZ & JAMES E. ROSENBAUM, CROSSING THE CLASS AND COLOR LINES: FROM PUBLIC HOUSING TO WHITE SUBURBIA (2000)
58. James Rosenbaum et al., New Capabilities in New Places: Low-Income Black Families in Suburbia, in THE GEOGRAPHY OF OPPORTUNITY: RACE AND HOUSING CHOICE IN METROPOLITAN AMERICA 150 (Xavier de Souza Briggs ed., 2005). For a discussion of the social harms and resegregationist consequences of urban renewal, see supra text accompanying note 33.
59. In a forthcoming work, I will explore how we might improve land use and building code regulations rooted in urgent matters of health and safety, while continuing to foster unincorporated areas as sources of affordable housing. In other words, I will explore the regulatory balance between improving conditions and keeping such areas free from many of the aesthetic and discretionary controls associated with municipal land use regimes. See Michelle Wilde Anderson, Habitat Adequacy: Minimum Standards for American Neighborhoods (work in progress).
60. Thinking more aggressively about counties as stewards of urban life, we can reconceptualize the state delegation of authority to local government and establish a theory of adequacy in municipal services. See id. A precursor to this theory was offered by Charles Haar and Daniel Fessler, who argued that local governments might be liable to provide equal services under common law liability for common carriers. See CHARLES M. HAAR & DANIEL WM. FESSLER, FAIRNESS AND JUSTICE: LAW IN THE SERVICE OF EQUALITY (1987). In the years since their book, education reform has pursued adequacy rather than equality under state constitutional law, providing a model of reform in housing and services.
61. See generally CEDAR GROVE INST. FOR SUSTAINABLE CMTYS., INCORPORATION, ANNEXATION AND EXTRA-TERRITORIAL JURISDICTION: A DOUBLE STANDARD? PREDOMINANTLY-MINORITY TOWNS STRUGGLE (2004), http://home.mindspring.com/ ~mcmoss/cedargrove/id19.html (analyzing the challenges faced by incorporated, predominantly minority towns in North Carolina)
62. Anderson, supra note 2, at 1122-23 & nn.100-01, 1133 (describing viability challenges faced by some low-income minority towns that did incorporate in the deep South)
63. Ankur J. Goel et al., Black Neighborhoods Becoming Black Cities: Group Empowerment, Local Control and the Implications of Being Darker than Brown, 23 HARV. C.R.-C.L. L. REV. 415 (1988) (profiling several neighborhoods that sought independent political control through incorporation and assessing the practical and philosophical implications of this approach as a civil rights strategy).
64. See Anderson, supra note 2, at 1128 n.129, 1151-52
65. Sarah Ihn, The Long Road to Self-Determination: A Critique Of Municipal Incorporation Through the East Los Angeles Cityhood Movement, 13 HARV. LATINO L. REV. (forthcoming 2010) (manuscript at 6-7, on file with author).
66. See infra text accompanying note 80.
67. These benefits are captured on the website of the Fresno County Local Agency Formation Commission: It has been the experience of cities and counties throughout California that annexation of County islands have [sic] resulted in a more efficient urban service delivery system comprised of sewer; water; trash collection; police protection; fire protection; groundwater recharge; code enforcement; etc. Allowing islands to become part of a city has allowed residents to participate in the decisions that impact not only their immediate neighborhoods, but their communities. Fresno County Local Agency Formation Comm'n, Island Annexations, http://www.fresnolafco.org/Island%20Annex.asp (last visited Nov. 23, 2009).
68. As discussed in Cities Inside Out, such over-concentration results in part from city governments' interest in siting urban infrastructure in accessible locations without causing displacements that harm constituents-an objective that cities can meet by using the power of extraterritorial eminent domain to locate such infrastructure just outside city boundaries. See Anderson, supra note 2, at 1152-53.
69. To the extent that this assumption is incorrect (i.e., that home values are in fact static or minimally increase following annexation), the risks discussed in this Part (including displacement, loss of affordable housing, windfalls, and moral hazards) would be alleviated. Infrastructure improvements in that case would simply increase habitability at the bottom of the homeowner housing market.
70. Comprehensive data on tenure status in unincorporated urban areas has not yet been collected. Research on unincorporated colonias neighborhoods (an academic category that partially overlaps with that of unincorporated urban areas, see Anderson, supra note 2, at 1115-20), however, indicates the dominance of owner-occupied dwellings. See Larson, supra note 15, at 205.
71. Such laws include California's Proposition 13, Missouri's Hancock Amendment, and Michigan's Headlee Amendment (and similar constitutional amendments in Colorado, Louisiana, and Washington), which mandated voter approval of any tax increase; in addition to laws in Alaska, Florida, South Carolina, Arizona, Connecticut, Delaware, Hawaii, and other states that limited government taxes to a specified per capita level or mill rate. See Richard Briffault, Foreword: The Disfavored Constitution: State Fiscal Limits and State Constitutional Law, 34 RUTGERS L.J. 907, 930-32 (2003)
72. Laurie Reynolds, Taxes, Fees, Assessments, Dues, and the "Get What You Pay For" Model of Local Government, 56 FLA. L. REV. 373, 392 & n.80 (2004)
73. Kirk J. Stark, The Right to Vote on Taxes, 96 NW. U. L. REV. 191 (2001)
74. see also ARIZ. CONST. art. IX, § 17; CAL. CONST. art. XIIIA, § 4; COLO. CONST. art. X, § 20; CONN. CONST. art. III, § 18; DEL. CONST. art. VIII, § 6; FLA. CONST. art. VII, § 9(b); HAW. CONST. art. VII, § 9; LA. CONST. art. VII, § 2; MICH. CONST. art. IX, § 6; MO. CONST. art. X, § 22(a); S.C. CONST. art. X, § 7; WASH. CONST. art. VII, § 2; ALASKA STAT. § 29.45.080(b) (2009).
75. Indeed, a study of the cost impacts of annexation on several unincorporated urban areas in North Carolina found that the cost of such private substitutes amounted to significantly more than any tax or fee changes triggered by annexation. See UNIV. OF N.C., CTR. FOR CIVIL RIGHTS, INVISIBLE FENCES: MUNICIPAL UNDERBOUNDING IN SOUTHERN MOORE COUNTY app. I (2006), http:// www.law.unc.edu/documents/civilrights/briefs/invisiblefencesreport.pdf. Similarly, a calculation of the costs borne by residents denied city water outside of Zanesville, Ohio found that each household paid up to, and sometimes more than, ten times the cost of public water service for the costs of purchasing bottled drinking water and purchasing, hauling, and storing household water. See Class Action Complaint paras. 3, 34, Kennedy v. City of Zanesville, 505 F. Supp. 2d 456 (S.D. Ohio 2007) (No. 2:03-cv-1047) (describing costs such as: installation and maintenance of a cistern and pump, purchase of chemicals for treating water, and repair and replacement of hot water tanks and appliances damaged by running contaminated water).
76. Building on the annexation study discussed supra note 45, research and advocacy in this field would benefit from case studies that assess the costs and benefits of annexation for specific communities. Such studies would provide models for how to assess the impacts of annexation along financial, regulatory (i.e., local laws concerning the use of one's property), and political dimensions. Objective measures (like tax and fee levels) and residents' subjective views (such as their perception of the responsiveness or accessibility of local government officials) are both relevant to such impact analysis.
77. See, e.g., MARY PATTILLO, BLACK ON THE BLOCK: THE POLITICS OF RACE AND CLASS IN THE CITY 121-47 (2007) (identifying the increasing prominence of black middlemen and middlewomen in serving as intermediaries between Chicago's white government officials and private investors on the one hand, and community organizations and residents on the other)
78. Richar D Briffault, The Rise of Sublocal Structures in Urban Governance, 82 MINN. L. REV. 503, 504-05 (1997)
79. Sheila R. Foster & Brian Glick, Integrative Lawyering: Navigating the Political Economy of Urban Redevelopment, 95 CAL. L. REV. 1999, 2018-23 (2007) (discussing the decentralization of power in urban redevelopment, with city governments becoming weaker players in comparison to community groups and other dispersed seats of influence).
80. Michael Heller & Rick Hills, Land Assembly Districts, 121 HARV. L. REV. 1465, 1469, 1488-96 (2008).
81. Id. at 1469.
82. See LISA BELKIN, SHOW ME A HERO: A TALE OF MURDER, SUICIDE, RACE, AND REDEMPTION (1999) (a journalistic narrative of the social and political perception of the Yonkers desegregation litigation).
83. The classic example of a housing windfall illustrates the point: If households near an airport complain about noise pollution and successfully achieve noise abatement, their property values might go up despite the fact that they moved to the nuisance. But that noise reduction may still be desirable in social or economic terms for a broad range of parties affected by the sound.
84. See Richard Briffault, Town of Telluride v. San Miguel Valley Corp.: Extraterritoriality and Local Autonomy, 86 DENV. U. L. REV. 1311, 1313-17 (2009) (exploring the origins of municipalities' "surprisingly widespread" extraterritorial police powers, including zoning and condemnation authority).
85. RicharD Briffault, for instance, has considered the annexation option in the context of neighborhoods seeking remediation for extraterritorial regulation, but expressed concern that expansion of local government populations through annexation comes into tension with participatory values favoring the smallest possible municipal scale. Richard Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV. 1115, 1133 (1996).
86. Richard Schragger put it well: "The creation of a place for meaningful self-government (in space and in politics) for those inside the (metaphorical and sometimes literal) gates always affects (and often injures) those who are outside those gates." Richard C. Schragger, The Limits of Localism, 100 MICH. L. REV. 371, 374 (2001).
87. See, e.g., Anderson, supra note 2, at 1158 (describing voting demographics in the city of Modesto, California, where a Latino population of twenty-five percent within city lines was able to elect only one city councilmember under the formerly at-large voting district in one hundred years, but the population in unincorporated urban areas just outside city lines would more than double the Latino vote within Modesto).
88. Antidiscrimination law, as discussed in the next Part, is now a relatively weak opponent for social conditions historically rooted in racial discrimination and segregation.
89. As previously noted, urban renewal and redevelopment programs have a dark and extensive history of displacing low-income minority communities in order to make way for land uses that benefit political majorities. See supra text accompanying note 33. Indeed, some unincorporated urban areas in the South were themselves the offspring of such efforts; they were created after white political elites used urban renewal funding to demolish stands of black housing within municipalities and rebuild housing outside city boundaries where black voters could be excluded from town elections. See, e.g., AIKEN, supra note 19, at 319-27; Anderson, supra note 2, at 1127 n.127, 1137.
90. For a general presentation of the main features of annexation law, particularly the range of state laws governing landowner consent to annexation, see generally RICHARD BRIFFAULT & LAURIE REYNOLDS, CASES AND MATERIALS ON STATE AND LOCAL GOVERNMENT LAW 211-35 (7th ed. 2009)
91. Clayton Gillette, Voting with Your Hands: Direct Democracy in Annexation, 78 S. CAL. L. REV. 835, 838-39 (2005)
92. Laurie Reynolds, Rethinking Municipal Annexation Powers, 24 URB. LAW. 247, 260 (1992).
93. Daren Waite, Annexation and the Voting Rights Act, 28 HOW. L.J. 565, 569 (1985).
94. Six states also permit annexation via petition to the state legislature, though this method has been uncommon since the late nineteenth century. See PAULA E. STEINBAUER ET AL., UNIV. OF GA., CARL VINSON INST. OF GOV'T, AN ASSESSMENT OF MUNICIPAL ANNEXATION IN GEORGIA AND THE UNITED STATES: A SEARCH FOR POLICY GUIDANCE 68-69 app. b (2002), available at http://www.cviog.uga.edu/publications/pprs/53.pdf
95. David G. Bromley & Joel Smith, The Historical Significance of Annexation as a Social Process, 49 LAND ECON. 294, 294-95 (1973).
96. See, e.g., ALA. CODE § 11-42-21 (2009) (requiring landowner consensus); COLO. REV. STAT. § 31-12-107 (2009) (requiring landowner majority); 65 ILL. COMP. STAT. 5/7-1-4 (2009) (requiring landowner and elector majority); IND. CODE §§ 36-4-3-5, 36-4-3-5.1 (2009) (requiring a majority of landowners or owners of supermajority of assessed land value; approving different annexation methods depending on whether a petition represents the consent of a consensus or a majority of landowners and residents); NEB. REV. STAT. § 17-405 (2009) (requiring landownder and inhabitant majority); NEV. REV. STAT. § 268.636(1) (2009) (requiring landowner majority); N.C. GEN. STAT. § 160A-31 (2009) (requiring consensus); OHIO REV. CODE ANN. § 709.02(C)(1) (West 2009) (requiring landowner majority); OKLA. STAT. tit 11, § 21-105 (2009) (requiring landowner and elector supermajority); WIS. STAT. § 66.0217 (2009) (approving different annexation methods depending on whether a petition represents the consent of a consensus or a majority of landowners and residents).
97. Indeed, state law clearly holds that the power of annexation lies in the hands of states and municipalities, not petitioners for annexation. See, e.g., Roberts v. City of Mesa, 760 P.2d 1091, 1093 (Ariz. Ct. App. 1988) (stating that municipalities have "complete discretion" in deciding whether to undertake an annexation, and that "petitioners [for annexations] are mere supplicants and have no power or right to require annexation" (internal quotation marks omitted))
98. see also People ex rel. Lake Bluff v. City of N. Chicago, 586 N.E.2d 802, 806-07 (Ill. App. Ct. 1992)
99. Scheuer v. Johns-Manville Prod. Corp., 70 N.E.2d 876, 880 (Ill. App. Ct. 1947)
100. Mayor and Council of Rockville v. Brookeville Tpk. Const. Co., 228 A.2d 263, 270 (Md. 1967).
101. See, e.g., Bozung v. Local Agency Formation Comm'n, 529 P.2d 1017, 1027 (Cal. 1975) (holding that annexations are subject to the requirements of the state environmental review statute); City Council of Watervliet v. Town Bd. of Colonie, 822 N.E.2d 339, 342 (N.Y. 2004) (holding that the state environmental quality review law requires environmental review prior to an annexation); King County v. Wash. State Boundary Review Bd., 860 P.2d 1024, 1033-34 (Wash. 1993) (same).
102. See ELISA BARBOUR & MICHAEL TEITZ, PUB. POLICY INST. OF CAL., CEQA REFORM: ISSUES AND OPTIONS 12 (2005), available at www.ppic.org/content/pubs/op/OP_405EBOP.pdf (estimating average costs based on 2004 dollars).
103. See 1 ANTIEAU ON LOCAL GOVERNMENT LAW § 3.04 (2d ed. 2009); STEINBAUER ET AL., supra note 60, at 68-69 app. b (classifying states' annexation laws according to, inter alia, procedural requirements).
104. See, e.g., ALA. CODE § 11-42-21 (2009); MO. REV. STAT. § 71.012 (2009); N.C. GEN. STAT. §160A-31 (2009); City of Leeds v. Town of Moody, 319 So.2d 242 (Ala. 1975).
105. Clayton Gillette has argued that this later option of concurrent majorities (direct democratic majority in area to be annexed plus majority of representative body or electorate of municipality) is preferable to alternative systems, because it does the best job of encouraging both parties to negotiate to reach the optimal extent and terms of annexation. See G illette, supra note 58, at 859-60.
106. See Wilkerson v. City of Coralville, 478 F.2d 709, 711 (8th Cir. 1973) (considering a low-income neighborhood's allegation of wealth discrimination in an annexation and holding "[w]e find no right of annexation available to anyone, owners or residents, regardless of economic status. Whether [the city], in the exercise of its powers relating to the annexation of territory, should be permitted to encircl e and exclude an impoverished area is a ma tter of legislative policy for the State of Iowa.").
107. See Anderson, supra note 2, at 1155-59.
108. The only exception to this characterization, as found by this author, is in Arizona, where counties may initiate an annexation of very small parcels (less than ten acres) that are complet ely surrounded by a municipality. See ARIZ. REV. STAT. § 11-269.07 (LexisNexis 2009).
109. See GA. CODE ANN. § 36-36-6 (2009) (requiring written notice to the county); MD. CODE ANN. art. 23A, § 19(o)(3) (LexisNexis 2009) (requiring that a city submit a copy of its annexation plan to the county).
110. Only Delaware gives counties approval authority over all annexations. See DEL. CODE ANN. tit. 22, § 101A(2)(c)-(d) (2009). In Ohio, counties must approve an initial resident petition for annexation, but once thus approved, the annexing municipality may reject the annexation. See OHIO REV. CODE ANN. §§ 709.02 (A)-(B), 709.04 (LexisNexis 2009). Other states, including Indiana, Kansas, and West Virginia, grant approval authority to counties in narrow circumstances. See IND. CODE ANN. §§ 36-4-3-9(a), 36-4-3-9.1(2) (LexisNexis 2009) (requiring county approval of annexations only in consolidated city-county governments and where the municipality was not included in that county as of 1982); KANS. STAT. ANN. § 12-521 (2009) (requiring county approval of annexations not otherwise permitted under state annexation rules); W. VA. CODE § 8-6-5 (2009) (giving counties approval authority over "minor boundary adjustments" only); see also FLA.. STAT. § 171.046(2)(a) (2009) (permitting annexation of territorial islands after a city and county reach an interlocal agreement for the annexation).
111. See, e.g., CAL. GOVT. CODE § 56325 (2009) (creating a boundary commission in each county that includes two members of the county board of supervisors, as well as five other members) and § 56375 (granting that commission the authority to review, approve, or disapprove annexations); NEV. REV. STAT. § 268.626 (2009) (for each mid-size county, designating a city annexation commission that includes two representatives from the county and one from each city in the county) and § 268.630 (granting that commission the authority to re view, approve, or disapprove annexations).
112. The "price" of moving borders, as described here, is distinct from the costs to individuals of crossing borders. The costs facing individuals who wish to move their households across jurisdictional lines, which lay at the heart of the fair housing movement, are much better understood. Most prominent among them is exclusionary zoning, in which local governments use their land-use authority to define who may live in a community through the facially race-and class-neutral regulation of residential densities, dwelling types (such as prohibitions against mobile homes), minimum lot or building sizes, bedroom and bath minimums, or amenity requirements that establish de facto property value requirements within a certain jurisdiction. See, e.g., JONATHAN LEVINE, ZONED OUT: REGULATION, MARKETS, AND CHOICES IN TRANSPORTATION AND METROPOLITAN LAND-USE 67-85 (2006); Jerry Frug, The Geography of Community, 48 STAN. L. REV. 1047, 1083-89 (1996); Richard C. Schragger, The Limits of Localism, 100 MICH. L. REV. 371, 405-15 (2001); Troutt, supra note 29, at 434-54; see also Lior Jacob Strahilevitz, Exclusionary Amenities in Residential Communities, 92 VA. L. REV. 437 (2006) (describing the installation of high cost amenities like golf co urses to deter entry by racial or socioeconomic groups not attracted to those amen ities).
113. Property in an annexed area immediately becomes subject to taxation by its new local government, and as a result, most states give local governments a corresponding obligation to extend standard m unicipal services to the new territory prior to or soon after annexation. See infra note 80.
114. See, e.g., Omer Kimhi, Reviving Cities: Legal Remedies to Municipal Financial Crises, 88 B.U. L. REV. 633, 633-47 (2008).
115. See Ronald H. Rosenberg, The Changing Culture of American Land Use Regulation: Paying for Growth with Impact Fees, 59 S.M.U. L. REV. 177, 189 (2006).
116. Our commitment to free public education means that children in unincorporated urban areas are included within a school district (usually the adjacent city's district), regardless of their exclusion from municipal boundaries. In addition, redistributive efforts in the financing of education distinguish schools from the "pay for what you get" model described here.
117. See id. at 190
118. see generally Gerald E. Frug, City Services, 73 N.Y.U. L. REV. 23, 23-24, 28-31 (1998)
119. Shirley L. Mays, Privatization of Municipal Services: A Contagion in the Body Politic, 34 DUQ. L. REV. 41 (1995).
120. See, e.g., GA. CODE ANN. §§ 36-36-51 (4), 36-36-92 (e) (2009); MICH. COMP. LAWS §§ 82.2, 123.1 (2009); OHIO REV. CODE ANN. § 709.12 (West 2009); OKL. STAT., tit. 11, § 21-103(D) (2009); see also ARK. CODE ANN. § 14-40-303 (2009) (requiring municipalities to commit to providing municipal services to annexed area within three years of annexation); IND. CODE § 36-4-3-13(d) (2009) (requiring municipalities to commit to the provision of non-capital municipal services within one year of annexation and capital municipal services within three years); MO. REV. STAT. § 71.015 (4)(b) (2009) (same); N.C. GEN. STAT. § 160A-35(3) (b) (2009) (requiring municipalities to commit to commencing construction of any necessary water and sewer lines within one year of annexation). State law implicitly or explicitly provides that the municipal code of the annexing city applies to the newly annexed area upon annexation. See, e.g., NEB. REV. STAT. § 14-118 (2009); N.J. REV. STAT. § 40A:7-14 (2009).
121. See WILLIAM W. ABBOTT ET AL., EXACTIONS AND IMPACT FEES IN CALIFORNIA: A COMPREHENSIVE GUIDE TO POLICY, PRACTICE, AND THE LAW 15 (2001); Rosenberg, supra note 77, at 189, 202.
122. Rosenberg, supra note 77, at 190, 199-203.
123. See id. at 198, 200.
124. Development impact fees, in contrast to user fees or taxes, are solely for funding capital investment in new infrastructure or expanded capacity in existing infrastructure. Rosenberg, supra note 77, at 206. A General Accounting Office survey of local governments in 2000 found that 59.4 percent of cities with populations greater than 25,000 employ development impact fees, as do 39 percent of metropolitan area counties. Id. at 207 (citing U.S. GEN. ACCOUNTING OFFICE, LOCAL GROWTH ISSUES: FEDERAL OPPORTUNITIES AND CHALLENGES 43, 62 (2000)). Though such charges have steadily expanded in scope, the practice of development exactions reaches back into the early twentieth century, with roots in the early regulations of residential subdivisions, including official map acts and benefit assessment districts. See id. at 192-96.
125. For a comprehensive discussion of the constitutionality of different types of exaction fees, see EXACTIONS, IMPACT FEES AND DEDICATIONS: SHAPING LAND-USE DEVELOPMENT AND FUNDING INFRASTRUCTURE IN THE DOLAN ERA, at xxxiii (Robert H. Freilich & David W. Buskek eds., 1995) [hereinafter EXACTIONS, IMPACT FEES AND DEDICATIONS].
126. See supra note 26; infra note 123.
127. See Reynolds, supra note 44, at 435; Laurie Reynolds & Carlos A. Ball, Exactions and the Privatization of the Public Sphere, 21 J. L. & POL. 451, 457 (2005).
128. ROBERT W. BURCHELL & DAVID LISTOKIN, THE FISCAL IMPACT HANDBOOK: ESTIMATING LOCAL COSTS AND REVENUES OF LAND DEVELOPMENT 246 (1978).
129. Id. at 1. "Direct" impact refers to primary costs and revenues (e.g., new teachers needed, new property taxes) and "current" means as if the growth were undertaken today. Id. at 2. The fiscal impact approach is thus distinct from a cost-benefit analysis approach, which considers a land use proposal's projected negative and positive impacts on a neighborhood, thus incorporating a mechanism by which a community can place value on attributes such as having a heterogeneous community, and weigh those values against negative effects like increased congestion. Nor does fiscal impact analysis capture cost effectiveness, which compares the relative expenditure and effects of annexation or development and sets a maximum level of acceptable costs to the community based on those land-use or annexation decisions requiring the least local government expenditure and generating the greatest return. See id. at 3.
130. Id. at 3. For this reason, cost-revenue should not be singularly determinant in urban planning decisions. Yet it does have two key advantages: first, promoting local governments' financial planning and stability, and, second, improving governmental transparency and objectivity in decisionmaking (which, when used properly, can prevent land-use decisions founded on racially discriminatory assumptions about a neighborhood's land values rather than empirical data). Multi-factoral analysis of annexation decisions can preserve these upsides while mitigating the downsides of fiscal impact methodology by accounting for cost-revenue calculations as well as the need for urban services, health and safety considerations, intergovernmental efficiency, political responsiveness, and other non-quantitative factors.
131. BURCHELL & LISTOKIN, supra note 88, at 8.
132. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 54 (1973).
133. NIMBY stands for "Not In My Backyard."
134. Many cities require a subdivision's acquiescence to annexation as a prerequisite to the right to purchase city services and obtain tie-ins to city infrastructure.
135. These costs of residence, along with the exclusionary land-use practices noted supra, act as a reinforcing cause of the unincorporated urban areas phenomenon, as such laws push low-income residents just beyond municipal borders in search of affordable housing. See Anderson, supra note 2, at 1129-33. For example, demand for housing in certain colonias has been traced to this expulsive force, as municipalities zone out local farm and industrial workers through prohibition of trailers and other prefabricated or low-cost housing. See Elizabeth M. Provencio, Note, Moving from Colonias to Comunidades: A Proposal for New Mexico to Revisit the Installment Land Contract Debate, 3 MICH. J. RACE & L. 283, 284 n.4 (1997) (discussing a 1995 discrimination challenge to a village's ordinances restricting mobile home construction).
136. Also known as direct benefit assessments, these charges are imposed on landowners (often at their specific request) within a defined area to finance public improvements. See Reynolds, supra note 44, at 397-402; Rosenberg, supra note 77, at 195 n.58; see also, e.g., CAL. GOVT. CODE §§ 50078-50078.20, 54710.5 (2009) (authorizing local governments to impose assessments for police and fire, flood control, and drainage and water management services); CAL. STRS. & HIGH. CODE § 18165 (2009) (authorizing cities to impose assessments for street lighting).
137. Rosenberg, supra note 77, at 189, 202.
138. Local governments also rely on a range of bond mechanisms, most of which require high levels of voter approval, to finance public works. These may include general obligation bonds, revenue bonds, assessment bonds, redevelopment tax allocation bonds, and a range of other state-specific financing tools. See, e.g., ABBOTT ET AL., supra note 81, at 8-12 (2001).
139. Of California cities' current sources of restricted funds, for instance, the largest single source (thirty-nine percent) is charges for water, sewer, refuse, and other services. Remaining shares of restricted funds come from: state and federal funding (ten percent); fees (eight percent); special taxes (three percent); licenses and permits (two percent); debt service (one percent); and assessments (one percent). Of cities' non-restricted general funds, eleven percent come from property taxes, ten percent come from sales taxes, four percent comes from utility users taxes, seven percent comes from other taxes, and four percent comes from other sources. MICHAEL COLEMAN, LEAGUE OF CAL. CITIES, A PRIMER ON CALIFORNIA CITY FINANCE 3 (2005), available at http://www.californiacityfinance.com/FinancePrimer05.pdf.
140. See Reynolds, supra note 44, at 380; Rosenberg, supra note 77, at 189.
141. This is known as the uniformity principle, which, in the words of the Florida Supreme Court, instructs that "there is no requirement that taxes provide any specific benefit to the property; instead, they may be levied throughout the particular taxing unit for the general benefit of residents and property." Collier County v. State, 733 So. 2d 1012, 1017 (Fla. 1999). See generally Reynolds, supra note 44, at 379, 381.
142. These challenges have been explored extensively in the academic literature and will not be reviewed here. See, e.g., Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 22-53 (1976)
143. Sheila Foster, Intent and Incoherence, 72 TUL. L. REV. 1065, 1069-73 (1998)
144. L. Camille Hébert, Redefining the Burdens of Proof in Title VII Litigation: Will the Disparate Impact Theory Survive Wards Cove and the Civil Rights Act of 1990?, 32 B.C. L. REV. 1, 88-90 (1990)
145. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 321-24 (1987)
146. John P. Relman, Foreclosures, Integration, and the Future of the Fair Housing Act, 41 IND. L. REV. 629, 648 &n.125 (2008)
147. Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 287, 294 (1997).
148. Though school desegregation litigation is conceptually and doctrinally distinct in some important ways from litigation over discriminatory annexation by a general purpose local government, the contexts are governed by the same rules concerning federal courts' equitable power to move a local border. See Hills v. Gautreaux, 425 U.S. 284, 293 (1976) (expressly articulating the applicability of a school district desegregation case to any case that tests "fundamental limitations on the remedial powers of the federal courts to restructure the operation of local and state government entities"); see also id. at 294 (observing that the same school district desegregation opinion "was based on basic limitations on the exercise of the equity power of the federal courts and not on a balancing of particular considerations presented by school desegregation cases").
149. Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960) (striking down an Alabama state legislative enactment that redefined the boundaries of the City of Tuskegee from a square to a twenty-eight-sided figure-a change that excluded nearly every black voter from the town without removing a single white voter); see also Franklin v. City of Marks, 439 F.2d 665, 670 (5th Cir. 1971) (finding that it would state a constitutional claim under the Fourteenth Amendment if plaintiffs demonstrated that a deannexation order was an attempt to escape the obligation to provide equal municipal services to a minority neighborhood).
150. United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 489 (1972) (upholding an injunction barring a state from creating a new school district to serve a city seeking to avoid inclusion in a desegregation order affecting county schools); Wright v. City of Emporia, 407 U.S. 451, 451, 470 (1972) (reaching a similar holding on similar facts).
151. See, e.g., Newburg Area Council, Inc. v. Bd. of Educ., 510 F.2d 1358, 1359 (6th Cir. 1974) (holding that the city and county school districts failed to eliminate state-imposed segregation, and the district court therefore had the power to ignore state-created school district lines); Haney v. Bd. of Educ., 410 F.2d 920, 924-25 (8th Cir. 1969) (striking down school district boundaries that created a gerrymandered all-black district, because "[i]f segregation in public schools could be justified simply because of pre-Brown geographic structuring of school districts, the equal protection clause would have little meaning"); United States v. Texas, 321 F. Supp. 1043, 1056, 1059 (E.D. Tex. 1970), aff'd, 447 F.2d 441 (5th Cir. 1971) (holding that the state education agency had deployed consolidations, detachments, and transfers to segregate black students into nine school districts and ordering the state to devise a reorganization plan for desegregating the districts).
152. See, e.g., Shaw v. Reno, 509 U.S. 630 (1993) (finding a claim under the Equal Protection Clause based on a congressional district whose shape can be understood only as an effort to segregate voters into separate districts on the basis of race); Hoots v. Pennsylvania, 672 F.2d 1107, 1110, 1120 (3d Cir. 1982) (affirming the consolidation of five of the school districts surrounding Pittsburgh into a single district based on a finding that the state and county board of education had drawn the five school districts to effectuate segregation); United States v. Bd. of Sch. Comm'rs, 637 F.2d 1101, 1116 (7th Cir. 1980) (affirming an interdistrict desegregation remedy to bus children across district lines where the state had purposefully discriminated); Evans v. Buchanan, 555 F.2d 373, 381 (3d Cir. 1977) (en banc) (ordering that the school districts of Wilmington and its Northern suburbs "shall be reorganized into a new or such other new districts" as would be prescribed by the state following the lower court finding of interdistrict violations); Haney, 410 F.2d at 925-26 (holding that a district court had the remedial authority to order district consolidation in spite of a state law requiring electoral approval of such actions); United States v. Missouri, 388 F. Supp. 1058, 1060-62 (E.D. Mo. 1975), aff'd as modified, 515 F.2d 1365 (8th Cir. 1975) (ordering the annexation of two districts into a third district); Texas, 321 F. Supp. at 1050 (finding that districts drawn to maintain a dual school system "require consolidation with nearby units so as to assure their students equal educational opportunities").
153. The reapportionment earthquake of Reynolds v. Sims echoed Gomillion for the proposition that a State is "'insulated from federal judicial review'" when it exercises authority "'within the domain of state interest,'" but it loses that insulation when state power is deployed to infringe on a federally protected right. 377 U.S. 533, 566 (1964) (quoting Gomillion, 364 U.S. at 347) (ordering state reapportionment after holding that existing and proposed plans for apportionment of seats in the two houses of the Alabama Legislature violated the Equal Protection Clause by failing to reflect the distribution of the state's population)). See also Avery v. Midland County, 390 U.S. 474 (1968) (ordering the reorganization of voting districts within a county to reflect the constitutional principle of one person, one vote enunciated in Reynolds).
154. Perkins v. Matthews, 400 U.S. 379, 388 (1971). In reaching its holding, the Court described a national study finding that gerrymandering and district boundary changes had become common methods of subverting the newly realized franchise among black voters. Id. at 389.
155. See id. at 381. Section 5 of the Voting Rights Act requires preclearance approval by a court or by the Attorney General "[w]henever a [covered] State or political subdivisions.. shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that [previously] in force or effect" so as to ensure that it "does not has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color...." id. (citing 42 U.S.C. § 1973(c) (2006)). Section 5 was recently upheld by the Supreme Court, though it was interpreted to permit any covered jurisdictions to "bail out" of preclearance requirements. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009).
156. See Perkins, 400 U.S. at 388-94 (upholding an Attorney General's finding that the annexation of a majority white neighborhood amounted to a retrogression); see also Dotson v. City of Indianola, 739 F.2d 1022, 1024 (5th Cir. 1984) (reviewing a denial of preclearance by the Department of Justice based on a municipality's failure to annex black subdivisions). Failures to annex black areas also became an element of proof in other civil rights litigation unrelated to voting rights. See, e.g., Buchanan v. City of Jackson, 708 F.2d 1066, 1069 n.5 (6th Cir. 1983); Lopez v. Merced County, 473 F. Supp. 2d 1072 (E.D. Cal. 2007).
157. See City of Rome v. United States, 446 U.S. 156, 161-62 (1980) (affirming the Attorney General's decision to deny preclearance to thirteen annexations, nine of which were of vacant tracts of land that "were near predominantly white areas and were zoned for residential subdivisions"); see also Pleasant Grove v. United States, 479 U.S. 462, 466, 472 (1987) (affirming the Attorney General's refusal to preclear the annexation of a vacant tract and a white but minimally populated tract in light of the city's past refusal to annex adjacent black communities).
158. 42 U.S.C. § 1973(a)-(b) (prohibiting any voting practice or procedure that results in a denial or abridgement of the right to vote, with a violation to be determined based on the "totality of the circumstances"); Thornburg v. Gingles, 478 U.S. 30, 45 n.10 (1986) (citing S. REP. NO. 97-417, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 177, at 207-08) (holding that § 2 "prohibits all forms of voting discrimination" and reaches both vote denial and vote dilution claims).
159. It is not entirely clear why challenges to discriminatory annexations have rarely arisen outside of the states and counties covered by § 5 of the Voting Rights Act. In part, the absence of such cases reflects the fact that annexations are far less common in northeastern cities (which tend to be "landlocked" by other incorporated municipalities) than in southern or western municipalities bordered by unincorporated land. In addition, the pattern of low-income unincorporated urban areas across the west has been widely overlooked by academics and civil rights advocates, and annexations have thus not been scrutinized for their implications on minority voting rights and municipal services. See Anderson, supra note 2, at 1098, 1120-24 (arguing that the focus on metropolitan white flight has consumed our attention at the expense of several important patterns of low-income suburbanization).
160. Justice Kennedy, in a portion of an opinion announcing the judgment of the Court joined only by Chief Justice Rehnquist, conveyed in dicta that "we think it quite improbable to suggest that a § 2 dilution challenge could be brought to a town's existing political boundaries (in an attempt to force it to annex surrounding land) by arguing that the current boundaries dilute a racial group's voting strength in comparison to the proposed new boundaries." Holder v. Hall, 512 U.S. 874, 884 (1994) (opinion of Kennedy, J., joined by Rehnquist, C.J. & O'Connor, J.). See also id. ("Plaintiffs could not establish a Section 2 violation merely by showing that a challenged reapportionment or annexation, for example, involved a retrogressive effect on the political strength of a minority group." (quoting S. REP. NO. 97-417, at 68 n.224 (1982), reprinted in 1982 U.S.C.C.A.N. 177, at 246)). Justice Kennedy reasoned that a voting change subject to preclearance under § 5 may not necessarily be subject to a dilution challenge under § 2, because, unlike § 5 retrogression analysis, § 2 lacks a reliable benchmark for measuring dilution. See id. Noting that language, but declining to weigh in on the applicability of § 2 to annexations, the Eleventh Circuit rejected a plaintiff's § 2 claims in a discriminatory annexation case. See Burton v. City of Belle Glade, 178 F.3d 1175, 1197 n.22 (11th Cir. 1999). The court found that it lacked the remedial power to order an annexation, which foreclosed satisfaction of one prong of § 2 analysis-the availability of a meaningful remedy. Id. at 1199-1200.
161. In League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 (2006), Justice Kennedy found a cause of action under § 2 for an electoral boundary change that appeared discriminatory, even though the district court found no racially motivated discrimination. Similar logic might apply to an annexation that appeared discriminatory, even if it was fiscally motivated. I am grateful to Chris Elmendorf for drawing my attention to this argument.
162. See Richard Briffault, Who Rules at Home? One Person/One Vote and Local Governments, 60 U. CHI. L. REV. 339, 339, 346-48 (1993) (theorizing two competing conceptions of local governments as "locally representative bodies" or as "arms of the states," both of which have been prominent in Supreme Court cases on local government). The present Article builds on Briffault's framework by looking at a topical cross section of local government cases across a historical continuum, observing how, in the context of civil rights challenges to local borders, Briffault's competing conceptions arose not as coincident views but as distinct doctrinal phases.
163. Hunter v. Pittsburgh, 207 U.S. 161, 175, 179 (1907) (upholding a state law permitting consolidation of two cities if the majority of the votes cast in the combined territories favored the consolidation, despite the fact that on the facts before the court, a majority of the votes cast in one of the cities opposed consolidation). The Court wrote: Although the inhabitants and property owners may, by [changes such as expanding or contracting the municipal territorial area] suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right by contract or otherwise in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences.
164. Id. at 179.
165. City of Trenton v. New Jersey, 262 U.S. 182, 187 (1923) (emphasis added).
166. Id. Other cases falling within this line of precedent, broadly defined, include: Williams v. Mayor & City Council of Balt., 289 U.S. 36 (1933)
167. R.R. Comm'n of Cal. v. L.A. Ry. Corp., 280 U.S. 145 (1929); City of Newark v. New Jersey, 262 U.S. 192 (1923); City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394 (1919); Williams v. Eggleston, 170 U.S. 304 (1898); City of New Orleans v. New Orleans Water-Works Co., 142 U.S. 79 (1891); Mount Pleasant v. Beckwith, 100 U.S. 514 (1879); Comm'rs of Laramie County v. Comm'rs of Albany County, 92 U.S. 307 (1875); Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518 (1819).
168. Hunter, 207 U.S. at 178.
169. Notably, federal neutrality during the early phase of this period was not due to stasis in local boundaries-the late nineteenth and early twentieth centuries saw tremendous movement of local borders through annexations, with widespread patterns of "forcible annexation" in which older central cities engulfed underserved, unincorporated suburbs of various economic stripes to boost the cities' regional economic power and population. Growth for growth's sake-fueled by the spirit of civic boosterism and prestige, the promise of urban economies of scale, and intercity competition-propelled this aggressive annexation of the urban fringe. See KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 140-47 (1985)
170. JON TEAFORD, CITY AND SUBURB: THE POLITICAL FRAGMENTATION OF METROPOLITAN AMERICA, 1850-1970, at 77 (1979)
171. see also JON TEAFORD, THE AMERICAN SUBURB: THE BASICS 15-16 (2008) [hereinafter TEAFORD, THE AMERICAN SUBURB] (quoting an 1885 CHICAGO TRIBUNE article that proclaimed: "It is the history of all American municipalities that they absorb their populous suburbs. The gravitation is resistless").
172. Such cases arose in the South, where advocates reacted to local politicians' attempts to relocate municipal boundaries in order to remove newly enfranchised African- American voters and to avoid school desegregation orders. See BERNARD TAPER, GOMILLION V. LIGHTFOOT: THE TUSKEGEE GERRYMANDER CASE (1962); Aiken, supra note 14, at 569-74
173. Gayle Binion, Racial Discrimination by Alteration or Refusal to Alter School District Boundaries, 54 U. DET. J. URB. L. 811, 812-24 (1977)
174. Peter H. Weiner, Boundary Changes and the Power of the Vote, 54 U. DET. J. URB. L. 959, 964-90 (1977). Using the Fifteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Voting Rights Act of 1965, civil rights proponents sought to bar Southern local governments from preserving segregation with the manipulation of local borders.
175. See United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 489 (1972); Wright v. City of Emporia, 407 U.S. 451, 451, 470 (1972); Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960).
176. Gomillion, 364 U.S. at 347.
177. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 27 (1971) (affirming a lower court's remedial authority to aggregate noncontiguous school zones to redress the constitutional violation of maintaining a dual school system).
178. Scotland Neck, 407 U.S. at 489; see also Wright, 407 U.S. at 451, 470 (enjoining a city's secession from a county school system two weeks after the entry of a county desegregation order, because the detachment would undermine the effectiveness of the desegregation remedy). The Court noted that such a tactic had "confronted other federal courts... on numerous occasions in recent years." Wright, 407 U.S. at 453. See also Aytch v. Mitchell, 320 F. Supp. 1372 (E.D. Ark. 1971) (striking down a school district detachment, based in part on the financial impact to the residual district, which would become ninety-six percent black); Burleson v. County Bd. of Election Comm'rs, 308 F. Supp. 352 (E.D. Ark. 1970) (striking down a detachment in a case, interestingly, brought by white residents who would be left behind in a resulting, majority black district); Binion, supra note 124, at 812- 24 (discussing the so-called "splinter district" or detachment cases).
179. Scotland Neck, 407 U.S. at 489. The Court reached a similar holding the same day in Wright v. City of Emporia, finding that a city's detachment from a county school system two weeks after the entry of a county desegregation order would undermine the effectiveness of the desegregation remedy. Wright, 407 U.S. at 451, 470. Wright, however, unlike Scotland Neck, was written by a divided Court, as Justices Burger, Blackmun, Rehnquist, and Powell began nudging the constitutional guarantee of equal protection towards an intent- based framework satisfied by facially colorblind state action. See id. at 482-83 (Burger, J., dissenting) (acknowledging effectiveness to be the measure of a desegregation plan but resting the dissent on the absence of "discriminatory purpose" or "objectionable" considerations of race).
180. See Gomillion, 364 U.S. at 342-43 (distinguishing Hunter); id. at 347 (describing local governments as expressions of states' power to organize their political subdivisions); see also Haney v. County Bd. of Educ., 410 F.2d 920, 925 (8th Cir. 1969) (holding that "[p]olitical subdivisions of the state are mere lines of convenience for exercising divided governmental responsibilities" in a case reorganizing school district boundaries to dismantle a segregated dual system).
181. Rejecting the City's claim of municipal autonomy rooted in Hunter and other cases, a unanimous Supreme Court held that "the Court has never acknowledged that the States have power to do as they will with municipal corporations regardless of consequences. Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution." Gomillion, 364 U.S. at 344-45. The Court thus effectively found that local officials stood in the shoes of state officials, equally accountable to individuals' constitutional rights. See also Cooper v. Aaron, 358 U.S. 1, 16-17 (1958) ("[F]rom the point of view of the Fourteenth Amendment, [local officials] stand in this litigation as the agents of the State."); Ex parte Virginia, 100 U.S. 339, 347 (1879) ("A State acts by its legislative, its executive, or its judicial authorities....Whoever, by virtue of public position under a State government,... denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State."); see generally Kathryn Abrams, No "There" There: State Autonomy and Voting Rights Regulation, 65 U. COLO. L. REV. 835, 839 (1994) (arguing that federal voting rights jurisprudence, including Gomillion, fundamentally altered the domain of state autonomy over internal political processes by making state autonomy "a sort of residual category-to be respected if no civil rights-based problems arose").
182. Resistance to federal court intrusion into local affairs first gained voice in federal case law in a series of dissents in voting rights and desegregation cases. In Perkins v. Matthews, for instance, Justice Black bemoaned federal oversight of local boundary changes under the Voting Rights Act, finding such interference to be an "utter degradation of the power of the States to govern their own affairs" analogous to British repression of the American colonies. Perkins v. Matthews, 400 U.S. 379, 403, 407 n.7 (1971) (Black, J., dissenting); see also City of Rome v. United States, 446 U.S. 156, 201 (1979) (Powell, J., dissenting) (describing "local control of the means of self-government [as] one of the central values of our polity" (footnote omitted)); Keyes v. School Dist. No. 1, 413 U.S. 189, 253 (1973) (Powell, J., concurring in part, dissenting in part) ("Communities deserve the freedom and the incentive to turn their attention and energies to this goal of quality education, free from protracted and debilitating battles over court-ordered student transportation."); Goodwin Liu, Brown, Bollinger, and Beyond, 47 HOW. L.J. 705, 718-27 (2004) (tracing the origins and longevity of the value of local control in the education context).
183. Wright, 407 U.S. at 477-79 (Burger, C.J., dissenting) (emphasis added).
184. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 49-50 (1973). Joan Williams has argued that in Rodriguez and Milliken v. Bradley (discussed infra), the Burger Court's celebration of local autonomy reflected Thomas Jefferson's exaltation of local self- governance and distrust of centralized government power, as well as nineteenth-century local government theorist John Dillon's concern about protecting private property from redistribution by municipalities. See Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 WIS. L. REV. 83, 102-03, 106-07.
185. In 1974, a circuit court opinion noted that "[a]t least until Milliken v. Bradley, the law was clear that political subdivisions of the States may be readily bridged when necessary to vindicate federal constitutional rights." Gautreaux v. Chi. Hous. Auth., 503 F.2d 930, 934 (7th Cir. 1974) (collecting cases) (internal citation omitted). By the 1990s, local control had further strengthened to narrow constitutional liability. See David S. Tatel, Judicial Methodology, Southern School Segregation, and the Rule of Law, 79 N.Y.U. L. REV. 1071, 1126 (2004) (remarking upon the "virtual absence in [Board of Education v. Dowell, 498 U.S. 237 (1991) and Missouri v. Jenkins, 515 U.S. 70 (1995)] of any concern about the seriousness of the Fourteenth Amendment violations or the educational harms of segregation, particularly when compared to the majority's emphasis on the virtues of local control"); see also id. at 1131; Williams, supra note 134, at 110-11 (observing that Milliken and Rodriguez and other Burger Court opinions elevated local sovereignty to a "quasi- constitutional principle" and "extol[led] local autonomy to constrict the scope of the fourteenth amendment").
186. See supra note 103.
187. Wright, 407 U.S. at 479 (Burger, C.J., dissenting).
188. City of Trenton v. New Jersey, 262 U.S. 182, 187 (1923).
189. See Milliken v. Bradley, 418 U.S. 717, 741 (1974). Notably, however, the school district borders at issue in Milliken had been drawn not by the local districts themselves but by the state. Id. at 727, 790-91.
190. Id. at 733-34; Bradley v. Milliken, 345 F. Supp. 914, 918, 928 (E.D. Mich. 1972). The district court decision on appeal had found that actions by state and local educational authorities had intentionally segregated Detroit's schools from its surrounding areas and that a meaningful remedy could not be achieved within the largely black school district's existing boundaries. See Milliken, 418 U.S. at 724-29. Consequently it consolidated fifty-three suburban school districts plus the City of Detroit into a single desegregation area to be redivided into racially integrated, spatially contiguous clusters. See id. at 732-34. The desegregation plan imposed a busing scheme comparable to existing patterns in terms of time and distance, and better than an intradistrict remedy in terms of remedial costs. Id. at 813-14 (Marshall, J., dissenting).
191. Thus it was that Judge Edwards, one of the authors of the Sixth Circuit decision on appeal, later reflected that Milliken "imbued school district boundaries... with a constitutional significance which neither federal nor state law had ever accorded them." See ALEXANDER POLIKOFF, WAITING FOR GAUTREAUX 125 (2006).
192. See Milliken, 418 U.S. at 778 (White, J., dissenting).
193. Milliken, of course, did not occur in a vacuum. The 1974 decision's view of local governments as independent democracies aligned with two voting rights cases (Avery v. Midland County, 390 U.S. 474 (1968), and Kramer v. Union School District, 395 U.S. 621 (1969)) that afforded citizens equal representation before local governments. It thus turned away from Salyer Land Co. v. Tulare Water District, 410 U.S. 719 (1973), a case in tension with Avery and Kramer, which granted some types of special districts more flexibility to design participatory governance schemes outside of one person one vote constraints.
194. In this way, Milliken implicitly rejected any analogy between local agency borders and state apportionment lines, even where both were established by the state. It parted ways with precedent such as Reynolds v. Sims, which had looked at the state as a map whose subdivision lines could be moved, rather than as a landscape of autonomous jurisdictions with inherent rights to their borders as presently defined. See Reynolds v. Sims, 377 U.S. 533, 565-66 (1964).
195. Hills v. Gautreaux, 425 U.S. 284, 305-06 (1976); see POLIKOFF, supra note 141 (providing an engaging history of the development of the case and its relationship to contemporaneous precedent).
196. Indeed, the order did not permit the Chicago Housing Authority to build public housing units outside of Chicago-an aspect of the relief sought by the petitioners. Rather, it permitted metropolitan relief only with respect to the Section 8 program, in which HUD contracted directly with willing developers and landlords without exercising "a coercive effect on suburban municipalities." Hills, 425 U.S. at 305. The availability of metropolitan area relief was justified narrowly based on HUD's operating definition of the Chicago housing market (which included incorporated suburbs surrounding the City of Chicago) and the authority of HUD and the Chicago Housing Authority to operate beyond Chicago city lines in the private housing market. Id. at 298-99.
197. Id. at 305-06.
198. See Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 200 (1973); see also id. at 216 (Douglas, J., concurring) ("When a State forces, aids, or abets, or helps create a racial 'neighborhood,' it is a travesty of justice to treat that neighborhood as sacrosanct in the sense that its creation is free from the taint of state action."); cf. Hunter v. Pittsburgh, 207 U.S. 161, 179 (1907) (holding that harms caused by local government action should be pled to the state legislature as the responsible body).
199. See Milliken, 418 U.S. at 734-35 n.16. By this holding, the Supreme Court minimized the role of the State of Michigan-the entity that granted, defined, and controlled the powers of its subdivisions, both city and suburb. Yet the boundaries between Detroit and its suburbs "were themselves state action that predictably entrenched segregation." Richard Thompson Ford, Brown's Ghost, 117 HARV. L. REV. 1305, 1314 (2004). One further degree removed, these boundaries were also the indirect effect of state actions-such as municipal incorporation laws, the delegation of certain types of land-use authority to local governments, transportation funding-that had enabled the white citizens of Detroit to leave the city found liable of unconstitutional segregation and move into an "innocent" suburban jurisdiction. See id.
200. These cases were limited to those in which the school district lines were drawn to track racial demographics and maintain segregation, see supra notes 106-107 (citing cases in which courts struck down racially gerrymandered school district boundaries that predated the Court's decision in Brown), as opposed to those in which courts found that school districts tracked city boundaries that had come to reflect residential racial segregation. See, e.g., Bradley v. Sch. Bd., 462 F.2d 1058, 1064 (4th Cir. 1972) (reversing a lower court consolidation order by reasoning, in part, that the district lines at issue reflected city borders, had existed for more than 100 years, and were not alleged to be motivated by discrimination when established). Such a distinction foreshadowed the intent versus impact standard of U.S. 229, 242 (1976).
201. Gomillion v. Lightfoot, 364 U.S. 339, 346 (1960) (distinguishing the deannexation act before the Court in Gomillion from the failure to reapportion congressional districts at issue in a prior case)
202. see Wright v. City of Emporia, 407 U.S. 451, 465-66 (1972) (reasoning that the timing of a city's vote to detach to form its own school district-just two weeks following entry of the court's desegregation order against the county-amplified the stigmatizing effect on the county district's black children)
203. see also Pamela S. Karlan, Just Politics? Five Not So Easy Pieces of the 1995 Term, 34 HOUS. L. REV. 289, 303 (1997) (observing "how important Tuskegee's pre-existing boundaries were to the Court's willingness to review" the act altering those boundaries in Gomillion).
204. Yet even here, the precedent of the school district detachment cases proves of weakened utility in light of Milliken's restraints on federal equitable power. The detachment cases arose after the remedial authority of the court was already established by the constitutional violation of operating a dual school system-detachment was merely a form of unconstitutional resistance to the court's desegregation remedy, rather than a freestanding constitutional violation predicating its own invocation of federal equitable power. See, e.g., Wright, 407 U.S. at 459 (finding that the operation of the dual school system was the "predicate for the District Court's action" to stop the formation of the new district).
205. See AIKEN, supra note 19, at 322-27; see also id. at 326 (identifying the "major factor" animating the choice to locate federally subsidized housing in the Yazoo Delta of Mississippi as "fear by white-controlled municipal governments that increases in housing for blacks within corporate limits will dilute white voting strength," and describing how advocates for improved housing standards were forced to accept relocation outside town lines in exchange for local authorization to seek federal funding and local land use approvals); see also id. (describing African-American pockets of Tunica, Mississippi and other southern towns that were pushed outside of city lines).
206. Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 61-63 (1978). 155. Id. at 69-70.
207. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 54 (1973).
208. The current plan to route a freeway bypass through the unincorporated Holt community in spite of opposition manifests the effects of this extraterritorial influence and zoning authority.
209. I do not mean to convey unqualified opposition to the outcome in Holt, but merely to identify its consequence in the context of the unincorporated urban areas problem. As a policy matter, the decision faced adverse implications on either side. Had the dissenting view prevailed, thus prohibiting overflow regulatory power without voting rights, the decision would likely have encouraged development of middle-class subdivisions approved on county land just outside municipal lines. In those jurisdictions that retained their extraterritorial regulatory power but compensated for it with cross-border voting privileges, such communities would enjoy representation without taxation.
210. The decision celebrated states' "extraordinarily wide latitude" in delegating authority to political subdivisions, including the freedom to define cities' extraterritorial power, thus reverting to the view of local power before Milliken. Holt, 439 U.S. at 71; see also id. (noting that the "absolute discretion" standard announced in Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907) had been qualified, but not by much).
211. See City of Petersburg v. United States, 354 F. Supp. 1021, 1024, 1031 (D.D.C. 1972), aff'd, 410 U.S. 962 (1973) (summarily affirming a district court finding that a city's creation of single-member districts could cure a retrogressive annexation that effectuated a nearly ten percent drop in the black proportion of the city population, a change that transformed the black community from a voting majority to a voting minority); City of Richmond v. United States, 422 U.S. 358, 371 (1975) (considering a "neutralization" scenario similar to that in City of Petersburg, and holding that the standard of "retrogressive effect" under the Voting Rights Act should be the net effect of an annexation change offset by other changes [i.e. the net increase or decrease in minority voting strength] rather than the achievement or failure to achieve maximization of minority voting strength); see also City of Port Arthur v. United States, 459 U.S. 159, 167-68 (1982).
212. City of Pleasant Grove v. United States, 479 U.S. 462, 465-67 (1987); see also City of Pleasant Grove v. United States, 623 F. Supp. 782, 787-88 (D.D.C. 1985) (describing the city's history of discrimination in numerous contexts). Families were thus faced with the choice of paying tuition at the Pleasant Grove schools or enrolling in the Birmingham school district (with schools that were eighty-four percent black). See Stout v. Jefferson County Bd. of Educ., 845 F.2d 1559 (11th Cir. 1988).
213. Stout, 845 F.2d at 1562.
214. Id. at 1563-64.
215. See Washington v. Davis, 426 U.S. 229, 242 (1976); Milliken, 418 U.S. at 745 (finding that a metropolitan area remedy might be appropriate "where district lines have been deliberately drawn on the basis of race"); Bradley v. School Bd., 462 F.2d 1058, 1064 (4th Cir. 1972) (refusing to move local borders because they were not alleged to be motivated by discrimination when established); see also supra note 102 (citing academic literature analyzing the intent versus impact standard).
216. See NANCY BURNS, THE FORMATION OF AMERICAN LOCAL GOVERNMENTS: PRIVATE VALUES IN PUBLIC INSTITUTIONS (1994) (exploring the role of racial self-segregation by whites in the widespread incorporation of new municipalities during the post-World War II period); Williams, supra note 134, at 118 (arguing that Milliken and other Burger Court cases emphasizing local autonomy had the effect of insulating metropolitan segregation between cities and suburbs from Fourteenth Amendment protections).
217. See, e.g., Caserta v. Vill. of Dickinson, 672 F.2d 431, 432 (5th Cir. 1982) (rejecting constitutional challenges to a municipal incorporation for lack of evidence of discriminatory purpose); Taylor v. Twp. of Dearborn, 120 N.W.2d 737, 743 (Mich. 1963) (rejecting a Fourteenth Amendment challenge to the incorporation of a new, predominantly white community); Marshall v. Mayor of McComb City, 171 So. 2d 347, 350 (Miss. 1965) (rejecting a challenge to the deannexation of a predominantly black neighborhood from an otherwise predominantly white town because plaintiffs "failed to offer any tangible evidence that the city was either motivated by racial considerations or that it in fact acted for reasons of race").
218. See Milliken, 418 U.S. at 745 ("[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.").
219. 169. See id. at 746-47 ("The constitutional right of the Negro respondents residing in Detroit is to attend a unitary school system in that district. Unless petitioners drew the district lines in a discriminatory fashion, or arranged for white students residing in the Detroit district to attend schools in [the suburban districts], they were under no constitutional duty to make provisions for Negro students to do so.").
220. Justice Stewart, who provided the majority's fifth vote, wrote a concurrence identifying a window for interdistrict liability, and therefore interdistrict relief, reserved by Milliken. He described three scenarios in which an interdistrict violation could be shown that would warrant an interdistrict remedy: officials drew or changed school district boundaries to effectuate segregation (the Scotland Neck scenario discussed supra), officials transferred schools and school territories between districts, or housing or zoning laws purposefully furthered residential segregation underlying school district segregation. 418 U.S. at 755 (Stewart, J., concurring). Several lower courts determined that state and local authorities in some cities-including Pittsburgh, Indianapolis, Wilmington, and Louisville-had perpetuated the interdistrict harms remediable under Milliken, and the courts ordered remedial interdistrict busing or district consolidation as the cure. See, e.g., Hoots v. Pennsylvania, 672 F.2d 1107, 1110, 1120 (3d Cir. 1982) (affirming the consolidation of five of the school districts surrounding Pittsburgh into a single district based on a finding that the state and county board of education had drawn the five school districts to effectuate segregation); United States v. Bd. of Sch. Comm'rs, 637 F.2d 1101, 1116 (7th Cir. 1980) (affirming an interdistrict desegregation remedy to bus children across district lines where the state had purposefully discriminated when (1) the legislature made a deliberate decision to maintain school segregation by failing to extend the boundaries of the Indianapolis public schools in concert with an expansion of the city limits of Indianapolis, and (2) the city housing authority had located all public housing within the old city limits of Indianapolis in order to keep black families out of suburban schools and neighborhoods); Evans v. Buchanan, 555 F.2d 373, 381 (3d Cir. 1977) (en banc) (ordering that the school districts of Wilmington and its Northern suburbs "shall be reorganized into a new or such other new districts as shall be prescribed by the state legislature or the State Board of Education" following the lower court finding of interdistrict violations); Newburg Area Council, Inc. v. Louisville Bd. of Educ., 510 F.2d 1358, 1359 (6th Cir. 1974) (holding that all affected school districts had been found guilty of de jure segregation and had themselves ignored boundary lines in order to perpetuate segregation, thus giving the district court the power to consolidate the districts); Evans v. Buchanan, 393 F. Supp. 428, 433-36 (D. Del. 1975) (three-judge court), summarily aff'd by Buchanan v. Evans, 423 U.S. 963, 963 (1975) (three Justices dissenting) (finding interdistrict violations including state transportation funding and policies, optional attendance zones, racial discrimination in public housing and lending, and other acts of state law); see also DAVID J. ARMOR, FORCED JUSTICE: SCHOOL DESEGREGATION AND THE LAW 46-47 (1995).
221. Burton v. City of Belle Glade, 178 F.3d 1175, 1200 (11th Cir. 1999).
222. Consistent with this view that annexation is special, Jerry Frug has argued that the Court has invoked a conception of "community" in the context of annexation that "relies on the romantic, touchy-feely image commonly associated with the term" and "evokes the idealized feeling of belongingness, oneness, solidarity, and affective connection imagined to have existed in a traditional, face-to-face village." Jerry Frug, Decentering Decentralization, 60 U. CHI. L. REV. 253, 267 (1993).
223. See, e.g., Missouri v. Jenkins, 495 U.S. 33, 52-58 (1990) (holding that a federal court had the remedial authority to order a local government with taxing authority to levy taxes in excess of a state limit if necessary to remedy a Constitutional violation); Final Judgment, Kennedy v. City of Zanesville, (OSI)H1071702 (29617) 080502 (S.D. Ohio July 10, 2009) (awarding plaintiffs nearly $10.9 million in damages after finding that water district boundaries were drawn to deny plaintiffs access to public water based on their race); Plata v. Schwarzenegger, No. C01-1351 THE, 2005 WL 2932243 (N.D. Cal. May 10, 2005) (unpublished opinion) (finding the federal equitable jurisdiction to appoint a receiver to take over the State of California's prison health care system); cf. Doug Rendleman, Brown II's "All Deliberate Speed" at Fifty: A Golden Anniversary or a Mid-Life Crisis for the Constitutional Injunction as a School Desegregation Remedy? 41 SAN DIEGO L. REV. 1575 (2004) (reflecting on federal courts' role in defining constitutional rights to desegregated education, implementing that right through injunctions, and withdrawing from injunctive relief in the era after Milliken, but arguing that nonetheless, courts would continue to play an important role in school desegregation lawsuits). On the other hand, a 2009 Supreme Court opinion pointedly criticized institutional reform injunctions for raising "sensitive federalism concerns," particularly where decrees affected state or local budget priorities. See Horne v. Flores, 129 S.Ct. 2579, 2593-94 (2009); see also id. at 2631 (Breyer, J., dissenting) (noting that "the Court may mean its opinion to express an attitude, cautioning judges to take care when the enforcement of federal statutes will impose significant financial burdens upon States").
224. One model for such reform dates to 1977, when Professor Donald Hagman proposed a civil rights statute to prohibit the use of boundary lines as a means of separating minorities from housing, services, or voting rights. His "White Curtain Act" made it unlawful for any local government to move or fail to move a local border (a definition that reached decisions on annexation, consolidation, detachment, and incorporations) with a discriminatory motive or with a discriminatory impact not shown to be necessary to achieve a constitutionally valid purpose. See Donald G. Hagman, Recommended Statute to Preclude Racially Disadvantaging Local Government Boundary Change, 54 U. DET. J. URB. LAW. 1063, 1063-68 (1976-1977). As a freestanding federal civil rights bill, such a proposal is at least as unlikely today as its author deemed it to be in 1977. Yet discrete amendments to the Fair Housing Act and the Voting Rights Act could achieve similar goals through a more modest legislative process.
225. This nomenclature extends and refers back to the concept of "city powerlessness," which was first developed by Gerald Frug in a pathbreaking article arguing that our conception of cities as subdivisions of state power has constrained their ability to address current problems or control their development. See Gerald Frug, The City as a Legal Concept, 93 HARV. L. REV. 1057, 1083-90 (1980).
226. See Moorman v. Wood, 504 F. Supp. 467, 469 (E.D. Ky. 1980); BRIFFAULT & REYNOLDS, supra note 58 (excerpting same).
227. See, e.g., Gillette, supra note 58; Reynolds, supra note 58. Cities Inside Out sought to complicate this narrative of higher income suburbs that resist annexation to adjacent municipalities. The article identified the unincorporated urban areas problem and situated it within what I called an economic gravity pattern of urban development, which recognized the interaction of "employment magnetism, housing necessity, and suburban aspiration" to draw low-income households to the relatively unregulated urban periphery. See Anderson, supra note 2, at 1129-30. I argued, as I further develop here, that this phenomenon disrupts our typical understanding of annexation law. Id. at 1133.
228. State annexation laws vary in the power they afford to annexees (whether exceedingly strict annexee approval requirements that favor opponents to annexation or no political power for annexees at all), but they pivot on the empowerment or disempowerment of opposition to annexation rather than the seeking of annexation against city interests.
229. See Anderson, supra note 2, at 1140-59.
230. For a legislative picture of counties' current role in annexations, see supra notes 69-73 and accompanying text. Two other scholars of annexation policy have identified counties and their residual residents as important constituents affected by annexations, though neither has been focused on the interests or influence of these groups. See Gillette, supra note 58, at 840 (noting "the interests that residual residents from the source jurisdiction have in the outcome of an annexation," though focusing on the interests of the annexing municipality and the residents of the area to be annexed); Reynolds, supra note 58, at 255-56 (identifying counties among those units of local government affected by annexations, and advising that states should account for the financial impact on counties and other governments whose territory is reduced through annexations).
231. And, as I have explored extensively, many counties struggle in the provision of urban government to unincorporated urban areas. See generally Anderson, supra note 2.
232. In addition, these areas may purchase higher levels of a la carte services from the county (using assessment districts and other financing techniques described in Part II), which gives county employees and their unions a particularly high stake in retaining these areas as unincorporated service territories.
233. See Anderson, supra note 2, at 1152-54; Briffault, supra note 52.
234. See supra notes 154-160 and accompanying text.
235. See Anderson, supra note 2, 1106-12 (describing this type of illogical service provision in unincorporated urban areas across the country).
236. See id., which began the process of correcting this deficit. This author is currently at work on a comprehensive analysis of the political economy of county government.
237. Clayton Gillette usefully conceptualized annexation in this way and concluded that concurrent majorities (direct democratic majority in area to be annexed plus majority of representative body or electorate of municipality) optimize interlocal negotiations. See Gillette, supra note 58.
238. See generally DAVID RUSK, CITIES WITHOUT SUBURBS (1993); Reynolds, supra note 58.
239. See Reynolds, supra note 58.
240. Indeed, Reynolds recognized the need for consistent application of an urban land inclusion principle when she argued that cities' involuntary annexation powers should be matched by a corresponding duty to annex unincorporated areas that satisfy statutory annexation criteria and petition for inclusion. See Reynolds, supra note 58, at 271.
241. For instance, protest rights might be limited to a certain percentage of the landowners within a defined distance from the area proposed for annexation.
242. See supra notes 88-91 and accompanying text.
243. See supra note 70 and accompanying text.
244. See supra note 69-73.
245. See Reynolds, supra note 58, at 247 n.1 (identifying laws in Idaho, Indiana, Kansas, Louisiana, North Carolina, Oregon, Tennessee, Oklahoma, Illinois, and Texas that, subject to certain prerequisites, permit municipalities to annex land irrespective of residents' wishes).
246. Indeed, in this vein, the most prominent academic advocate for involuntary annexation powers has acknowledged that where states grant municipalities the power to impose an annexation without the consent of the area to be annexed, state law should equally grant the power to compel an annexation to unincorporated area residents that qualify under the state's contiguity requirements. See Reynolds, supra note 58, at 284-86.
247. State law should nevertheless limit such compulsory annexations to circumstances where a need for a particular public service exists and the city can provide that service. An example of this statutory language is provided in Indiana, where annexation of an unincorporated area can be mandatory if "essential municipal services and facilities are not available to the residents of the territory sought to be annexed [and] the municipality is physically and financially able to provide municipal services to the territory sought to be annexed...." IND. CODE § 36-4-3-5(d) (2009) (authorizing court-ordered annexation even without the consent of a municipality if certain conditions, including those above, are met).
248. See OR. REV. STAT. § 222.850-.915 (West 2009); see also OR. REV. STAT. § 222.855 (2009) (providing for compulsory annexation if "a danger to public health exists because of conditions within the territory" and "such conditions can be removed or alleviated by sanitary, water or other facilities ordinarily provided by incorporated cities"); W. Side Sanitary Dist. v. Health Div. of the Dep't of Human Res., 614 P.2d 1151 (Or. 1980); Kelly v. Silver, 549 P.2d 1134 (Or. 1976).
249. OR REV. STAT. § 222.855 (2009); UTAH CODE ANN. § 10-2-407(3)(a)(iii) (West 2009). The Utah statute is discussed infra note 222 and accompanying text.
250. See supra note 66.
251. See supra notes 58-73 and accompanying text.
252. Roberts v. City of Mesa, 760 P.2d 1091, 1095 (Ariz. Ct. App. 1988).
253. Approximately twenty-three states currently have some form of law preventing the creation of islands or facilitating their annexation. See STEINBAUER ET AL., supra note 60, at 68-69 app. B; see also ARIZ. REV. STAT. ANN. § 9-471(I) (2009) ("A city or town shall not annex territory if as a result of such annexation unincorporated territory is completely surrounded by the annexing city or town."); GA. CODE ANN. § 36-36-4 (West 2009) (prohibiting annexations that will create unincorporated islands); UTAH CODE ANN. §§10-2- 402(1) (b)(iii), 10-2-418(1)(b) (West 2009) (prohibiting annexations that will leave behind an unincorporated island unless the annexation satisfies more strict substantive criteria); Charter Twp. of Pittsfield v. City of Ann Arbor, 274 N.W.2d 466, 468 (Mich. Ct. App. 1978) (holding that the creation of islands is prohibited by judicial interpretation of state contiguity requirements). Under current state law, additional measures to discourage island creation merely impose additional procedural requirements on selective annexations without penalizing or otherwise prohibiting the annexation. See, e.g., TEX. LOC. GOV'T CODE ANN. § 43.057 (Vernon 2009) (requiring additional findings by a municipality prior to an annexation that will create an unincorporated island); City of Wood Vill. v. Portland Metro. Area Local Gov't Boundary Comm'n, 616 P.2d 528 (Or. Ct. App. 1980) (requiring the Portland Metropolitan Area Local Government Boundary Commission to consider the effect of an annexation to Portland on any island created by the boundary change). By contrast, in Florida, a state with strict contiguity and compactness requirements, annexation ordinances have been upheld even where they create islands of unincorporated territory within the local government. See MacKinlay v. City of Stuart, 321 So.2d 620 (Fla. Dist. Ct. App. 1975). But see FLA. STAT. § 171.204 (2009) (requiring that, prior to the approval of any annexation that will leave behind unincorporated islands, the municipality undertake additional long-range planning measures for the territory proposed for annexation).
254. For instance, nearly all states with legislation designed to prevent the formation of islands define such territories as completely surrounded by one or more municipalities. See, e.g., ARK. CODE ANN. § 14-40-501(a)(1)(A)(i) (West 2009); COLO. REV. STAT. § 31-12-106(1) (West 2009); IDAHO CODE ANN. § 50-222(3)(a)(ii) (West 2009); MONT. CODE ANN. §7-2-4501 (2007). But see CAL. GOV'T CODE § 56375(a)(4)(A) (West 2009).
255. See CAL. GOV'T CODE § 56375(a)(4)(A) (Deering 2009) (defining an island as any territory "[s]urrounded or substantially surrounded by the city to which the annexation is proposed or by that city and a county boundary or the Pacific Ocean if the territory to be annexed is substantially developed or developing").
256. Such a provision is designed to reflect the reality that a neighborhood may be the final area of land realistically eligible for annexation before county land uses on large parcels representing no or low tax revenue begin. See Anderson, supra note 2, at 1109-10 (describing the UUA of North Richmond, which is not considered an island under California law, but is trapped between a city boundary, the Pacific Ocean, a Superfund site, an active oil refinery, and a county landfill and recycling center).
257. Components of each of these terms can be found scattered in codes across the country. See, e.g., ARK. CODE ANN. § 14-40-501(a)(1)(A)(ii) (2009) (recognizing state borders); CAL. GOV'T CODE § 56375(a)(4)(A) (Deering 2009) (recognizing oceans and county boundaries); GA. CODE ANN. § 36-36-4(a)(3) (2009) (recognizing "unincorporated area[s] to which the county would have no reasonable means of physical access for the provision of services otherwise provided by the county"); ILL. MUN. CODE § 7-1-13 (2009) (recognizing state-owned property, forest preserve districts, and park districts); OR. REV. STAT. § 222.750(2) (2009) (recognizing creeks, rivers, bays, lakes, or interstate highways).
258. See supra note 203 (citing ARIZ. REV. STAT. ANN. § 9-471(I) (2009); GA. CODE ANN. § 36-36-4 (2009); UTAH CODE ANN. §§10-2-402(1)(b)(iii), 10-2-418(1)(b) (2009); Charter Twp. of Pittsfield, 274 N.W.2d at 468).
259. As with any single annexation containing multiple neighborhoods or constituent groups, any given subset of an area proposed for annexation might oppose absorption. Under existing law, such subsets may be outnumbered by consenting areas within the area proposed for annexation, or the opposing neighborhoods are excluded from the annexation to become an unincorporated island. To the extent that my proposal forecloses the second option, it results in annexation of would-be islands against residents' wishes in the same way that any voting minority can lose an election. The justification for this compromise lies in the larger growth management, efficiency, and environmental concerns enumerated throughout this Part.
260. See CAL. GOV'T CODE § 56668 (West 2009) (making the creation of islands and narrow corridors of unincorporated territory one of the statutory factors to be considered in state agency review of an annexation proposal); Bd. of County Comm'rs v. City & County of Denver, 548 P.2d 922, 927 (Colo. App. 1976) (interpreting a Colorado state law to provide a conclusive presumption that an area with a two-thirds contiguous boundary with a local government for more than three years satisfies at least one element of the test for annexation); Brodie v. City of Missoula, 468 P.2d 778, 782 (Mont. 1970). Notably, however, such measures have no power to overcome a city's lack of interest in annexing a particular area.
261. See CAL. GOV'T CODE § 56375(a)(4) (West 2009) (requiring the governing boundary commission to approve the annexation of an unincorporated island, once proposed by a city); MICH. COMP. LAWS § 42.34(2) (2009) (permitting state boundary commissions to order the annexation of an island).
262. See MO. REV. STAT. §71.012(1) (2009).
263. In California, for instance, when a city passes a resolution to annex islands meeting certain requirements, that annexation proposal is not subject to protest proceedings. See CAL. GOV'T CODE § 56375(a)(1) (West 2009). Several states similarly waive resident consent requirements. See IDAHO CODE ANN. §50-222(3)(a), (5)(a) (2009); MONT. CODE ANN. §§ 7-2-4501, 7-2-4502 (2009); NEB. REV. STAT. § 16-122 (2007); NEV. REV. STAT. § 268.660(2) (2008). Another category of states currently waives resident consent requirements, but permits residents to seek relief through judicial review, see COLO. CONST. art. II, § 30; ARK. CODE ANN. § 14-40-503(b) (2009); COLO. REV. STAT § 31-12-106 (2009), or a referendum election, see OR. REV. STAT. § 222.750 (2009). However, voluntary consent to any annexation, including that of an island, is still required in most states.
264. I am grateful to Evelyn Lewis, a participant at a UC Davis Faculty Workshop of the present Article, for a helpful suggestion to this effect.
265. See generally Clayton P. Gillette, The Conditions of Interlocal Cooperation, 21 J.L. & POL. 365 (2005) (assessing the incentives, barriers, and costs to interlocal bargaining as a means of achieving regional cooperation and efficiency).
266. For instance, Broward County attempted to eliminate all unincorporated areas within the county by bringing them into municipal lines. See TEAFORD, THE AMERICAN SUBURB, supra note 123, at 135-36; Anderson, supra note 2, at 1111-12 & nn.59-61. King County, Washington undertook similar efforts to bring all county land within the borders of Seattle and other municipalities. See TEAFORD, THE AMERICAN SUBURB, supra note 123, at 136.
267. Admittedly, such an incentive is available only in the minority of states with a fair share system of affordable housing.
268. See, e.g., N.C. GEN. STAT. § 160A-31 (2009); OHIO REV. CODE ANN. § 709.02 (West 2009); In re Annexation of 118.7 Acres in Miami Twp. to Moraine, 556 N.E.2d 1140, 1144 (Ohio 1990); County of Chesterfield v. Berberich, 100 S.E.2d 781 (Va. 1957).
269. South Carolina, Minnesota, Delaware, and Maryland, for instance, require only twenty or twenty-five percent of a territory's qualified electors to initiate an annexation proceeding (as well as, in Maryland's case, owners of at least twenty-five percent of the assessed land valuation in the area). See DEL. CODE ANN. tit. 22, § 101A(a)(1) (2009); MD. CODE OF 1957 ANN. art. 23A., § 19(b)(1) (2009); MINN. STAT. § 414.031(1) (2009); S.C. CODE ANN. § 5-3-300 (2009).
270. California currently has such a provision permitting its boundary commissions to approve or disapprove of an annexation (if they so choose) without notice, a hearing, or an election. See CAL. GOV'T CODE § 56663 (West 2009).
271. In New Jersey, for instance, state law permits annexation petitioners to appeal a city's refusal to annex on the basis that, inter alia, "refusal to consent to the annexation is detrimental to the economic and social well-being of a majority of the residents of the affected land...." N.J. STAT. ANN. § 40A:7-12.1 (West 2009).
272. The other requirements pertain to the size of the county, the relative populations of the area to be annexed and the city, recent population growth in the city, and the property tax rate for municipal services in the area to be annexed. See UTAH CODE ANN. § 10-2- 407(3) (a)(iii) (West 2009).
273. See, e.g., Bozung v. Local Agency Formation Comm'n, 529 P.2d 1017 (Cal. 1975) (holding that annexations are subject to the environmental analysis requirements of the California Environmental Quality Act). In California, for instance, the state legislature could readily alleviate the costs for low-income areas seeking annexation by passing an exemption under the California Environmental Quality Act (CEQA) for annexations of low-income areas already in developed use.
274. An example of cross-sectoral coalition-building recently emerged in California, where business interests, real estate developers, environmental groups, and (after much tortured negotiation) city governments joined forces to pass a major piece of anti-sprawl legislation. See CAL GOV'T CODE § 14522.1 (West 2009); George Skelton, Legislators Show They Do Some Things Right, L.A. TIMES, Oct. 6, 2008 (describing "the coalition of the impossible" behind the passage of SB 375).
275. See Anderson, supra note 2, at 1097-98, 1101.
276. Standing alone, it might not seem compelling, but the efficiency, geographic logic, and political reach of cities without islands of county territory is attractive to some city officials. See, e.g., Tony Barboza, Tiny Latino Neighborhood Has Resisted Joining Anaheim, L.A.TIMES, Mar. 6, 2009 (quoting the city of Anaheim's mayor that annexation of a low- income county island was "inevitable," because "[i]t's not going to be some island forever"); see also SANTA CLARA COUNTY LOCAL AGENCY FORMATION COMM'N, MAKING YOUR CITY WHOLE: TAKING ADVANTAGE OF THE CURRENT OPPORTUNITY TO ANNEX URBAN UNINCORPORATED POCKETS (2005), available at http://www.santaclara.lafco.ca.gov/pdf-files/Final_Vers_City_Whole.pdf (encouraging cities in the county to annex their remaining islands for reasons ranging from "it's the right thing to do," to service inefficiencies, to planning consistency goals).
277. See Anderson, supra note 2, at 1140-42.
278. See id. at 1142, 1145-48 (describing the various hats that counties wear and articulating several dimensions along which counties' competing mandates create and perpetuate conditions in unincorporated urban areas).
279. A recent annexation debate over a low-income unincorporated island outside of Anaheim, California demonstrated this latter dynamic. Despite views in the community that annexation and inclusion in Anaheim police jurisdiction would reduce gang violence in the neighborhood, a county sheriff's union worked to defeat the island's annexation because it would reduce county patrol territory. See Barboza, supra note 226.
280. Santa Clara County, California and Broward County, Florida are illustrative. These counties have systematically promoted elimination of county islands through voluntary service improvements of unincorporated urban areas as an inducement to annexation. See SANTA CLARA COUNTY LOCAL AGENCY FORMATION COMM'N, supra note 226 (a report promoting island annexation); Anderson, supra note 2, at 1111 n.59 (describing Broward County's board of supervisors' recommendation to the state legislature that all remaining unincorporated land in the county come within city lines through annexation or incorporation); see also Fresno County Local Agency Formation Comm'n, Island Annexations, http://www.fresnolafco.org/Island%20Annex.asp (last visited Nov. 30, 2009) (explaining Fresno County, California's interlocal boundary commission's comprehensive policy to promote the annexation of all remaining county islands in terms of service inefficiencies, service inadequacies, and the county's increasing difficulty at "maintain[ing] an acceptable level of services in view of the fiscal constraints that it continues to face").
281. See supra note 80 and accompanying text.
282. Here, of course, I mean the Obama Administration's commitment to financing public infrastructure with economic stimulus dollars. See, e.g., Monica Davey, States and Cities Angle for Stimulus Cash, N.Y. TIMES, Feb. 15, 2009, at A1; Bruce Lambert, Dreaming of Infrastructure as Federal Aid Beckons, N.Y. TIMES, Dec. 7, 2008, at LI1.
283. See RICHARDSON DILWORTH, THE URBAN ORIGINS OF SUBURBAN AUTONOMY (2005); TEAFORD, THE AMERICAN SUBURB, supra note 123, at 13-15 (describing that the desire for better urban services, including sewage lines, clean water, and good schools motivated early unincorporated American suburbs to submit to annexations); Rosenberg, supra note 77, at 181; see also David G. Bromley & Joel Smith, The Historical Significance of Annexation as a Social Process, 49 LAND ECON. 294, 294-95 (1973) (analyzing the number and size of annexations from 1800-1960, and noting that the demand for urban services accounted in part for unusually high rates of annexation in the late nineteenth century). Before the Civil War, street improvements and other services were typically financed by special assessments of affected property-owners. JACKSON, supra note 123, at 131.
284. See generally JACKSON, supra note 123, at 130-37.
285. See Nicole Stelle Garnett, Unsubsidizing Suburbia, 90 MINN. L. REV. 459, 477-78 (2005) (reviewing DILWORTH, supra note 233)
286. see also JACKSON, supra note 123, at 131 (describing reformers' drive to alleviate the choked poverty of urban slums by facilitating development in the breezy suburbs)
287. WERNER TROESKEN, WATER, RACE, AND DISEASE (2004). This early wave of sewer infrastructure installations, which was completed in all major American cities by 1911, involved the untreated discharge of municipal waste into nearby watercourses.
288. See William L. Andreen, The Evolution of Water Pollution Control in the United States: State, Local, and Federal Efforts, 1789-1972: Part I, 22 STAN. ENVTL. L.J. 145, 166 (2003).
289. See DILWORTH, supra note 233, at 23-24.
290. See JACKSON, supra note 123, at 131
291. Gerald E. Frug, Beyond Regional Government, 115 HARV. L. REV. 1763, 1772 (2002) ("In the nineteenth century, central cities supported the annexation of neighboring territory despite the fact-sometimes because of the fact-that social conditions and services were worse than those in the central city.").
292. DILWORTH, supra note 233.
293. EXACTIONS, IMPACT FEES AND DEDICATIONS, supra note 85, at xxxiii. Freilich and Bushek divide the history of subdivision regulation and development processes into five phases: a pre-1928 era focused primarily on improving the accuracy and efficiency of land recording; a 1928 to World War II period seeing an increase in the mandatory dedication of public facilities within subdivisions; a World War II to 1970s period of requiring exactions and money in lieu of land to cover the increased burdens on off-site public facilities; a 1970s phase of growth management; and the modern era of public/private partnerships, impact fees, and linkage fees. Id. at xxxiii-xxxiv.
294. JACKSON, supra note 123, at 146-47.
295. See MARTIN V. MELOSI, THE SANITARY CITY: URBAN INFRASTRUCTURE IN AMERICA FROM COLONIAL TIMES TO THE PRESENT 205-12 (2000)
296. William L. Andreen, The Evolution of Water Pollution Control in the United States: State, Local, and Federal Efforts, 1789-1972: Part II, 22 STAN. ENVTL. L.J. 215, 226, 290 (2003).
297. During the nineteenth century, cities were segregated at finer levels-street by street or block by block, for instance-such that in 1890, the average African-American lived in a city ward that was twenty percent black. By 1970, this same statistic had increased to seventy percent, as racial segregation reached the higher levels of geographic aggregation-with racially homogeneous census blocks, city wards, or incorporated municipalities-familiar today. See TROESKEN, supra note 235, at 36-37
298. see also DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1993) (documenting a similar pattern).
299. TROESKEN, supra note 235, at 39-40.
300. Id. at 13, 62-63, 65-67.
301. See Andreen, supra note 241, at 252. More minor, but nonetheless important waves of post-war construction grants funding came through the Federal Water Pollution Control Act of 1948 and its 1956 and 1961 Amendments. See id. at 237-38, 241-42.
302. See ADAM ROME, THE BULLDOZER IN THE COUNTRYSIDE: SUBURBAN SPRAWL AND THE RISE OF AMERICAN ENVIRONMENTALISM (2001).
303. Discrimination against incoming black migrants reinforced entrepreneurial and developer incentives to form new cities with lower tax rates and lower service burdens. The result was the establishment of new suburbs as independent municipalities rather than center city extensions through annexation. See BURNS, supra note 166. The dramatic fragmentation of American metropolitan areas into independent municipalities evidences the demise of central cities' expansionist ambitions. See Frug, supra note 237, at 1769-70.
304. See generally Kenneth J. Drexler, The Four Causes of the State and Local Budget Crisis and Proposed Solutions, 26 URB. L. 563 (1994)
305. Kimhi, supra note 76. 249. See ABBOTT ET AL., supra note 81, at 3
306. Rosenberg, supra note 77, at 180. Federal aid to cities in the 1990s amounted to only one third of the 1970 federal aid level, a drop that coincided with increasing levels of poverty in many municipalities. Georgette C. Poindexter, LizabethAnn Rogovoy, & Susan Wachter, Selling Municipal Property Tax Receivables: Economics, Privatization, and Public Policy in an Era of Urban Distress, 30 CONN. L. REV. 157, 165-66 (1997). For California cities, for instance, state and federal aid has fallen from an average twenty-one percent of a city's budget in 1974-75 to an average of ten percent today. COLEMAN, supra note 99, at 7. For additional exploration of the causes of local government fiscal crisis, see EXACTIONS, IMPACT FEES AND DEDICATIONS, supra note 85, at xxxiii; Drexler, supra note 248, at 563.
307. Reynolds, supra note 44, at 393. Such a change no doubt related to the fact that, prior to the heightening economic downturn in 2008-2009, federal financing for infrastructure in low-income areas was classified as a subsidy for the poor, if not a windfall. And today, even amidst the current focus on infrastructure subsidization as an economic stimulus, transportation and energy infrastructure, rather than capital investment to benefit neighborhoods, sit at the heart of federal spending plans.
308. ERAN BEN-JOSEPH, THE CODE OF THE CITY: STANDARDS AND THE HIDDEN LANGUAGE OF PLACE MAKING 78 (2005) (citing U.S. GEN. ACCOUNTING OFFICE, U.S. INFRASTRUCTURE FUNDING TRENDS AND FEDERAL AGENCIES' INVESTMENT ESTIMATES (2001)); see also ELLEN HANAK, PUB. POLICY INST. OF CAL., PAYING FOR INFRASTRUCTURE: CALIFORNIA'S CHOICES 5 (2009), available at http://www.ppic.org/main/publication.asp?i=863 (finding that local and regional governments finance eighty percent of capital spending for infrastructure in California).
309. See, e.g., Nicolai Ouroussoff, How the City Sank, N.Y. TIMES, Oct. 9, 2005, at A1 (discussing how "New Orleans was a warning" of the fact that "[f]or decades now, we have been witnessing the slow, ruthless dismantling of the nation's urban infrastructure").
310. U.S. ENVTL. PROT. AGENCY, THE CLEAN WATER AND DRINKING WATER INFRASTRUCTURE GAP ANALYSIS 5, 15 (2002), available at http://www.epa.gov/owm/gapreport.pdf; see also HANAK, supra note 251, at 1 (estimating that $500 billion is needed to rebuild California's transportation, water, school, and other systems over the next twenty years); William Yardley, Gaping Reminders of Aging and Crumbling Pipes, N.Y. TIMES, Feb. 8, 2007, at A19 (discussing the American Society of Civil Engineers's "Report Card for America's Infrastructure," which gave the country's wastewater infrastructure a D- minus).
311. In other words, where reforms to state law would grant a corresponding right to counties to initiate and approve mandatory annexations of residual unincorporated islands and fringe areas with an urgent need for municipal services, such laws would also include a mandatory tax sharing agreement to place some of the burden of initial capital investments on the county.
312. See Anderson, supra note 2, at 1111-12 & nn.59-61.