Deciphering the Legal Framework for Locally Addressing Issues Interwoven with Outward Expansion from America's Central Cities

Abstract

American urbanism has come to be defined by migration from deteriorating urban development to new suburban development resulting in population decline within America's urban cores, or central cities. Population decline sets in motion certain self-reinforcing forces, or issues, likely to perpetuate it. These include the withdrawal of high- and middle-income households, a decline in the central city's tax base accompanied by rising local taxes and deteriorating public services, a dwindling consumer base to support utility infrastructure maintenance and improvement, and a rise in criminal activity. Federal, state and local governments have been involved in a variety of "urban renewal" strategies via studies, regulations, tax incentives and even investments of public funds, largely to no avail. During this time, what were once thought to be only urban issues have now also outwardly migrated to the suburbs. While some may assert that the birthplace of modern U.S. Supreme Court jurisprudence defining governmental authority to regulate land use is Euclid, the U.S. Supreme Court outlines in this same case that the true origin of this power is the power of sovereignty, the power to govern men and things within the limits of government's dominion, except in so far as it has been restricted by the Constitution of the United States. The Court explains that the nature and extent of these powers evolve as government is confronted with new issues requiring intervention. The evolution of government's regulatory powers and how these powers have been guided and constrained is defined by the application of Constitutional principles, statutes and ordinances. From Colonial times until the Civil War, state and local government regulation existed apart from U.S. Constitutional restraint. However, with the passage of the Fourteenth Amendment, the United States Supreme Court was charged to ensure state and local legislation complied with guaranteed rights under the U.S. Constitution. The Court in Mugler defined regulatory authority as the "police powers." Therein, state and local governments possess the authority to determine what measures are necessary to protect the public health, safety and welfare. The Court held that valid police power regulation does not violate individual liberty or property rights. Instead of defining this power's reach, the Court chose in this and subsequent case law only to retroactively invalidate regulation bearing no substantial relation to these powers. These powers were broadly interpreted and government operated with only the threat of regulatory invalidation until First English, where the Court determined government may have to compensate where regulation extends beyond these powers. The Court ruled in Penn. Central with recent confirmation in Ark. Game and Fish Comm'n that regulation effects a taking where it interferes with "distinct investment-backed expectations." Since there can be no investment-backed expectation in failure, government regulation designed to promote success should not run afoul of this constraint. Academically proffered philosophies and factor approaches involving residential and commercial developments can be objectively examined for co-relationship with developments identified as successful or challenged within the marketplace. A code based upon development philosophies and factor approaches objectively verified as associated with successful developments would therefore not be arbitrary and unreasonable as having no substantial relation to the general welfare. Such code provisions could be designed to be applicable to all similarly situated property and to produce the widespread public benefit of promoting development success and preventing the negative community-wide effects of development failure. Such a code should not be found to exceed government's regulatory police powers, for there can be no developer economic interest supported by "distinct investment-backed expectations" in development failure.