Introduction
In the Woodlawn neighborhood 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. 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. 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. Thus, the alderman was able to serve the community organizations an eviction notice.
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. 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. 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.”
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. 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. 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. 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.
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.
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.
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. 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. 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. 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. 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. 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. 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. Moreover, when the hazardous condition persists, a city may seek to have the property owner demolish or repair the building through an expediated proceeding. 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.
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. 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.
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. 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.
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. 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. 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. 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.
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. 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. 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.
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. The total amount of fines would then constitute a lien against the affected property. 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. 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. Further, implicit bias of neighborhood value can become self-confirming, which deepens the disparity among neighborhoods in a city, often correlating with race. 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. 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.
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. Residents in neighborhoods with community disorder, signaled by a high rate of vacant lots, have a greater fear of exposure to crime. 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. 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.
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. 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. 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.
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. Nevertheless, social cohesion among neighbors combined with their willingness to intervene is linked to a reduction in violence. When the social infrastructure of a neighborhood is built up, it can provide enough community cohesion to reduce crime, despite strong symptoms of disorder. 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.
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. 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. 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.” 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.
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.
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. 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. 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. The public’s use of a space cannot convert the status of it: a public park is a place traditionally dedicated to free expression, but the accessibility and openness of an empty lot does not convert it to a public park. 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, 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. The company told the five neighbors to cease using the property as a garden due to insurance liability concerns. Predictably, in place of the former community garden sat an idle parcel for at least a couple years after the sale.
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. 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.
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. The once flourishing communities in the mid-twentieth century are now characterized by economic disinvestment and population loss. 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, selling parcels for a discounted price to adjacent neighbors, and selling for one dollar select parcels to homeowners who live on the same block as the vacant lot. The City also developed community-based conveyance programs: it sells land suitable for public parks to the Chicago Park District and to a land trust devoted entirely to urban gardening.
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. 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. The City promotes the program as a cost-effective way to “redevelop concentrations of City-owned land for private and community uses.”
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. 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. 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. 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.” Also, fences “discourage the use of vacant lots as sites for the sale and purchase of illegal drugs” and “protect people from injuring themselves.” 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. In Chicago Heights, an Illinois city not far from Chicago, a child was injured in an abandoned house on city property. 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. 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. 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. 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.
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. 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. 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.” 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, or that enforcement of such is a violation of a person’s due process rights, 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. 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.
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.
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. 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. 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.
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. Also, a landowner does not have a greater duty to the city-owned lawn beside a sidewalk than to the public sidewalk itself. 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. 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. 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.
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. 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. 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. 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. 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. 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. 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. 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.
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. 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.
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. Also, residents who have more frequent contact with their nearby neighbors have greater satisfaction and attachment to their block. 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.
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. 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. 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. 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.
