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.
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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%