Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution

In her recent article Dissolving Cities, Professor Michelle Wilde Anderson provides the first comprehensive academic account of municipal dissolution.1 As both an empirical project and a theoretical undertaking, Dissolving Cities is an extraordinary piece of scholarship that is certain to become a cornerstone of local-government law.2

At several points in the article, Professor Anderson draws a connection between municipal dissolution and regionalism.3 Professor Anderson suggests that by consolidating land under the exclusive jurisdiction of the county, municipal dissolution could enable counties “to serve goals associated with regional government, such as land-use coordination, reduced interlocal conflict, and service consolidation.”4

To be sure, dissolution reduces local fragmentation, eliminating a layer of government with its attendant administrative and political costs.5 But defragmentation, a worthy goal in its own right, is not necessarily regionalism. And although county boundaries encompass a geographic region, county governments do not necessarily act as regional governments.

Instead, the very characteristics that Professor Anderson contends make dissolution an attractive mode of regionalism—that it is voluntary on the part of the dissolving municipality and does not require the consent of adjacent municipalities or of the surrounding county6—virtually guarantee that it will promote the welfare of the dissolving city rather than the welfare of the region as a whole.

This Essay argues that, on balance, municipal dissolution is unlikely to trigger the emergence of counties as strong agents of regional reform.7 Part I situates municipal dissolution within the broader debate over regionalism. This Part then demonstrates that dissolution is likely to function as a form of “cherry-picking” regionalism that enables incorporated municipalities to manipulate local boundaries at the expense of the region.8 Part II draws upon Professor Anderson’s conception of the city-county loop to suggest that in many states counties are too weak and too small to function as regional governments. Part III addresses a paradox of regionalism: effective regional structures are not politically viable, and politically viable regional structures are not effective. The problems of metropolitan governance seem hopelessly circular. This Essay thus looks beyond the region to consider the potential role of the federal government in breaking the cycle.

I. Dissolution as a Mode of Regionalism?

Professor Anderson describes dissolution as “offer[ing] an unusual and noncoercive mode of regionalism.”9 She identifies three key characteristics of municipal dissolution that in her view create a unique opportunity for regional reform. Critically, dissolution (1) removes a layer of municipal government rather than superimposing a new regional government on existing municipalities, (2) is voluntary on the part of the municipality to be dissolved, and (3) rarely requires the consent of surrounding or adjacent municipalities.10

This Part argues that so long as the decision to dissolve is unilateral on the part of the dissolving municipality, it will rarely further the twin values of economic efficiency and distributional equity traditionally associated with regionalism. Section I.A describes the goals and reform strategies of the regionalist movements that surfaced during the second half of the twentieth century. Section I.B argues that, for cities that choose to dissolve in response to economic decline, municipal dissolution is likely to function as a beneficial form of efficiency-oriented regionalism. For the surrounding county, however, dissolution is more accurately characterized as an involuntary (and perhaps undesirable) mode of consolidation.

A. Defining the Regionalist Agenda: Efficiency and Equity

Although it is rare to see the term “regionalism” defined with precision,11 the regionalist movements of the past fifty years typically have been motivated by a desire to increase economic efficiency and distributional equity within the metropolitan region.12 From the 1960s through the 1970s, metropolitan reformers advocated the establishment of formal metropolitan-scale municipal governments, with general taxing and regulatory authority.13 These proposals faced insurmountable political opposition and consistently failed to yield results,14 causing policymakers to lose interest in regionalism as a practical policy objective.15

By the 1990s, however, mounting concerns over multijurisdictional problems such as urban sprawl prompted scholars and policymakers to focus again on the welfare of the region.16 The new regionalists abandoned the hope of creating general-purpose regional governments17 and instead encouraged the formation of cooperative agreements among a broad range of public and private actors on matters of regional concern.18

To induce such cooperation, the new regionalists argued that intraregional social and economic inequities would render metropolitan regions incapable of competing economically.19 In this view, inequalities should be addressed “not just because they are unfair but also because they will harm regional economic competitiveness.”20 By emphasizing the interdependence of the city and suburbs, new regionalists hoped to persuade suburbanites that regional reforms were in their own best interest.

The new regionalists’ hope for robust voluntary regional collaboration has produced predictably skewed results. Localities only participate when it promotes their own social and economic welfare.21 Thus, localities have stubbornly resisted equitable initiatives that redistribute resources, promote racial and economic integration,22 or constrain local land-use authority.23 At the same time, they have been willing to cooperate in efficiency-oriented initiatives that create economies of scale, improve the quality of municipal services, or decrease local taxes.24 As Professor Laurie Reynolds has observed, in practice “regionalism” has meant the creation of a regional special district “to address a regionwide need for an infrastructure-intensive service, such as transit, drainage, sewers, and waste disposal.”25

The widespread use of regional special districts effectively separates efficiency-oriented regionalism from equity-oriented regionalism. Regional special districts rarely have the plenary taxing and regulatory authority that enables general-purpose governments to implement policies that redistribute wealth.26 Instead, regional special districts rely upon user fees and assessments to raise revenue, which is used strictly to further the entity’s limited purpose.27 In this model, citizens receive services in proportion to their ability to pay, exacerbating existing inequalities in service provision, to the detriment of the region as a whole.28

Of course, there are instances of regional reform that redistribute resources within the region. For example, in March 2011, Memphis voters approved a merger of the city and county school systems, overcoming strong suburban opposition.29

Yet, for every successful merger, there are countless others that fail.30 According to David Rusk, a well-known proponent of regional consolidation, only 27 of the 105 referenda on city-county consolidation held since 1902 have passed.31 Indeed, one year before the Memphis school-district merger was approved, voters vetoed a proposal to merge the city of Memphis with Shelby County.32 Moreover, the redistributive effect of the Memphis school-district merger is far from clear. In the wake of the referendum, the county board of education has sued to block the merger, and five of the six Shelby County suburbs are considering forming independent school districts.33 Indeed, more than anything, the Memphis city-county school-district merger seems to be an exception that proves the rule.

For the most part, the new regionalism is a “cherry-picking” regionalism that enables affluent communities to participate in efficiency-oriented regional entities that increase the level of services received or reduce taxes,34 but to reject measures that would address problems of inequality including “schools, crime, housing, jobs, and taxes.”35 Because regional equity is far more difficult to achieve, many regionalists consider it, rather than efficiency, to be the primary goal of regionalism.36

B. Dissolution and Regionalism

Municipal dissolution removes a layer of local government and consolidates territory under the exclusive jurisdiction of a single county or county subdivision. Does this consolidation further the values of efficiency and equity that have been traditionally associated with regionalism? This Section suggests it does not: first, consolidation targets only a small section of the modern metropolitan region, and, second, consolidation is likely to serve the interests of the disincorporating municipality at the expense of the region.

1. Dissolution and the Region

According to Professor Anderson, dissolution “offers a backdoor way of achieving regionalism and defragmentation in suburban and rural areas.”37 The modern region, however, is metropolitan, encompassing major cities, inner and outer rings of suburbs, edge cities, and unincorporated rural areas.38 Both the metropolitan reformers and the new regionalists have treated the region as a whole. Both sought to reduce social and economic disparities within the region by redistributing wealth from the suburbs to the cities.

In contrast, rather than try to compel the suburbs to subsidize the inner city, a task that has proven to be nearly impossible, municipal dissolution disaggregates the region.39 Professor Anderson notes:

Dissolution abandons equitable distribution as a normative policy goal. It abandons the urban core and, in so doing, abandons the region.

And perhaps that is acceptable. Indeed, as Professor Anderson notes, it corresponds with the contemporary shrinking-cities movement in urban planning that similarly disaggregates the region and approaches the city on its own terms.41 In that sense, dissolution as regionalism recognizes that the key question in the regionalism debate is not whether redistributive goals can be achieved through dissolution, special-purpose districts, or metropolitan governments, but rather whether redistribution should be undertaken at the local level at all.42

2. Dissolution and the City

In the era following World War II, dissolution is, as Professor Anderson notes, a “voluntary, active choice by a living community” in which “residents or city councils choose to eliminate their city government.”43 Why would residents make that choice? Simply put, cities dissolve in response to decline and economic distress44:

In each case, the residents of the city, or their political representatives, concluded that the costs of maintaining an independent local government exceeded the benefits of local autonomy.46

For these shrinking cities, dissolution offers an opportunity to cut taxes and spending dramatically and to shift responsibility to the surrounding county. This opportunity is, in Professor Anderson’s words, “unusual and noncoercive.”47 It is also unilateral. Although the county and residents of its unincorporated area are profoundly affected by dissolving cities,48 county consent is rarely, if ever, required.49 Very few states even require that counties receive notice of an impending dissolution.50 Thus, for the surrounding county, municipal dissolution is involuntary. To the extent that it increases the net burden on the county government and excludes an important constituency from the decisionmaking process, it may also be undesirable.

II. Of Cities and Counties

Although counties are generally passive partners in the dissolution process, they need not be passive rulers of their unincorporated territory. Traditionally, county governments have served as an arm of the state, performing state-mandated duties at the local level.51 Today, county governments wear multiple hats: “They serve as the only general purpose local government for unincorporated areas, the second level of general purpose local government for incorporated areas, administrative subdivisions of state government, and bureaucratic units for the delivery of federal services.”52

This Part tries an additional hat on for size: counties as regional governments, particularly in the context of land-use planning.53 The diverse nature of counties across the nation makes it difficult to generalize about the way that counties behave.54 Nonetheless, I believe that there is reason to doubt that counties will, on average, assume a strong regional role. First, in states where counties lack the authority to engage in regional governance, any effort to empower counties to serve as regional governments will surely confront the same political opposition that has plagued prior proposals for the formation of regional governments. Second, in modern metropolitan areas, counties rarely, if ever, constitute the entirety of a region.

A. The Nature of County Governments

Virtually all of the land in the United States lies within the jurisdictional borders of a county.55 Unlike municipal borders, which regularly expand and contract, county borders rarely change.56 Professor Anderson quite helpfully conceptualizes municipal boundary change as a loop—a cycle that begins with urban growth and incorporation and ends with urban decline and dissolution.57 On the upswing,territory is removed from counties in bits and pieces, leading to fragmentation across metropolitan regions. On the downswing,territory is added back to the county, eliminating a layer of local government and consolidating land under the exclusive jurisdiction of the county government.58

The city-county loop reveals two key characteristics of counties: (1) the residual nature of county land and (2) the relative powerlessness of county governments.

1. The Residual Nature of County Land

Municipal boundaries are notoriously drawn along socioeconomic and racial lines to exclude low-income residents and racial minorities.59 The unincorporated area of counties consists of the territory that is left over after the valuable land has been removed from the county through incorporation and annexation.60 As a result, in metropolitan regions large and small, the residual, unincorporated territory represents a net fiscal loss for counties.61

Cities that dissolve in response to economic decline increase the burden on county governments. The county becomes directly responsible for providing a range of services to the returning territory and its residents, including law enforcement, street maintenance, and administrative functions involved in land-use planning and record management.62 Yet, as noted above, counties do not have the opportunity to participate in the dissolution process.63 In that sense, the law governing vertical dissolution (the downward swing) is parallel to the law governing municipal incorporation (the upward swing), which is also voluntary on the part of the residents of the territory to be incorporated and rarely requires county consent.64 In contrast, the law governing horizontal boundary changes—for example, a merger between two adjacent cities—nearly always requires bilateral consent.65

2. The Powerlessness of County Governments

The consent requirements highlight the second key feature of county governments: they are relatively powerless. Where a boundary change affects two incorporated political bodies, each must consent to the proposed change. In contrast, where a boundary change involves an incorporated municipality, such as a city, and the unincorporated county that surrounds it, the city alone is treated as a political unit whose boundaries may not be altered without its consent.66 In Professor Anderson’s words, the legal system “treats municipalities as voluntary democracies with rights to include and exclude territory, and counties as a primordial state with weak or absent rights to shape their unincorporated territory.”67

Although the role of counties has expanded over time to include some policymaking functions, counties rarely regulate municipal land use. In some states, counties engage in countywide land-use planning, but by and large counties lack the authority to compel localities to comply with those plans.68 Of course, states have the power to enable counties to regulate more broadly69—to transform counties into general-purpose municipal governments with taxing and regulatory authority, or to empower counties to act authoritatively on matters of regional concern, including land use, affordable housing, and so on. But any proposal to strengthen counties to act in this manner is likely to confront the same political opposition to the formation of general-purpose regional governments that has defeated the last half-century of similar proposals.70

B. The Scale of the Region

In addition to the legal and political impediments that prevent counties from serving as regional governments, counties are often but a fraction of the relevant region.71 The modern economy operates on metropolitan, even “megapolitan,” scale.72 This was not always the case. Before the twentieth century, life functioned on a smaller, city-centric scale.73 Most people lived, worked, and played in the same neighborhood; businesses “operated in compact urban areas.”74

Times have changed. Modern metropolitan regions span city, county, and state borders.75 For federal statistical purposes, a metropolitan region consists of “one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measured by commuting to work) with the urban core.”76

Over the next few decades, the vast amount of growth in the United States is predicted to be concentrated within ten interstate megaregions.77 As the scale of the region continues to expand, state and local governments, including counties, will increasingly lack the territorial jurisdiction and regulatory capacity to respond to complex metropolitan problems.78

In 2008, a report by the Brookings Institution called upon public and private actors at the federal, state, and local levels of government to work together to address metropolitan problems:

In response to that call, this Essay turns toward the federal government to create a national policy framework that facilitates regional collaboration at the appropriate scale. From an institutional perspective, the federal government is uniquely situated to encourage regional collaboration.80 First, compared with state and local governments, the federal government has a far greater capacity to pursue welfare policies that redistribute wealth.81 Specifically, the federal government has the distinctive luxury of drawing upon a “captured tax base” as well as a “facility for logrolling arrangements that tend to equalize power between representatives of affluent and poor districts.”82

In addition, when the federal government facilitates regional collaboration, it can create a platform for groups that would otherwise be marginalized by local majoritarianism. In contrast to state and local governments, the federal government has less interest in preserving the intrastate balance of power and is not bound to act within existing geopolitical boundaries.83 That is not to say that local political units should be ignored—but rather that they should be considered in the context of the metropolitan region. The federal government’s distance from state and local politics allows it to approach the region as a whole and to engage alternative political majorities within the region.84

III. A Hybrid Approach to Regionalism: Federal Funding, Regional Planning

Scholars and policymakers have long wrestled with the problem of regional governance. Informal regional collaborations are incapable of effectively addressing regional problems. Formal regional governments with the capacity to effectively address regional problems are politically unviable.85 The solution, it seems, must come from beyond the region.

This Part suggests that a hybrid federal-regional approach has the potential to transform the entrenched political and economic dynamics that make it so difficult to pursue regionalism from within the region.86 To that end, this Part evaluates two national planning frameworks that integrate top-down federal funding with bottom-up regional planning: (a) the New Deal’s Federal-County Planning Program and (b) the Department of Housing and Urban Development’s recently launched competitive Sustainable Communities Regional Planning (SCRP) Grant Program.87

A. Lessons from the Federal-County Planning Program, 1938-1942

The Federal-County Planning Program provides an early example of federally funded regional land-use planning. During the New Deal, Congress enacted a wide array of federal programs to provide aid to farmers.88 To coordinate the numerous New Deal farming programs, the federal government devised a multijurisdictional Federal-County Planning Program that was administered by the U.S. Department of Agriculture (USDA).89

The basic building block of the Federal-County Planning Program was the county planning committee. Each local community formed its own planning committee, which fed into a countywide committee.90 Local farmers served on these committees, bringing their local knowledge to the planning process.91 Planning professionals served as expert advisors.92 State and federal agents participated at the county level to coordinate their programs with the county planning committees.93 Each county committee was charged with developing a countywide map of existing land use and a second map depicting desired changes in land use.94 USDA funds were only provided for uses that were consistent with the county land-use map.95

By 1942, two-thirds of all counties in the United States had established planning committees.96 That same year, Congress eliminated funding for the program, abruptly ending the experiment in federal-county planning.97

Nonetheless, in just four years, the Federal-County Planning Program produced an astounding array of activities and programs specifically tailored to the needs and preferences of individual counties:

In addition, the county plans were not limited exclusively to land use. Several southern counties focused on access to health care services for poor farmers. These counties worked with the USDA to establish a federally subsidized county medical plan.99

The Federal-County Planning Program showed great potential for coordinating regional land-use planning. Yet, its broader application to metropolitan regionalism is limited by a number of factors. First, the program targeted agricultural policy, presumably affecting the more rural, unincorporated parts of counties. In contrast, modern metropolitan planning must contend with the entrenched city/suburb divide across a range of policy areas, including housing, transportation, economic growth, and urban sprawl. Second, as discussed above, the scale of the region has grown so that modern counties rarely, if ever, constitute the entirety of a metropolitan region.

Finally, it is difficult to predict how the program would have fared over time. Most counties did not get past the planning stage before the funding for the program was cut. In the long run, the county planning committees may have faced challenges similar to those faced by later federally funded regional entities, such as the largely ineffective metropolitan planning organizations of the 1960s and 1970s.100

Alternatively, had the Federal-County Planning Program been fully established before the start of World War II, it might have created a precedent for regional planning that could have avoided, or perhaps mitigated, some of the more deleterious effects of suburbanization.

B. The Partnership for Sustainable Communities

Though the Federal-County Planning Program was terminated before it truly got off the ground, many of its institutional-design features have been replicated by the Department of Housing and Urban Development in its competitive SCRP Grant Program. The SCRP Grant Program provides financial incentives to regional consortiums to create regional plans “that integrate housing, land use, economic and workforce development, transportation, and infrastructure investments.”101

To be eligible, a regional consortium must include the principal cities within the region and enough localities so as to represent at least fifty percent of the regional population.102 In addition, the consortium must include a non-profit organization within the region that can “engage a diverse representation of the general population” and collaborate with the other governmental units.103

The SCRP Grant Program is one initiative of the interagency Partnership for Sustainable Communities–a collaboration between the Department of Housing and Urban Development, the Department of Transportation, and the Environmental Protection Agency created in 2009 to foster regional cooperation around several of the most pressing regional issues: housing, transportation, and the environment.104

In some ways, the SCRP Grant Program represents a modern extension of the earlier Federal-County Planning Program. Both involve a devolutionary, bottom-up approach to policymaking that relies heavily on local participation and collaboration and avoids prescribing substantive standards. Both encourage a multijurisdictional, multisectoral approach to address regional problems. Both rely upon federal funds to create an incentive for regional planning.

The SCRP Grant Program also reflects the vastly expanded scope of modern metropolitan problems. In contrast to the Federal-County Planning Program, which was limited to agricultural policy, the Grant Program targets a range of policy areas, including housing, transportation, economic growth, and urban sprawl. Moreover, the SCRP Grant Program expressly recognizes the metropolitan scale of the contemporary region and requires the formation of regional consortia representing both a large percentage of the population of the metropolitan region and a diverse array of interest groups.

The SCRP Grant Program’s hybrid federal-regional policy framework approaches the region from above. It recognizes and validates existing state and local political institutions and the democratic communities they represent. At the same time, it creates an opportunity for the formation of political majorities independent of state and local geopolitical dynamics. In addition, federal funding enables the federal government to support innovative regional plans, “bolster[] capacity where there are unequal resources,”105 and replicate successful models.

It is far to soon to know how the SCRP Grant Program will perform. For the program to succeed, each regional consortium must have actual legal authority to implement its plan. Thus, the program’s success will depend upon its capacity to provide incentives for the establishment of a meaningful enforcement mechanism within each regional consortium.106 Nonetheless, its institutional design, which combines federal funding with regional planning, shows tremendous potential for harnessing the strength of the national government and the metropolitan region.

Conclusion

Left to their own devices, local entities approach the problems of the region from a parochial perspective.107 Regardless whether the decision is to dissolve into the surrounding county or to participate in regional special districts, localities will only act if they believe it is in their own best interest to do so.

A hybrid federal-regional collaboration that integrates top-down federal funding with bottom-up regional planning has the potential to break through the entrenched state and local political and economic dynamic, engage a more diverse set of interest groups, redistribute resources to produce greater equity throughout the region, and encourage meaningful regional collaboration.

Ashira Pelman Ostrow is an associate professor of law at the Maurice A. Deane School of Law at Hofstra University. Many thanks to Michelle Wilde Anderson for inspiring this essay and for providing comments on an earlier draft, and to Peter Chen, Daniel Schuker, and the editors and staff of The Yale Law Journal for their excellent editorial suggestions.

Preferred citation: Ashira Pelman Ostrow, Emerging Counties? Prospects for Regional Governance in the Wake of Municipal Dissolution, 122 Yale L.J. Online 187 (2013), http://yalelawjournal.org/forum/emerging-counties-prospects-for-regional-governance-in-the-wake-of-municipal-dissolution.