Mapped Out of Local Democracy

Michelle Anderson

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Stopped in time and sealed in place.  Hundreds of high-poverty neighborhoods of color are trapped in the vestiges of rural poverty, though they sit adjacent to incorporated cities and suburbs across the country.  City growth through annexation has passed them by (though city crime may not have).  Homes lack rudimentary services—clean water, adequate sewage disposal, sidewalks, streetlights.  State and local governments have sited numerous landfills, industrial plants, municipal utilities, and freeways in these areas, threatening health and depressing land values.  Residents continue to live without the right to vote in their adjacent city, because borders have mapped them out of local democracy. Counties (diffuse, distant, and overburdened though they may be) are the single tier of general-purpose local government.

What to do with these lost neighborhoods?  It is the late dawn of the twenty-first century, when integration is stronger and civil rights laws are weaker, when local government budgets are dwarfed by demands.  Suing local governments or lobbying them, two of the most important strategies of twentieth-century advocacy for social justice, have been undermined by legal developments that drained city revenues and withdrew federal remedial power to address racial segregation. 

Yet state and local government laws retain malleability.  Laws governing the allocation of power among local agencies exert significant influence over unincorporated urban areas specifically and spatial polarization by race and class more generally.  This Editorial argues for a new priority in metropolitan law and policy: state legislative reforms to empower and reshape county governments to represent regional interests and regional logic in intergovernmental negotiations, including negotiations over annexation.  Strengthening counties to bargain with other local agencies over matters with redistributive consequences, like annexation, can bring a metropolitan perspective to critical local decisionmaking and create a promising corridor for addressing contemporary issues of urban inequality. 

Part I introduces the unincorporated urban areas problem, describing these neighborhoods and the pattern of selective annexation (known as municipal underbounding) that underlies their formation.  Part II explores the two traditional tools of change and their current constraints: first, organizing efforts to lobby for inclusion and redistribution within existing local politics, which are hampered by cities’ finance-driven rules for growth management and annexation; and second, antidiscrimination litigation to remedy a pattern of discriminatory annexation, which has been confined by courts’ reluctance to mandate the movement of a local border.  Part III harnesses the flexibility created by a strong political and judicial doctrine of local autonomy by proposing reforms that empower county governments to exert greater influence over (without dictating) annexations. 

Part problem-solving for the unincorporated urban areas problem in particular, and part exploration of solutions to metropolitan inequality in general, this Editorial offers a new direction for state and local government law to seek progress on economic and racial polarization in America’s cities.  It brings counties—our most neglected, undertheorized layer of state government—into sharper relief and conceives for them a regional, redistributive purpose. 

 I. Unincorporated Urban Areas, Municipal Underbounding, and the Annexation Solution

Discriminatory annexation is known to urban geographers as municipal underbounding: annexation policies and practices in which municipalities grow around or away from low-income minority communities, thus excluding them from voting rights in city elections and municipal services.   Excluded from city boundaries (and too poor, if not too small, to form their own city), underbounded neighborhoods remain unincorporated and dependent on counties as their most proximate layer of general-purpose local government.  In past work, I have called these neighborhoods unincorporated urban areas, and I’ve found that they are characterized by one or both of two main challenges: a lack of basic infrastructure and services like wastewater treatment and street lights and/or an overconcentration of undesirable land uses like freeways and municipal utility plants.  Each such neighborhood identified to date is predominantly Latino and African-American, often with a history of settlement under de jure and de facto segregation.  

Where are these areas, and how many towns and cities exhibit this problem?  We have no consolidated national research on these questions, but we can triangulate a general picture of the problem as prevalent in the South and the Southwest.  Qualitative research has investigated dozens of high-poverty unincorporated urban areas in Texas, California, North Carolina, Florida, and Mississippi.  A study of census data from 1990 and 2000 found that African-American communities adjacent to non-metropolitan towns in the South are more likely to be bypassed for annexation than similar white communities.  Studies of poverty in unincorporated areas more generally (not necessarily unincorporated urban areas near a city border), have identified thousands of low-income unincorporated subdivisions in the Southwest—including at least 1,800 in Texas alone.   

Heretofore, municipal underbounding and the unincorporated urban areas it creates have been understudied, if not invisible.  In the annexation context, municipal underbounding has been hidden in the shadows of academic and policy assumptions that increasing city power and autonomy over annexations will increase the number and extent of annexations, and that such change will be against the interests of unincorporated areas.  In the spatial inequality context, the problem of unincorporated poverty has been overshadowed by other forms of interjurisdictional segregation and fragmentation, particularly the economic and racial polarization of core cities and their independently incorporated suburbs.  A wave of awareness and advocacy on unincorporated urban areas, however, is beginning to crest. 

Meeting the needs of unincorporated urban areas can take at least four directions: relocate households individually, improve county government, form an independent city, and seek annexation to an existing city.  This Editorial focuses on annexation.  This avenue is not offered as a one-size-fits-all solution—it has risks and downsides for some communities.  Yet it is a realistic and desirable prescription in many cases for three reasons.  First, annexation leads to service improvements and extensions by bringing unincorporated urban areas into a city that already provides such urban services and triggering existing legal requirements that cities bring underserved areas up to municipal health and safety standards.  Second, by providing city voting rights (giving residents of unincorporated urban areas the same two levels of local government that city dwellers usually enjoy), annexation also increases the proximity and, potentially, the responsiveness of political representation.  Finally, annexation leaves historically rooted communities intact. It moves borders—not homes or people—in order to “relocate” a neighborhood from one jurisdiction to another.   

II. Traditional Tools: Community Organizing and Civil Rights Litigation

In the tradition of their times, residents of unincorporated urban areas and their advocates have deployed conventional tools of change: they have organized locally and they have sued.  Activism in (and patience with) the local political and market economy is a commonly recommended antidote to problems of spatial inequality in a post-civil rights era.  Where local politics are contaminated by racial discrimination, constitutional equal protection and statutory voting rights protections are assumed to reach the problem.  Yet changes in state and federal law have enfeebled both tactics. 

Applied to the problem of unincorporated urban areas, a community organizing strategy predicts that lobbying city and county governments can lead to service improvements and annexations.  Yet the problems of unincorporated urban areas, including municipal underbounding, are ill-suited to this approach, if one adheres to the premise, as the Article does, that avoiding the involuntary displacement of existing residents is a central priority.  Under the current system of local finance, cities enjoy the legal right, if not the fiduciary duty, to engage in class discrimination when making annexation choices.  Borders are, in essence, saleable goods in the contemporary political economy.  Local governments now effectively set a price for (1) entry (a landowner or group of landowners seeking to relocate a local border to encompass their parcels through annexation), and (2) residence (services provided within a jurisdiction).  State laws widely mandate fiscal impact assessments of boundary changes, and they currently provide few incentives or benefits to offset fiscal losses from the annexation of a poor neighborhood.  As a practical matter, capital investment and increased tax revenue in unincorporated urban areas are currently prerequisites to annexation within local political economies. 

When politics fails, municipal underbounding seems ripe for a litigation solution reflective of the problem’s history of racial segregation and racially ordered provision of municipal services and voting rights.  Yet addressing any problem of spatial inequality—be it racial segregation, disparities in neighborhood services, or discriminatory annexation, to name a few—through a civil rights lawsuit faces formidable, well-known doctrinal barriers.  And in the context of municipal underbounding, an unincorporated urban area also faces an additional barrier: Federal courts are reluctant, or perhaps even unwilling, to move a local border. Only a narrow band of factual scenarios can be redressed with existing antidiscrimination protections, and even in those cases, local autonomy to establish and move local borders has come to serve not only as a license to behave in any way consistent with state law, but also as a quasi-affirmative defense to claims that racial discrimination was a motivating force behind service or annexation decisions.  My full Article discusses this particular barrier to using civil rights laws as a mode of redress for municipal underbounding, re-reading voting rights and school desegregation cases to investigate federal authority to mandate a shift in local borders. 

III. Overcoming County Powerlessness in Annexation Law

This new landscape of hardened American municipal borders—subject to a marketplace for entry and residence and insulated from federal antidiscrimination law—impedes solutions to the unincorporated urban areas issue that rely on the tools of local activism or civil rights litigation.  Yet the local autonomy fostered over the twentieth century suggests an alternative strategy: to preserve local control as against state or federal power, but to reshuffle the metropolitan agenda by giving county governments a stronger and more regional role to play. 

Academic and public debates about American annexation law have pivoted around a single story with two actors (the revenue-hungry city and the property-rich suburb, whether existing or planned) and one scenario (an aggressor city seeks to annex the suburb against its landowners’ wishes).  Municipal underbounding requires a place for two new actors (the service-poor county and the low-income suburb) and one additional scenario (a city refuses to annex a supplicant suburb).  Accommodating this more complex picture of annexations requires that we give county governments some influence over annexation decisions and ease the procedures by which outsiders to a city can seek annexation. 

Changes in pursuit of these objectives are important, but they must be subject to a key counterbalance: the positive attributes of city control and veto power over some annexations.  City power and discretion over matters of annexation enables cities to capture population growth and new revenues at their fringes, which is a critical element of the elasticity widely believed essential for urban fiscal health.   Sound urban growth management requires that cities can check counties’ incentive to permit (or simply fail to control) new land uses outside of city lines that facilitate uncoordinated and inadequately served urban sprawl that can later be handed over to a city’s balance sheet.  For these reasons, advocates for giving cities stronger annexation powers—including the “involuntary annexation” power to annex areas against residents’ will—ground their views in the sensible and worthwhile goal that city boundaries encompass city growth.   They argue that annexation law should prevent wealthy unincorporated suburbs from freeriding on city taxpayers by enjoying the advantages of adjacency to city life without paying city taxes for city services. 

City boundaries should indeed encompass urban land, but that principle should apply across the board—whether the urban land at issue is rich or poor.  To find that consistency, balancing freerider effects against inclusionary goals, cities cannot be the sole governmental negotiating interest in annexations.  Thus, rather than substituting strong counties for strong cities (simply empowering a new self-interested local government in place of an old one) the proposals advanced in my Article do not advocate replacing city power over annexations, but rather to introduce counties as a stronger negotiating partner to guide annexation outcomes.  Interlocal negotiations can balance cities’ legitimate need for urban growth control (and anti-sprawl objectives in general) against state and regional needs for adequate and efficient urban services in all urbanized areas. 

Indeed, certain existing features of county government make it an attractive negotiating partner over annexation, even from the perspective of city interests.  The same rule of county government that makes it a diffuse and distant local government (thus increasing the attraction of annexation or incorporation solutions for urban areas) makes it a ready-made regional government tied to city interests: Residents of incorporated areas enjoy the same voting rights in county government as are held by unincorporated area residents.  Political accountability to city interests is thus built in to county governance.  When it comes to interlocal negotiations of the kind described here, stronger counties do not necessarily mean weaker cities. 

Readers interested in the specific portfolio of reforms proposed are referred to my Article, but suffice it to summarize here that I propose two categories of state legal reforms to bring counties into annexation decisions: empowering counties and their residents to initiate, facilitate, and consent to annexations; and protecting counties, where appropriate, from annexations that will cherrypick unincorporated land to leave behind residual territory that is underserved, inefficient to govern, or too costly to serve at habitable standards. 

If state law facilitates annexations, the question remains: who will pay for the necessary infrastructure upgrades to bring unincorporated urban areas within city service networks and up to city standards?   Infrastructure financing is messy and scarce.  My Article looks to historical models of infrastructure funding to argue for a modernized version of nineteenth-century extraterritorial service provision (an adaptation that is peculiarly well suited to recessions with thin local budgets): conscript cities to compete for federal capital funds (including economic stimulus dollars in our current economy), that can retrofit affordable housing at the urban fringe with urban services and infrastructure.  Just as turn-of-the-twentieth-century cities in the United States served as brokers and leaders of fringe infrastructure, contemporary cities in many states are in the best position to plan and compete for, not to mention spend, federal dollars on urban infrastructure.  Cities’ higher levels of professional staffing, greater experience with competitive intergovernmental grant programs, smaller constituencies, and control over urban service providers make them better equipped to compete in a world of costly, highly engineered proposals.  The duty to fight for funds on behalf of unincorporated urban areas is particularly justified in states that give cities extraterritorial land use authority, because such power should come with corresponding obligations to pursue habitability improvements aggressively in urban fringe areas. 

IV. Conclusion

The problem of high-poverty, urbanized areas mapped out of city borders by annexation decisions is among America’s most severe problems of spatial inequality.  The lobby and the lawsuit, two dominant strategies for achieving social justice in the twentieth century, have proven to be blunt instruments in the fight to improve services and political rights in these areas.  Yet the very local autonomy fostered by state legislatures and federal courts suggests an alternative strategy: to preserve local control as against state or federal power, but to reshuffle the metropolitan agenda by giving county governments a stronger and more regional role to play.  Applied to the problem of municipal underbounding, county governments need a stronger influence over in annexation decisions.

In this reconception of county power over annexations lies the seed of future potential, and indeed this author’s own future research: Might counties offer untapped potential over other matters of interjurisdictional segregation and spatial inequality?  In particular, can we adjust county power (through a process of both adding and subtracting measures of their authority) to alleviate economic and racial polarization among their constituent cities?  The characteristic that makes counties poor substitutes for a first-tier city government—their equal obligations to the residents of all cities and unincorporated places in their territory—suggests an untapped potential to coordinate and rationalize metropolitan regions.  Many issues remain for future inquiry, not the least of which will be counties’ potential for political capture by their largest cities, their thin record on the pursuit of redistributive justice, and their poor land use planning.  For now, suffice it to observe that over matters of annexation, counties’ weak hand has enabled the unchecked practice of municipal underbounding and stranded unincorporated islands and fringes in material stasis and decay.  Counties have no vested interest in the status quo (quite the opposite is true), and there is every reason to expect them to seek annexations for their high poverty pockets.  On this issue at least, reform of county power provides a footpath forward.       

Like fossils, unincorporated urban areas reveal a history of twentieth-century urban change in the control of local boundaries.  Like laboratories, they offer a setting in which to test twenty-first-century strategies for resolving questions of social injustice.  By investigating a contemporary problem of pre-civil rights vintage, we find old wounds and new possibilities, both hidden under history’s crust.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Michelle Wilde Anderson is an Assistant Professor of Law at the University of California, Berkeley School of Law. 

This Legal Workshop Editorial is based on the following Law Review Article: Michelle Wilde Anderson, Mapped Out of Local Democracy, 62 STAN. L. REV. 931 (2010).


Comments

  • What I’ve observed is that instead of counties being more objective than cities, and therefore likely candidates for pro-social redistributive tactics, the counties themselves become entrepreneurial about keeping some territory out of any city. If the county becomes opposed to virtually any annexation of middle-class neighborhoods, there’s no objectivity. So my advice would be to study counties where all territory is part of a municipality, versus counties where some territory is part of a city and a considerable amount of land is not inside any municipal boundary. See if their behaviors are different.

    If the counties where all land also lies inside a municipal boundary behave in a useful fashion, a first step could include considering state legislation that would force urbanized counties to re-order municipal boundaries so that every parcel lies in an incorporated municipality. If desired, a state agency could oversee the process to make sure that the county’s decisions about who receives the unincorporated pockets of non-white poor are reasonable.


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