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From Vacancy to Decommodification: Co-Cities and the Enabling State


Sheila Foster (@SheilaRFoster) is the Scott K. Ginsburg Professor of Urban Law and Policy, a Professor of Public Policy, and Associate Dean for Diversity, Equity, and Inclusion at Georgetown University.

This post continues a symposium on decommodifying urban property. Read the entire series here.


At the height of the Covid-19 pandemic, housing-insecure mothers across the country led a movement to occupy vacant or underutilized properties. The most visible of these “occupations” was Moms4Housing, a group of Black mothers in Oakland, California who occupied an empty house. They argued that, with so many empty homes, no one should have to be homeless. They referred to themselves as “reclaimers” of land in their communities and argued that housing is a human right.

Moms4Housing was the most media-covered occupation, but another type of movement was taking place in cities like Philadelphia and Los Angeles. Moms4Housing occupied a house that was privately owned by a real estate company who had evicted tenants. In these other cities, however, groups occupied homes that were under the control of and owned by the state. In Los Angeles, a group of mothers moved into vacant homes owned by Caltrans, the state transportation authority. In Philadelphia, single mothers with young children began to occupy boarded up, vacant homes in North Philadelphia owned by the Philadelphia Housing Authority (PHA), the largest landlord in Pennsylvania.

The mothers in Los Angeles and Philadelphia were pushing for these properties to be returned to communities and taken off of the speculative market, to be held for instance by a community land trust. They were calling into question the state’s posture of allowing idle vacant and available land and structures while so many residents lacked basic goods and necessities, including housing. Could, or should, the state behave as if it is indistinguishable from a private property owner without any obligation to the community in which that property is located? Or does the state have a greater responsibility to ensure that vacant properties be returned to productive use by the communities that need them most?

These occupations highlight that there are vast amounts of vacant and underutilized land and structures in the U.S. that are in the domain of a state (usually the local government). Elsewhere, I have described land and structures that were once privately owned but are now in the domain of the public authority—usually through abandonment, tax foreclosure, or some other form of dispossession—as property “in transition.” It is moving away from a past use and towards a future use that is as of yet unknown and unplanned. The future use is, of course, contested, so conflicts often emerge regarding present vs. future uses and different possibilities for future use. The occupations demonstrate the tension that often exists between members of the surrounding community, who want to be able to utilize these resources for housing, green amenities, and healthy food production (e.g., urban farms or gardens)—and the local government, which may be hoping to sell abandoned property to private developers or investors.

Vacant land and structures are public property in the sense that the property belongs to, or has fallen into the hands of, the public authority, the state. Yet, this property is distinct from what most of us understand to be the public estate that members of the public share—streets, parks, sidewalks, squares, etc.—albeit subject to state-imposed limits. 

To the extent that public ownership of land occupies any central place in the law, it is in regard to U.S. government-owned public lands and other natural resources. Under the public trust doctrine, title to public property is vested in the state, but there are limits on alienation of that land. Unlike a private owner, public land subject to the public trust is subject to strict limits on using, transferring, or selling the land for purposes other than those that are open and accessible to the public.

In the 19th Century, state courts and legislatures, as well as the U.S. Supreme Court, routinely applied the public trust doctrine to different kinds of public property—streets, wharves, cemeteries, hospitals, court-houses, and other public buildings. Some states (New York, Connecticut, and Illinois for example) continue to invoke the doctrine in order to prevent local officials from appropriating or selling public parks or city streets for non-public uses. Other courts make a distinction between land and structures held by the state in a governmental capacity as opposed to those held in a proprietary or business capacity, only the former of which is protected by the public trust doctrine.

State-owned homes, as in the case of those occupied by mothers in Los Angeles and Philadelphia are likely to be considered proprietary, as would private property that is abandoned or in tax default and is now under the control of the state. The question remains, however: does the public nature of the owner, or the public character of this property, impose different and distinct rights and obligations on the state? Under what circumstances can or should the state (often the local government) facilitate the transfer of available land and structures to underserved or marginalized communities? What would this state facilitation look like?

Some cities are enabling the creation of institutions like community land trusts, mostly in low-income communities of color in danger of gentrification and displacement, and transferring land and structures within the public domain to those entities. As an example, in 2017 New York City announced a $1.65 million grant to support the development of CLTs; and an additional $750 million was allocated in 2019 to foster a network of CLTs across the city to develop permanently affordable housing and curb displacement in low-income NYC neighborhoods. More recently, the city appointed a director of CLT initiatives to the city’s housing agency and, as a solution to helping tenants at risk of eviction, is considering transferring land on which existing apartment buildings sit to a CLT controlled by residents. The city also adopted legislation that allows the city’s Housing and Preservation and Development agency (HPD) to enter into agreements with community land trusts where the CLT is a recipient of city funding, property or a tax exemption.

It’s not just housing. Cities are also transferring public property, including vacant and underutilized assets, to provide historically disinvested and marginalized communities with cultural spaces, local enterprises, and other essential goods and services. The City of Seattle announced its intention to transfer a decommissioned fire station and award a $1 million grant to the Africatown Land Trust located in a historically Black neighborhood, the Central District. The transfer of this station is only one of several parcels that the historic African American community has been pressing the City to transfer to it. Community activists, including the head of the community land trust, want control over vacant lots, a nursing home, and other properties.

In a forthcoming book, Co-Cities, Christian Iaione and I identify the emergence of state-enabling efforts like these to de-commodify property—specifically underutilized land and structures in the public domain—by creating a stewardship relationship between these resources and marginal and underserved urban populations. The local policies and practices we identify, from cities around the world, support the co-production and co-governance of affordable housing, land for growing food, green or recreational space, shared entrepreneur and workspaces, and new forms of broadband connectivity and energy provision. They are often catalyzed and fostered by community-led initiatives in which residents and resource users partner with the state and other actors to actively take part in the regeneration of their neighborhoods, create shared goods to sustain themselves and flourish, and develop and nurture the communities to which they belong.

Beyond the policies and practices that we survey from different cities around the world, we advocate for policies and programs that provide a set of enabling conditions that structure complex forms of cooperation between communities and the state in the form of multistakeholder co-governance regimes. More specifically, we propose and embrace public-private-science-social-community partnerships (or simply 5P partnerships) which involve legal and economic arrangements in which (1) communities are the main partners as the only true holders of stewardship of some local or urban resources; (2) civil society organizations and science or knowledge institutions support and coalesce with local communities to negotiate on an equal footing with public and private actors; and (3) the social, science, and community actors are shareholders and not just stakeholders, which implies that the public and private actors share the value, resources, and wealth produced by these partnerships with them. The enabling state provides resources and platforms for learning and capacity-building to support the active involvement and participation of residents or communities in the management and governance of urban resources to support the livelihood and well-being of their communities.  

In our book, we identify a number of normative reasons for the importance of an enabling state. The core one, however, is that the enabling state principle embraces a “resurgence” of the state after a decline, beginning from the late 1970s. The rise of neoliberalism, marked by the retreat of the state and the prevalence of the private sector in providing for basic goods and services, has been accompanied by a rise in stark economic inequality. The enabling-state principle reflects the view that the state can and should play a catalytic role in directing change by helping to form new institutional structures, transform communities, and create or shape new economies that are more just and non-extractive. Consistent with the capabilities approach to questions of justice, the state—the central or higher-level government—plays a crucial role in enabling and facilitating collective action as well as providing some of the necessary resources to generate and sustain resources for human flourishing.