Missouri Law Review Volume 72 Issue 4 Fall 2007 Article 10 Fall 2007 Boundaries of Exclusion Geogrette Chapman Phillips Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Geogrette Chapman Phillips, Boundaries of Exclusion, 72 MO. L. REV. (2007) Available at: https://scholarship.law.missouri.edu/mlr/vol72/iss4/10 This Conference is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Phillips: Phillips: Boundaries of Exclusion Boundaries of Exclusion Georgette Chapman Phillips* My boundaries enclose a pleasant land; indeed, I have a goodly heritage Psalm 16 v. 6 I. INTRODUCTION Dale Whitman is a giant in the field of property law. Generations of law students have read from his texts, hombooks and treatises. I am honored to be invited to participate in this celebration of his scholarship. We all owe him a great debt for his comprehensive and expansive works in the field. I would humbly like to work my own "patch of land" in this field by taking the traditional concepts of individual property rights and molding them around the community. This article is a story about boundaries and exclusion and about how - or whether - there is a community based right to exclude nonresidents. The right of the individual to own property, to defend that property and to exclude others from entering that property are sticks in the bundle of rights enshrined in US property law. 1 The limitations on that exclusion are determined by the creation of a legally defined property line that bounds these rights. That part of our story is relatively straightforward. However, we do not live our lives in isolation. We surround ourselves with a chosen community that, in large part, serves as a reflection of self-identity. So, to take this one step further, the complexity grows when we raise the questions of if, when and how a community (i.e., a group of individuals bound together by owning property in the same political jurisdiction) can exercise the same type of property rights, * David B. Ford Professor of Real Estate Wharton School, Professor of Law University of Pennsylvania Law School. Professor Phillips previously published under the name Georgette Chapman Poindexter. The author gratefully acknowledges the hard work of her research associate Pam Loughman with assistance from Leslie Schwab, Lindsay Spadoni, Xun Zeng and Robert Heller. Thanks also to all who commented on drafts of this paper including Vernon Francis, participants in the Fest- schrift in honor of Dale Whitman and the participants in the Wharton Real Estate Seminar series. Errors, omissions, and egregious misstatements, however, remain my own. 1. The United States Supreme Court has recognized the right of exclusion as "one of the most essential sticks in the bundle of rights that are commonly character- ized as property." Nollan v. Cal. Coastal Comm'n, 483 U.S. 825, 831 (1987) (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982)). Published by University of Missouri School of Law Scholarship Repository, 2007 1 Missouri Law Review, Vol. 72, Iss. 4 [2007], Art. 10 1288 MISSOURI LAWREVIEW [Vol. 72 particularly the right to exclude which would prohibit entry for non- residents.2 The rights of a community will not be defined by a private property line. Rather they will be determined by the legal boundary of the local community. In this fashion politically created jurisdictional boundaries would become imbued with notions of private property rights. This line of reasoning forces us to delineate the intersection between traditional property law (the law of the individual) and local government law (the law of the community). Is there such a thing as "communal ownership" that will bring to bear the same rights to exclude and defend? If so, where do these rights grow from? Fashioning such a right requires a joining of private property rights with public municipal rights. Another way of viewing the exercise is to per- mit a transitivity of rights. Meaning, if a citizen can defend and exclude based on individual property rights, can a community that is composed of citizens likewise defend and exclude non-community members from commu- nity property? What are the implications here on notions of civic duty? Moreover, if these rights exist, we then are faced with placing limita- tions on such rights. Municipal boundaries, although superficially quite po- rous, reify when utilized to differentiate residents from non-residents. Often- times these politically drawn distinctions become social artifacts that serve as a proxy for division of self-identification. The porous nature of these boundaries will be tested by examining their power to impede freedom of movement in the same way that individual property lines have the power to restrict free movement. I will contextualize this somewhat theoretical exercise in a real world event. The Crescent City Connection is a bridge across the Mississippi River spanning between New Orleans and the West Bank town of Gretna, Louisi- ana. 3 In the aftermath of the devastation of Hurricane Katrina in 2005 people trapped by decimated buildings and rising flood waters within New Orleans searched for routes to safety. Two days after Katrina struck, several hundred people tried to cross the Crescent City Connection to escape the flooding in New Orleans. They were met by officers of the Gretna police department who warned them to turn back. When the evacuees continued across the bridge the officers fired warning shots, reiterating the command to turn back. The police officers contend they undertook their action based on con- cerns for public safety in Gretna. However, there was no sign that the people trying to cross the bridge were looters, rioters or hooligans. Rather they were people simply trying to flee to dry land. This brings to focus the kernel of the question presented in this paper: can a community (in this case its police de- partment) prevent non-citizens from entering the community? If so, what are 2. As will be elaborated further, by exclusion I do not refer to whether certain people are prevented from becoming residents of a community. Rather, I draw the distinction between residents and non-residents having access to community property. 3. It is on U.S. Highway 90, also known as the Crescent City Connection. https://scholarship.law.missouri.edu/mlr/vol72/iss4/10 2 Phillips: Phillips: Boundaries of Exclusion 2007] BOUNDARIES OFEXCLUSION 1289 the limitations on such exclusion? Specifically this paper will examine the parallelisms and divergences from traditional property rights when "owner- ship" is in the hands of a community versus an individual. Local government lines, generally thought of as porous, solidify into barriers when they impede the fundamental freedom of movement. The first order of business is to sketch out the relevant sources of legal power of both the individual and the community in this situation. Namely, first property law and then local government law will be discussed to set the framework under which each of our actors can deal with others vis-a-vis real property rights. In undertaking this comparison, a natural intermediate step will be to consider the rights of private homeowners' associations. The next step in the analysis is demarcating the limitations on the right to exclude. People (and communities) certainly have rights. But along with the rights come correlative responsibilities. In other words, do the political boundaries that create local communities overpower any moral (as opposed to legal) responsibility to those outside of the boundaries? This question will be addressed in both a descriptive and a normative fashion to craft the limita- tions on exclusion. Although there is a natural inclination to look to the cases on exclusionary zoning in answering these questions, this impulse should be restrained. Exclusionary zoning rests on the notion of how and when a com- munity can prevent an outsider from becoming a member of the community, i.e., exclusion from ownership. That is not the issue here. Rather, the focus of this article will remain on the community's right to exclude outsiders from using community property. The right of owners of beach front properties to completely exclude or impede access provides an ideal context for discussion. All of this comes together when we examine the events that transpired in New Orleans after Hurricane Katrina. By grafting the normative construct onto a real life problem the structure can be tested from a theoretical as well as a practical perspective. II. THE RIGHT TO EXCLUDE The right to exclude others is one of the incidents of property owner- ship. According to one leading school of thought, property ownership is comprised of numerous "sticks in a bundle of rights." 4 Taking this notion a step further, it has been argued that the right to exclude others is the most 4. Hohfeld's theory of nominalism holds all the "sticks" to be of equal impor- tance. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in JudicialReasoning, 26 YALE L.J. 710, 745-47 (1917). The sticks "represent[] a so- cietal balance of interests, which should be subject to constant re-evaluation and revi- sion in light of current needs and norms." Jerry L. Anderson, Comparative Perspec- tives on PropertyRights: The Right to Exclude, 56 J. LEGAL EDUC. 539, 539 (2006). Published by University of Missouri School of Law Scholarship Repository, 2007 3 Missouri Law Review, Vol. 72, Iss. 4 [2007], Art.