By: Emily Bergeron
October 2, 2019 —
In the early seventeenth century, Thomas Benton built a pigsty. It was so close to his neighbor’s house that the odor of the swine made the home unbearable, “stopping . . . wholesome air.” Benton’s neighbor, William Aldred, claimed that the stench was enough to deprive him of his property and personal dignity and was, therefore, a violation of his rights. In what is known as Aldred’s case, the king’s court determined that:
A man has no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants. William Aldred’s Case, (1611) 77 Eng. Rep. 816.
This same principle was affirmed by William Blackstone in his Commentaries on the Laws of England, which opposed the nuisance that would deprive a neighbor of the use and benefit of his house. Prior to the enactment of restrictions on land use such as zoning ordinances or comprehensive environmental laws in the United States, the legal system relied principally on tort law remedies—such as the nuisance laws resting on the foundation of Benton’s pig sty. The laws seeking to protect people from harm, particularly in their homes, are centuries old; as are the disparate applications of these laws to the detriment of a large portion of the population.
Home is more than just a place of shelter—where we live influences every aspect of our lives. Housing quality can impact physical health. Substandard housing can lead to lead poisoning, lack of access to clean water, asthma, and bodily injury, such as falls (the leading cause for hospitalization among older adults). Cost burdens reduce the income available for necessities like food and health care. Physical neighborhood attributes like walkability, proximity to traffic and public transportation, access to green space, and potential food desserts impact mental health, physical fitness, and nutrition. Concentrated poverty, safety, and segregation, as well as other social and community attributes, further contribute to stress and deterioration of health. Location also influences individual and community identity, the quality and quantity of public services received, social networks, exposure to crime and violence, physical distance and isolation, and other stressors and contextual factors that are supportive of physical and emotional well-being. Those who are most vulnerable, children and the elderly, are most adversely affected by unstable housing conditions. For these reasons, conventions on human rights have long recognized the importance of housing, paying particular attention to issues of security of tenure, affordability, habitability, availability of services and infrastructure, accessibility, location, and cultural adequacy. (See What is the Human Right to Housing?)
Housing availability, conditions, and affordability are impacted by a variety of factors, not least of which are federal, state, and local laws. Since Jacob Riis explained in How the Other Half Lives in 1891, exposing the problems of tenement living through photographs of living conditions and Dickensian accounts of the life of residents, housing reformers have pressured local, state, and federal actors to address the often-appalling conditions of housing. Beginning in the late nineteenth century, municipal governments began to react to housing problems by creating laws such as tenement acts, codes addressing building materials to improve fire prevention, and minimum housing standards. With the new century, comprehensive zoning laws soon followed restricting, among other things, certain land uses that were not compatible—like pig farms in proximity to dwellings.
The first federal public housing was constructed in 1918 by the United States Shipping Board and the United States Housing Corporation (Department of Labor); 16,000 units for war workers that were eventually turned over to private ownership at the end of the war. A post-war period shortage of housing in cities led to action at the municipal level, such as New York’s Housing Committee of the New York State Reconstruction Commission, which addressed tax breaks and bond issues, and later the New York State Housing and Regional Planning Commission. The federal government’s role in housing expanded during the Great Depression, when demands for federal action led to attempts to improve cities and their economies. Hoover called for a President’s Conference on Home Building and Home Ownership in 1931, summoning a change to the home loan practices by proposing a system of federally supervised banks for mortgage lenders as a way to expand housing capital. The resulting Emergency Relief and Construction Act created the Reconstruction Finance Corporation, which was authorized to provide loans to private corporations for financing housing for low-income families.
The federal government would continue to establish housing policies to address housing shortages and affordability including, but not limited to, the National Industrial Recovery Act in 1933, the National Housing Act of 1934 that would restructure lending practices and create FHA mortgage insurance, public housing with the Wagner-Steagall Housing Act and Lanham Act pre-WWII, and FHA and VA loans post-War. Urban renewal programs, part of President Truman’s Fair Deal, purported to provide decent homes and a suitable living environment for every American and, further, the 1949 Housing Act was enacted to revitalize city centers. The benefits of these laws, however, were limited in reach.
Housing policy in the United States has consistently disadvantaged people of color and low-income communities in what Richard Rothstein refers to in The Color of Law: A Forgotten History of How Our Government Segregated America as a “state-sponsored system of segregation.” The Supreme Court’s decision in the 1926 landmark zoning case of Village of Euclid v. Ambler Realty, Co., for example, legitimized the use of zoning ordinances as a constitutional exercise of police power to provide for health, safety, and welfare. Euclid spoke to the importance of housing, but highlighted the preference toward single-family detached units, pointing out that “very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district.” Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 394 (1926).
Roosevelt’s 1933 Home Owner’s Loan Act created the Home Owners’ Loan Corporation (HOLC), which provided opportunities for improved mortgage terms for white homebuyers, but was also the origin of the “Residential Security Maps” used to deny mortgages to African Americans through redlining. The Federal Housing Administration, established as part of the National Housing Act of 1934, refused to insure mortgages in and near African American neighborhoods while simultaneously subsidizing the mass-production of white subdivisions built with the proviso that no homes be sold to African Americans. Slum clearance and urban renewal, addressed under Title I of the 1949 Housing Act, not only had a detrimental effect on the urban fabric, but also reinforced segregation and impoverishment. Local renewal agencies, under the direction of the Housing Administrator, were given the power of eminent domain and federal funding to condemn “blighted”neighborhoods; the law allowed newly cleared land to be sold to private developers at a reduced price. The Act, intended to stimulate large-scale, private investment in cities, in practice displaced more than 300,000 people between 1955 and 1966. The burden once again fell disproportionately on people of color; two-thirds of those displaced during urban renewal were African American. This continued with the Federal-Aid Highway Act, which sought to connect the country through a series of highways, but either completely eliminated or divided predominantly urban, African American communities.
Limited federal actions impacting housing during the 1960s reflected the social concerns of the time. This was first reflected in Executive Order 11063, which required equal opportunity in housing. Title VI of the Civil Rights Act extended this to ensure nondiscriminatory practices in federally assisted programs and in Title VII, which delineated the Fair Housing Act. Despite the progress of these laws, and of course the civil rights movement, however, federal housing projects still segregated tenants by race.
These decades-old discriminatory federal policies created a foundation for economic inequality, decreasing opportunities for upward mobility for those living in segregated neighborhoods. For example, though African American incomes average about 60 percent of white incomes, African American wealth is about 5 percent of white wealth. As middle-class families derive wealth from home equity, this disparity is clearly attributable to twentieth-century federal housing policy. Unfortunately, these federal policies barely scratch the surface of the multitude of regulations that have led to segregation. At the local level, for example, ordinances were used not only to prohibit African Americans from living in some neighborhoods, but in some instances create sundown towns mandating African Americans leave
Decades later, the same African American communities that banks had long ignored were targeted with subprime loans. These risky investments, although tremendously profitable for the banks, carried higher fees and interest rates and resulted in a housing crash. The discriminatory nature of these loans was clear. At the height of the housing boom in 2006, African American and Latino families earning more than $200,000 a year were more likely on average to be provided a subprime loan than white families making less than $30,000 a year. Jacob William Faber, Segregation and the Geography of Creditworthiness: Racial Inequality in a Recovered Mortgage Market, 28 Housing Policy Debate 215–247 (2017). The impacts of the 2006 subprime mortgage crisis, sometimes called reverse redlining, will have lasting impacts on those that faced foreclosures. These discriminatory practices led to a number of lawsuits, such as City of Baltimore v. Wells Fargo, 1:08-cv-00062 (D. Md. 2012), in which the city alleged that Wells Fargo had coerced minorities into subprime loans, providing them with less favorable rates than white borrowers and ultimately foreclosed on hundreds of Baltimore homes. The result was the creation of blight and increased public safety costs. Wells Fargo and the city eventually reached a settlement agreement whereby the lender would pay $175 million to settle accusations that its brokers discriminated against African American and Latino borrowers.
These same communities face not only economic inequities, but also live where they must bear a disproportionate burden of environmental ones. And problems far more caustic than the noxious air created by Benton’s pigsty plague housing in America today. For example, people of color in the Northeast and mid-Atlantic live with 66 percent more air pollution, which can lead to increased incidents of lung and heart ailments, asthma, diabetes, developmental problems in children, and premature death (African Americans are exposed to 61 percent more pollution from burning gasoline, Asian Americans 73 percent more, and LatinX 75 percent more). (See Inequitable Exposure to Air Pollution from Vehicles in the Northeast and Mid-Atlantic (2019)) Pipelines crept across the homelands of the Standing Rock Sioux in North Dakota, leaking almost immediately after coming into operation. Now massive compressor stations for a fracked gas pipeline threaten the historically African American Union Hill community in Virginia. Perhaps the best case reflecting the disproportionate burdens of environmental contamination coupled with the political and legal failures in addressing these burdens is the now five-year-old health crises created when Flint, Michigan, switched its water source, exposing nearly 100,000 residents to lead-tainted drinking water. Not only has the state failed to find any official accountable, but the Department of the Attorney General is also dropping all charges related to the investigation—including one involuntary manslaughter charge against a top health official.
Housing and neighborhoods can also go ignored for decades only to eventually face the devastating impacts of gentrification and displacement. The term “gentrification” was first coined by British sociologist Ruth Glass in the 1960s to give a name to what was occurring in the working-class neighborhoods in London, which “one by one, [were] invaded by the middle class.” Economic development in disinvested neighborhoods, although in some ways positive, when left unchecked can go too far. Existing residents may be forced from their homes due to decreasing housing stock, increased rents, and even landlord harassment (e.g., cutting off utilities, ignored maintenance, or letting garbage accumulate). This can come about as a result of economic or physical change. Communities like Brooklyn or Harlem exemplify such an economic development impact.
Physical change may be represented by the changes associated with Brownfields redevelopment. Gentrification has also been linked to simply locational advantage. Research on real estate values in Miami, Florida, for example, has shown that higher elevations bring higher property values, demonstrating the impending issue of climate gentrification. (See Jesse M. Keenan, Thomas Hill, and Anurag Gumber, Climate Gentrification: From Theory to Empiricism in Miami-Dade County, Florida, 13 Environmental Research Letters 054001 (2018).) The most obvious impact of gentrification is physical displacement; however, political and cultural displacement also affect those residents that remain in gentrifying neighborhoods.
Healthful, affordable housing and antidisplacement measures are not only critical to individual health but also to environmental health. For example, consider the lack of housing options in cities across the country where there is a significant imbalance between jobs and housing, particularly affordable housing near transit options. This imbalance between jobs and housing, particularly in urban areas near public transportation, prevents people from living near their place of employment. Where low-income residents can afford to live near transit options, they experience health, community, and environmental benefits. (See ACT-LA, Transit for All. Achieving Equity in Transit-Oriented Development)
Further, there is a connection between transit use and income levels. When low-income households reliant on public transportation are displaced, transit use decreases. (See Stephanie Pollack, et al., Maintaining Diversity in America’s Transit-Rich Neighborhoods: Tools for Equitable Neighborhood Change. DRS (2010)). Where there is a required commute for affordable housing, sprawl often follows, which in turn negatively impacts air and water quality; affects energy use; and contributes to the loss of farmland, open space, forest, and other habitats. Providing developers incentives for creating or maintaining affordable housing, like allowing for additional density or parking reductions, or speeding up approvals for infill developments near transit options would result in climate benefits, reduce pollution, and improve public health.
That adequate housing is a human right is a widely recognized concept. The right is protected in Article 25 of the Universal Declaration of Human Rights; Article 11 of the International Covenant on Economic, Social, and Cultural Rights; Article 27 of the Convention on the Rights of the Child; Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination; Article 14 of the Convention on the Elimination of All Forms of Discrimination against Women; and Article 11 of the American Declaration on Rights and Duties of Man. Housing is also included as an element of the UN Sustainable Development Goals. Goal 11, which seeks to “make cities inclusive, safe, resilient and sustainable” posits that sustainability requires addressing the shortage of adequate housing and advances the idea that by 2030, all countries must “ensure access for all to adequate, safe and affordable housing and basic services and upgrade slums.”
Unfortunately, despite these lofty international conventions, as is evident in the contributions of this issue’s authors, the United States is far from addressing the lasting impacts of historic and continuing injustices. Unfortunately, housing has ultimately been commodified and, therefore, disconnected from its social function. It reflects income inequality and environmental injustice. From federal- to local-level laws impacting air and water, along with homeowners and the homeless, regulatory processes that influence where and how people live have an immediate and profound effect on shaping public health. It is essential to address how these regulations affect communities that have suffered from the distributional disparities of environmental and economic harm concurrent with the disproportionate protection of the law.
This article courtesy of the American Bar Association
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