Essay

How to Undermine Tax Increment Financing: The Lessons of City of Chicago v ProLogis

Richard A. Epstein

The James Parker Hall Distinguished Service Professor of Law, The University of Chicago Law School; The Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; and Visiting Professor at New York University Law School

In the interests of full disclosure, I advised ProLogis on some of the legal and economic issues connected with its brief. The opinions expressed here are of course my own.

This Article examines the appropriate level of constitutional protection against outside governments that condemn property located within a given local municipality that uses tax increment financing (TIF) to fund local improvements. The standard TIF arrangement does not provide the TIF lenders with liens against any particular asset, because to do so would be to abandon the tax-exempt status of the municipal bonds that are issued. Yet these agreements guarantee that the local government that issued the bonds will take no steps to compromise their repayment from (incremental) tax dollars. These protections allow TIF bonds to trade in ordinary financial markets. The bonds may, however, prove vulnerable to loss when the private and public property within the local municipal district is condemned by an outside government, as happened in City of Chicago v ProLogis, where the Illinois Supreme Court denied the bondholders claim. I believe that these TIF bonds should have been treated as property under the Takings Clause and not as a mere “expectation” devoid of constitutional protection. This topic opens the way for a larger consideration of how to value divided interests in real property under the Takings Clause as a matter of modern finance theory in light of the powerful public choice issues that lurk in the background of this, and all other, takings disputes.

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