July 07, 2021 Student Note

Community Claim of Right

Jennifer Aronsohn

Vacant properties are more than an eyesore or a sign of neighborhood blight: they contribute to wider social and legal problems for residents and are a significant expense for cities. Cities across the nation acquire and hold vacant and tax foreclosure properties to abate public nuisances and protect communities from criminal activity. Even though these properties are owned by local governments, they are treated analogously to private property with the city as the sole owner. Therefore, the city has a right to exclude, and the surrounding community has no inherent license to use these open spaces. Perhaps most troubling, because law enforcement is permitted to police city-owned property more aggressively than private property, persons entering city lots can be harshly treated. Unsurprisingly, low-income and minority communities are disproportionately affected as vacant lots are usually concentrated in their neighborhoods.

Yet the proliferation of city-owned vacant lots presents a great opportunity. Historically, cities have dismantled low-income communities by taking their property; now, they can service such property to strengthen those communities. This Note argues that cities can grant neighborhood residents or the general public a nonpossessory ownership right in city-owned vacant lots, thereby giving the community the opportunity to regain ownership over its neighborhood. Instead of a city holding sole exclusion rights to its vacant lots, it could grant an easement for rights to legally use the properties, and in return neighborhood residents will maintain them. This policy reform will embody a theoretical recognition that ownership over open space can be attained from a community’s use of it. The assumption that ownership is only from title will be reversed and replaced by the realization that it can emerge from usage or stewardship.

Introduction

In the Woodlawn neighborhood ¹ of Chicago in 2018, grassroots community organizations created an outdoors mental health space in response to the City’s closure of the only mental health clinic in their neighborhood.² The community space, called Healing Village, was a safe space where the public could gather and process shared trauma of neighborhood violence. With temporary sheds, tents, gardens, and activities, they were able to transform an empty lot into a welcoming, productive space for the benefit of the community.³ The only issue was that the community organizations set up Healing Village on a vacant lot owned by the City of Chicago. Although the vacant lot was City property, it was not designated as public space, meaning that the public had no inherent license to use it. The community organizations initially had approval from Chicago Alderman Willie Cochran to use the lot, but they did not have express permission from the City.⁴ Thus, the alderman was able to serve the community organizations an eviction notice.⁵

Healing Village was open to the public, served the community’s need for mental health services, and provided a space for community members to meet others who faced similar injustices of neighborhood violence and police confrontations. Although community residents were not using the space to “start [a] riot or crime” and the structures erected on the site were entirely temporary, the City still designated the project itself an offense and sought to remove the community from the space.⁶ Moreover, after the City evicted Healing Village and threatened to seize the temporary sheds and tents, the community felt personally aggrieved by the City’s demand and by the absence of any avenue to pursue legal use the space.⁷ However, despite the City’s exercise of physical control over the lot, the community’s embrace for the space endured—as one community organizer put it, “the sense of community that has been built there will remain.”⁸

This issue of a city removing the public from its vacant land is not limited to Healing Village. In Chicago and many urban areas, cities regularly own thousands of vacant lots, which they obtain through processes such as forfeiture for hazardous properties or tax foreclosure. Similarly, cities regularly take title to abandoned nuisance buildings as a means to remedy potential criminal activity and blight. Even though these properties are held by local governments, they are treated analogously to private property with the municipal entity as the sole owner. Therefore, the city has a right to exclude the public, and the community does not have a license to use the space. However, cities are often immune from lot maintenance requirements that they aggressively enforce against private property owners—creating an unbalanced system that disproportionately affects low-income minority neighborhoods where city-owned vacant lots are concentrated.

Furthermore, vacant lots owned by local governments pose a greater threat to neighborhood residents than similarly situated privately owned lots because law enforcement is permitted to police public property more aggressively. As the owner of the vacant properties, a city has the authority to limit how it is used; for example, it can prohibit de minimis use such as an adjacent neighbor playing ball on it. A city can also grant agency to the police department to enforce the laws concerning the property on the city’s behalf, as the City of Chicago does. In such cases, it is considered criminal trespass when a person remains on vacant city property after receiving notice from a public employee or police officer to leave.⁹ Moreover, in Chicago, upon sighting a person, police officers have authority to encounter such person and ask him to leave without first questioning his activity and without probable cause or a reasonable articulable suspicion.¹⁰ Comparatively, a police officer cannot encounter a person who is merely hanging around private property based on a hunch that such person is trespassing: an officer must have probable cause to act.¹¹ Different law enforcement practices apply to private property: officers cannot encounter a person using the land unless visible crime is happening or about to happen, or the police department receives a complaint from an owner. Thus, a person standing on an empty lot owned by the city has a significantly higher chance of confrontation with law enforcement compared to similarly situated private property, even though the former is officially public property. This law enforcement practice results in targeted action against already vulnerable neighborhood residents since the inventory of city-owned vacant lots is usually concentrated in low-income, minority neighborhoods.¹²

A city’s inventory of vacant lots is not only a source of legal problems for neighborhood residents; it is also a significant financial cost for the local government. Each lot owned by a city results in lost property tax revenue for the city and other local taxing authorities. In addition, cities often have a duty to maintain their inventory of vacant properties to abate public nuisances and protect public safety; thus, they incur recurring expenses to remove garbage or debris from the lots and mow the lawn.¹³

The problems that arise from the large quantity of city-owned vacant lots are not limited to the residents’ likelihood of confrontation with law enforcement or the local government’s financial burden: vacant lots contribute to the wider decay of urban communities. As a city expands its ownership over a neighborhood by taking title to properties, it reduces the community’s ownership over their own neighborhood and further contributes to a cycle of decline. Moreover, when a city prohibits the public from using its properties and disincentivizes a neighborhood block from watching over the nearby land, a city unintentionally fosters a space opportune for crime.¹⁴

Historically, cities, such as Chicago, have dismantled low-income communities by taking idle property; however, cities can reverse the trend and dismantle the assumption that ownership comes from title rather than from usage. This Note argues that cities can grant neighborhood residents or the public a nonpossessory ownership right in city-owned vacant lots, thereby giving the community the opportunity to regain ownership over their neighborhood. Instead of a city holding sole exclusion rights to the vacant lots that it owns, a city could grant the public an easement for rights to legally use the properties, and in return neighborhood residents will maintain them. This policy reform will embody a theoretical recognition that ownership over open space can be attained from a community’s use of it. The assumption that ownership is only from title will be reversed and replaced by the realization that it can emerge from usage or stewardship.

This Note proceeds as follows. Part I contextualizes how city-owned vacant lots are a problem for the local government, neighborhood residents and the broader community. The local government bears the financial burden to maintain vacant properties, and neighborhood residents bear the social and legal costs of the vacant land. Although these city-owned properties are formally considered public property, they are selectively treated as private property, which disadvantages the general public. Part II describes the programs that Chicago has created to address the problem of blight as a symptom of vacancy and shows how the current solutions are not only insufficient to remedy the problems of vacancy but also marginalize residents through law enforcement efforts to control crime and disorder. Part III proposes innovative solutions that local governments can enact to lower their own costs in maintaining vacant properties while restoring the community’s ownership over open spaces.

I. Problems of Vacant Properties

Vacant properties are more than an eyesore or a sign of neighborhood blight: vacant properties contribute to wider social, legal, and financial problems. The problems stem from the questions of who owns the property, who has the duty to maintain it, and how should the property be used. A city that determines an owner has abandoned her property is able to take title to it—which questions the law’s assumption that ownership comes from title alone and not from dominion or usage of the property.¹⁵ For each parcel of property, there is an inherent duty to maintain it and often the duty of the owner is codified in a city ordinance.¹⁶ But for whom is the duty remains in question. Who has the right to be free from the nuisances of an unmaintained property—is it the neighbors, the city, or the owner itself? When an owner does not maintain her property, the city has to step in to fulfil the maintenance requirements; thus, the city puts the ultimate duty on itself, and the neighbors have the right to be free from the nuisance.¹⁷ However, when the city is the owner of the property, it can exempt itself from certain maintenance requirements, such as erecting a fence around a vacant lot; accordingly, in that scheme, no party has the right be free from a property nuisance.¹⁸ In addition, prevention of crime can be a component of maintenance, and a city may fulfil its obligation to the public by prohibiting all use of the space—but such tactic may actually designate productive use of the space as a crime, which intimidates neighborhood residents rather than protect them. The main problem of a vacant lot is not the land itself; rather, it is how the lot is cared for and used in relation to neighborhood residents.

Part I of this Note explores the central issues of vacant properties: the inconsistent assumption that ownership is determined solely from title, rather than dominion and the expressive signals of city-owned vacant lots. Section A of this part begins by explaining the cycle of vacancy and how cities acquire title to vacant properties. Sections B and C describe the various financial and social costs of vacant lots. Even when a city fulfils its obligation to maintain its vacant lots as a means to abate public nuisances and control neighborhood blight, the neighborhood is still left with empty land that invites crime rather than provides the community a way to regain ownership over the block. Next, Section D explains how in a city’s attempt to protect the public safety by proactively policing its vacant lots to combat crime, it ultimately uses law enforcement to protect the land rather than the public. Vacant properties expose neighborhood residents to the risk of an encounter with law enforcement when using the land and also to the threat of actual crime, which occurs on unwatched properties. Lastly, Section E explains that in a neighborhood residents’ attempt to beautify a vacant lot and make productive use of the space, they risk losing the space.

A. Regulating Vacant Properties

Cities regulate property vacancy to combat urban blight by enacting ordinances as an exercise of their police power or by acting under specific state statutes. A city can designate minor infractions, such as tall weeds or graffiti seen from the public way, as well as issues that pose more significant problems, such as abandoned buildings, as public nuisances.¹⁹ The classification as a vacant property describes an array of instances, but the most common include abandoned or troubled buildings and empty lots. Cities regulate these properties by requiring title owners secure and maintain the premises, either by boarding up windows or erecting a fence around the lot, and requiring the building be periodically registered.²⁰ The city can also impose daily fines on vacant properties that fail to meet minimum requirements for health and safety set forth in building codes and, in some cases, even criminally punish the owner with incarceration for a statutorily set minimum sentence.²¹ Moreover, when the hazardous condition persists, a city may seek to have the property owner demolish or repair the building through an expediated proceeding.²² In some states, such as Illinois, an abbreviated proceeding and limited burden of proof required for a city to demolish or repair these structures are supported by public policy favoring the ability of municipalities to expeditiously remediate properties that pose hazards to public health and safety.²³

Further, if a city determines the owner has neglected her property and is not fulfilling her maintenance duties, the city can take title to the property through a forfeiture process. The objective of forfeiture is to abate criminal activity and blight associated with nuisance buildings, and to minimize the harm that a deteriorating building has on the surrounding neighborhood.²⁴ Like other cities, the City of Chicago aggressively prosecutes owners of vacant properties through this process. There is a presumption in favor of the court’s issuance of a forfeiture order for any property determined to be a nuisance, as well as a presumption that assignment of the former owner’s rights, title, and interest in the property to the City is appropriate.²⁵

When a city takes title to the property, it generally does not need to compensate the owner because the owner’s accumulated fines and unpaid real estate taxes are excused in return. Because cities can add a daily fine to a property that does not comply with the maintenance requirements set in city ordinances, the total amount is often significant; hence, the city is not violating the Fifth Amendment takings clause when no additional compensation is paid.²⁶ However, even without releasing the owner of her financial obligations, the city may still be able to take title to property without paying additional compensation because a city’s exercise of police power to abate a property nuisance is not a taking in the constitutional sense: the right to compensation is subordinate to the police power.²⁷

Once a city takes title to the property, it can abate the nuisance in a number of ways. If the structure is not dangerous or unfit for habitation, the city can sell it to a private citizen, alternatively, the city can get a demolition order for the structure if it is beyond renovation or dangerous.²⁸ Demolition is a common solution since abandoned, structurally dangerous buildings invite crime, such as vandalism, illegal drug activity, squatters, and brothels, all of which have a multiplying effect on surrounding property conditions.²⁹ Even if abandoned buildings are not a site of crime itself, they can still act as a staging area or gathering place for offending groups, as such buildings offer a secluded location out of the public’s sight.³⁰ Further, cities often employ the demolition approach to addressing abandoned properties because of a belief that the city will not recapture its previous population levels.³¹

The first steps that a city takes to address neighborhood blight involve regulating abandoned properties or taking title to them by establishing that the owner abandoned her property. Once a city owns an abandoned property it must act as the true owner and serve the purpose of forfeiture: improve the status of the property and halt further deterioration. For each property that a city adds to its land inventory, it incurs significant expenses to address maintenance requirements, plus it loses the respective property tax revenue.

B. Financial Costs of Vacant Lots

Retaining vacant lots is expensive for a city. First, the local taxing districts lose the potential property tax revenue of each property a city retains, plus the assessed value of nearby properties is devalued, which further reduces the overall tax revenues of the neighborhood.³² Also, a city is paying for regular maintenance of the lots, inspections, administrative costs, and increased police dispatch to control crime on blocks with a high proportion of vacant lots. Considering a city can own hundreds of acres of land, the time and resources necessary—to routinely mow grass, control weeds, and remove debris dumped illegally on vacant lots—adds up quickly.³³ Justifying these costs is often difficult when the remainder of the neighborhood is also neglected, which can lead to a reduction in resources devoted to positive community programming in those neighborhoods and perpetuate the connection of race to divestment.³⁴

City costs can be offset in part by issuing fines to owners of other neglected properties who are not complying with nuisance abatement requirements. A city may collect a fine for each day that a property does not meet maintenance requirements for weeds and grass, which can quickly exceed thousands of dollars.³⁵ The total amount of fines would then constitute a lien against the affected property.³⁶ However, considering many of these fines are not paid until the property is later sold, it is doubtful that a city can reliably recover expenses of its vacant-lot maintenance services.

Additionally, vacant lots and correlating crime rates discourage economic development, which harms the neighborhood at large.³⁷ Existing businesses vacate and few will move in when neighborhood population falls and reduced traffic makes the location less desirable. High rates of crime also result in higher costs for homeowner’s and business insurance: thus, it reduces the likelihood of neighborhood revitalization.³⁸ Further, implicit bias of neighborhood value can become self-confirming, which deepens the disparity among neighborhoods in a city, often correlating with race.³⁹ Thus, these economic costs are systemic in that they affect nearly everyone who resides or works in the neighborhood.

C. Social Costs and Community Disorder

As large as the financial costs of vacant lots are to the local government and economy, the social and psychological costs to neighborhood residents may be more significant. A city that owns a significant number of lots within a neighborhood paradoxically communicates the city’s overarching legal authority over the neighborhood yet a lack of directional authority for its recovery. This physical environment, which often develops in low-income minority communities, may signal neglect to communities historically marginalized and forgotten by their local government. Also, the environmental conditions of a resident’s block, including vacant spaces or abandoned buildings, litter, and low-quality parks are associated with depressive symptoms and may help explain the prevalence of mental illness in underserved communities.⁴⁰ With few places for the public to rightfully gather yet an excessive amount of unusable open space, it is not surprising that many residents feel stigmatized by their environment and isolated.⁴¹

In addition to the expressive signals of city-owned vacant lots, this neighborhood environment may increase residents’ vulnerability to crime or feelings thereof. Fear of crime is an appreciable problem for both the individual and collective, as it influences how freely people move about their neighborhood or the likelihood that they will stay in their homes, behind barred windows and locked doors.⁴² Residents in neighborhoods with community disorder, signaled by a high rate of vacant lots, have a greater fear of exposure to crime.⁴³ What is more, fear undermines the willingness of an owner to properly maintain her own property; hence, fear of crime diminishes the value of residential property.⁴⁴ Indeed, neighborhood residents are justified in their perception that property vacancy makes their community vulnerable to crime: disorder and crime are linked with observable signs of blight on city blocks and their underlying low-income conditions.⁴⁵

Numerous criminology theories link characteristics of a neighborhood with the propensity of offenders to commit a crime. Characteristics of a neighborhood, such as graffiti, trash or glass on the streets, run-down structures, or people disruptively hanging out and potentially fighting, are common signs of physical and social disorder. A traditionally prevalent criminology theory is that a neighborhood with chronic uncorrected disorder, even if minor, leads to resident withdrawal and crime, as offenders view disorder as a sign that it is okay to commit a crime.⁴⁶ It argues that restoring order, through policies focused on “quality of life” and “community policing” efforts, would not only reduce neighborhood fear, but would also meaningfully reduce crime.⁴⁷ Nevertheless, this theory has been criticized for failing to define the problem from the offender’s point of view. Academics see neighborhood disorder as a sign that the community does not care, whereas residents or offenders may view it as evidence of government neglect and indifferent landlords.⁴⁸

Social scientists regularly observe an association between violence and residential instability of neighborhoods, suggesting that a weak sense of community and lack of trust among neighbors makes crime more likely.⁴⁹ Nevertheless, social cohesion among neighbors combined with their willingness to intervene is linked to a reduction in violence.⁵⁰ When the social infrastructure of a neighborhood is built up, it can provide enough community cohesion to reduce crime, despite strong symptoms of disorder.⁵¹ The shortcoming of this theory is that social infrastructure and community cohesion is generally viewed through a showing of established organizations for the whole community, rather than interpersonal relationships among a handful of block residents. Existing criminology theories do not describe a situation where neighborhood residents want to take ownership over a disorderly spot on their block and foster community spaces, yet are legally prohibited from doing so.

D. Legal Issues Concerning the Public’s Use of City-Owned Lots

Local governments, pursuant to their police powers, are authorized to regulate individual conduct in public places and regulate all property within their boundaries. A local government has several alternative means to enforce its laws and regulations: directly by police officers or public employees and with assistance from residents’ complaints. Residents and cities are both concerned with safety and reducing crime, which is of particular importance for residents living on blocks with vacant lots; however, each party’s desired means to secure such land conflicts with the other’s. A city could ban all use of the vacant lots to prevent them from being used as places where criminal behavior transpires; conversely, adjacent residents could regularly use the land as if privately owned to show that the lots are cared for in order to deter offenders. Put another way, a city could utilize proactive policing to stop people from using the lots, or adjacent neighbors could collectively rely on each other to keep an eye on each property. The ultimate question is which party has better knowledge to tell if a person is using the property constructively or not.

When a city owns a vacant lot, it has great authority to determine how and by whom the lot can be used, how its policies will be enforced, as well as which property law strategies to employ to deter crime. One approach is to exclude all persons from using it and grant the police department absolute agency to enforce the laws concerning the property on the city’s behalf, as the City of Chicago does. The remainder of this Section will illustrate the wider legal issues residents face on city-owned property by using Chicago, Illinois, as a case study.

Although the City of Chicago’s vacant parcels are legally treated analogously to private property with the City as the formal owner, law enforcement has a different protocol to address the City’s parcels as compared to similarly situated privately owned properties. For any private property, a police officer is not warranted to encounter a person who is using it—even if the officer has a suspicion that such person is trespassing—unless there is a visible crime occurring or attempt of such, or the police department receives an alert or complaint from the property owner.⁵²

The only time a law enforcement officer is authorized to enter privately owned buildings and patrol common areas for trespassers and other criminal activity is if the property owner signed a criminal-trespass affidavit with the Chicago Police Department.⁵³ For properties enrolled in the criminal-trespass-affidavit program, police officers conduct regular premise checks and increase communication between the police department and property owners, thereby enhancing crime intelligence compared to private properties not enrolled in the program.⁵⁴ Furthermore, persons suspected of trespassing at one of the enrolled properties still have procedural protections: when an officer conducts a premise check of a building, patrol procedures call for the officer to approach a suspected trespasser and ask if he “lives in the building, is visiting someone in the building, or has business in the building.”⁵⁵ A person’s refusal to answer the officer’s questions alone does not reach the level of probable cause for an arrest; but a refusal to answer may be a factor that supports reasonable suspicion to justify a temporary detention and further questioning.⁵⁶

Comparably, if an officer encounters a person on a city-owned vacant lot, the preliminary questions are unwarranted as the officer already has reason to know the person is trespassing. The three required questions that an officer must ask a suspected trespasser on privately-owned property assist the officer in determining if such person is actually trespassing or has reason to be in the building, while still preserving the criminal procedural rights of the person. Nevertheless, even if an officer asked those questions on a vacant lot, the answers would almost certainly prove the person does not have a legally sufficient reason to be there considering that the public does not have a license to use the City’s vacant lots. Thus, the officer can encounter a person to tell him to leave the premises without a reasonable articulable suspicion or even a hunch that the person is engaging in illegal activity or misconduct beyond nominal trespass. Even more concerning, the officer also has the option to arrest the person for trespass on City property under local or state law.⁵⁷

Moreover, a person has fewer legal protections on city-owned vacant property than on similarly situated privately owned property because a city is not required to post notice that entering its vacant property is prohibited. The City of Chicago neither posts “no trespassing” signs notifying people that entry is forbidden nor does it erect a fence around the property, both of which are requirements for privately owned properties.⁵⁸ Therefore, a neighborhood resident may mistakenly walk on a city-owned vacant lot without knowledge that she is trespassing and expose herself to potential criminal legal consequences.

Furthermore, a person has fewer legal protections on a city-owned vacant lot than she would while engaging in the same behavior at a public park or on the public way. Although the City’s vacant lots are technically publicly owned, they do not afford the same First Amendment protections that a public park or public way would as they are not designated as space open to the public.⁵⁹ This difference exists because municipalities have the authority, no less than a private owner of property, to determine the lawful use of the property under its control. ⁶⁰ The public’s use of a space cannot convert the status of it: a public park is a place traditionally dedicated to free expression,⁶¹ but the accessibility and openness of an empty lot does not convert it to a public park.⁶² Hence, a city-owned vacant lot is akin to private property in that a person does not have the constitutionally protected right to assemble as a defense to legally use the empty lot.

Generally, state law treats public and private property as distinct categories with different rights and legal protections granted to each. However, the distinction is artificial, and the dividing line is unclear with regard to city-owned vacant properties. In certain respects, a person on city-owned property is treated as if she is on public property where law enforcement is free to approach and disperse her from the space; whereas, a person is treated as if she is on private property for purposes of denying her the First Amendment right to assemble. In most places, it is clear to both a reasonable person and law enforcement whether the space is private or public,⁶³ and whether the general public is legally allowed to gather there; yet city-owned vacant lots are an exception that disfavors the knowledge of a reasonable person. In Chicago, no municipal ordinance or police directive sets standards for use on open city-owned properties, which means that individual police officers have full discretion to encounter a person on such and decide to escalate or resolve the situation. This is concerning given the Chicago Police Department is not a judicial agency and does not have the power to construe rules concerning city-owned property ad hoc.

E. Community Efforts to Reclaim Vacant Lots

Local governments can own thousands of empty parcels, making it difficult to accurately track and control every property. Given that the local government and police department have great discretion to permit or disallow certain uses of its land, enforcement can vary, and formerly permissible uses can unexpectedly become prohibited. Similar to how Healing Village was informally permitted by the Chicago Alderman but later found illegitimate by the City, it is not uncommon for neighborhood initiatives that use vacant property, such as urban gardens, to be tolerated initially but later removed. This change is especially problematic because a community member can invest substantial time and money to transform an abandoned lot into a productive, healthy space for the community, but can lose the results of her labor because she has no legal protections or assurances that the land will remain under the community’s dominion.

For example, in Chicago, five neighbors who cultivated a garden on a city-owned vacant parcel later lost their garden to a construction company located twenty miles south of the property, which had purchased it from the City for only one dollar.⁶⁴ The company told the five neighbors to cease using the property as a garden due to insurance liability concerns.⁶⁵ Predictably, in place of the former community garden sat an idle parcel for at least a couple years after the sale.⁶⁶

Interestingly, although community members risk losing a space that they improved to the city or a future seller, they may be exempt from prosecution of trespass laws depending on their actions. In Illinois, a person is exempt from prosecution of the State’s criminal trespass law if she beautifies an abandoned residential or industrial property.⁶⁷ The statute defines “beautify” as landscape, clean up litter, or repair dilapidated conditions, thereby ensuring community residents who take initiative and make property improvements that are beneficial to the whole neighborhood are shielded from legal liability. This safeguard is particularly significant because community residents may not even be aware that they are assuming potential legal risks by using city-owned property to create a community garden or other community space.⁶⁸

F. Summary: Problems of City-Owned Vacant Properties

This part illustrates the problems arising for the community and local government when the status of vacant property is challenged. The problems stem from the thematic questions of who owns the property, what are the rights and duties of title ownership, and how the property should be used. The cycle of vacancy begins when owners abandon their properties or fail to maintain it to standards set by municipal ordinances. Cities take title to those properties and often demolish the building to abate potential hazards and public nuisances, which adds considerable financial costs to the local government. Although the local government is taking steps to fight neighborhood blight, the vacant lots that the city exercises control over still signal neglect, disorder, and community deterioration to the surrounding community. Further, fear of crime and actual crime rates are higher on blocks with neglected vacant properties. In the city’s attempt to prevent crime and protect the public safety by proactively policing its vacant lots, it ultimately uses law enforcement tactics that marginalize neighborhood residents and expose them to encounters with police. Moreover, when neighborhood residents invest in their community and beautify a vacant lot to make the space safer and productive, the city may later reverse their efforts and dismantle the space.

II. Analysis of the City of Chicago’s Strategy to Address Vacancy

Part I illustrates the various costs, crime exposures, and legal risks stemming from city-owned vacant properties. Cities across the nation, such as Chicago, hold title to thousands of vacant parcels. They acquire the properties to protect the public health, safety and welfare; yet, ironically, they prohibit uses of the land that would serve a public purpose or benefit the community. Because vacant lots are concentrated in low-income neighborhoods, the properties disproportionately burden those who are already disadvantaged. In those neighborhoods, residents are not permitted to use the vacant land that is basically their backyard, and law enforcement tactics over these spaces can be overly harsh.

This part will describe and assess the City of Chicago’s strategy to address its thousands of vacant properties and show how the current measures are insufficient to remedy the physical problem as well as overlook the societal issues. Existing City programs sell properties to neighborhood residents or anyone in the general public for below-market prices, enabling those who formally own the properties to improve the neighborhood. But, because the current legal structure views ownership by title only, rather than considering who has physical access or is in proximity to the property, there is little that the community is legally allowed to do to rebuild their neighborhood without title ownership.

A. Chicago’s Land Disposition Programs

A thirteen square-mile area on Chicago’s south side bears the largest burden of concentrated vacant lots: roughly ten percent of the area sits vacant and is not legally accessible to the public.⁶⁹ The once flourishing communities in the mid-twentieth century are now characterized by economic disinvestment and population loss.⁷⁰ To address the physical problem of wasted space as well as reduce its maintenance expenses and loss of property tax revenue, the City of Chicago developed a number of land sale programs to offload its land inventory and promote community investment. The programs targeting private companies and individuals include selling surplus land to anyone for a fair market value as a negotiated sale,⁷¹ selling parcels for a discounted price to adjacent neighbors,⁷² and selling for one dollar select parcels to homeowners who live on the same block as the vacant lot.⁷³ The City also developed community-based conveyance programs: it sells land suitable for public parks to the Chicago Park District ⁷⁴ and to a land trust devoted entirely to urban gardening.⁷⁵

The City of Chicago’s program that sells vacant properties to block residents for one dollar, known as the Large Lots Program, has successfully disposed over 1,300 lots to date.⁷⁶ The City implemented this program to reduce the structural problems and financial losses associated with its properties. The program enables local residents who have financially invested in their neighborhood to have greater control over nearby land, renews the property tax revenue, and decreases the financial obligation of maintaining the properties.⁷⁷ The City promotes the program as a cost-effective way to “redevelop concentrations of City-owned land for private and community uses.”⁷⁸

Nevertheless, the reach of the Large Lots program is notably limited. A resident only qualifies to purchase a vacant lot from the City if she owns a home on the block where the vacant lot is located. Consequently, seventy-five percent of households in the low-income neighborhoods targeted by the program are disqualified from participating.⁷⁹ The City creates a problem of mutually dependent conditions by using homeownership as the metric to measure a resident’s investment in her neighborhood: a resident cannot expand ownership over her block if she does not already own property thereat. Also, by using homeownership as the only metric to measure neighborhood investment, the City excludes long-term renters yet includes landlords who do not reside on the block or even within the community. In addition, other qualifications that an applicant needs for approval, such as proof of funds for future maintenance, are challenging, especially for the target demographic.⁸⁰ Even though the cost to purchase a lot is only one dollar, the additional expenses make it financially infeasible for many residents. The City’s restrictions in determining who is a qualified resident are justifiable to ensure developers are not taking advantage of the program; however, it results in a very limited number of conveyances, which is counter to the overall mission of the program.

The City of Chicago currently treats the problem of city-owned vacant lots by offloading parcels to various parties in Chicago. It sells the vast majority of these properties for below-market value to attract buyers who will bear the financial burden of maintaining the properties once title is transferred. The City is aggressive in its efforts to regulate vacant properties throughout the city in order to protect the general welfare and abate public nuisances that are correlated with vacancy; however, when the City is the title owner of vacant lots, it does not employ nearly the level of effort to address the same problems caused by such properties. The City exempts itself from lot-maintenance requirements that it assigns to privately owned vacant lots, creating an unbalanced system that signals neglect to the low-income minority neighborhoods where city-owned vacant lots are concentrated.

B. Purpose of Enclosing Vacant Lots

The City of Chicago has robust ordinances sanctioning public nuisances on private property, yet fails to fulfil those same duties to abate public nuisances on its own property. The most salient discrepancy is the duty to erect a fence around an empty lot. It is the duty of the owner of any empty lot located within Chicago to surround the lot with a fence; however, that duty does not apply to any unit of local government.⁸¹ The fencing of vacant lots is important, as an appeals court found, because it enables “the identification of such land as being owned rather than abandoned, and relatedly . . . discourage[s] squatters.”⁸² Also, fences “discourage the use of vacant lots as sites for the sale and purchase of illegal drugs” and “protect people from injuring themselves.”⁸³ As the court found, the fence requirement fulfills a legitimate governmental interest in protecting public health and welfare. Yet despite knowing of these benefits to the public, the City fails to uphold the same duty to fence its own vacant lots and consequently allows potential hazards to injury residents.

Even though the City and the courts have found that fences defend against crime or injury on vacant properties, the City does not need to shield itself from liability that may arise as a consequence of its actions: local governments benefit from tort immunity under state law.⁸⁴ In Chicago Heights, an Illinois city not far from Chicago, a child was injured in an abandoned house on city property.⁸⁵ Chicago Heights successfully appealed a verdict awarding personal injury damages for the child, as the court found a plaintiff cannot rely upon the municipal nuisance ordinances to impose liability upon the city.⁸⁶ Moreover, in Illinois, a “local public entity . . . shall not be liable for injury” that arises from intended and permitted use of its property unless it is proven that it has “notice of the existence of such a condition that is not reasonably safe” prior to an injury so that it could have taken measures to remedy such condition.⁸⁷ Therefore, an Illinois municipality has minimal risk of potential liability for any injuries or incidents arising on its own property. Although we cannot know the true reason why Chicago does not erect a fence around its open lots, even in the leading crime hotspots, we can reasonably deduce that Chicago does not justify the expense given that it is unnecessary to take measures to avoid liability from injury to a person that would not be attached even in the absence of prevention.

Furthermore, the primary purpose of the burdensome fence requirement for private owners is unclear. The primary purpose could be to deter trespassers or other criminal activity, or to signal that the lot is owned rather than abandoned. If it is the former, then the zoning code restrictions on the height of any fence within the city impede the purpose of deterring criminals from hopping the fence and possibly vandalizing the property.⁸⁸ If the purpose of a fence is to signal ownership, then the city willfully signals to the communities that its open lots are abandoned and ownerless. Further, if the primary purpose of a fence is to signal ownership, then it implies that the City is less concerned about people trespassing on privately owned open lots, and thus, the City’s concern for residents trespassing on its own property is misplaced.

This part described the City of Chicago’s strategy to offload its thousands of vacant lots and showed how the current programs are insufficient in addressing the growing problems that open lots pose. The next part proposes new solutions, which any city can implement, that would allow neighborhood residents to transform the neglected open lots on their block into vibrant hubs for the community. The proposed solutions would allow residents to act as stewards of vacant properties and make their block quieter and safer by using or beautifying the spaces. In addition to maximizing productive use of land, these solutions would diminish the social costs of property vacancy because residents can strengthen connections with their neighbors and work together to overcome the stigma of land vacancy when they invest in their block.⁸⁹

III. Solutions That Reconsider Property Ownership

The City of Chicago solely holds exclusion rights to its vacant lots, but it could grant nearby community residents or the general public an easement to legally use its properties. The City, by enacting an ordinance, could also assign residents the duties to maintain its properties to match the newly granted rights. The City has the authority to give communities the opportunity to regain ownership over their neighborhoods while simultaneously reducing its own expenses. Historically, Chicago dismantled low-income communities by taking idle property; however, it can reverse the trend and dismantle the assumption that ownership comes from title rather than dominion. This concept is illustrated by the common-law doctrine of adverse possession, which transfers interests in land by prioritizing occupation and allowing it to mature to ownership without the consent of the title owner.⁹⁰ To acquire title to land by adverse possession, a claimant must have exercised the usual acts of ownership that a true owner would, such as making useful improvements or exercising control over it. Thus, a resident’s dominion and maintenance of a nearby vacant lot would demonstrate an intention to appropriate it and support the proposal of the city granting her rights to the lot.

A. Proposals for Ordinances Establishing Servitudes

The following three proposals are possibilities of the ordinances Chicago or any city could enact to confer rights to its residents.

First option: Chicago can include within the definition of public way city-owned vacant lots, thereby granting the general public an inherent license to use the land as they would any other public park, sidewalk, or parkway. As a consequence of the public having a license to use these empty lots, their First and Fourth Amendment rights are guaranteed; meaning persons have a right to associate and are protected against governmental intrusion that is not justified by a legitimate interest. Law enforcement officers would be restricted to encounters that meet the standard of probable cause or reasonable suspicion. Under this option, the City would essentially surrender its vacant lots to the public for the purpose of small pocket parks, providing children and adults the opportunity to freely enjoy the open space and be active.

Second option: Chicago can grant estates within seventy-five feet, or all estates on a neighborhood block, an easement to use the open lot along with the duty to maintain such property. This maintenance requirement could include mowing and weeding the lot to the same standards as those required of adjacent properties for parkway maintenance.⁹¹ Although there is no dispute that a city can enact an ordinance requiring landowners to mow weeds and grass on their own property, there could be an issue in whether a city can compel an “abutting landowner to mow grass and weeds growing on city-owned property for the benefit of the public, but at the expense or labor of the landowner.”⁹² A person could pursue a number of claims that such ordinance compelling her to mow property that belonged to the city is a violation of her constitutional rights. For instance, she could argue that such compelled action is a taking without just compensation,⁹³ or that enforcement of such is a violation of a person’s due process rights,⁹⁴ or even that forcing property owners to mow grass on city-owned land or pay a fine subjects her to involuntary servitude in violation of the Thirteenth Amendment.⁹⁵ Despite the potential for these issues to be raised, it is very likely that a city ordinance compelling a landowner to mow grass growing on city-owned property would be upheld in court as other jurisdictions hearing such complaints have. In fact, private claims against a local government for compelled labor in service of public ways has been an issue since before the nation’s founding, but courts have consistently held that such service is part of the duty which every man “owes to the public,” and is thus reasonable.⁹⁶

The City would have to address the issue of landowners or residents who are physically or financially unable to comply with a mowing requirement, given that residents in these low-income neighborhoods are often disadvantaged in some way. The City could set up an application-based grant program whereby an adjacent property or the multiple properties that have the common duty may seek an exemption or assistance to comply with the ordinance. For example, the remedy could have properties pay their share of the expense for the City to contract to mow the grass, or it could completely absolve the duty. The legal issue with a complete release of duty for some but not all residents would be a potential claim of selective enforcement based on discrimination. The enforcement practice of an otherwise valid law can be a means of violating equal protection rights by discrimination. However, a petitioner has a high burden to prove to prevail: she must show that she was singled out because she belonged to an identifiable group, that the prosecution was initiated with discriminatory purpose and had a discriminatory effect.⁹⁷

Third option: A combination of the first two proposals to maximize the productivity of all vacant lots. The second option would cover vacant lots within a residential block, and the first option would cover all other lots not in proximity to a residential block.⁹⁸ The mowing requirement would only be enacted where it is socially feasible, but the general public can still enjoy the benefits of additional open spaces designated as part of the public way. Also, the city could issue temporary or permanent permits to establish community spaces on the properties, which would have allowed Healing Village.

B. Potential Liability Arising from Appropriating or Controlling Property

As a consequence of greater rights to use adjacent properties, it is possible a resident may have the legal duty to maintain the vacant lot in a reasonably safe condition or a duty to warn of dangers if she exerts a certain level of possession or control over such land. However, such control can only be demonstrated by a larger action than mowing the lawn, so merely complying with the proposed ordinance need not cause concern.⁹⁹ A potential duty to protect or warn persons entering the land may arise when a person exercises additional control over the land as a true owner would, such as enclosing the city-owned land with a private fence.¹⁰⁰

Courts across jurisdictions have found that an abutting landowner (or occupier) simply has a duty to exercise ordinary care not to create an unsafe condition that would interfere with the customary use of the public way; in ordinary circumstances, she has no duty beyond that. For example, in Illinois, the general rule is that a landowner or occupier neither has any duty to maintain or repair public sidewalks nor is she liable for personal injuries incurred on the sidewalk abutting on her property, except when she appropriates the sidewalk for a special personal use or business purpose.¹⁰¹ Also, a landowner does not have a greater duty to the city-owned lawn beside a sidewalk than to the public sidewalk itself.¹⁰² Thus, courts may apply this general principal to potential cases regarding city-owned empty lots.

Moreover, in California, the test for duty is based on “possession or control” over land: the court decided that a landowner or possessor of land has a duty to take reasonable measures to protect persons from dangerous conditions on adjoining land when the landowner exercises possession or control over that adjacent land.¹⁰³ Connecticut has a similar rule for duty: a landowner is generally not liable for defects on land over a right-of-way owned by the city that is within her possession and control if the landowner does not cause the hazard.¹⁰⁴ The Connecticut court found that mowing the grass around a city water pipe did not establish an exercise of possession and control of the pipe, and further to the contrary, the city’s subsequent repair of the pipe constituted sufficient evidence of the city’s control.¹⁰⁵

Notably, the Restatement Second of Torts uses the phrase “possessor of land” rather than owner or lessee to describe parties who may be liable for injuries caused by a dangerous condition of land.¹⁰⁶ The important concept to remember when determining if abutting residents would have any duties to the public over their newly granted easement is that possession or control over land is an issue of fact and is circumstance-specific.

C. Purpose of the Ordinance

The inventory of city-owned vacant lots is concentrated in low-income, minority neighborhoods, which enables a city to exercise excessive control over vulnerable communities. Proactive police practices aimed at reducing crime result in targeted action against marginalized residents and deprives them of access to green open spaces. Granting an easement and corresponding duty to maintain would benefit all interested parties—residents will be less likely a target of discretionary law enforcement tactics, municipal government will reduce its maintenance expenses, and community groups can establish legitimate dominion over unused open space.

In addition, granting an easement over properties that the city already owns is a cost-effective method to further a city’s goal of increasing public open space and serving underprivileged communities. Physical conditions of a blighted neighborhood, such as empty undermaintained lots, are a constant stress on residents and are associated not only with crime but also with mental health issues.¹⁰⁷ Comparably, green open spaces can positively influence mental health and encourage community building, which can potentially reduce the occurrence of interpersonal conflicts among neighborhood residents.¹⁰⁸ If the ordinance permits minor improvements to the vacant properties, such as planting flowers and trees, these positive health effects can be maximized.

Further, when residents are legally allowed and encouraged by their local government to act as stewards over the open spaces within their block, it may produce neighborhood cohesion and solidarity. Social and property-based policies that encourage residents’ participation in neighborhood life, such as maintaining empty lots on a resident’s block, may reduce fear of crime by increasing social integration.¹⁰⁹ Even a resident’s simple act of mowing the grass or doing yard work develops her emotional attachment to these spaces and increases the property value of the block for nearby owners.¹¹⁰ In contrast, when residents have a low-level of attachment to a place because they are excluded from using the common open spaces within their block, then breaches of peace have an even greater negative impact on neighborhood cohesiveness and may lead to reclusive behaviors precluding the establishment of neighborhood ties.¹¹¹ Cities should not overlook the role that seemingly minimal community involvement has on quality of life standards: residents’ maintenance efforts would make a vacant lot appear less empty and be safer for everyone.

In addition to social benefits of granting residents rights to use neighboring vacant lots, establishing legitimate dominion over vacant lots is a means to reduce property-based crime. When a parcel is known to be vacant, it acts as a magnet for crime because offenders view it as an available outlet; but when a neighbor shows dominion over it through use and upkeep, offenders are less likely to strike.¹¹² An ordinance granting common access rights could also encourage all residents on a block to keep a watchful eye on the property and prevent it from reverting to a space opportune for crime.¹¹³

D. Enforcement of the Ordinance

Municipalities across the nation already have ordinances similar to the proposed ordinances, which require that adjacent properties maintain public property, such as caring for the grass or trees on the public way and removing snow from the public sidewalk.¹¹⁴ Once the duties set forth in the ordinance become customary responsibilities among the public, the ordinance becomes a feasible method for the local government to transfer its obligations. The City can expand enforcement of the proposed ordinance against the tenants, manager, or title owner of adjacent properties. Because this ordinance would be based on the police power to promote public health, safety and welfare, the City can cast a wide net for enforcement and compliance.¹¹⁵

Moreover, the problem of enforcing a maintenance requirement against multiple adjacent properties who are all equally responsible actually lends itself to a greater solution for the block. Property residents on a block who share the duty to maintain the city-owned parcel as tenants in common can organize a quasi-common-interest community to delegate the work among themselves. Informal block organizations foster a stronger sense of community and build trust by necessitating cooperation and communication. Neighborhoods with strong social ties, where neighbors genuinely know each other, reduce fear of crime and increase sense of belonging.¹¹⁶ Also, residents who have more frequent contact with their nearby neighbors have greater satisfaction and attachment to their block.¹¹⁷ Thus, activities that foster collective action among neighbors, such as planning forums or collaboration in yard work, create social cohesion and enhance the physical space into a community by cultivating belonging.¹¹⁸

If residents do not fulfil their duties to maintain the city-owned vacant properties, the City could issue a fine to the applicable properties as it currently does for any unmaintained property.¹¹⁹ It could issue a fine to each property covered under the ordinance a portion of the amount that is currently issued to other unmaintained properties, or it could reduce the fine to an amount that reflects the City’s actual cost of mowing and weeding the lawn.

E. Leasing Vacant Properties to Community Residents

Because the enforceability of the maintenance component of the proposed ordinances may be a problem for the City of Chicago, the City can transfer its maintenance obligations and interests in its properties by leasing them to residents. Similar to the Large Lots Program in providing residents the opportunity to take ownership of their blocks through a nominal sale, the City could lease its vacant lots to residents on the block with certain restrictions.¹²⁰ Under this proposal, any resident who rents or owns property on a block with a vacant parcel can lease the parcel from the City for a discounted price that includes a contribution to the estimated property tax owed on the land. In the current arrangement, the City is losing property tax revenue on each property that it holds title to, even though, in many instances, neighboring residents are already using the property as their own backyard. A renter, or even property owner who does not want the permanent commitment of purchasing the property, would want to lease the property to prove to her neighbors that it is legally in her possession and have the right to exclude and, more importantly, to be able to use the land as her own without fear of confrontation with law enforcement.¹²¹ Just as expanding residents’ ownership over vacant parcels under the Large Lots Program increases safety, fosters a sense of community, and potentially raises home values by spurring neighborhood-level investment, this lease arrangement could do the same but with fewer risks for all parties.

Conclusion

In cities with declining populations, new vacant lots are added to the land inventory of municipalities every year. The negative effects of each vacant lot spread from one parcel to adjacent parcels in a radiating pattern, furthering the cycle of neighborhood decline. Law enforcement initiatives and policies aimed at deterring crime, vandalism, and loitering marginalize the residents of the community that it intends to serve. A city that chooses to make mere presence on a city-owned vacant lot an offense communicates to residents that being outside in a blighted neighborhood is disorderly behavior. However, a city could allow the public to use its vacant parcels and grant communities a legal interest in them—thereby rendering the vacant properties as held by the city in partnership with the surrounding community.

Endnotes

1. The Woodlawn neighborhood is in the south side of Chicago.

2. Community organizations include Southside Together Organizing for Power, Black Lives Matter Chicago, and the #LetUsBreathe Collective. Healing Village was created with volunteers and donations. Healing Village: Healing as a Radical Act of Resistance, Black Lives Matter Chi. (2018), https://www.blacklivesmatterchicago.com/healing-village-7-7/ [https://perma.cc/AU64-URB4]. The Chicago Department of Public Health consolidated its twelve mental health clinics to six sites; one of the closed clinics was in the Woodlawn neighborhood of Chicago. City of Chicago Budget 2012 Overview, City of Chi. 75 (2012), https://www.chicago.gov/content/dam/city/depts/obm/supp_info/2012%20Budget/2012BudgetOverview.pdf [https://perma.cc/57ZR-VBAZ].

3. Healing Village: Healing as a Radical Act of Resistance, Black Lives Matter Chi. (2018), https://www.blacklivesmatterchicago.com/healing-village-7-7/ [https://perma.cc/AU64-URB4]. Twenty-two percent of parcels and buildings in Woodlawn are vacant, and the area where Healing Village was located has been vacant for years.

4. Prior to setting up a temporary camp on the space, Healing Village sought permission from Alderman Willie Cochran; Healing Village claimed to initially have his support. Maya Dukmasova, Mental Health Advocates Are Battling Self-proclaimed ‘Gangster’ Alderman Willie Cochran over an Empty Lot, Chi. Reader (Aug. 3, 2018, 6:00 AM), https://www.chicagoreader.com/Bleader/archives/2018/08/03/mental-health-advocates-battle-gangster-ald-willie-cochran-for-empty-lot [https://perma.cc/W37E-HX2J].

5. Id.

6. Lee Edwards, Woodlawn’s ‘Healing Village’ Faces Eviction After Ald. Cochran Changes His Tune, Block Club Chi. (Aug. 2, 2018, 12:40 PM), https://blockclubchicago.org/2018/08/02/woodlawns-healing-village-faces-eviction-after-ald-cochran-changes-his-tune-organizers-say/ [https://perma.cc/A634-4MN2].

7. Id.

8. Id.

9. Chi., Ill. Mun. Code § 8-4-050(b) (2020). In tort law it is a trespass to enter the land of another regardless of whether a person first receives notice to leave. See Restatement (Second) of Torts § 158 (Am. Law Inst. 1965) (noting that a person is liable as a trespasser if he intentionally “enters land in possession of another,” irrespective of whether harm is thereby caused).

10. See infra Part I.D. This protocol conflicts with the protocol for privately owned vacant lots as well as public spaces.

11. A member of the Chicago Police Department cannot enter the premises of private property to patrol for persons who may be engaged in criminal activity, including potential trespassers, unless the private property owner signed a Criminal Trespass Affidavit, which grants authority to the Chicago Police Department to enforce all applicable laws on the owner’s behalf. Trespass Affidavit Program, Chi. Police Dep’t Directive S02-05-10 (effective Jan. 1, 2016). There is neither a Chicago Police Department Directive nor municipal code regarding vacant lots or city-owned land, meaning individual law enforcement officers have complete discretion to encounter someone on a city-owned vacant parcel and discretion in the measures taken during an encounter.

12. Police officers have individual discretion to encounter a person on a city-owned vacant lot and either resolve or escalate the situation. But because discretion draws on stereotyped judgments of the person and his community, fairness and legitimacy of law enforcement can be undermined. David Cole, Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 Geo. L.J. 1059, 1063 (1999).

13. Vacant lots that are remediated—by removing trash and debris, grading the land, and planting grass and trees—are associated with reduced gun assaults and vandalism and improved physical health outcomes for nearby residents compared with similar lots that are not remediated. John MacDonald, Community Design and Crime: The Impact of Housing and the Built Environment, 44 Crime & Just. 333, 361 (2015). Detroit, Michigan spends $800,000 a year maintaining its vacant lots. Margaret Bass et al., Vacant Properties: The True Costs to Communities, Nat’l Vacant Props. Campaign 5 (2005).

14. See generally Oscar Newman, Defensible Space: Crime Prevention Through Urban Design (1972) (explaining that properties that appear to be unwatched and where offenders would have greater anonymity are a more attractive target for a crime). When responsible neighbors use nearby property as their own, it may prevent disorderly conduct and crime by giving the appearance that the lot is owned and cared for.

15. See infra Part I.A

16. Nadav Shoked, Duty to Maintain, 64 Duke L.J. 437 (2014) (arguing that property ownership encompasses affirmative obligations to maintain the land and keep it in good repair, regardless of the owner’s own desires).

17. A city can fine the title owner the costs that the city incurred in maintaining her property. See infra Part I.B. Hence, it is not the owner who has the right to be free of the nuisance even when the city fulfils the duty to maintain the lot in place of the title owner. A private owner does not have the right to abandon her property and free herself of the duty or the ensuing nuisance; in such case where an owner acts as she does, the city can take her property.

18. See infra Part II.B.

19. Such ordinances are built upon common law public nuisance doctrine and proscribe certain activities or conditions, which might interfere with the enjoyment of another property, as a nuisance. Restatement (Second) of Torts, § 821B, cmt. c., f. (Am. Law Inst. 1979); see Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); accord Disc. Inn, Inc. v. City of Chicago, 803 F.3d 317, 320–21 (7th Cir. 2015) (holding Chicago has a valid ecological interest in weed control, and a $1200 fine is not excessive).

20. The registration and tracking of such vacant buildings facilitate a city in addressing the negative impact that improperly maintained vacant buildings have neighborhoods. See, e.g., Chi., Ill., Mun. Code § 13-12-125 (2020); N.Y.C., N.Y., Admin Code § 28-216.1.2 (2020); Phil., Pa., Code ch. 4-200 § PM-901.1.

21. Whether a violation of a municipal ordinance is a civil or criminal offense depends chiefly upon the constitutional and statutory provisions of the state. An ordinance prohibiting certain acts under fines, penalties, or imprisonment is within a city’s powers and such ordinance. “A person violating such an ordinance commits an offense quasi criminal in character, for which he may, under express authority of the statutes of [Illinois], be fined or imprisoned.” Chicago v. Kunowski, 139 N.E. 28, 29 (Ill. 1923) (emphasis added).

22. City of Chicago v. Fannie Mae, 110 N.E.3d 1059, 1067 (Ill. App. Ct. 2017).

23. Id.

24. Notwithstanding, the City may take title to a property on the basis of aesthetics alone. Berman v. Parker, 348 U.S. 26, 33 (1954) (“The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary.”).

25. Chi., Ill., Mun. Code § 14A-3-313.3.1 (2020).

26. See Bennis v. Michigan, 516 U.S. 442, 452 (1996) (“The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.”).

27. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1022 (1992) (noting that “harmful or noxious uses of property may be proscribed by government regulation without the requirement of compensation”); see also Village of Lake Villa v. Stokovich, 810 N.E.2d 13, 28 (Ill. App. Ct. 2004) (holding that an “exercise of police power to prevent a property owner from using his property so as to create a nuisance or a risk of harm to others is not a ‘taking’ in the constitutional sense”).

28. Examples include buildings suffering from unsound structure, looted wires or pipes, or buildings that could become a refuge for squatters or a house of ill fame. The court must find that the building is “dangerous and unsafe,” and the “structure to be beyond reasonable repair” based on a comparison of the cost of repair with the value of the building. Aurora v. Meyer, 230 N.E.2d 200, 202, 204 (Ill. 1967); see also Bonner v. City of Brighton, 848 N.W.2d 380 (Mich. 2014) (same).

29. Nicole Stelle Garnett, Ordering (and Order in) the City, 57 Stan. L. Rev. 1, 12–13 (2004) (discussing the crime-disorder connection between abandoned or deteriorating properties and serious social problems). A study in Austin, Texas found evidence of illegal activities in eighty-three percent of unsecured abandoned buildings. Id. A building in disrepair reduces the incentives for neighbors to continue maintenance efforts on their own properties. Id. at 13.

30. Id.

31. John Accordino & Gary T. Johnson, Addressing the Vacant and Abandoned Property Problem, 22 J. Urb. Aff. 301, 311 (2000). After determining that less than five percent of its boarded-up buildings outside of historic areas are ever used for residence again, the City of Jacksonville, Florida, established an ordinance that mandates demolition for all buildings that have been boarded up for thirty-six months. Id.

32. A 2001 Philadelphia study found that houses less than 150 feet from an abandoned property suffered a loss in value of $7,627. Gordon Whitman, Temple Univ. Ctr. for Pub. Pol’y & E. Pa. Org. Project, Blight Free Phila. 21 (2001). Properties located farther away experienced a smaller net loss, and only at a distance greater than one Philadelphia city block did the impact of abandonment disappear. Id.

33. The duty to maintain public ways in safe condition is normally placed upon the municipality. Wash. Gaslight Co. v. District of Columbia, 161 U.S. 316, 332 (1896).

34. Benjamin B. Quinones, Redevelopment Redefined: Revitalizing the Central City with Resident Control, 27 U. Mich. J.L. Reform 689 (1994) (arguing that blighted urban neighborhoods are generally regarded as less worthy of public improvement dollars and services).

35. Any person who owns or controls property who allows weeds to grow in excess of ten inches is subject to a fine of not less than $600 nor more than $1,200. Chi., Ill., Mun. Code § 7-28-120 (2020). Such person is liable to the City for all costs incurred by the City in cutting the weeds, plus a penalty of up to three times the amount of the costs. Id.

36. Id.

37. Vacant and abandoned properties serve as “magnets for crime” and increase the risks of arson and vandalism in urban neighborhoods. Accordino & Johnson, supra note 31, at 303.

38. Id. Also, vacant and abandoned properties lower the neighboring properties’ market value and hinder future sales. Id.

39. Robert J. Sampson & Stephen W. Raudenbush, Seeing Disorder: Neighborhood Stigma and the Social Construction of “Broken Windows,” 67 Soc. Psych. Q. 319, 322 (2004). This withdrawal would increase physical disorder in those neighborhoods, and the implicit bias would lead to “reinforcing mechanisms that perpetuate the connection of race to disorder, therefore helping to explain the dynamics reinforcing racial segregation.” Id.

40. Christina Mair, Ana V. Diez Roux & Jeffrey D. Morenoff, Neighborhood Stressors and Social Support as Predictors of Depressive Symptoms in the Chicago Community Adult Health Study, 16 Health & Place 811, 811–12 (2010); Eugenia C. South et al., Effect of Greening Vacant Land on Mental Health of Community-Dwelling Adults, JAMA Netw Open (2018).

41. Neighborhood stigma contributes to social, economic and health disadvantages, and may pose a threat to an individual’s social identity. Margaret Kelahera et al., Living in ‘Birdsville’: Exploring the Impact of Neighbourhood Stigma on Health, 16 Health & Place 381, 386 (2010). Neighborhood stigma limits the residents’ efforts to escape the constraints of living in a socio-economically disadvantaged neighborhood and is a way of keeping people isolated and “in their place.” Id. Stigma reinforces the exclusion of people living in certain neighborhoods from wider social participation and involvement in policymaking concerning their own situations. Id.

42. Douglas D. Perkins & Ralph B. Taylor, Ecological Assessments of Community Disorder: Their Relationship to Fear of Crime and Theoretical Implications, 24 Am. J. Cmty. Psych. 63, 65 (1996). Gender, age, and race account for much of the disparity a person’s behaviors to protect or expose their self to danger, but the extent to which a person feels connected to their community may also have an effect on their fear of crime independent of personal characteristics. Stephanie Riger, Robert K. LeBailly & Margaret T. Gordon, Community Ties and Urbanites’ Fear of Crime: An Ecological Investigation, 9 Am. J. Cmty. Psych. 653, 654 (1981).

43. After “controlling for perceived social and physical disorder by residents and basic demographics,” residents living on blocks with vacancy or blight have increased fear of crime. MacDonald, supra note 13, at 339.

44. Wesley G Skogan, Trends in Crime and Fear: Lessons from Chicago, in Emotions, Crime & Just. 101 (Susanne Karstedt, Ian Loader, Heather Strang eds., 2011). Residents may be less willing to maintain their own property on the block when abandoned lots are highly visible, thereby furthering the cycle of disorder.

45. Id.

46. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, Atl. Monthly (Mar. 1982).

47. Id.; Nicole Stelle Garnett, Ordering (and Order in) the City, 57 Stan. L. Rev. 1, 2–3 (2004).

48. Peter K. B. St. Jean, Pockets of Crime: Broken Windows, Collective Efficacy, and the Criminal Point of View (2007) (explaining how neighborhood factors in relation to the development of urban space can describe why different kinds of crimes occur most often in locations that offer specific advantages).

49. Robert J. Sampson, Stephen W. Raudenbush & Felton Earls, Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 277 Sci. 918, 918 (1997).

50. Id.

51. See generally Robert J. Sampson, Great American City: Chicago and the Enduring Neighborhood Effect (2012) (demonstrating neighborhoods influence a wide variety of social phenomena, including crime, health, civic engagement, and home foreclosures).

52. There is competing Fourth Amendment doctrine on this issue: one perspective considers the landowner and the other considers the person suspected of trespassing. The primary concerns are whether such area would be considered “curtilage” or an “open field,” and if there is probable cause for a law enforcement officer to make an invasion onto the property from the public thoroughfare. While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” an officer’s privilege to gather information is sharply limited when he steps off those thoroughfares. California v. Ciraolo, 476 U.S. 207, 213 (1986); see Florida v. Jardines, 569 U.S. 1 (2013) (holding that law enforcement officers’ use of drug-sniffing dog on front porch of home was a trespassory invasion of the curtilage which constituted a “search” for Fourth Amendment purposes). Cities commonly carve out an exception to constitutional protections for regulatory searches of vacant buildings as they may pose a threat to the public safety. For instance, Chicago police have a separate protocol to address abandoned buildings (compared to vacant lots) that are registered as a vacant building with the City. Chi., Ill., Mun. Code § 13-12-125 (2020). Although police will typically only address an abandoned property after someone makes a complaint regarding a situation, such as homeless people breaking and entering into the building, an officer does not need a search warrant to enter the building. Id.

53. Trespass Affidavit Program, Chi. Police Dep’t Directive S02-05-10 (effective Jan. 1, 2016).

54. Id.

55. Id.

56. Id. Such temporary detention and questioning is referred to as an investigatory stop based on reasonable articulable suspicion “that the person is committing, is about to commit, or has committed a criminal offense.” Id.

57. Although a trespass charge requires prior notice that entry is forbidden or notice to depart, police officers often charge people with trespassing without such notice. Chi., Ill., Mun. Code § 8-4-050 (2020); 720 Ill. Comp. Stat. 5/21-3(a)(3) (2013). Empirical scholarship on the misdemeanor system shows that across the nation, officers are arresting people whose conduct does not actually amount to trespass because officers failed to provide the statutory or constitutionally required warning. Alexandra Natapoff, Punishment Without Crime 103 (2018).

58. “No Trespassing” signs must be prominently displayed in areas where persons entering a building enrolled in the trespass affidavit program can readily observe them. Trespass Affidavit Program, Chi. Police Dep’t Directive S02-05-10 (effective Jan. 1, 2016).

59. The Police Department policy describing a person’s First Amendment rights upon the public way states that “the public way generally includes public property held open to the public such as city parks, public streets, and sidewalks. The public way does not include . . . publicly-owned property not open to the public.” First Amendment and Police Actions, Chi. Police Dep’t Directive G02-02 (effective Apr. 19, 2012) (emphasis added).

60. “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Adderley v. Florida, 385 U.S. 39, 47 (1966). For this reason, there would be little merit to a person’s argument that they have a constitutional right to stay on government-owned property, over the City’s objections that the land is not dedicated as property held open to the public. The charge of trespassing would not unconstitutionally deprive a person of her rights under the First Amendment.

61. United States v. Albertini, 472 U.S. 675, 687 (1985) (finding that a military base is ordinarily not a public forum for First Amendment purposes, unlike a public park, even if it is open to the public).

62. Land is only considered as a public space or park by official designation of such by the City or Park District. See Deren v. Carbondale, 300 N.E.2d 590, 593 (Ill. App. Ct. 1973) (finding a street is not converted to a sidewalk by continued pedestrian use); see also Locigno v. Chicago, 178 N.E.2d 124, 128 (Ill. App. Ct. 1961) (“A street does not become a through street because it is used as a through street. It becomes a through street because it is so designated and appropriate signs placed.”).

63. See People v. Brown, 136 N.E.3d 68, 78 (Ill. App. Ct. 2019) (“One need not be a police officer to know the difference between a private property and public property or between a private thoroughfare and a public thoroughfare.”).

64. Nona Tepper, The Collateral Damage of $1 Vacant Lots, Chi. Mag. (Nov. 19, 2018, 1:39 PM), http://www.chicagomag.com/city-life/November-2018/The-Collateral-Damage-of-Large-Lots/ [https://perma.cc/2CRK-DTBL]. The neighbors were not given the opportunity to purchase the lot from the city before it was sold.

65. Id. The deputy commissioner of Chicago’s Department of Planning and Development said that “gardeners who unlawfully use City or private land without permission . . . may see the land repurposed for other uses.” Id.

66. Id. People were using the vacant parcel as a shortcut to the alley for drug purchases. Id.

67. 720 Ill. Comp. Stat. 5/21-3(d) (2013).

68. Illinois Representative Sonya Harper and community members wanted to gain control over land in their neighborhood, so they converted an illegal dumping site into a beautiful garden. Amy Qin, A Lot to Lose, South Side Weekly (Apr. 24, 2018), https://southsideweekly.com/a-lot-to-lose-large-lots-rep-sonya-harper [https://perma.cc/R7B7-HQN3]. Because Rep. Harper formally worked with Illinois legislation, she knew that when she first started a community garden on city-owned property she “didn’t have rights to the land;” however, community members without similar resources may not be aware. Id.

69. Community areas include Englewood, Washington Park, West Englewood, and Woodlawn community areas as well as parts of Fuller Park, Greater Grand Crossing, and New City. Chi. Dep’t Plan. & Dev., Green Healthy Neighborhoods 5 (2014).

70. Id.

71. The program to purchase surplus land from the City is open to anyone, and this program does not condition the sale on plans for future development. Chi., Ill., Mun. Code § 2-158 (2020). The minimum bid price for the purchase of any surplus land parcel must be at least sixty percent of its estimated value, as determined by the Department of Planning and Development. Chi., Ill., Mun. Code § 2-158-090(c), (e), (g) (2020).

72. Adjacent Neighbors Land Acquisition Program is the most restrictive program: the owner of the property immediately adjacent to the vacant lot must improve the land within six months of conveyance, and improvements are limited to a garage, addition to the existing residence, or landscaping. Chi., Ill., Mun. Code § 2-159 (2020).

73. Referred to as the Large Lots Program. Chi., Ill., Mun. Code § 2-157 (2020).

74. Nine new neighborhood playlots were established in 2017, following necessary environmental analysis and remediation work on the parcel. Press Release, City of Chicago, Land Sales Will Create, Expand Nine Neighborhood Playlots (Feb. 22, 2017). The City acquired these properties mostly through property tax liens, and the subsequent work was financed entirely by the Park District. Id. The Chicago Park district is also stricken with limited resources and cannot afford upkeep of additional parks; therefore, it was only feasible to establish nine new parks throughout the city.

75. Creating urban gardens on vacant land is a popular trend around the nation to vitalize inner-city communities and bring productive opportunities to grow fresh foods where it is most needed. Chicago garden initiatives stabilize communities and build trust among local residents by providing them an outlet to learn to grow food in formerly abandoned lots. In 2013, the City identified approximately five acres of city-owned land to devote for urban farming purposes and announced an “annual investment of $750,000 for transitional jobs programs with Chicago nonprofits in the urban agriculture sector.” Press Release, City of Chicago, Mayor Emanuel Launches New “Farmers For Chicago” Network For Chicago Urban Farmers (Mar. 15, 2013).

76. For the current count of lots sold under this program, see LargeLots.org, https://largelots.org (last visited Jan. 20, 2021).

77. Mayor Rahm Emanuel said the program allows residents to “take ownership of their blocks, one parcel at a time.” Press Release, City of Chicago, Plan Approved to Formalize Mayor Emanuel’s “Large Lots” Pilot Program (Dec. 10, 2014).

78. Id.

79. In 2015, the rate of owner-occupied housing was only twenty-four precent in the seven community areas targeted for the Large Lots Program. In the Woodlawn neighborhood, only sixteen percent of its housing is owner-occupied. Chicago Community Area (CCA) CDS Data, Chi. Metro. Agency for Plan. Data Hub (Aug. 27, 2015), https://datahub.cmap.illinois.gov/dataset/community-data-snapshots-rawdata/resource/8c4e096e-c90c-4bef-9cf1-9028d094296e.

80. A successful applicant must have clean title to a property on the block, no outstanding fines to the city, a detailed plan for the space, and be able to show proof of funds to pay for their future property tax burden and fencing around the lot. LargeLots.org, https://largelots.org/faq/#faq-block [https://perma.cc/2P5H-K67F] (last visited Feb. 9, 2021). Additional costs include closing costs, cost to erect a fence around a vacant lot if it is not adjacent to the homeowner’s property, annual property taxes ranging from $360 to $1600, and likely federal income taxes on the gain of property when it is eventually sold for above $1. Id.

81. Chi., Ill., Mun. Code § 7-28-750 (2020).

82. Disc. Inn, Inc. v. City of Chicago, 803 F.3d 317, 320 (7th Cir. 2015); see Ellicott v. Pearl, 35 U.S. 412, 442 (1836) (“The erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property.”).

83. Disc. Inn, Inc., 803 F.3d at 320.

84. See, e.g., Local Governmental and Governmental Employees Tort Immunity Act, 745 Ill. Comp. Stat. 10 (1965).

85. Hinojosa v. Chicago Heights, 519 N.E.2d 976, 976 (Ill. App. Ct. 1988).

86. Id. at 981.

87. 745 Ill. Comp. Stat. 10/3-102 (1986).

88. Zoning rules throughout the city that limit fence height, notwithstanding repeated vandalism, are ill suited to address the crime demographics of every neighborhood. Zoning laws prohibit higher fences that would deter trespassers and would enhance the property owner’s ability to prevent crime and rely less on proactive policing. Currently, the City does not differentiate between properties of value and vacant lots: the same fence height is required for both even though trespassing on each property type would lead to different consequences. Notwithstanding, the law expects and often requires that owners “take all reasonable measures available to them to control their property.” Lew v. Superior Court, 25 Cal. Rptr. 2d 42, 47 (Ct. App. 1993) (holding landlords could be held liable on nuisance theory for mental distress suffered by neighboring residents resulting from criminal activity or tortious acts committed off landlords’ property by drug dealers).

89. William P. Stewart et al., Resident-Led Beautification of Vacant Lots That Connects Place to Community, 185 Landscape & Urb. Plan. 200, 207 (2019) (finding that resident-initiated beautification activities, such as cleaning and planting, on urban vacant lots strengthened interpersonal relationships among neighbors).

90. Under the common law rules, adverse possession does not run against the government based on the maxim nullum tempus occurrit regi (no time runs against the king). However, a number of states have parted from this doctrine. For example, in Connecticut, a plaintiff claimed title by adverse possession to an adjacent lot owned by the municipality, which had acquired title through a tax-foreclosure proceeding. Goldman v. Quadrato, 114 A.2d 687 (Conn. 1955). Noting that the city lot “was neither used for nor dedicated to any public purpose,” the court held that the land was subject to adverse possession. Id. at 690; see also Devins v. Borough of Bogota, 592 A.2d 199 (N.J. 1991) (holding that municipally owned real estate not dedicated to or used for a public purpose is subject to adverse possession).

91. “The owner or person in control of property contiguous to the parkway shall be responsible for watering and fertilizing parkway trees required to be installed . . . and for routine care of the parkway lawn. Routine care of the parkway lawn shall include periodic watering, weeding and mowing, as well as replacement of vegetation that dies.” Chi., Ill., Mun. Code § 10-32-050 (2020).

92. Goodenow v. City Council of Maquoketa, 574 N.W.2d 18, 23 (Iowa 1998) (finding city maintenance ordinances promoted and protected public health, safety, and welfare of persons who traveled city streets, and hence were valid exercises of police power and were reasonable).

93. A property owner raised a non-traditional taking claim and asserted that a city ordinance forcing her to mow, at her expense, the grass and weeds on city-owned property constitutes a taking of her property for public use in violation of the Fifth Amendment. Id. The Iowa Supreme Court concluded that the city ordinance constituted a valid exercise of police power and did not effectuate an unconstitutional taking, for the reason that a law does not become unconstitutional because it causes a hardship on the landowner. Id. at 24.

94. Id.; Shoemaker v. City of Howell, 795 F.3d 553 (6th Cir. 2015) (holding a city did not violate a property owner’s Fourteenth Amendment procedural due process rights in enforcing an ordinance that required the owner to keep the curb strip in front of his house mowed below a certain height). The court found the landowner’s argument comparing the city ordinance requiring he mow the grass on the curb strip associated with his property to “draconian mandatory public-labor measures adopted by regimes in troubled nations” outlandish as the ordinances similar to the one challenged are ubiquitous across the country, and it did not impose burdens without a rational basis for doing so. Id. at 566.

95. Rowe v. City of Elyria, No. 01-3005, 2002 U.S. App. LEXIS 11181, at *15–17 (6th Cir. June 6, 2002) (holding that an ordinance compelling a property owner to mow grass, some of which was growing on city-owned property, or pay a fine did not involve the kind of compulsion that would constitute involuntary servitude under the Thirteenth Amendment). Not all instances in which labor is compelled by force of law violate the Thirteenth Amendment. The Supreme Court has recognized that “the prohibition against involuntary servitude does not prevent the State or Federal Governments from compelling their citizens, by threat of criminal sanction, to perform certain civic duties.” United States v. Kozminski, 487 U.S. 931, 943 (1988).

96. Butler v. Perry, 240 U.S. 328, 330 (1916). The Supreme Court held that “a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation.” Id. The Court based its reasoning on Blackstone’s Commentaries and how conscripted labor has been relied on for the construction and maintenance of roads since the Colonial days. Id. at 330–31.

97. See Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000) (finding the plaintiff had not alleged that he belonged to any identifiable group that has been prosecuted while other similarly situated persons were not prosecuted).

98. An ordinance that compelled homeowners to mow large tracks of city-owned land totally unrelated to their individual residences can be struck down by the court as constitutionally unacceptable. Shoemaker, 795 F.3d at 557.

99. In a case where a person sued a landowner for injuries received when he stepped into a water meter box located on a narrow strip of city-owned lawn in front of the landowner’s building, the California Supreme Court found a “triable issue of fact [as to] whether defendants exercised control over the strip of land owned by the city so as to give rise to a duty to protect or warn persons entering the land.” Alcaraz v. Vece, 929 P.2d 1239, 1253 (Cal. 1997). The court noted that, standing alone, the “simple act of mowing a lawn on adjacent property” owned by another, generally will not “constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property,” but “such evidence is relevant on the issue of control.” Id. at 1250–51.

100. By erecting a picket fence, the defendant “went beyond simple neighborly maintenance,” and, thus, the act was sufficient to raise the issue of control. Id. Notably, it is possible that a person may have a right to full or partial indemnity from the city. Id. at 1253.

101. Thiede v. Tambone, 553 N.E.2d 817, 821 (Ill. App. Ct. 1990) (finding that when a jogger injured himself when he ran across the public sidewalk that crossed the property owners’ driveway, a duty on the property owners to maintain the sidewalk did not arise because they did not appropriate the public sidewalk for a special use or business purpose). Yet, an abutting landowner does have a duty to “exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the walk.” Id. at 822.

102. Burke v. Grillo, 590 N.E.2d 964, 969 (Ill. App. Ct. 1992) (holding that a landlord did not owe a duty to the tenant who tripped in hole adjacent to public sidewalk, even though landlord mowed grass and shoveled snow from the area where the hole was located, because that hole was located on city’s property and landlord had not affirmatively appropriated the public sidewalk or city-owned area for his own use). As a general rule, an owner or occupier of premises is generally not liable for personal injuries incurred on public sidewalk that is under control of municipality. Id. at 968.

103. Alpert v. Villa Romano Homeowners Ass’n, 96 Cal. Rptr. 2d 364, 376 (Ct. App. 2000) (finding that when a woman fell onto an upturned sidewalk adjacent to HOA’s property, the HOA had a duty to either warn her of the sidewalk’s dangerous condition or repair it because the HOA exercised possession and control over the sidewalk and had planted all the trees that caused the sidewalk to be uplifted).

104. Abramczyk v. Abbey, 780 A.2d 957, 960 (Conn. App. Ct. 2001) (finding an apartment owner was not liable to neighbor for damages after neighbor tripped on a water pipe that was installed by the city on apartment owner’s premises, but was located within a right-of-way owned by the city).

105. Id.

106. Restatement (Second) of Torts § 349 (Am. Law Inst. 1965). The term possession frequently is used to denote the legal relations resulting from facts, rather than in the sense of describing the facts themselves; it is not important whether possession is or is not rightful as between the possessor and some third person. Restatement (Second) of Torts, § 328 cmt. a. (Am. Law Inst. 1965).

107. Mair et al., supra note 40.

108. South et al., supra note 40.

109. Riger et al., supra note 42, at 663. Local policies that encourage neighbors to cooperate to fulfil collective maintenance obligations or to share a common space as “joint owners” lends itself the criminology theory of Collective Efficacy. Sampson et al., supra note 49.

110. Stewart et al., supra note 89, at 207. Admittedly, the positive effects of caring for a side yard may be eliminated when the city assigns neighbors this duty rather than it be a resident’s voluntary undertaking.

111. Id.

112. In a study of residents who purchased the first offerings of Large Lots, one resident remarked, “[I]f people know the lot is vacant then they will do dirt in the lot; ownership helps to make the dirt go away. [Our neighbors] now have an obligation to take action.” LargeLots.org, https://largelots.org/faq/#faq-block [https://perma.cc/2P5H-K67F]. Resident-led beautification as part of the Large Lots program “resulted in social interaction that increased attachment to places and a sense of community” and expressed “a general message that ‘morality has changed’” on the block. Stewart et al., supra note 89, at 207.

113. Beautification of vacant lots and collaboration in yard work fosters social interaction that define neighbors’ sense of place. Id. at 202. Residents are motivated to work together to assert a cohesive sense of place to resist the natural tendency of physical and social decline from overcoming their neighborhood. Id.

114. See, e.g., Chi., Ill., Mun. Code § 10-8-180 (2020) (“Every owner, lessee, tenant, occupant or other person having charge of any building or lot of ground in the city abutting upon any public way or public place shall remove the snow and ice from the sidewalk in front of such building or lot of ground.”); Gurnee, Illinois has an ordinance that declares it to be a nuisance for any property owner to “fail to mow all weeds, plants and customary lawn grasses on undeveloped property, and the public right-of-way adjacent thereto, located within 200 feet of a building used for residence purposes.” Gurnee, Ill. Mun. Code ch. 86, art. 1, § 86-1 (2002).

115. Because an unmaintained property is considered a nuisance and threat to public health, a city has far reach in who it can attach liability to. For example, in Chicago, owner is defined as “any person having a legal or equitable ownership interest in the premises or structure, with or without actual possession; . . . and any person responsible for or entitled to manage, collect rents for, or control the premises or structure.” Chi., Ill., Mun. Code § 14A-2-202 (2020). Further, in some instances “the liabilities and obligations imposed on an owner also attach to any mortgagee.” Chi., Ill., Mun. Code § 14A-3-301.2.2 (2020).

116. Individuals who live in a marginalized neighborhood and have no ties to their neighbors feel less safe and have more fear of crime than individuals who have some ties to their neighbors. Frances E. Kuo et al., Fertile Ground for Community: Inner-City Neighborhood Common Spaces, 26 Am. J. Comty. Psych. 823, 828 (1998).

117. Id.; see also Riger et al, supra note 42 (finding that community involvement, even in the presence of high crime rates, is associated with less fear among residents).

118. Stewart et al., supra note 89, at 202.

119. See supra Part I.B.

120. See supra Part II.A.

121. As a general rule, the taxpayer is viewed as the owner of a property, which is one of the reasons why residents struggle to regard a city as the true owner of a forfeited property when local governmental entities are exempt from paying property taxes. See Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73, 80 (1985).

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Section of State and Local Government Law

Topic:

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Jennifer Aronsohn

J.D. Candidate, Northwestern Pritzker School of Law, 2021; B.S., Indiana University Bloomington, 2016. I am indebted to Professor Nadav Shoked for advising me in writing this Note and for his invaluable mentorship throughout law school. I would also like to thank the many professors at Northwestern who have been generous in sharing their time with me.

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July 07, 2021 Student Note

Community Claim of Right

Jennifer Aronsohn

Introduction

I. Problems of Vacant Properties

A. Regulating Vacant Properties

B. Financial Costs of Vacant Lots

C. Social Costs and Community Disorder

D. Legal Issues Concerning the Public’s Use of City-Owned Lots

E. Community Efforts to Reclaim Vacant Lots

F. Summary: Problems of City-Owned Vacant Properties

II. Analysis of the City of Chicago’s Strategy to Address Vacancy

A. Chicago’s Land Disposition Programs

B. Purpose of Enclosing Vacant Lots

III. Solutions That Reconsider Property Ownership

A. Proposals for Ordinances Establishing Servitudes

B. Potential Liability Arising from Appropriating or Controlling Property

C. Purpose of the Ordinance

D. Enforcement of the Ordinance

E. Leasing Vacant Properties to Community Residents

Conclusion

Endnotes

Entity:

Topic:

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Jennifer Aronsohn

ABA Resources

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American Bar Association TM American Bar Association

Introduction

I. Problems of Vacant Properties

A. Regulating Vacant Properties

B. Financial Costs of Vacant Lots

C. Social Costs and Community Disorder

D. Legal Issues Concerning the Public’s Use of City-Owned Lots

E. Community Efforts to Reclaim Vacant Lots

F. Summary: Problems of City-Owned Vacant Properties

II. Analysis of the City of Chicago’s Strategy to Address Vacancy

A. Chicago’s Land Disposition Programs

B. Purpose of Enclosing Vacant Lots

III. Solutions That Reconsider Property Ownership

A. Proposals for Ordinances Establishing Servitudes

B. Potential Liability Arising from Appropriating or Controlling Property

C. Purpose of the Ordinance

D. Enforcement of the Ordinance

E. Leasing Vacant Properties to Community Residents

Conclusion

Endnotes

Entity:

Topic:

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Jennifer Aronsohn

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