Restricting Occupancy, Hurting Families

by Ellen Pader

While much has been written about federal legislation designed to dismantle public housing, relatively little has been written about legislation designed to eviscerate the Fair Housing Act (FHA), which gives legal protections against discrimination in housing choice.

Much of what has been written deals with the Home Mortgage Disclosure Act (HMDA) and modern versions of redlining, steering and other means of discrimination on the basis of the homeseekers’ race, ethnicity, sex, religion, disability and/or because they have children. Another assault on the FHA that rarely makes it to newspapers takes the form of legislative attempts to severely limit the number of people who may share a unit by codifying overly restrictive occupancy standards. If successful, this “reform” would make housing choice even more precarious for low-income households.

Occupancy Standards

Occupancy standards have had a large influence on the ethnic, racial, social and economic structure of cities. Occupancy standards govern the acceptable number of people-per-unit or acceptable household composition. They directly impact the availability and affordability of housing and, by extension, homelessness, coercive racial, ethnic and class segregation and access to quality education, jobs, recreation, transportation and other services.

While appearing to be neutral, and purported by their supporters to be in the interest of protecting the physical and mental health and safety of all, property owners and municipalities have long used overly restrictive occupancy codes explicitly to keep out unwanted populations and maintain a particular ethnic status quo in a community. Two popular ways that occupancy standards are used for discriminatory purposes are by writing zoning policies that restrict the number of non-nuclear or unrelated people who may share a rented or self-owned home, and setting restrictive person-to-room ratios. The standards are purposefully designed to be biased against certain groups by legislating away the right to have extended or large nuclear families live together. Once the regulations are in effect, there is often uneven enforcement, targeting those unwanted groups, generally based on their ethnicity or the presence of children in the household.

What we’re really talking about here is a culturally constructed definition of appropriate family composition and the apportioning of domestic space masquerading as a neutral, and even healthy and necessary, social policy – a social policy which can only have a disparate cultural and economic impact on low-income households. What makes this more insidious is that the history of current occupancy standards derives from racist and ethnocentric beliefs and attempts to control, contain and assimilate non-white and “not-yet-white” populations (as historian David Roediger refers to the non-WASP ethnic groups which were once considered distinct races).

New Bills Would Gut Fair Housing

As I write this in late January, 1999, two anti-Fair Housing bills have already been introduced in Congress by Representative Bill McCollum (R-FL). H.R. 190, “Credit Opportunity Amendments Act of 1999” would, if passed, severely weaken the enforcement power of the Department of Justice to uphold the Equal Credit Act (and hence access to mortgages) and the Community Reinvestment Act.

The second bill, which I will discuss here, is Rep. McCollum’s H.R. 176, “The State Occupancy Standards Affirmation Act of 1999.” As part of a major legislative priority of the National Multi Housing Council in Washington, D.C., the lobbying organization for large residential rental owners and managers, this bill would, in essence, set a federal occupancy standard of no more than two people per bedroom plus an infant under six months old, who must sleep in the same room as the parent or other guardian. Under this law, a state could set its own “reasonable” standard, with the two person per bedroom limit kicking in if a state does not have an occupancy standard. ( for the full text of these bills.)

The stated purpose of the legislation is to limit the number of residents a housing provider can “manage” (not a word used about the middle- and upper-income renters) and still provide a “decent home and services,” enhance “livability for all residents, including the dwelling for each particular resident;” and avoid “undue physical deterioration of the dwelling property.” On a superficial reading, this bill seems to provide good protections, ensuring that no one has to live in the severely crowded tenement conditions of nineteenth century New York City or San Francisco’s Chinatown, conditions that lead to the first occupancy standards in 1879 and 1870, respectively (not without their own discriminatory intentions).

The implications of H.R. 176, however, are troubling. It assumes renting families are irresponsible and inconsiderate, and in need of being managed. It further assumes that a family of five is intrinsically more destructive than a family of four. If this low-or moderate-income family of five or six cannot find someone who will rent them a two-bedroom home in a neighborhood with access to good schools, jobs, transportation and recreation, often they will have to either move to a large home in a less desirable area or spend 75% or more of their income on a three-bedroom home.

In general, what is needed is an overview of the critical linkages between the urban planning profession and the nation’s most visible racial minority. Race and racial injustice influence all efforts to improve urban society. Urban planning, an active profession, purports to help improve civic life in metropolitan areas. It cannot do so unless its practitioners more clearly understand the historical connections between this people and this field.

Although the text of H.R. 176 has been rejected twice before, with a fight, HUD and many courts have tended to accept the proposed two person per bedroom (2:1) ratio as reasonable, and thus not discriminatory under the Fair Housing Act, even though it has a disparate impact on households of color and households with children, two protected categories. Many states use a different method of measuring, calculating the number of people per square foot (rather than per bedroom), including both the overall person-to-dwelling size and person-to-bedroom size, a system the rental industry argues is too complex. HUD will sometimes take room size into consideration as well as number of bedrooms. None of the supporters of restrictive standards have ever been able to justify their preferred standards on the basis of business necessity, health or safety concerns. Nor have they found an objective standard of “livability.” This is important because this 2:1 standard has a distinctly northern European, upper class lineage, and therefore, profound implications for being legally discriminatory on the basis of national origin (ethnicity), race and familial status.

Cultural Bias and Occupancy Standards

There are significant cultural differences concerning what constitutes comfort, crowding and appropriate use of domestic space. In countries as different as Japan and Mexico, household members commonly choose to share bedrooms while leaving others unused. Sharing sleeping and other spaces is often part of a cultural emphasis on interdependency as a personal and political goal, while sleeping alone and other emphases on physically bounded private domestic space help cultivate a greater emphasis on individualism.

The 2:1 occupancy standard is so much a part of the dominant ideology of arrival, that a politically active friend berated me for my insistence on a more lenient occupancy standard with: “I want others to have what I want for my own family.” He didn’t consider that having one’s own bedroom is not only a personal choice, but a sociocultural one.

Since restrictive covenants were deemed illegal in 1948, some municipalities continue to find creative new ways to reconstitute some facsimile of their discriminatory power through occupancy standard regulation. A number of municipalities have attempted to rewrite zoning bylaws to rid themselves of unwanted populations. For example, since the mid-1980s some locales have tried – and fortunately lost in court – to redefine the minimum space per person ratio to stop Latino households from moving in, many of whom had larger families than the established residents and/or extended families. Examples include Wildwood, N.J., Cicero, IL (where the Department of Justice found the new ordinance enforcement to be targeted only at potential Latino home buyers), Waukegan, IL, and Santa Ana, CA.

There is a sad irony not to be missed here. Every year Congressional Republicans introduce regressive housing legislation that can only have the effect of legislating away the fundamental means by which low-income people have traditionally helped one another through hard times. In the Republican’s selective approval of over-regulation, such legislation ensures the continuation of the urban structure the same policy makers purport to want to dismantle, and promotes the antithesis of the traditional family value of mutual assistance. The proposed occupancy standards legislation, H.R. 176, resounds with the moralistic and paternalistic policies of the nineteenth century; it totally ignores regulating owners who do not properly maintain their property and gives no heed to the many low-income tenants who work hard to maintain a high quality environment, despite non-responsive property owners. The FHA is an important part of the Civil Rights Act, and certainly an important tool for planners interested in social equity.

Ellen Pader is Associate Professor of Regional Planning at the University of Massachusetts/ Amherst, and is on the Board of Directors of the Housing Discrimination Project in Holyoke, MA.

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