Understanding the Legal Construct Regulating Government Intervention into City Decline and Degeneration in America
Parker, Bryant Emerson
University of Kansas
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An overview of critical academic thought concerning the character and attributes of American urban development establishes that the presence of unsuccessful, or challenged, development is a transcending problem necessitating government regulation in response. Challenged developments were observed frequently materializing in areas exhibiting urban decline and degeneration, including outward migration. It was conjectured that this cycle of outward migration and urban decline and degeneration might be part of an overall development cycle experienced by more than current day cities. History was probed for evidence of commonality. Cycles of urban decline and degeneration appeared within Mesopotamia, Egypt, the Greek city-states, and the Roman Empire. The form of government, whether a benevolent priest-king, dictator, democratic assembly or republic council appears extraneous. The mere presence of governmental regulation, such as comprehensive planning, zoning, building codes, advanced development techniques or sophisticated legal concepts for the protection of individual rights, did not purport to dissuade or ameliorate these cycles throughout the ages. Historical accounts attributed successful urban concentration to the presence of safety and security, convenience, and quality of life. Conversely, when one or more of these factors were diminished or compromised, cycles of urban decline and degeneration seemed to emerge. Field research was conducted to ascertain how these historical observations fared in the modern context. Residential and commercial developments differentiated as successful and challenged within the fifty (50) fastest growing counties across the United States between 2000 and 2010 pursuant to the U.S. Census Bureau were surveyed to explore the presence of governmental regulation and procedures as well as factors affecting safety and security, convenience, and quality of life. Consistent with historical observations, only items connected with safety and security, convenience and quality of life emerged from this process. Based upon this knowledge, local governments may be prompted to intervene at the development stage of residential and commercial developments in an attempt to counter, forestall or at least lessen the impact of the cycle of outward migration and urban decline and degeneration. While this could be attempted ad hoc, a more prudent approach might be to re-examine and re-constitute existing zoning, subdivision and development regulations and procedures in light of the differential characteristics between successful verses challenged developments. However, such an undertaking does not happen in a legal "state of nature." A synthesis of the jurisprudence that defines the limits of and restraints upon current governmental regulation reveals that land use regulation in America centers around the interaction between the authority of a local government to act, pursuant to "police power" authority granted that local government from the state, and whether that government action violates an individual's Constitutional rights. These Constitutional rights center around the privileges and immunities of citizens, equal protections of the laws and due process clauses of the Fourteenth Amendment and include "regulatory takings" under the theory of inverse condemnation. The United States Supreme Court has undertaken the long and arduous task of defining this interaction. A summation of that current definition is contained in Arkansas Game and Fish Comm'n v. United States where the Court expounded that when regulation or temporary physical invasion by government interferes with private property, time is a factor in determining the existence of a compensable taking. Also relevant is the degree to which the invasion is intended or is the foreseeable result of authorized government action. So too, is the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use. Severity of the interference figures in the calculus as well. While a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove a taking. Every successive trespass adds to the force of the evidence. This current understanding of the interaction between the exercise of government regulation and takings jurisprudence lays the groundwork for thoughtful and legally permissible implementation and application of zoning, subdivision and developmental regulations and processes aimed at addressing the cycle of outward migration and urban decline and degeneration at the initial development stage as well as subsequently thereto.
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