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23rd ENHR Conference 2011 - TOULOUSE (France)

‘Mixité’ : an urban and housing issue ?

Mixing people, housing and activities as the urban challenge of the future.

Plenary session 3

Legal and financial Instruments for safeguarding sustainable communities

 

Legal framework for sustainable communities: affordable housing and ‘mixité’  

Juli PonceUniversity of Barcelona (Spain)

Law School

jponce@ub.edu ; www.urcosos.net

 

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QUESTIONS

1. Is Urban Segregation a Bad Phenomenon? Implications for the Law

 

2. What is the Relationship between Mixed Communities and Sustainable Cities?

 

3. What Are the Relationships Between Urban Competitiveness, Social Sustainability and Affordable Housing?

 

4. How is Affordable Housing Linked to Social Sustainability and why is it crucial to Urban Sustainable Development?

5. What is the Relationship between Mixed Communities (and Social sustainability) and Affordable Housing?

 

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6. How Can We Promote Mixed Communities through Law and Affordable Housing?

• Fighting against Homelessness through Affordable Housing

• The Fight against Residential Discrimination

• Using Allocation of Affordable Housing to Promote Mixed Communities

• Promoting (sustainable) Urban Renewal

• Inclusionary Zoning: the Examples of France, Spain, England and the USA

7. Conclusions

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1. Is urban segregation a bad phenomenon? Implications for the Law

Academic Debate:

A) – urban segregation is a dangerous process and

measures to create mixed communities can help to avoid or reduce it.

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-segregation and concentration curtail the opportunities for people to participate in civil society due to the lack of contact with relevant individuals and institutions

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B)

-Spatial concentration of less affluent ethnic minorities can offer benefits from the point of view of providing networks of social support

Can Garcia, Manlleu, Barcelona, Catalonia, Spain

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-Moreover, it is argued that the policy of social mix implies an attack on the effects of the problem and not on the problem itself: i.e. the existence of poverty.

-Therefore, the only result of mixed communities is to disperse and hide the poor people.

-There is still a lack of empirical evidence that socially unmixed communities are necessarily unsustainable

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Is urban segregation a negative phenomenon which should be prevented or reduced with affordable housing projects?

YES…

Existing evidence is strong enough to develop public policies through law in the field of urban planning and housing in order to achieve mixed communities

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Distinguishing between economic segregation and discrimination

– Economic segregation:

precautionary principle in the sphere of social sustainability

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Mécanisme de prévention: le principe de précaution socialeJérôme Ballet, Jean-Luc Dubois et François-Régis Mahieu, « A la recherche du développement socialement durable: concepts fondamentaux et principes de base », Développement durable et territoires [En ligne], Dossier 3 : Les dimensions humaine et sociale du Développement Durable, mis en ligne le 22 juin 2004, consulté le 01 juillet 2011. URL : http://developpementdurable.revues.org/1165

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– Ethnic segregation or segregation based on personal characteristics (religion, etc):

Discrimination and segregation are unacceptable, due to the common International and European legal background

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(UN) Committee on the Elimination of Racial Discrimination

• Case F.A. vs. Norway, 2001: According to art. 5 of the Convention, Norway must adopt measures to prevent real estate agencies from discriminating and accepting applications from private landlords who discriminate people on racial bases.

• Case L.K.vs. Belgium, 1993: violation of Convention due to pressures on a foreigner to dissuade him from renting a social apartment (DOC. ONU A/48/18). F

• Case Anna Koptova vs. Slovakia, 2000, violation art. 5, d, 1 due to the lack of land for locating Roma mobile homes.DOC ONU CERD/C/57/D/13/1998).

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• European Convention of Human Rights, European Charter of Fundamental Rights, European Social Charter and the non-discrimination directives offer …

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• .

 

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…a common legal background which is guaranteed by case law of the European Court of Human Rights, the European Court of Justice and the European Committee of Social Rights.

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European Committee of Social Rights.

Collective Complaint of FEANTSA v. France. Complaint No. 39/2006.Report of the European Committee of Social Rights to the

Committee of Ministers - 5 June 2008, Paragraph 144 The European Committee of Social Rights affirms that it is the fault of policy development of the concept of social mix as well as its concrete administrative application which has led the committee to declare a contravention of the Charter (paragraph 144):

“The Committee considers that the allocation procedure does not ensure sufficient fairness and transparency, since social housing is not reserved for the poorest households. The application of the concept of “social mix” in the 1998 Act, which is often used as the basis for refusing social housing, often leads to discretionary results excluding the poor from access to social housing. The major problem stems from the unclear definition of this concept in the law and, in particular, from the lack of any guidelines on how to implement it in practice. Therefore, the Committee considers that the inadequate availability of social housing for the most disadvantaged persons amounts to a breach of the Revised Charter (see also Conclusions 2005, Article 31§3,

France)

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European Court of Human Rights

• Although the Convention does not recognize a right to housing (Marzari vs. Italy, 1999) several ECHR decisions have protected the rights to privacy and equality (articles 8 and 14 ECHR) in connection with residential issues:

• Several cases involving ethnic minorities (Roma):

– UK: in relation to protection of green belts and lack of land for Roma mobile homes (e.g. case UK vs. Chapman, Coster, Beard, Lee and Jane Smith, 2001)

– Moldovan vs. Romania, 2005: living conditions of Roma can violate their right to privacy

• Cases involving vulnerable groups (e.g. handicaped people, Marzari vs. Italy, 1999: right to privacy can be violated due to a lack of public activity to guarantee decent living conditions) 17

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• CHARMES, 2009

• « la bonne voie pour l’action publique se situe probablement dans un mélange de redistribution des populations et de développement local »

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• Public intervention and social mix is not equal to government imposition.

• On the contrary, public measures are a way of opening real opportunities for people to have freedom of choice in finding affordable housing in areas which do not concentrate social deprivation, in order to counter the housing segregation naturally created by market forces (a classic example of market failure) or/and discrimination

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2. What is the Relationship between Mixed Communities and Sustainable Cities?

Benefits of mixed income developments, linked to social sustainable communities (according to: Creating and Sustaining Mixed Communities: A Good Practice Guide (JRF, CIH, HC, TCPA 2006) http://www.jrf.org.uk/sites/files/jrf/9781905018314.pdf )

• ■ Residents of all ages, ethnic groups, household sizes and social classes have the opportunity to interact and to develop weak (or strong) ties.

• ■ The potential for negative area affects, such as low aspirations, low educational attainment and low-level crime is reduced.

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■ Local schools can attract pupils from a wide range of backgrounds.

RELEVANCE OF INTERACTION TO PREVENT STEREOTYPES AND DISCRIMINATION

From Social Psychology: Thomas F. Pettigrew http://www.theconvergenceproject.org/documents/pettigrew%20and%20tropp%202006.pdf

From Neuropsychology: Richard Davidson

http://psyphz.psych.wisc.edu/

http://www.redesparalaciencia.com/2700/redes/2010/redes-57-cambiar-el-cerebro-para-cambiar-el-mundo

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• ■ Mixed income areas may be able to attract and support a higher level of local services, leisure activities, shops and related facilities.

• ■ Residents have the possibility of moving within the development in order to accommodate changes in household size, income levels and space needs, and can also maintain social and family networks.

• ■ Higher average levels of disposable income may create additional employment opportunities for local residents.

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3. What Are the Relationships Between Urban Competitiveness, Social Sustainability and Affordable Housing?

– Definition of urban competitiveness» European Commission’s 1999 definition:

Competitiveness is defined as the ability to produce goods and services which address the needs of international markets, while at the same time maintaining high and sustainable levels of income, or, more generally, the ability of (regions) to generate, while being exposed to external competition, relatively high income and employment levels.

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– Relationships between affordable housing and urban competitiveness.

» key means by which affordable housing as a “social” infrastructure has been seen to influence the competitiveness of a city:

1. Attracting and retaining labour supply

• The availability, quality and cost of locally sourced labour will depend partly on the availability of adequate and affordable housing to all levels of the labour force. In this, there is often an observable trade-off, for individuals, and for governments needing to make either transportation or housing investments.

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• 2. Affordable housing supports the overall local economy and quality of life, including the predominately lower wage service economy necessary in any urban area

• 3. Indirectly, it improves the general health, safety and attractiveness of the city. creating social and cultural networks, educational attainment and a vibrant business environment

• (POMMEROY, 2007:» http://ottawa.ca/residents/housing/infrastructure/research_papers/social/index_en.html

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Urban Competitiveness and...A Working Paper for the city of Ottawa...http://ottawa.ca/residents/housing/infrastructure/research_papers/urban_competitiveness_en.html

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• Hypothesis # 1: Affordable housing is relevant for Urban Competitiveness.

• Urban competitiveness is important for urban economic sustainability.

• Therefore Affordable Housing is linked to economic sustainability

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4. How is Affordable Housing Linked to Social Sustainability and why is it crucial to Urban Sustainable Development?

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Definition of social sustainable communities

The Chain approach to Sustainable Communities Office of the Deputy Prime Minister (ODPM), 2006, UK Presidency. EU Ministerial Informal meeting on Sustainable Communities. European Evidence Review papers, London

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Draft of Social Sustainability Assessment Framework (SSAF) Dr Andrea Colantonio, Oxford Institute for Sustainable Development (OISD)Oxford Brookes University

http://www.brookes.ac.uk/schools/be/oisd/sustainable_communities/

Housing &Environment

Sustainability Assessment

Uncertainty Principle

Equity and Human Rights

Capital Stock

PracticeMethods, Themes and Indicators

PolicyPrinciples and Objectives

TheoryApproaches

Institutional Theory and Governance

Business and

Corporate studies

Behavioural and Welfare

Economics

Transition Theory

Intra- and inter-Generational

Equity

Protection and Promotion of Health and

Safety

Recognition and

Preservation of Diversity

PrecautionaryPrinciple

Education Employment DemographyHealth and

Safety

Social mixing/

cohesion

Identity,Image,

Heritage Well-being

Empowerment,Participation,

Access

Social Sustainability

© Colantonio (2009)

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TRADITIONAL EMERGING & SOCIAL SUSTAINABILITY

Demographic change (ageing and international migration)Empowerment, Participation and AccessIdentity, Sense of Place and CultureHealth and SafetySocial mixing and cohesionSocial CapitalWell being, Happiness and Quality of life

Basic needs, including Housing

Education and skillsEquityEmployment Human rights PovertySocial justice

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The three legs of European urban sustainability: urban competitiveness can be endangered by a lack of social cohesion

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City Competitiveness: Concept, Factors, ModelJolita Sinkiene

http://www.nispa.sk/_portal/files/conferences/2009/papers/200904201457480.Sinkiene.doc

Housing Work People

Leisure Transport

INP

UT

S

OU

TP

UT

S

Productivity Value added/person Income/Purchasing power Corporate profit Inward investment Growth of work places Immigration Physical city growth City image/ attractiveness Ecological situation

PR

OC

ES

SE

S

Economic factors Macroeconomic situation

Fiscal Policy Regulatory Policy

Development of Scientific Research and Experimental Development

Development of Communications

Social-cultural factors Demographics

Gender equality Life style specifics

Effectiveness of health care and educational systems

External employment opportunities Income level Crime level

Ecological-environmental factors Climate

Water resources Waste treatment systems

Land and land use Biological assets Energy resources Natural disasters

Political-legal factors

Political and legal stability International agreements of higher

authorities External security

Activity of external interest groups Activity of external institutions

Technological factors Development of ICT

Establishment of new industries development of production

technologies Polity of technology development

Ext

erna

l ci

ty

envi

ronm

ent

CITY COMPETITIVENESS

Human factors Labour skills Training and education possibilities Local demographic situation Local leaders Innovativeness/ creativity/ talent of local people Tolerance / culture / traditions of local people

Institutional factors Local government effectiveness Institutions - leaders Institutional networks Urban facilities and amenities City development strategy

Physical factors City location and accessibility Urban infrastructure Natural resources of the city

Economic factors Economic structure High value-added activities Local tax system Local wages level Access to capital in the city Local institutions of scientific research and experimental development City industry clusters

Internal city environment

Feedback

Level of Quality of Life

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• Hypothesis # 2: The lack of social sustainability jeopardizes urban competitiveness and consequently economic development.

• Hypothesis # 3: Affordable housing is a social infrastructure relevant for social sustainability and for economic (and environmental) sustainability.

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5. What is the Relationship between Mixed Communities (and Social sustainability) and Affordable Housing?

• From Right(s) to Housing to Right to the City (and remedies)

• Philosophical foundations: H. LEFEBVRE, Le Droit à la ville, Paris, 1968: Anthropos (2e ed.) Paris: Ed. du Seuil, Collection Points

Carta de la Ciudad de México por el Derecho a la Ciudad de 2009,

http://derechoalaciudaddf.blogspot.com/

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• Legal pragmatic implications: In the city there are involved several citizen’ s rights, not just land owner’ s rights.

– Right (s) to Housing &– Right to equality=no discrimination, no urban segregation &– Right to freedom of religion=existence and location of places of

worship &– Right to personal security=Crime Prevention Through

Environmental Design &-...

» Real Free exercise of personal freedom in urban environments

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European developments: the French and the Spanish case law

• France: Loi d´orientation pour la ville, 1991

• Objective of social cohesion in cities, in order to avoid segregation and to ensure the right to the city, by means of a mixture of urban funcions and promoting social mixing

• Case Law: Decision of Conseil d´Etat, November 22, 2002: housing and immigrants

• Spain: Several Regional laws and the National Land Use Act 2007 (Ley de suelo)

• Protection and promotion of social cohesion

• Case Law: Decision of Tribunal Supremo, December 11, 2003: Roma public housing

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• Hypothesis # 4: – Right to housing = “umbrella” right

including several rights connected with urban environment

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• Hypothesis #5: increasing European and international (e.g. Brazil, Ecuador) recognition of such a legal right, which begins to be protected through judicial decisions

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6. How Can We Promote Mixed Communities through Law and Affordable Housing?

• Fighting against Homelessness through Affordable Housing

New French and Scottish legislation

• The fight against residential discrimination

• Using allocation of affordable housing to promote mixed communities

• Picture:Public Housing, Barcelona, Source: Ruisánchez Arquitectes 39

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• Promoting (sustainable) urban renewal

• E.g. during the 1994-99 programming period, the Urban Community Initiative provided funding for 118 urban areas, amounting to € 900 million and directly benefiting 3.2 million people.

– National case: Catalan Act 2/2004, 4 June, concerning the improvement of districts, urban areas and towns requiring special attention.

» Saint Catherine neighborhood in Barcelona downtown

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Inclusionary zoning: the examples of France, Spain, England and the USA

• “The reception of foreign legal institutions is not a matter of nationality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn't grow in his back garden

• RUDOLF VON JHERING, 1818-1892

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England (Planning Obligations): Section 106 Town and Country Planning Act 1990

• (1) A local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement.

• (2) Any such agreement may contain such incidental and consequential provisions (including financial ones) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement.

• (3) An agreement made under this section with any person interested in land may be enforced by the local planning authority against persons deriving title under that person in respect of that land as if the local planning authority were possessed of adjacent land and as if the agreement had been expressed to be made for the benefit of such land.

• (4) Nothing in this section or in any agreement made under it shall be construed— • (a) as restricting the exercise, in relation to land which is the subject of any such agreement, of

any powers exercisable by any Minister or authority under this Act so long as those powers are exercised in accordance with the provisions of the development plan, or in accordance with any directions which may have been given by the Secretary of State as to the provisions to be included in such a plan; or

• (b) as requiring the exercise of any such powers otherwise than as mentioned in paragraph (a).

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France, HLM: Loi 2000-1208

Article 55 Loi n° 2000-1208 du 13 décembre 2000, relative à la

solidarité et au renouvellement urbains, obliges municipalities of more than 3,500 inhabitants (1, 500 in Ile de France) which are located in a metropolitan area of more than 50 000 inhabitants (with a city of at least 15,000 inhabitants) to have no less than 20% of social housing in relation to the already existing housing stock

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Spain, vivienda protegida: Ley de suelo 2008

The Spanish IZ program requires that a certain percentage of the developable square meters of a project be dedicated to Officially Protected Housing .The minimum compulsory percentage is uniform in all Spain: 30%

But Regions can demand more by means of their own legislation. E.g. Catalonia: percentage can range from 30% to 50%, depending on the size of the municipality.

In these areas developers have to sell or rent at a fixed price per square meter, established for different areas. Subsidies to the buyer, depending on income, iscalculated as multiple of minimum income.

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• Hypothesis # 6: Similar trends in both sides of the Atlantic regarding inclusionary housing, with some differences

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Hypothesis # 7The “Virtuous Chain” : Law and sustainable development

(Social) Infrastructures

&Affordable housing

Law&

Right to the city &

Human Rights &

Remedies

Sustainable Urban Development (Urban Competitiveness &

Economic perspective, Social Cohesion & Social perspective,

Environmental perspective)

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7. CONCLUSIONS-Law and affordable housing can be useful (but limited) tools in fighting against segregation by achieving social cohesion

-The utility of comparative approaches and the common legal European background

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-Discrimination and segregation are unacceptable

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-Economic segregation and the legal reaction: the precautionary principle in the field of social sustainability

-Interaction between Law and other social sciences: the more we know the better regulation we can have.

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• MERCI BEAUCOUP!• THANK YOU !

• MOLTES GRÀCIES!• ¡MUCHAS GRACIAS!

• http://www.urcosos.net/e-index.html 51