LEGAL MECHANISMS FOR PUBLIC EXILE: ZONING & NUISANCE LAWS By Lauren Hall

Broken Window theories, or policing strategies to “restore order,” is significantly used in America to regulate public space.[1] American cities use this theory in property land-use regulations: zoning and nuisances.[2] Zoning generates the ability to segregate areas, while nuisance laws are the vehicle to criminalizing behavior. Specifically, the case  Village of Euclid Ohio, et al., v. Ambler Realty Co coined the term "Euclidian zoning" which addresses the spatial separation of different land uses.[3] This was a landmark Supreme Court case,  it upheld the City of Euclid’s zoning ordinances and ruled them constitutional because they fell under local police power (relating to the safety, welfare, health, morals of the public).[4] This case permitted that zoning was required for effective municipal planning; it gives the right to divide the town or community into areas with specific permitted land uses.[5] But in doing so, it divides towns into districts exacerbating segregation issues, limits housing supply, encouraging urban spawl, increases housing costs and inequality.[6]

As a result, American zoning laws put everything in place to segregate economic from noneconomic activities–––hide the poor from the rich.[7] Progressive proponents believed that changing surroundings would change behavior. In the context of zoning, these beliefs are separate commercial and industrial establishments from residences and segregates single-family homes “to curb social disorders plaguing crowded American cities.”[8]  In its amicus brief, Euclid, the National Conference on City Planning argued: “The man who seeks an orderly neighborhood assumes that his children are likely to grow mentally, physically, morally more healthful in such neighborhood than in disorderly, noisy, solvently, blighted and slum like district. This assumption is indubitably correct…. disorderliness in the environment has detrimental an effect upon health and character as disorderliness within the house itself.”[9] Like Euclid, many city officials use ideology to equate appropriate land use with the absence of disorder. The "order" imposed by American zoning laws helped codify public nuisance laws to target “disorder” at the first signal of urban decline.[10] When property is over or mis-regulated, the authorization of public nuisance laws prioritizes suppressing disorder.[11 

The majority of anti-homeless laws are nuisance statutes. Typically, a nuisance ordinance labels a property as a nuisance when it is the site of a certain number of calls for police or alleged nuisance conduct.[12] Upon citation, people are instructed to "abate the nuisance" or face steep penalties.[13] For example, like many state statutes, the State of Florida has a camping ban couched within a nuisance statute,  anyone who “erects, establishes, continues, maintains, owns, or leases” a “building, booth, tent, or place that tends to annoy [emphasis added] the community or injure the health of the community” is “deemed to be maintaining a nuisance.”[14] When a tent is considered a nuisance, people experiencing homelessness are criminalized for having shelter.[15] In Placerville, California, it is “unlawful and a public nuisance for any person to store personal property, including camp paraphernalia” on any public property; or private property without the written consent of the owner.[16] Once a law classifies behavior as a nuisance, the doors open for governments to suppress disorder.

To enforce theses anti-homeless ordinances, cities conduct sweeps or encampment removals.[17] Sweeps are not laws on the books, they are methods by which city municipals coerce encampment communities to disband with the threat of arrest, citation, and/or destruction of property.[18] Sweeps remove individuals from encampments with little or no notice to physically displace people from public space that often results in the loss or destruction of a person’s few possessions.[19] Some cities have protective measures that provide notice to encampments as well as personal property protections; but it is often reported that the executions of sweeps do not always follow the guidelines.[20] In New Orleans, the city codified that property can only be destroyed when it is “likely to create a material risk of harm that poses a health threat to the public or a city employee due to its condition.”[21] However, the city continues to destroy personal property because the ordinance gives city workers broad discretion on what they can throw away.

In Santa Clara County, California, Nina, a Latina woman in her fifties experienced destabilizing effects from being swept every few weeks, “A few times they [law enforcement] came and wiped out everything of everybody’s...clothes..food...it didn’t matter what it was. If you had it there, they took everything.”[22] Beyond causing material loss, psychological distress and emotional trauma is often reported because sweeps disrupt social connections, increase the seizure of health necessities and irreplaceable personal belongings, and displaces community support.[23] In the State of Hawaii, 57% of people lose their personal identification, 40% lose their tents, and 21% of people lose their medicine during sweeps.[24]

Our prevailing system of land-use regulation for zoning and nuisance laws are an urban villain. But exiling effects are not only manifest by zoning land-use regulations or nuisance laws, but also by hostile architecture. Hostility towards people who are visibly homeless is present in urban design techniques as a weapon to wage the ongoing war in public space.[25] Architects, planners, policymakers, developers, real estate brokers, community activists, and neighborhood associations, will implement hostile architecture to reduce the presence of homelessness in urban centers.[26] Urban designs range from armrests to divide sidewalk benches, spikes on the ledges or behind doorways, or sprinklers triggered by movement on the steps of church entryways.[27] In cities all over the U.S. benches are discreetly removed and are usually replaced with seating arrangements intentionally designed to prevent people from sleeping.[28] Lights in public bathrooms will be in shades of blue to keep drug users from staying inside and sitting spaces will be replaced by metal bars to lean on.[29]

Public space is designed to not be for public use, it is orchestrated for socioeconomic and class conformity.[30] It perpetuates enforcement of identities, actions, and appearances that are normal and acceptable to those who can engage in property rights and protections.[31] Public space is supposed to be the defender of democratization.[32] The purpose of public space is to share and have equally accessible to all people; to physically integrates us with diverse strangers.[33] The presence diversity allows the possibility to step outside ourselves creating opportunities for growth and mutual understanding.[34] But instead, public space is allowed to be weaponized.  In principle, public space should be available to everyone, but in practice, it is a breeding ground for expulsion and separation.[35] Laws that criminalize homelessness makes survival illegal and banishes  marginalized groups from community participation. The denial and underinvestment in homeless services and property recognitions, and the overinvestment in criminalizing and policing the visibly homeless, all contributes to a dehumanizing ostracization of a subpopulation from our communities–––something that is well too known in American history. 

Lauren Hall, Esq. 

FOOTNOTES

[1] Piper McDaniel, Homeless People are More Likely to be Victims of Violence than Housed People, Street Roots (Jul. 13, 2022) https://www.streetroots.org/news/2022/07/13/violence-conflated#:~:text=A%20study%20from%20the%20National,those%20surveyed%20reported%20experiencing%20violence.

[2] McDaniel 

[3] Id., see Village of Euclid Ohio, et al., v. Ambler Realty Co., 47 S.Ct 114 (1926).

[4] Euclid v. Ambler Realty Co. 

[5] Id.

[6] Rachel Watsky, The Problem with Euclidian Zoning, Boston University School of Law, (July 19, 2018)   https://sites.bu.edu/dome/2018/07/19/the-problems-with-euclidean-zoning/

[7] Sara K. Rankin, Hiding the Homelessness: The Transcarceration of homelessness, 109 CALIF. L. REV. 559, 588 (2021).

[8] Nicole Stelle Garnett, Ordering (and Order in) the City, 57 Stan. L. Rev. 1 (2004-2005).

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] American Civil Liberties Union, I am Not a Nuisance: Local Ordinances Punish Victims of Crime (2022) https://www.aclu.org/other/i-am-not-nuisance-local-ordinances-punish-victims-crime

[14] Fla. Stat. § 823.05, (2020).

[15] Housing not Handcuffs, State Supplement Law (November 2021).

[16] Placerville, Cal., Placerville City Ord. 1659, (1-14-2014).

[17] Garnet, Ordering (and Order in) the City

[18] Lauren J. Hall, Sweeping Away Survival: How Anti-Homeless Laws & Practices Infringe on the Fundamental Right to Survive, Journal of Public Interest (2023).  

[19] Id.

[20] Id.

[21] Adrienne Underwood, At New Orleans homeless camps, controversial sweeps force many to ‘restart from scratch’, Gambit (2019) https://www.nola.com/gambit/news/the_latest/at-new-orleans-homeless-camps-controversial-sweeps-force-many-to-restart-from-scratch/article_7aec16ec-5423-11ea-9e13-5b93104ac5a3.html

[22] Id.

[23] Id.

[24] Housing not Handcuffs, supra note 98 at 30.

[25] Winnie Hu, Hostile Architecture: How Public Spaces Keep the Public Out, The New York Times (Nov. 8, 2019) https://www.nytimes.com/2019/11/08/nyregion/hostile-architecture-nyc.html

[26] Id.

[27] Id.

[28] Dean Moses, It Sends a Message That You’re Not Welcome Here: The Rise of Anti-Homeless Architecture in NYC, AmNY (Oct 5, 2022) https://www.amny.com/news/anti-homeless-architecture-nyc/

[29] Id.

[30] Id.

[31] Sara K. Rankin, Hiding the Homelessness: The Transcarceration of homelessness, 109 CALIF. L. REV. 559, 588 (2021).

[32] Id.

[33] Id.

[34] Id.

[35] Id.

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