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Buffalo Law Review

First Page

1115

Document Type

Article

Abstract

Following a century of rapid growth, the global human population is predicted to crest and then decline in the coming generations. Some industrialized countries are already grappling with the economic and societal consequences of population loss. Others, including the United States, have only started to realize that decline might arrive on their doorsteps far sooner than originally anticipated, a prospect for which policymakers and legal scholars are presently unprepared.

Global and national demographic change threaten to cause far-reaching dislocations, and local municipalities, too, will be asked to reckon with the aftermath. Yet local governance in the United States has long followed a dominant vision of population growth, with decline left stigmatized as a regional anomaly—as a symptom of crisis rather than a discrete catalyst for it. The growth gospel prevents local officials from preparing for decline preemptively when the resources can still be mustered to confront shifting demographics and dwindling tax streams. On the other hand, once a locality enters an era of decline, it runs headlong into vexing problems of property law. Underutilized land cannot simply be deleted or removed. It cannot be exchanged with utilized lands elsewhere in order to retain density, maintain vibrancy, and consolidate local infrastructure. As scholars have explored in the context of climate change, another looming challenge of the coming century, property law’s traditional preference for intergenerational stability hinders its utility when preparing for a changing world. Keeping pace requires that the institution evolve to become more adaptive and dynamic.

Drawing upon recent property theory, this Article advocates for a reconfigured tenure form, the callable fee simple, which can be harnessed to create a new intergenerational mechanism for population decline: Future Consolidation Districts, or FCDs. After sketching the contours of an FCD, the Article explores how one could be created in a manner that provides flexibility to tackle future demographic dislocations, overcome implementation and equity challenges, and comport with existing local government and property norms, even while pushing the limits of both. Although today’s demographic forecasts may ultimately prove inaccurate, existing regimes cannot, and will not, remain static forever. They should be reconfigured deliberatively in advance rather than by necessity down the road.

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