Winners and Losers in Takings for Pure Public Uses: An Empirical Examination Ronit Levine-Schnur* ABSTRACT Prior literature on eminent domain assumes that pure public-use takings would be fair and normatively unproblematic while almost no empirical work has been conducted to test this assumption. I studied takings in the divided city of Jerusalem, Israel, where Palestinian residents are a large but weak minority group, which does not take part in the political game with voter turnout of 1% despite being 31% of the eligible voters. 25 years of hand-coded data on takings reveals that Palestinians, who were under-represented in the land use planning commission, were forced to provide much more land to citywide purposes—i.e., not to their local-neighborhoods needs—than Jewish owners. While Palestinians contributed 38% of the land taken for all public uses over the years, only 10% of all land taken was designated for their local-neighborhoods needs. However, for Jewish owners the opposite ratio exists: they contributed 4% of the land taken while benefiting from 33% of it for their own local-neighborhoods needs. I find that non-formalized land claimed by the politically-weak minority is much more susceptible to be taken for citywide roads than Jewish land. The empirical result cautions us not to assume fairness in pure public-use takings and points at the need to rethink how to take distributional, community-sensitive, considerations into account even in such cases. I. INTRODUCTION Are takings of private property for pure public uses inducing equality and enhancing overall social welfare or are they burdening the politically weak for the benefit of the more powerful segments of society? The focus of this paper is on the distribution of burdens and benefits across * Radzyner Law School, Interdisciplinary Center (IDC) Herzliya, Israel. [email protected]. Funding provided by Gazit-Globe Real Estate Institute at IDC Herzliya (grant GGA/2016), and the Centre for Ethics, University of Toronto. The author acknowledges the City of Jerusalem’s assistance in allowing access to the City’s takings files. Thank you to Yun-chien Chang, Dawn Chutkow, Nicole Garnett, Yifat Holzman-Gazit, Larissa Katz, Loren King, Peggy Kohen, Tammar Kricheli-Katz, Amnon Lehavi, Hagai Levine, Daphna Lewinsohn-Zamir, Gideon Parchomovsky, Ariel Porat, Sarah Schindler, Adam Shinar, and audiences at 2016 Conference on Empirical Legal Studies; the Furman Center, NYU, Seminar Talk; 2016 WINIR Symposium on Property Rights; 2016 CRÉ-Toronto Exchange; Radzyner Law School, Faculty Seminar; and to Chaim Schwartz, Ron Horne, Itay Cohen for GIS, statistical, and research assistance, respectively. 1 political and ethno-religious lines in the context of takings for traditional, pure public purposes such as roads, parks, and public buildings. This category of cases is usually regarded the core example of proper and fair use of the takings power, and, by and large, subject to minimal judicial review, despite evidence that African-Americans neighborhoods were the frequent targets during the construction of interstate highways in the US. The data I present confirms the trend and demonstrate that not all pure public-use takings are equal. It indicates that there is a need to identify and evaluate the distributional outcomes of this practice, across relevant sociopolitical lines. The government’s power to take private property for public uses can be found in all legal systems (Versteeg 2015). It enables governments to overcome strategic bargaining problems such as holdout and land assembly and acquire land needed to facilitate public goods (Kelly 2011). It is considered an essential tool to enhance social welfare, promote progress, and provide non-rival public goods. However, the existence of such powers gives rise to concerns about their potential abuse by government officials. For this reason, many constitutions impose the following constraints on governments when they seek to take private property (Lindsay, Deininger, and Hilhorst 2016). First, that private property shall not be taken without just compensation (fair market value) to the aggrieved property owner; second, that taking is justified only when it is for public use or public purposes. The scope of what is considered as public purposes, and particularly whether economic development should be considered as such, has attracted great scholarly and public attention in recent years, following Kelo v. City of New London (545 U.S. 469 [2005]). The controversy over the expansion of “public use” to include economic development uses has pushed aside to some extent the core case of takings for pure public purposes. While scholars have long suspected that 2 the politically weak are systematically hit harder by eminent domain power (Somin 2015, 228; Garnett 2006; Boudreaux 2005), there are very few empirical works that demonstrate this phenomenon. Almost no study sought to test the question whether takings for pure public purposes induce equality or deepen inequality, across political and ethno-religious lines. This might be because of the difficulty to construct a benchmark of what an unbiased allocation of burdens and benefits would be (Kasara 2007); and because of the risk that identifying pattern of favoritism with respect to one outcome in question may be counterbalanced by a quite different, even opposite, pattern of favoritism with respect to other outcomes that are not being measured (Kramon and Posner 2013). This Article seeks to start filling the void by providing an empirical observation of how political and ethno-religious differences affect the distribution of burdens and benefits in the context of takings for pure public purposes. I take advantage of a unique institutional situation in Jerusalem, Israel. Palestinians residing in Jerusalem are a large ethno-religious group, which represents 37% of the city’s population. Their political power at the local level is especially low. They are 31% of the eligible voters for the local government, but their voter turnout is less than 1%.1 They are left therefore totally unrepresented at the local level, in particular in the land use planning commission were expropriation powers are held. Geographically, the city exhibits a very high degree of segregation: Jews and Palestinians live in separated neighborhoods.2 36% of the city’s land is in Palestinian areas, and the rest is in Jewish ones. Most public goods such as local roads, schools, playgrounds, and open public spaces, are available at the neighborhood-level. Other public goods, especially citywide roads, serve both communities indistinguishably. Jewish and 1 The reason for that is political: their vote may seem to grant approval to the Israeli annexation of East Jerusalem in 1967 which they (and the international community) perceive as illegal. 2 The segregation is the result of historical developments (that will be reviewed in Section III), individual preferences and related reasons. Integration is not prohibited. 3 Palestinian neighborhoods exhibit many differences—in terms, for instance, of land values, security of title, and property tax values. Jerusalem therefore provides an exceptional example to test the distribution of takings’ burdens and benefits across political and ethno-religious lines. I collected and coded data from the city’s archives and from other public records on all exercises of eminent domain for local public uses by the City of Jerusalem between 1990 and 2014 (data was completed for 97% of the general sample). In these years, the city executed its takings powers over 369 development projects, which include 3,448 discrete takings observations. I used land records to verify owners’ identity, analyzed comprehensive plans and zoning maps to identify projects’ beneficiaries, conducted GIS analysis of the land cover, land titling, and demographic patterns, and relied on supplementary statistical and geographical resources. Takings in Jerusalem are split between two modes: takings from private owners— Palestinians, Jews, and Churches, i.e., private property of different Christian institutions—and takings from the state or other governmental authorities that is then redistributed back to different public purposes. In general, the ownership composition in the taking sample follows the ownership distribution in the city at large. However, expropriated land is designated for Palestinian neighborhoods purposes (and not to citywide or Jewish neighborhood purposes) in a rate which falls both under this population’s size (relative to the Jewish one) and—to a much greater extent—under its relative share of contribution to the overall pool of expropriated land. Palestinians contributed 38% of the land taken over the years, while their neighborhoods benefited at the local-neighborhood level from only 10% of it. For Jewish owners the opposite ratio exists: 4% and 33%, respectively. The majority of the land expropriated from Palestinians was used for citywide purposes, and the rest for Palestinian neighborhood ones. Land taken from 4 Jews and Churches, however, is used almost only for Jewish neighborhoods’ purposes. State land is used almost only for Jewish and citywide purposes. Thus despite the fact that over the course of 25 years, Palestinians contributed 36% of the land used for citywide goods, they benefited at the neighborhood level from only 2% of the land taken from the state to be redistributed in the planning process. For Jews, again, the opposite ratio exists: 3% and 48%, respectively. Furthermore, most of the land designated for public buildings (schools, kindergartens, daycares, etc.) and public spaces (parks) went to Jewish neighborhoods, whilst the land taken for Palestinian neighborhoods was used mostly for roads. In fact, the city took land from Palestinian owners for citywide services but failed to supply Palestinian neighborhoods enough and as good open public spaces and public buildings. Compared to Jewish land, where the property rights are not formalized (titled)3 but mostly claimed by Palestinians, the land is subject to higher propensity of being taken for citywide use and not local neighborhood purposes, an effect which is substantially higher when the sole public use is roads, in a multiple logistic regression model adjusted for covariates. For titled Palestinian land compared to Jewish land, the differences are lower, and the effect of the specific publicuse—road not road—is not large. In other words, non-formalized land claimed by the politicallyweak minority is more susceptible to be taken for citywide roads than any other alternative. These findings appear to call into question the reliance on the public use and just compensation requirements to assure fairness, even in cases of pure public-use takings. They emphasize the effect that political and ethno-religious differences may have on taking decisions; and point at the need to find solutions to overcome the potential for an unequal distribution of 3 In this study “formalized” or “titled” land refers to land that is listed in an official land record, and hence its owners are publicly known (cf, Merrill and Smith 2016, 857–81). 5 burdens and benefits across different communities, where major differences between different segments of society exist. The remainder of the paper unfolds in four parts. Section II opens with a short review of the existing literature on the fairness and efficiency of takings and the distribution of burdens and benefits in this context. In Section III, I explain and map the relevant factors about Jerusalem, its local government, and land status. Section IV introduces the research design and the specifics of the study settings and detail the findings. In Section V, I discuss possible interpretations of the findings and point out the limitations of the study. A short conclusion ensues. II. DISTRIBUTION OF BURDENS AND BENEFITS IN THE TAKINGS CONTEXT The power to take private property for public needs is considered a core tool for urban development, on the one hand, and an essential constitutional concern, on the other hand. The concern is due to the fact that taking is a legalized form of intervening in private property rights. Such an intervention must be strictly limited in order to prevent abuse of power. In theory, the just compensation and public use requirements, which are the most common constraints on takings, are supposed to ensure both efficiency and fairness in eminent domain exercises, in the following ways. When the government is required to pay just compensation for private property takings, the private loss is incorporated into the project’s budget. This requirement is necessary, therefore, to remedy a “fiscal illusion” problem that would otherwise afflict government officials (Blume, Rubinfeld, and Shapiro 1984). The just compensation requirement has an additional role: it promotes fairness. When the burden to supply the public’s needs is distributed among all members of society, no one is “singled out” to carry the burden alone (Michelman 1967). Fairness concerns are also at the basis of the public use requirement: it 6 will not be fair if the government would use its power to take property from one individual just for the sole purpose of transferring it to another.4 A great deal of scholarship has been devoted to examining whether the system works, i.e., whether the just compensation and public use requirements indeed provide fair and efficient limitations on the taking power. Some have argued against the fiscal illusion assumption, suggesting that decision-makers do not respond to budgetary considerations; but rather to political ones. Hence, the price mechanism provided by the compensation requirement does not reflect the entire set of relevant costs (and considerations) associated with taking decisions (Levinson 2000). This claim has been supported by recent empirical studies which show that government officials are less responsive to budgetary maximization considerations, especially compensation costs, than was anticipated by the fiscal illusion assertion (Levine-Schnur and Parchomovsky 2016; Chang 2009). Other scholars doubt that fair market value compensation are sufficiently “just,” arguing that subjective value and other factors and considerations must be taken into account in order to ensure fairness (e.g., Lee 2013; Fennell 2013; Wyman 2007; Bell and Parchomovsky 2006). In addition, it has been stressed that monetary compensation are not equivalent to the loss of community associated with takings (Parchomovsky and Siegelman 2004). Moreover, the public use requirement was considered practically dead long before the U.S. Supreme Court reapproved takings for economic development projects in the 2005 Kelo case (Epstein 1985). In Kelo, the U.S. Supreme Court ruled that it was permissible for the government to condemn private property and transfer it to other private parties in order to promote an 4 It has been suggested that under certain circumstances the public use requirement could also induce efficiency (Levinson 2000, 376 n. 90). 7 economic development plan. Kelo followed previous decisions, most notably Berman v. Parker (1954), in which the Court embraced a broad interpretation of “public use” to include “public purpose” and thus permitted blight condemnations.5 Nevertheless, Kelo caused a storm. The strong public backlash to the 5-4 Kelo decision was fueled by the dissent’s focus on who wins and who loses from such takings (Hoehn and Adanu 2014; Nadler and Diamond 2008). The gist of the distribution problem with takings for economic development was captured by Justice O’Connor, who stated that the fallout from the Court’s decision “will not be random.” Thus, “the beneficiaries are likely to be those citizens with disproportionate influence and power in the political process… As for the victims, the government now has license to transfer property from those with fewer resources to those with more” (545 U.S. 469 [2005]). Recent studies support the Dissent’s assertion that the distribution of burdens and benefits in takings for economic development is unequal: poor people, politically weak, African-Americans and other minorities bear the burden but not the benefit of economic development. In fact, in some cases, this is the outcome of an intentional effort to clear away “slums” or “underdeveloped” properties held by members of these communities (Somin 2015; Becher 2014; Carpenter and Ross 2009; Frieden and Sagalyn 1991; Gans 1982). However, to date, no study systematically questioned the distributional aspect of takings for pure public purposes, not economic-development ones. In an important contribution, Daniel Chen and Susan Yeh (2012) examined whether takings increase inequality, which will be found “if those targeted by eminent domain are systematically different from those benefiting from public use projects and the benefits of public projects do not sufficiently compensate.” They report that court decisions that 5 Blight condemnations are takings intended to “alleviate dangerous conditions and social pathologies that plague urban neighborhoods” (Somin 2015, 84). 8 expanded the government’s power of expropriation spur economic growth and property prices by 0.2% points, but reduce minority home ownership and employment by 0.5% and 0.3% points, respectively. Their study does not distinguish, however, between pro-takings decisions regarding takings for pure public purposes and decisions regarding economic development, but seem to mostly document the effects of cases of the latter kind. Furthermore, Chen and Yeh’s methodology is limited for our purposes as they did not study the direct distribution of the taking burden in their case studies nor the different levels of enjoyment from the public goods facilitated by the takings. Takings for pure public purposes are supposed to be the paradigmatic case where takings are justified, and, when compensation is offered, fair. Previous literature identified a distributional problem with designating land (and expropriating it) for public but noxious uses.6 However, takings may have distributional effects even when they are for non-noxious uses. Such might be the case where a private property is taken for a highway which does not serve the local neighborhood directly but nevertheless has an adverse effect on it as it limits future development, minimizes open spaces, etc. In such a case, beyond the individual harm, the effected community bears the burden to supply the needs of the general public without any compensation to its community loss. We can term such cases Community Devaluing Land Uses [CDLU]. In cases where the effected community can be identified by the political, ethno-religious, or socioeconomic status of the vast majority of its residents, then a distributional aspect might come into play, if the burden of supplying CDLU is not distributed fairly among different communities. Another example for a distributional concern with takings is when land taken from one 6 In NIMBY or LULU (locally unwanted/undesired land uses) cases, it is clear that those with the power impose on those who lack it noxious land uses, such as homeless shelters, drug/alcohol treatment centers, waste disposal facilities, etc. (Been 1992). 9 community is used for wealth increasing public goods such as parks, schools, and daycares, while at another community—which is clearly different in its residents’ political, ethno-religious, or socio-economic status—the land taken is used for CDLUs such as citywide roads. In other words, for takings for pure public uses to be distributed fairly, individual compensation might not suffice. There is a need to establish that what may seem to be a benefit to the public isn’t in fact a benefit to some communities but burden to others, who are part of politically or otherwise weak segments of the society. To test the distributional effect of takings, and to observe the effect of sociopolitical differences on the distribution of burdens and benefits, it is necessary to identify an environment in which there are clear socio-political differences, a way to identify those communities who contribute the land and those who benefit from its taking, and the specific public uses for which the land is taken. Let us now turn to present a case study at point: Jerusalem. III. JERUSALEM: TWO SUB-CITIES UNDER ONE UNREPRESENTATIVE LOCAL GOVERNMENT In 1967, following the Six-Day War, the Israeli government decided to annex to Israel an area of about 17,273 acres which before then was under Jordanian rule (Jerusalem Statistical Book 2015; Israeli Central Bureau of Statistics 2014; Hoshen, Hason, and Kimhi 2004; Hazan 1995; GIS analysis).7 This area was immediately added to the Jerusalem Municipality’s jurisdiction, and is usually referred to as “East Jerusalem” (Dumper 2014). It includes the Old City and the Temple Mount/al-Haram al-Sharif. Only 1% of the annexed area was part of the Jordanian Jerusalem, al-Quds, while the majority of it included villages and rural lands. 7 Before 1967 the city was composed of about 9,218.3 acres. 10 Following the annexation, Jerusalem was populated by 74% Jews and 26% Palestinians, compared to 99% to 1% ratio pre-annexation, a gap which has minimized over time to a rate of 61%-37% in 2014 (Jerusalem Statistical Book 2015). Additional expansion to the West occurred in 2008, which added 4,349 acres of open area to the city. Many consider the annexation as illegal under international law. Relatedly, ever since 1967, Palestinians of East Jerusalem refused to participate in the local elections despite their power to do so.8 Over the years, their voter turnout has been around 1%, and there was never a Palestinian member at the city council. Notwithstanding this, the Jerusalem Municipality functions as the only local government on the ground. The Palestinians’ practice is usually explained on ideological grounds: they refuse to participate in the democratic game for what they perceive as an illegitimate government. However, Palestinians do exercise other rights they have, such as to apply for property tax waivers or for childcare benefits. In addition, they often file petitions to Israeli courts against the local and central governments. Following the 1967 annexation, the Israeli central government expropriated large chunks of land in East Jerusalem for the purpose of establishing new Jewish neighborhoods (Cohen 2011). In total, mostly in the 1970s, about 6,253 acres were expropriated (Sandberg 2010; Jerusalem Municipality: City Planning Division 1996; GIS analysis). The national government’s expropriations amount to 36% of the annexed territory, leaving to Palestinian neighborhoods 64% of the annexed part⎯which are 36% of the entire city. Most of the expropriated land was not inhabited. Some of it was cultivated by Palestinians, some was vacant rural land which by law is considered state property. In Israel, expropriation procedures are often taken by the central 8 Voting for local government in Israel is independent of citizenship status. At the nation level, Jerusalemite Palestinians’ voter eligibility is only 4%, as most of them are not citizens (Jerusalem Statistical Book 2013). 11 or local government even against properties which are already public, so the mere act of expropriation is not enough to determine that the taken land is privately owned. This occurs for reasons of “releasing” land from one agency to another, clearing ownership rights in cases of competing claims, uncertainty about properties’ boundaries, and where the state’s ownership is jointly with private individuals. In the context of the state’s 1970s expropriations an additional reason was the political urgency post-1967 to develop the annexed areas as much and as fast as possible (Sandberg 2004). It is difficult to determine whether the land expropriated by the state in the 1970s was private or public upon its expropriation. First, many Palestinian claimants did not submit a claim for compensation for the properties taken from them, perceiving such claims as legitimizing the expropriations.9 Second, most of East Jerusalem was not registered in the land registry prior to 1967. No data is publicly available about the existence of land records for the land expropriated in the 1970s. Of the rest of East Jerusalem, the status of land registration was left untouched, ever since 1967 and to date, but for minor changes. 73% of the land did not go through settlement of title procedures before 1967; 17% was settled, and another 10% was undergoing settlement procedures at the time of annexation. These processes were not continued after 1967.10 Since 1967 Israel ceased to proceed with settlement of title procedures in East Jerusalem, as a matter of policy related to the identity of the land holders (Levine-Schnur 2011). This area was singled out whereas settlement of title was completed everywhere else (over 99% of the lands in 9 In Israel, the government does not have to negotiate the purchase or asses the value of the property prior to its taking. 10 Settlement of title is a public procedure undertaken to determine the owners of lands in a definitive way. Land can enter the land registry by other procedures as well—such as first registration or renewing old registration—but they are rarely used. 12 Israel are settled) (Land Registry and Settlement of Title Department, Annual Reports, 20042014). While 84% of West Jerusalem land, including the 1970s expropriations, have been settled or otherwise registered in the land registry, only 27% of East Jerusalem (not including the 1970s expropriations), are currently registered or under (in fact, ceased) title proceedings. [Map 1] In 2013, Jerusalem was composed of 61% Jewish residents and 37% Palestinians. The ethnicreligion residential separation between East and West Jerusalem has been kept to date, with the exception of the areas expropriated in East Jerusalem by the central government to establish Jewish neighborhoods. [Map 1] Less than 1% of the population of West Jerusalem is Palestinian. Of the Jewish population, 63% reside in West Jerusalem, while the rest inhabit the new Jewish neighborhoods of East Jerusalem which were erected on the expropriated land (Jerusalem Statistical Book 2015). It is more accurate therefore to observe the differences between two subcities in Jerusalem: Jewish Jerusalem (West Jerusalem, plus Jewish neighborhoods in East Jerusalem) and Palestinian Jerusalem (East Jerusalem, not including the Jewish neighborhoods). 13 Map 1: Jerusalem municipal border changes, registration status, state expropriations, and population 14 As evidenced from the highly segregational composition of Jerusalem, each of these subcities is self-sufficient, i.e., one does not have to travel from Jewish Jerusalem to Palestinian Jerusalem in order to secure most of the necessary services. This is especially true for Jewish Jerusalem (Baumann 2015; Raanan and Shoval 2014). There are, however, many citywide roads (including the light rail) that cut across the city, connecting different parts of it. In addition, regional and intrastate roads run within the city’s boundaries.11 Other parts of the city that have citywide functions include the Old City, two industrial areas, hospitals, governmental offices, the central business district, shopping malls and the Zoo (Shtern 2016). When observing the functionality of public goods, we can distinguish between those goods, which benefit Palestinian or Jewish neighborhoods, and goods, which have citywide functions. The two sub-cities are distinctive in the religion and ethnic identity of their inhabitants, which is strongly associated with differences in voter turnout and the existence of land registration. Many other differences between the two sub-cities are probably also related to ethno-religious differences or to the consequential differences in political power and security of title [Table A1]. For example, the State Comptroller recently reported that in 2010-2014, only 15% of the building permits requests were submitted for properties in Palestinian Jerusalem (State Comptroller 2016, 1153). With respect to the provision of local public goods such as primary schools and playgrounds, the Jerusalem Municipality admits a concerning gap in supply between Jews and Palestinians residents (e.g., Abu Labada v. Minister of Education, 2011). In a recent litigation, the Municipality argued that its failure to establish sufficient playgrounds in Palestinian neighborhoods as required by planning standards is partly because of poor land 11 E.g., from Jerusalem to Tel Aviv at the West, to Hebron at the South, to Ramallah at the North, and to Jericho and the Dead Sea at the East. The roads to the North, South and East sides also lead to the Jewish settlement in the West Bank. 15 registration and the necessity to expropriate land. It argued that expropriation is, however, problematic due to the difficulty with determining the owners’ identity and predicting the compensation costs where land records are lacking (TZAHOR v. Jerusalem Municipality, 2015). The current research provides evidence to the effect of the city’s political and ethno-religious divide on the distribution of burdens and benefits, and proves that the Municipality’s official declaration of its practice is not necessarily in line with its practice. Taking powers are excessively used against private Palestinian properties, although less so when they are the direct beneficiaries of the planned public uses. IV. METHODOLOGY AND EMPIRICAL FINDINGS A. Methodology In Israel, like in many other jurisdictions, taking powers are reserved for both local and central levels of governments. This study analyzes only the local level takings.12 In order to take private property for local uses, the local government must first enact a comprehensive plan or a zoning map (or amend an existing one) and designate land for public uses. In large cities like Jerusalem the local planning and building commission (i.e., the zoning commission) is comprised of all the members of the city council, headed by the mayor, so there is an overlap between the planning body and the elected local government. Under the law, the zoning commission is responsible both for approving the designation of certain lots for public uses and for their ensuing taking. In practice, taking decisions are delivered by a sub-committee of the 12 The 1970s expropriations are therefore not included in this study not only because they fall out of the study’s time frame and were purposely directed to initiate Jewish neighborhoods on the annexed territory, but also because they were conducted by the central government. 16 zoning commission, which is headed by the mayor or his deputy. Municipal elections for mayor and the city council, and, in fact, for a seat at the zoning commission, are held every five years.13 At any time after a property was designated for public use, the zoning commission may publish a public notice declaring its intent to take the designated property, and demand immediate transfer of possession.14 The data collected includes all taking notices for local purposes which were signed and published in public records between January 1, 1990 and December 31, 2014 by the Jerusalem Planning and Building Commission.15 I was able to compile sufficient data for 97% taking observations out of the entire sampled population. In total, there were 3,448 takings that refer to 369 development projects. For each observation we have the taking notice, which includes the taking date, reference to the zoning amendment, and the specific public purpose for which the land is taken (i.e., roads, open public spaces, or public buildings, or a combination of these purposes).16 In many cases the public notice contains information about the location of the taken lots as identified by block and parcel numbers. In other cases, where the land is not listed in the land records, only block numbers are available or 13 In Jerusalem, in 1993 Mayor Olmert was elected to replace Mayor Kollek after 38 years in office. In 2003 Mayor Lupolianski was elected. He was then replaced in 2008 by Mayor Barkat, the presiding Mayor. 14 When land is zoned down for public uses it is regarded as regulatory takings and the owner is entitled to immediate compensation for the loss of value. In this study, the median time lag between the designation for a public use in an amended zoning map and the taking decision was 4 years (Mean: 7, SD: 8.6). 15 The notices were collected from the official records in two independent ways: an online research of a legal database, which contains all the official records; and a manual search through all the (hard copy) official records. 16 I grouped under “road” all purposes that are similar to “road,” such as: walking paths, parking lots, gardening strips along roads. Where more than one purpose appeared per project, each purpose was associated with equal land share unless a precise allocation among the purposes was available. In 905 (26%) cases, there was no information about the taking size per discrete parcel, but only at the project level. In these cases, I imputed for each lot the relative size of taking. 17 just general description of the taking area bounded by longitude and latitude lines. In many of the cases in the last decade, the notices contain information about the size of the land taken. For 312 (85%) of the development projects included in this study, the City’s taking file was available to me.17 In most of the cases, the files contain photogrammetric maps of the taking area, as well as measurement charts of the taking size per lot taken (or per area defined by its location) prepared by a land surveyor. In many cases, the files contain information about the landowners. B. Levels of Takings Activity The number of projects varies from year to year without any visible trend. The year of 2014 witnessed a peak in the number of projects with 29 (8%) development projects. The lowest number of projects was three in 2003. The annual average was 15 projects. There is a weak insignificance correlation between the the number of undertaken projects and the amount of land taken each year (r=0.38, p<0.06). [Figure 1]. In total, at the study time, 1,935 acres were taken, which amounts to 6.28% of the City’s size. Compare to 926 acres taken at the same period in Tel Aviv, Israel, to the extent of a similar share of 7.2% of the City’s size. On average, taking per development project in Jerusalem is 5.25 acres, while in Tel Aviv it was 2.06 acres (LevineSchnur and Parchomovsky 2016), which can be explained by the existence of underdeveloped land reserves in Jerusalem. 17 2,348 documents were scanned from the City’s archive, organized in 422 folders. Not in all of the files the taking was completed. Some projects were spread over several folders. Information about takings not included in the files was gathered from a survey of all takings notices published. 18 Figure 1: Number of takings projects and acres taken annually 1990-2014 C. Beneficiaries The beneficiaries of a taking project are those communities (Jewish or Palestinian in our case) who are expected to have better living conditions because of the development. For instance, a new public school creates a benefit to its near surroundings. Not all public uses create positive externalities. Such would be the case, for instance, landfill sites. This type of projects are not included in this study, which is constituted only of takings for roads, open public spaces, and public buildings such as schools, uses that generally inflict positive values (Bertram and Rehdanz 2015; Mikelbank 2005). In a segregated city such as Jerusalem, each public good benefits either a Jewish or Palestinian neighborhoods, or citywide users. For the latter case I counted all services that were planned to be consumed by both Palestinians and Jewish residents (e.g., intra-neighborhoods roads); and services that were meant to benefit unidentified residents, 19 commuters, or tourists (e.g., main roads, governmental offices, major parks, etc.).18 For each of the projects I analyzed its location, the planning purpose and functionality as described in the zoning file and other materials (including city maps and planning documents). In addition, I coded the names of places mentioned on the city file’s cover, as well as other information from the taking process (protocols, decisions, etc.). Figure 2 outlays the distribution of land taken by the type of beneficiaries: 1,088 acres (56%) were distributed for citywide purposes, 646 acres (33%) for Jewish neighborhoods, and the rest 200 acres (10%) to Palestinians. Figure 2: Land taken by beneficiaries When inspecting the distribution of projects (and not the land taken), it is observable that the Jewish population benefited from 52% of the development projects, while the rest was distributed between citywide purposes (25%) and Palestinian ones (22%). Table 1 describes the correlation between project size and beneficiaries type and can explain why despite the similar shares of 18 Note that between like-communities a new public school in neighborhood A might prove beneficial even to the residents of neighborhood B, if students’ mobility between the neighborhoods is possible. However, in a segregated society such as in this case study, an improvement in one type of neighborhood (e.g., Jewish one), would most likely have no positive externality on a different type of neighborhood (e.g., Palestinian one). It should also be noted that local-level roads, at a neighborhood level, might be different from citywide roads, in terms of their spillovers and their potential for being CDLU. The categorization provided here is relevant in this respect too. 20 projects aimed to benefit citywide and Palestinian purposes the distribution of land taken for the benefit of each of these groups is dramatically different. Citywide projects demand much more land than neighborhood-level projects require. Table 1: Project Size (Acres) by Beneficiaries Beneficiaries Citywide Mean S. D. N 11.70 A 28.20 93 11.25 193 3.77 83 B Jewish Neighborhoods 3.35 Palestinian Neighborhoods 2.42 B Levels not connected by same letter are significantly different (Total α=0.05) The differences in the distribution of benefits between Jewish and Palestinian neighborhoods should be evaluated against differences between these communities, in terms of overall neighborhoods area and population. Both measures are about the same—37% of Jerusalem’s population is Palestinian, and 36% of the City’s land is in Palestinian Jerusalem. Based on that, assuming all else equal, the proportional allocation of benefits between Jewish and Palestinian neighborhoods is 64%-36%. The de facto distribution of taken land to Palestinian neighborhoods purposes (200 acres) is only 0.55 of what it should have been (363 acres) relative to their size given the benefits the Jewish community enjoyed. If, however, citywide share is deducted (1,088 acres), then the relative allocation of the rest should have been 542 acres to Jewish neighborhoods (64%), and 305 acres to Palestinian neighborhoods (36%). The actual distribution is, nonetheless, 76%-24% (Odds Ratio=1.82; 95% Confidence Interval 1.47-2.26; p<0.001), meaning only 0.67 of what it should have been relative to their size. 21 D. Owners Ownership of land in Jerusalem can be public or private, or jointly owned by both the state and private owners. Public ownership, which is referred to as State Land, is constituted of land administered by the Israeli Land Authority, the Custodian of Absentee Property (see Appendix for details) or municipal property. Private ownership can be of Palestinians, or Jews. Religious institutions, such as the Islamic Waqf and Churches, also own property in Jerusalem. We identified the former with the Palestinian owners’ group and the latter with the Jewish owners’ group.19 Untitled (non-formalized) land in Palestinian Jerusalem is referred to as Palestinian Land/State Land. In order to determine the ownership of land prior to its taking, a two-stage procedure was employed. First, the ownership category was asserted based on the property’s geographical location (Jewish Jerusalem or Palestinian Jerusalem) and its surroundings, which were identified by GIS, and on its registration status according to the taking notice (where unregistered land in Palestinian Jerusalem would be considered at the preliminary level Palestinian Land/State Land). Several methods were then employed as a mode of verification. From the owner’s name, it is definitive whether he or she is Palestinian. A sample of 877 official land records was analyzed,20 out of 2,805 potential lots (31%) which were identified by block and parcel and therefore potentially traceable in the registry.21 In 397 cases, land records were unavailable; hence the lots 19 Given Churches’ political power in Jerusalem and the fact that most of the land taken from them was in Jewish areas of the city, the land taken from them⎯25 acres in total (1% of the entire sample)⎯was categorized with Jewish owners. Waqf properties were very rarely taken. 20 Official land records can be retrieved online per each lot by parcel and block indicators. The cost of each successful record check is ~ $4 (15 NIS). 21 A block and parcel locater are necessary to obtain data from the registry. However, their existent does not guarantee that land records are in fact available. Some properties were surveyed for tax purposes but were never fully register. 298 of the 3,448 takings in the sample were not identified with block/parcel 22 had been surveyed (for tax purposes) but not registered. In 497 cases, land records were obtained. The success rate for a record request was therefore 57%. The method for sampling was randomized in the following way. For every set of 10 consecutive parcels in the registry which contained one to two taken properties, their data was requested. If more than two parcels were taken in a given set of 10 consecutive parcels record then information for two parcels was requested on a randomized manner, or for more than two if no information was available for the first two. Given the segregational composition of the city and the way in which its jurisdiction came to be, we can assume that properties adjacent in parcels listings are neighboring and owned by the same owner type (Grigoryeva and Ruef 2015; Sandberg 2000).22 Therefore, where land records were obtained, adjacent properties (identified by their sequel parcel numbers) were given the same owner class. However, if there was a reason to doubt that the results will be systematic, i.e., when each of the two sampled records per a sequence of ten parcels referred to different type of owner or when at least one record indicated on private Jewish ownership in a Palestinian neighborhood or vice versa (these were rare cases), land records were requested for the entire set of adjacent parcels. Furthermore, state ownership was verified using Israel Land Authority’s (ILA) online database.23 Where land records were not obtained, I relied for verification on information found in the City’s taking files and in the zoning records. In many cases, the City’s files contained a note about the compensation funding resource; public land was usually noted since it has numbers as they were not only unregistered but they were also not surveyed. 345 observations were of parcels taken more than once. 22 Land records in Israel are organized by the cadaster system, in which each area is divided to consecutive block numbers, and each block is divided into consecutive parcel numbers, which are given to lots based on their proximity one to each other. Hence, parcel no. 2 is near parcel no. 1, etc. 23 Because not all state properties are included in the ILA open database, it was used only to verify not to deny state ownership. 23 bearings on the compensation component. In addition, as required by zoning regulation, in many of the small-scale development projects, the developers must be the owners or leaseholders, and this information is available in the files. The land’s characteristics—built, vacant or in agricultural use—as described on the survey maps and their current status based on GIS analysis were also considered. In cases of unregistered land in Palestinian Jerusalem, if there was no clear data about the identity of the owner, it was regarded as Palestinian Land/State Land. An important fact that should be laid before us is of the baseline: how is land ownership distributed among the different owner types at the city level (not at the sample level). There is no clear data about that. According to experts’ estimations, Churches own about 1,236 acres in 1967 Jerusalem (Margalit 2012). Another 6,253 acres of Jewish Jerusalem are State Land by its expropriation in the 1970s, while another 4,349 acres are vacant State Land, which were added to the city in 2008.24 Regarding the rest, of 7,82 acres in Jewish Jerusalem: based on previous estimations about the small share of private Jewish ownership in Israel (Sandberg 2007; Kark 1995), I attributed 10% to private Jewish ownership and the rest to state ownership. However, enlarging the share to 20% or even 30%, for instance, would not have the changed dramatically the overall map of ownership, allowing 5%-8% of private Jewish ownership. Of Palestinian Jerusalem, 2,991 acres were settled or under settlement of title proceedings at the time of the annexation. I estimate that 90% of these properties are private Palestinian ones and the rest are State Land (including local roads). The rest of this part of the city, 8,029 acres, I regard as Palestinian Land/State Land. For this group, I estimate that a share of 73% should be reasonably 24 This finding is based on GIS analysis of built area as of 2015, which shows that at least 96% of the area annexed to the city in 2008 is an open area. 24 attributed to Palestinian owners.25 If we were to split this category accordingly and attach the respective shares to each of the groups, State Land, and Palestinian Land, we could summarize that, effectively, 66% of the city’s land is State Land, while effective Palestinian Land is 28%.26 I therefore carefully estimate that State Land represents 59% of the city’s lands, which are 90% of Jewish Jerusalem and 3% of Palestinian Jerusalem); Jewish and Churches ownership is 7% (3% and 4%, respectively), which are 10% of Jewish Jerusalem. Palestinian private ownership rate is 9% of the entire city, which are 24% of Palestinian Jerusalem. Palestinian Land/State Land represents 26% of the lands in Jerusalem, which are 73% of Palestinian Jerusalem. Figure 3 describes the share of land taken by owner type. As can be seen, takings from State Land is the dominant group (52%), followed by Palestinian owners (24%) and a mix of these two categories (19%).27 Only 4% of the land in the taking sample was taken from private Jewish 25 Observing the land cover patterns in the unregistered parts in Palestinian Jerusalem as of 2015 shows that about 50% of it is built, and therefore mostly private (80-90% private, 10-20% public). For the remaining 50%, I estimate that it should be reasonable to set the state’s success rate at 35%-45%, given that some parts of it are land privately possessed and cultivated for years and the state’s reluctance to present claims under such conditions. According to Forman (2006), in settlement of title procedures in the Northern parts of Israel in the 1960s, the state’s success rate of land disputed in court was 65%. Sandberg (2010) sets the overall success ratio of the state at about 60-70% in one of his works; while allowing 5070% in another (Sandberg 2007). This should be much lower in urban areas, and in Jerusalem in particular (Levine-Schnur 2012; Levine-Schnur 2011; Sandberg 2000). To sum, out of the unregistered land category, the state may reasonably claim 10%-20% of the 50% built; and 35%-45% out of the 50% not-built, which totals to a range of 22%-32%, or an average of 27%, and respectively, the Palestinian share in it is 68%-78%, an average of 73%. 26 Sandberg (2016, 116) refers to data on ownership patterns in Jerusalem and its surroundings, including areas outside of the city’s jurisdiction. According to it, as of 2009, the state (exclusive of land owned by the city of Jerusalem) owns 38% of the land in this area, 24% is private ownership, and 37% is unsettled. Employing my standard of 35%-45% success rate for the state, would bring to an effective average rate of 53%, which should be higher if it were to include land owned by the city and land in Jerusalem only. 27 Representing this category in accordance with the relative shares (73% Palestinian, 27% State), would mean that effectively, State Land in the sample is 57% of the taken land, while Palestinian Land includes 25 owners and Churches (2.8% and 1.2%, respectively). A small fraction (1%) of land was taken from other mixes of owners, and was therefore excluded. Figure 3: Owners in the taking sample v. landowners in Jerusalem It can be seen that Palestinian Land is clearly overrepresented in the taking sample—land is taken from Palestinian owners 2.7 times more than their relative share in the general population. Jewish Land is represented in the sample at the exact same rate as it is in the general population.28 However, the Church group is underrepresented—4% ownership rate versus 1% taking rate; State Land and Palestinian Land/State Land groups are also slightly underrepresented in the taking sample.29 38% of the taken land, where the effective share of State Land in the entire city is 66% and the effective Palestinian Land is 28%. Hence, the opposite direction of representation in the sample maintains. 28 Recall that the share of Jewish ownership in Jerusalem is based on a careful estimation, and might be in fact a bit larger, up to 5%-7%. In which case, we might assert that this group is also underrepresented in the taking sample. 29 When taking into account the effective rates of State Land and Palestinian Land (i.e. attributing Palestinian Land/State Land to each of the represented groups in accordance with their relative shares) it 26 E. Owners v. Beneficiaries The next step is to correlate between beneficiaries and owners. Figure 4 describes the beneficiaries of the taken land by the owner type. A few observations can be made here: first, State Land is distributed mostly (49%) back to citywide purposes, but almost at the same share to Jewish neighborhoods (48%). Similarly, State Land/Palestinian Land is also used only for citywide (75%) and Jewish neighborhoods (25%) purposes.30 Recall, that 27% of this group can be attributed to State Land and the rest to Palestinian Land although none of the taken land in this category was redistributed to the benefit of Palestinian neighborhoods. Palestinian Land category is mostly used for citywide purposes (61%), but also for Palestinian purposes (38%). Jewish land, however, is mostly distributed to Jewish neighborhoods purposes (71%) where the rest goes to citywide purposes. Figure 4: Distribution of beneficiaries by owners is still the case the Palestinian Land is overrepresented in the sample given its size in the general population (by 1.35), and State Land is underrepresented (by 0.86). 30 81% of the Palestinian Land/State Land taken for Jewish neighborhoods purposes was used for the expansion of Har-Choma, a Jewish neighborhood in the areas annexed to Jerusalem in 1967. 27 F. Specific Public Uses For each and every observation, the public use for which the land was taken was identified in the taking notice or the city’s file.31 I find that the main public use for which land is taken in Jerusalem is roads—69% of all the land taken over the years (for similar results in Tel Aviv, see Levine-Schnur and Parchomovsky 2016), while the rest splits evenly between public buildings and open public spaces. Notably, 85% of the land taken for citywide purposes is for roads (the rest is divided 15% for open public spaces and 0.003% for public buildings). When comparing the designated uses between Jews and Palestinians neighborhoods the results are dramatically different. For Palestinian neighborhoods, only 37% of the land is put for services other than roads—6% for open public spaces and 31% for public buildings, while for Jewish neighborhoods, the shares are 43% for roads, 37% for open public spaces, and 20% for public buildings. Figure 5 and Figure 6 display the relationship between uses and beneficiaries by beneficiary type in two ways. 31 In many of the cases, the purpose was identified as a combination of roads, public buildings, and or open public spaces, without mentioning the specific distribution among these purposes. In these cases, the land taken was split between the different purposes evenly. 28 Figure 5: Distribution of public uses by beneficiaries (land taken) Figure 6: Beneficiaries of land taken by taking uses (land taken) Keeping in mind the groups’ relative sizes (Palestinian Jerusalem is 0.56 of Jewish Jerusalem in terms of its size and population), it is evident that Palestinian neighborhoods are underrepresented in land designated for public buildings and open public spaces relative to the Jewish neighborhoods’ share, but fairly represented in land designated for roads (assuming the needs and past distributions are equal). 29 G. Model In order to examine whether the probability of a contribution to citywide purposes is dependent on the owner’s type and the specific purpose, a binary logistic regression was estimated. The dependent variable is Beneficiaries. In light of the patterns of the Beneficiaries variable, it can be best characterized as a categorical one: Citywide v. Neighborhood. This is because of the fact that intersectionality at the neighborhood level is rare, i.e., Jewish land is hardly ever used for Palestinian neighborhood purposes and vice-versa. The baseline is Jewish land contributions to citywide purposes. The independent variables are owner type (State Land was excluded), taking size, and the dummy Roads, which is one for takings which their sole purpose is roads and zero otherwise. We also measured interactions between the variables.32 Table 2: Descriptive Statistics Beneficiaries Citywide Neighbourhood Owner Palestinian Land/State Land Palestinian Land Jewish, Church Roads Roads Other N % Sum % Mean 936 50% 582.10 64% 0.62 951 50% 327.76 36% 0.34 274 15% 375.23 41% 1.37 1,228 385 65% 20% 457.38 77.25 50% 8% 0.37 0.20 1,489 79% 551.40 61% 0.37 398 21% 358.46 39% 0.90 Acres taken Mean 0.48 Std Dev 4.40 N 1887 32 When the land was taken for a combination of purposes, with or without roads, it was regarded as zero (“not Road”). A more precise observation between the particular purposes (open public spaces; public buildings) was technically impossible, as our data does not enable that. 30 Table 3: Regression Analysis for Beneficiaries (Citywide v. Neighborhood) (State Land Excluded) Parameter Estimates 95% CI B Term Intercept SE OR Low UP -0.45 0.17 χ2 PValue 6.74 0.0094 Palestinian Land/State Land 1.32 0.22 3.73 2.44 5.69 37.01 <.0001 Palestinian Land 0.51 0.18 1.66 1.16 2.38 7.56 0.0060 Log(acres taken) 0.02 0.03 1.02 0.96 1.09 0.45 0.503 Roads[1-0] Palestinian Land/State Land X Roads[1-0] Palestinian Land X Roads[1-0] McFadden's R2 1.23 0.21 3.41 2.25 5.17 33.5 <.0001 0.96 0.32 2.60 1.40 4.84 9.07 0.0026 -1.34 0.22 0.26 0.17 0.41 35.67 <.0001 0.114 N 1887 Jewish and Vs Road Palestinian Land/State Land Palestinian Land 33.05 1.49 (calculation) Jewish other than Roads 3.73 X 3.41 X 2.6 1.66 X 3.41 X 0.26 3.73 1.66 Compared to Jewish land, where the property rights are not titled (formalized) but mostly claimed by Palestinians, the land is subject to higher propensity of being taken for citywide use and not local neighborhood purposes (OR: 3.73), an effect which is substantially higher when the sole public use is roads (OR: 33.05). For titled Palestinian land compared to Jewish land, the differences are lower (OR: 1.66), and the effect of the specific public-use—road not road—is not large (OR: 1.49) (all are significant at p<0.001). In other words, non-formalized land claimed by 31 the politically-weak minority is more susceptible to be taken for citywide roads than any other alternative. V. DISCUSSION The data reveals clear differences between taking patterns between Jews and Palestinians in Jerusalem. In the segregated city of Jerusalem, Palestinians stand to bear most of the private costs for supplying public goods, while benefiting from less than their relative share in terms of the size of their community or their contribution share. That remains true even when taking into account Jews and Palestinians’ relative shares in land ownership in Jerusalem. Before discussing the findings, their limitations must be emphasized. Several core points in the study are based on estimations and discretionary decisions. Such are the identification of the relevant beneficiaries, and the composition of land ownership in Jerusalem. While, as explained in detail, many steps have been imposed in order to mitigate the effects that these limitations may have had on the outcomes, there is still a need to bear this concern in mind. In addition, we do not have full knowledge about the actual needs of each community, so ostensibly, it might be the case that Jewish neighborhoods’ overrepresentation as a beneficiary is the result of such gaps. However, as the city itself admits, time after time, if there are gaps in needs they are likely in the opposite direction: current Palestinian neighborhoods’ needs are greater. We should be well aware about the difference between the individual and the community perspectives. Take this hypothetical question: if condemned Palestinian land were used mostly for Palestinian purposes, would that make the fairness question go away? One could argue that not necessarily. If one considers property rights as an individual right, only takings measures that conform with the famous Richard Epstein pie would be normatively unproblematic (Epstein 1985). In the hypothetical world, poor Palestinians’ land could be condemned to serve the rich 32 Palestinians. Most people would still consider this normatively problematic. This critique is that, therefore, that this article’s normative posture operates at ethnic-group level, but not the individual level. Note, however, that by focusing on takings for pure public uses, and not on economic development uses, this problem is less troubling as one might think. Local-level roads, schools, daycares, and playgrounds, are not benefiting exclusively or even in a greater intensity by the rich. The takings studied in this paper were not used to displace communities or to transfer land from one group to another (Du et al. 2016), such as the 1970s state’s expropriations were. Takings for neighborhood-level roads, elementary schools, etc., improve the life conditions of the poor (Gonzalez-Navarro and Quintana-Domeque 2016). If rich people’s land is not being taken while poor’s is, then even if all enjoy the benefits of the development, a distributional worry may persist. However, nothing in the data indicates at such a preference to pick and choose specific Palestinian properties and not others based on their value. Palestinians provide a large portion of the lands to be used for public purposes. Taking into account their share in land in dispute with the state, 38% of the entire sample (731 acres) was taken from Palestinians. The majority of land taken from Palestinians was used for citywide or Jewish purposes. Only 31% (200 acres) of the land taken from Palestinians was used for their neighborhood level needs. Thus, in total, only 10% of the land taken in Jerusalem over the past 25 years was used for Palestinian neighborhoods’ needs. The regression analysis has shown that the odds ratios that Palestinian and Palestinian Land/State Land in particular will be expropriated for citywide uses and not local-neighborhood level purposes are 1.66 and 3.73 times, respectively, higher than those of Jewish, Church Land. Clearly, and contrarily to the City’s declarations (e.g., in TZAHOR v. Jerusalem Municipality 2015), the poor land records in Palestinian Jerusalem does not stop the City from taking such 33 land. But, indeed, not necessarily for local Palestinian neighborhoods’ needs. Non-formalized Palestinian land is used more than any other category of land for citywide roads, where the propensity for takings grows by 33 over that of Jewish land. Thus, unregistered land is not used for Palestinian purposes despite the high rate of private Palestinian right that should be associated with it. Rather, it is regarded as the most available source for land needed to advance citywide purposes. It seems to be that the lack of formal ownership may be associated with greater risks for taking for citywide public gods (Glaeser, Ponzetto, and Shleifer 2016), although the model does not control for variables such as the land topography which might affect the lands’ suitability for neighborhoods’ expansion but not for citywide roads. [Table A1] The large share of State Land takings is not surprising, and follows the relative large share of State Land in the city’s ownership map. However, the redistribution of this public property shows concerning disparities between the Jewish and Palestinian communities. Of the 1,105 acres (57% of the entire sample) taken from the state or other public authorities, including the state’s relative share in Palestinian Land/State Land, Jewish areas enjoyed from 47% of these takings and 50% of it was further used for citywide purposes. Palestinian neighborhoods however enjoyed from only 20 acres of state land (1.7% of this category), while effectively contributing 484 acres to citywide purposes—which is 66% of the land taken from Palestinian owners (including their relative share in Palestinian Land/State Land). The very small shares of takings from non-Palestinian private owners—only 77 acres (4% of the entire sample) were taken from Jews and Churches—can be partially explained by the low rates of private Jewish ownership in Jerusalem. Moreover, Jewish owners sometimes secure agreements with the local government where property is voluntarily transferred to the government’s hands in return for density bonuses or other benefits. Previous studies on these 34 agreements in Jerusalem did not report any case where a Palestinian developer was a party to such an agreement (Alfasi and Ganan 2015; Levine-Schnur 2013). Another possible explanation for the scarcity of takings from Jewish owners might be that Jewish-owned areas of the city are more developed than Palestinian ones. The land cover may set limitations on the possibility to take land without having to evacuate people from their houses. The taking of vacant land might be cheaper and less politically sensitive, and therefore more common.33 For example, a study in New York City found that one-half of the total condemnation settlements between 1990 and 2002 were of vacant land (Chang 2010); and a study in Philadelphia reported that 92% of the lots taken between 1992 and 2007 were vacant (Becher 2014). However, our GIS analysis shows that the built—non-built ratios in each of the sub-cities is almost the same: 46% of Palestinian Jerusalem and 45% of Jewish Jerusalem are not-built areas. An additional explanation for the overrepresentation of takings from Palestinians owners, compared to Jews, is the differences in the costs involved.34 When the government takes private property it faces compensation costs which are based on fair market value. Compensation for underdeveloped properties are usually lower than for developed ones (Chang 2010; Innes 1997). Furthermore, the residential land values in Palestinian neighborhoods are 55% of the equivalent values in Jewish neighborhoods. This gap has further implications on the taking costs. The gross property tax charges per hectare in Palestinian parts of the city are 37% of their equivalent in Jewish neighborhoods. [Table A1] Similarly to what we have said about land registration and 33 One of the rare cases in which the zoning sub-commission for takings had a more than just a formal discussion before its decision to take was where such evacuations were required. 34 According to anecdotal data concerning two Palestinian neighborhoods, the actual costs in terms of compensation in Palestinian Jerusalem are especially low since such claims were not submitted, hence compensation are not paid (TZAHOR v. Jerusalem Municipality 2015). 35 land development, here again it could be argued that the low level of amenities provided by the government affect the relatively low land prices, and that in return pushes the government to further take more often from Palestinians for citywide purposes. Unfortunately, specific data about land values of the properties taken is not available. The redistributive effect we observe is therefore not only about transfers from Palestinians to Jews, but it is also potentially about transfers from poor communities and richer ones. As already hinted and as previously observed in the literature, these two stories are not independent (Somin 2015; Becher 2014; Chen and Yeh 2012; Carpenter and Ross 2009). The differences between Jews and Palestinians are especially troubling when comparing the specific public uses between the two communities. Palestinian neighborhoods enjoyed far fewer acres for open public spaces and public buildings than Jewish neighborhoods. The fallout of this practice is that Palestinian neighborhoods suffer from critical gaps in classrooms for school age children, and have practically no playgrounds at the neighborhood level in some cases, among other gaps in the supply of public services (e.g., Abu Labada; TZAHOR; Kashti and Hasson 2016; Jerualem City Engineer 2004). The ultimate question is why the city does not designate land—either state land or private land—to Palestinian purposes despite their desperate need for public goods (other than roads). Obviously, it is not because of land unavailability. The land taken from Palestinian owners is more than three times the land designated to serve their community’s needs. We cannot rule out that there are topographic or other independent reasons effect Palestinians more than others. The data points to the fact that even with respect to land taken from Palestinians, the city prioritizes citywide purposes over local-level Palestinian ones. One explanation for this outcome could be that at least in some of the cases the city only executes development policy directed and funded 36 by higher levels of government, specifically the central government, or other external funding resources, thus distorting its decision-making process (Fischel 2004). Arguably, then, the city only follows instructions from above. However, if this is true, it nonetheless bolsters the hypothesis that the distribution of burdens and benefits in the taking context is correlated with political power and considerations. At the central government level the representation rate of Jerusalemite Palestinians is not much different than that of the local level although their voter eligibility is much lower, less than 4%. In this respect, even if Palestinians would vote at the local level, that might not make a difference. In other cases, the city expropriates in response to a bottom-up request of landowners seeking development. Such owners are able to negotiate the terms and location of the taking with government officials. Here again, the Palestinian practice to avoid voting is costly, as there are no strings to pull in the city halls. VI. CONCLUSION This study finds an association between the ethno-religious and political divide and the burden-benefit ratio in the context of pure public-purposes takings in Jerusalem. Minority owners’ land is prone to be taken more than their relative share among property owners in the population, and for purposes that do not directly benefit their local communities. This is especially apparent with respect to the allocation of life-quality enhancing public goods such as parks, playgrounds, and schools. The study confirms, therefore, the trend indicated in previous studies of African-Americans neighborhoods being frequent targets during the construction of interstate highways in the US. It is hard to assess what would have been the taking practice in an alternative world in which Palestinians would have been fully represented in the local government in accordance with their 37 voting eligibility. They still would have been a socio-economically weak minority group with a limited political power at the national level. There are no previous studies on the effect of a weak minority group on local politics, contrary to the anticipated effect of a powerful, even small, interest group (Chang 2009; Levinson 2000). Furthermore, recent studies find mixed results for the effect of introducing representation quotas at legislative or executive bodies on channelling benefits to marginalized groups (Dancygier et al. 2015; Dunning and Nilekani 2013). Nevertheless, we can still anticipate that as a represented minority group the Palestinians’ ability to affect the distribution of burdens and benefits would have been much greater than it is under the current state of affairs. If, a minority group cannot be properly represented, a benevolent or fairness-oriented government should employ alternative means to ensure a better distribution of the burdens and benefits. Where such means are lacking, there can be no other conclusion than that the public use and just compensation requirements are insufficient limitations on the government’s power as they enable for distributional unfairness with expropriation exercises across suspicious group lines. There is, therefore, a need to rethink how to take distributional considerations of this type into account in cases of takings for pure public uses for this practice to maintain its legitimacy. Otherwise, takings should not be exempted from the usual property rules protection available for landowners against such aggressive interferences with their rights, as “property rules lead to less harm to the property of the weak and thus to more progressive outcomes than do liability rules.” (Glaeser, Ponzetto, and Shleifer 2016). This final note is offered as the take-away from this case-specific context of Jerusalem to other contexts. As was recently observed, where “data set focuses on a major urban city situated in a specific cultural context, it is difficult to extrapolate the findings to other contexts … this ‘anecdata’ difficultly represents a persistent problem with all efforts to empirically measure 38 eminent domain activity since, by definition, all real property is situated in specific places and cultural contexts.” (Garnett 2016). To address this difficulty, it would be interesting to observe how the distributional factor plays in other places, specifically where public land is not available for taking. This paper invites, therefore, further investigations into the effects of socio-political differences and ethno-religious divide on the use of the eminent domain power for ordinary, pure public uses, in other segregated and divided cities both domestically and internationally. REFERENCES Alfasi, Nurit, and Erela Ganan. 2015. “Jerusalem of (Foreign) Gold: Entrepreneurship and Pattern-Driven Policy in a Historic City.” Urban Geography 36 (2): 157–180. Baumann, Hanna. 2015. “Enclaves, Borders, and Everyday Movements: Palestinian Marginal Mobility in East Jerusalem.” Cities. http://www.sciencedirect.com/science/article/pii/S0264275115001651. Becher, Debbie. 2014. Private Property and Public Power: Eminent Domain in Philadelphia. Oxford University Press. Been, Vicki. 1992. “What’s Fairness Got to Do with It? Environmental Justice and the Siting of Locally Undesirable Land Uses.” Cornell L. Rev. 78: 1001. Bell, Abraham, and Gideon Parchomovsky. 2006. “The Uselessness of Public Use.” Columbia Law Review 106 (6): 1412–49. Bertram, Christine, and Katrin Rehdanz. 2015. “The Role of Urban Green Space for Human Well-Being.” Ecological Economics 120 (December): 139–52. doi:10.1016/j.ecolecon.2015.10.013. Blume, Lawrence, Daniel L. Rubinfeld, and Perry Shapiro. 1984. “The Taking of Land: When Should Compensation Be Paid?” The Quarterly Journal of Economics 99 (1): 71–92. doi:10.2307/1885721. Boudreaux, Paul. 2005. “Eminent Domain, Property Rights, and the Solution of Representation Reinforcement.” Denver University Law Review 83: 1. Carpenter, Dick M., and John K. Ross. 2009. “Testing O’Connor and Thomas: Does the Use of Eminent Domain Target Poor and Minority Communities?” Urban Studies 46 (11): 2447–61. doi:10.1177/0042098009342597. Chang, Yun-chien. 2009. “Empire Building and Fiscal Illusion? An Empirical Study of Government Official Behaviors in Takings.” Journal of Empirical Legal Studies 6 (3): 541–84. doi:10.1111/j.1740-1461.2009.01153.x. ———. 2010. “An Empirical Study of Compensation Paid in Eminent Domain Settlements: New York City, 1990–2002.” The Journal of Legal Studies 39 (1): 201–44. doi:10.1086/605095. Chen, Daniel L., and Susan Yeh. 2012. “Expropriation, Inequality, and Growth: The Economic Impacts of Eminent Domain.” NBER Papers. 39 Cohen, Hillel. 2011. The Rise and Fall of Arab Jerusalem: Palestinian Politics and the City Since 1967. Routledge. Dancygier, Rafaela M., Karl-Oskar Lindgren, Sven Oskarsson, and Kåre Vernby. 2015. “Why Are Immigrants Underrepresented in Politics? Evidence from Sweden.” American Political Science Review 109 (04): 703–724. doi:10.1017/S0003055415000404. Du, Jinfeng, Jean-Claude Thill, Changchun Feng, and Guangyin Zhu. 2016. “Land Wealth Generation and Distribution in the Process of Land Expropriation and Development in Beijing, China.” Urban Geography 0 (0): 1–21. doi:10.1080/02723638.2016.1228373. Dumper, Michael. 2014. Jerusalem Unbound: Geography, History, and the Future of the Holy City. Columbia University Press. Dunning, Thad, and Janhavi Nilekani. 2013. “Ethnic Quotas and Political Mobilization: Caste, Parties, and Distribution in Indian Village Councils.” American Political Science Review 107 (01): 35–56. doi:10.1017/S0003055412000573. Epstein, Richard A. 1985. Takings: Private Property and the Power of Eminent Domain. Cambridge, Mass.: Harvard U Press. Fennell, Lee Anne. 2013. “Just Enough.” Columbia Law Review Sidebar 113: 109. Fischel, William A. 2004. “Political Economy of Public Use in Poletown: How Federal Grants Encourage Excessive Use of Eminent Domain, The.” Michigan State Law Review 2004: 929. Forman, Geremy. 2006. “Law and the Historical Geography of the Galilee: Israel’s Litigatory Advantages during the Special Operation of Land Settlement.” Journal of Historical Geography 32 (4): 796–817. doi:10.1016/j.jhg.2005.09.004. Frieden, Bernard J., and Lynne B. Sagalyn. 1991. Downtown, Inc: How America Rebuilds Cities. Boston: MIT Press. Gans, Herbert J. 1982. Urban Villagers: Group and Class in the Life of Italian-Americans. New York: London: The Free Press. Garnett, Nicole Stelle. 2006. “The Neglected Political Economy of Eminent Domain.” Michigan Law Review 105 (1): 101–50. ———. 2016. “Does Compensation Deter Takings? New (and Surprising) Evidence.” Jotwell: The Journal of Things We Like (Lots) 2016 (September). http://property.jotwell.com/does-compensation-deter-takings-new-and-surprisingevidence/. Glaeser, Edward L., Giacomo AM Ponzetto, and Andrei Shleifer. 2016. “Securing Property Rights,” National Bureau of Economic Research. http://www.nber.org/papers/w22701. Gonzalez-Navarro, Marco, and Climent Quintana-Domeque. 2016. “Paving Streets for the Poor: Experimental Analysis of Infrastructure Effects.” Review of Economics and Statistics 98 (2): 254–67. doi:10.1162/REST_a_00553. Grigoryeva, Angelina, and Martin Ruef. 2015. “The Historical Demography of Racial Segregation.” American Sociological Review 80 (4): 814–42. doi:10.1177/0003122415589170. Hazan, Anna. 1995. Jerusalem Municipal Boundaries 1948-1993. Jerusalem: Jerusalem Institute for Israel Studies. Hoehn, John P., and Kwami Adanu. 2014. “What Motivates Voters’ Support for Eminent Domain Reform: Ownership, Vulnerability, or Ideology?” International Review of Law and Economics 37 (March): 90–99. doi:10.1016/j.irle.2013.07.006. 40 Hoshen, Maya, Shlomo Hason, and Israel Kimhi. 2004. Sustainable Jerusalem. Jerusalem: Jerusalem Institute for Israel Studies. Innes, Robert. 1997. “Takings, Compensation, and Equal Treatment for Owners of Developed and Undeveloped Property.” The Journal of Law & Economics 40 (2): 403–32. doi:10.1086/467378. Israel Land Authority. 2012. “Annual Report.” Israeli Central Bureau of Statistics. 2014. “Israel Statistical Yearbook.” Jerualem City Engineer. 2004. “Planning in East Jerusalem.” Municipality of Jerusalem. Jerusalem Municipality: City Planning Division. 1996. “Planning in the Arab Sector in Jerusalem, 1967-1996.” Jerusalem Statistical Book. 2013. Jerusalem Institute for Israel Studies. ———. Jerusalem Statistical Book. 2015. Jerusalem Institute for Israel Studies. Kasara, Kimuli. 2007. “Tax Me If You Can: Ethnic Geography, Democracy, and the Taxation of Agriculture in Africa.” American Political Science Review 101: 159–72. doi:http://dx.doi.org/10.1017/S0003055407070050. Kashti, Or, and Nir Hasson. 2016. “Israel’s Education Ministry to Pay East Jerusalem Schools to ‘Israelize’ Curriculum.” Haaretz, January 29. http://www.haaretz.com/israelnews/.premium-1.700219. Kelly, Daniel B. 2011. “Acquiring Land Through Eminent Domain: Justifications, Limitations, and Alternatives.” In Research Handbook on the Economic Analysis of Property Law, edited by Kenneth Ayotte and Henry E. Smith, 344–71. Edward Elgar Publishing. Kramon, Eric, and Daniel N. Posner. 2013. “Who Benefits from Distributive Politics? How the Outcome One Studies Affects the Answer One Gets.” Perspectives on Politics 11 (02): 461–474. doi:http://dx.doi.org/10.1017/S1537592713001035. “Land Registry and Settlement of Title Department, Annual Reports 2004-2014.” 2014. Ministry of Justice. Lee, Brian Angelo. 2013. “Just Undercompensation: The Idiosyncratic Premium in Eminent Domain.” Columbia Law Review 113 (3): 593–655. Levine-Schnur, Ronit. 2011. “Privatization, Segregation, Discrimination: The Cessation of Land Settlement in East Jerusalem.” Tel Aviv University Law Review 34: 183. ———. 2012. Land Registration Law: Registration and Settlement, and Their Implications, in Israel and the West Bank. Bnei-Brak: Bursi Law Books. ———. 2013. Law, Contracts, and Urban Planning: Legal Aspects of Development Agreements Between Local Authorities and Private Developers. Jerusalem: Floersheimer Studies, the Hebrew University of Jerusalem. Levine-Schnur, Ronit, and Gideon Parchomovsky. 2016. “Is the Government Fiscally Blind? An Empirical Examination of the Effect of the Compensation Requirement on Eminent Domain Exercises.” Journal of Legal Studies 45. Levinson, Daryl J. 2000. “Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs.” The University of Chicago Law Review 67 (2): 345–420. doi:10.2307/1600491. Lindsay, Jonathan, Klaus Deininger, and Thea Hilhorst. 2016. “Compulsory Land Acquisition in Developing Countries: Shifting Paradigm or Entrenched Legacy?” Unpublished. https://www.conftool.com/landandpoverty2016/index.php?page=browseSessions&print= head&form_session=444&presentations=show. 41 Merrill, Thomas W., and Henry E. Smith. 2016. Property: Principles and Policies. 3rd ed. Foundation Press. Michelman, Frank I. 1967. “Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law.” Harvard Law Review 80 (6): 1165–1258. doi:10.2307/1339276. Mikelbank, Brian A. 2005. “Be Careful What You Wish for The House Price Impact of Investments in Transportation Infrastructure.” Urban Affairs Review 41 (1): 20–46. doi:10.1177/1078087405278444. Nadler, Janice, and Shari Seidman Diamond. 2008. “Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity.” Journal of Empirical Legal Studies 5 (4): 713–49. doi:10.1111/j.1740-1461.2008.00139.x. Parchomovsky, Gideon, and Peter Siegelman. 2004. “Selling Mayberry: Communities and Individuals in Law and Economics.” California Law Review 92: 75–146. Raanan, Malka Greenberg, and Noam Shoval. 2014. “Mental Maps Compared to Actual Spatial Behavior Using GPS Data: A New Method for Investigating Segregation in Cities.” Cities 36: 28–40. Sandberg, Haim. 2000. Land Title Settlement in Eretz Israel and the State of Israel. Jerusalem: The Harry and Michael Sacher Institute for Legislative and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem. ———. 2004. “Jerusalem: Land Title Settlement and Expropriation.” Journal of Israeli History: Politics, Society, Culture 23: 216–31. ———. 2007. The Land of the State of Israel - Zionism and Post Zionism. Jerusalem: The Harry and Michael Sacher Institute for Legislative and Comparative Law, Faculty of Law, The Hebrew University of Jerusalem. ———. 2010. “Land Expropriations of Private Arab Land in Israel - An Empirical Analysis of the Regular Course of Business.” Israel Law Review 43: 590. ———. 2016. Basic Law: Israel Land. Jerusalem: Hebrew University of Jerusalem, Faculty of Law, Sacher Institute for Legislative Research and Comparative Law. Shtern, Marik. 2016. “Urban Neoliberalism vs. Ethno-National Division: The Case of West Jerusalem’s Shopping Malls.” Cities 52: 132–39. Somin, Ilya. 2015. The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. Chicago: University of Chicago Press. State Comptroller. 2016. Reports on the Audit of Local Governments. Versteeg, Mila. 2015. “The Politics of Takings Clauses.” Northwestern University Law Review 109: 695. Wyman, Katrina Miriam. 2007. “Measure of Just Compensation.” U.C. Davis Law Review 41: 239. 42 APPENDIX Israel Land Authority. The ILA administrates over 94% of the land in Israel (Israel Land Authority 2012; Land Registry and Settlement of Title Department, Annual Reports 2004-2014). The land it administrates is owned by either the State of Israel; JNF; or the Development Authority. The State is the residual owner of all non-privatized land. For this reason, in rural areas (even if under municipal boundaries) where no rights were created based on possession or allocation, the land would be considered as state land. The Development Authority is a bureaucratic entity which manages large portions of absentees’ properties⎯properties of those Palestinians who were not under Israeli control at certain times of war. Other absentees’ properties were left to the administration of the Custodian of Absentee Property. Properties labeled under the Development Authorities and the Custodian of Absentee Property are, in fact, Palestinian properties which were confiscated by Israel. Land owned by the JNF is entrusted to the Jewish people and is based on purchases of private lands. 43 Table A1: Jerusalem—Select Variables for 2013-2014 (Sources: Adapted from Jerusalem Statistical Book 2015; Israeli Central Bureau of Statistics 2014; GIS analysis) Palestinian Jewish Jerusalem Jerusalem 829,790 314,200 515,590 Sub-city Size (Ha) 12,480 4,459 8,021 Population Density per Sub-city Size (Ha) 66 70 64 Built Units 243,483 59,141 184,342 Number of Dwellings 211,796 51,801 159,995 Number of Non-Residential Uses Units 31,687 7,340 24,347 Built Units per Ha 19.51 13.26 22.98 Dwellings per Ha 16.97 11.62 19.95 Non-Residential Units per Ha 2.54 1.65 3.04 Population Density per Dwelling 3.41 5.31 2.80 3.92 6.07 3.22 63% 27% 84% 10,805 19,463 2,531,306 428,207 2,103,099 1,173,050 212,279 960,772 1,358,255 215,927 1,142,327 Variable Population Size Population Density per Non-Residential Uses Units Land Records Exist for Jerusalem Residential Land Values NIS per SQM (mean) Property Tax Gross Charges - NIS thousands Property Tax Gross Charges - Dwellings NIS thousands Property Tax Gross Charges - NonResidential Uses - NIS thousands Population Median Age 24 Poorness Average Rate 44 26 20 5 3.82 Table A2: Land Taken by Beneficiaries Beneficiaries Citywide Jewish Neighborhoods Palestinian Neighborhoods All Number of Projects Acres % out of total Land Taken 1736 1002 710 3448 1087.7 646.4 200.5 1934.6 56.22% 33.41% 10.37% 100.00% Table A3: Owners in the Taking Sample v. Landowners in Jerusalem Taking sample Owner Acres Jewish, Church 77.25 Palestinian Land 457.38 Palestinian Land/State Land 375.23 State Land 1003.06 Other 21.65 All 1934.57 % 3.99% 23.64% 19.40% 51.85% 1.12% 100.00% 45 Land owners in Jerusalem Acres % 2030.96 6.59% 2691.64 8.73% 8055.62 26.12% 18060.48 58.56% 30838.7 100%
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