Small Town, Inc.: Mischief at the Margins of Municipal Incorporation

March 5, 2021

When a state creates a municipality or alters the boundaries of an existing one, there usually is little to no opportunity for judicial review of the decision. Under the centuries-old rule of construction known as Dillon’s Rule, courts consider municipal boundary making to be strictly a political matter best left to state legislatures. This sweeping deference creates opportunities for special interests or politically powerful communities to segregate towns and schools, isolate vulnerable communities, or otherwise manipulate boundaries to hoard the benefits of local government. Courts will only intervene and deem an incorporation void if the action brazenly violates a constitutional protection or state incorporation law.

This Note examines some of the extreme situations in which courts may look beyond Dillon’s Rule and stop problematic incorporations. The threshold for judicial intervention is so high that populations can suffer significant injustice with no opportunity for recourse. This Note recommends that states enact more comprehensive incorporation laws that establish clear and mandatory incorporation procedures, set substantive requirements for what services municipalities must be able to provide, and save room for judicial review. Throughout, this Note uses the Borough of Victory Gardens, New Jersey, as a case study.

March 2021

No. 4