Finding a right to the city: exploring property and community in Brazil and in the United States.

AuthorPindell, Ngai

ABSTRACT

Increasing poor people's access to property and shelter in urban settings raises difficult questions over how to define property and, likewise, how to communicate who is entitled to legal property protections. An international movement--the right to the city--suggests one approach to resolving these questions. This Article primarily explores two principles of the right to the city--the social function of property and the social function of the city--to consider how to better achieve social and economic justice for poor people in urban areas. Using Brazil as one example of a country incorporating these principles within constitutional and statutory provisions and employing these principles at the local level through ambitious and innovative property programs, this Article explores the potential application of the right to the city movement in the United States. Such a movement could incrementally advance moral and legal claims to a right to shelter through a more expansive and creative implementation of urban planning laws and land trust programs.

TABLE OF CONTENTS I. INTRODUCTION II. EXPRESSIONS OF THE RIGHT TO THE CITY A. The Right to the City Movement B. Communities and Contested Property--Favelas and Loteamentos in Brazil C. The Struggle Between Private Property and the Social Interest D. The Meaning of the Right to the City 1. National Efforts--The City Statute 2. Local Efforts--Pro-favela and Participatory Budgeting III. APPLICATION OF THE RIGHT TO THE CITY--THE UNITED STATES A. Individual and Social Conceptions of Property B. Planning for Affordable Housing C. Occupation Claims--Squatters and Land Banks 1. Inventory Management and Transfers to Productive Use 2. Reforming Property Laws for Productive Use IV. CONCLUSION I. INTRODUCTION

This Article is inspired by an international movement called the "right to the city" and by Brazil's adoption of some of the principles of this movement within new constitutional provisions and national legislation. The right to the city, popularized by the French philosopher Henri Lefebvre, incorporates two novel concepts: the social function of property and the social function of the city. The social function of property subordinates individual rights of property to social demands. (1) "In the formulation and implementation of urban policies the social and cultural interest must take priority over the individual right of property." (2) The social function of the city is not so succinctly summarized. "It contains concepts of inclusion, urban investments for the benefit of all residents, equitable distribution of resources, and environmental sustainability." (3) In part, it provides a context for the exercise of the social function of property. In Brazil, the social function of the city is applied by national statute to generally prioritize city residents' rights of participation and occupation. (4) These social concepts have directly shaped constitutional and legislative changes in Brazil; they have broadened opportunities for residents of urban areas to participate meaningfully in land use planning processes and opportunities for residents to acquire legally recognized property rights in the same areas. The most notable change in the law in Brazil is the granting of legal property rights to individuals in local, urban jurisdictions who are best described as "squatters."

The "city," as used in this Article, identifies any location where people want to live. This location can be rural or urban and may be large or small. (5) The city also has symbolic meaning. It has meaning as a place of diverse interaction, conflict, and cooperation. One writer notes that "It]he city creates a situation, the urban situation, where different things occur one after another and do not exist separately but according to their differences." (6) People interact on the streets, in public squares, in sidewalk cafes, and in building lobbies. Similarly, Gerald Frug notes that "[a] primary city function--the primary city function--ought to be the cultivation and reproduction of the city's traditional form of human association.... Cities ... ought to teach people how to interact with unfamiliar strangers...." (7) The city is also a marker of identity. People live in Chicago, grow up in the suburbs of New York, or work in Washington, D.C.

The city is a place in which diverse groups, distinguished by income, race, or other characteristics, engage in a competition for space. (8) For some, efforts within the competition are focused on excluding certain populations. Suburban communities incorporate to separate themselves from cities; some individuals live within the protections of gated communities, and some localities engage in zoning practices designed to limit housing opportunities for low-income individuals. (9) For others, the struggle centers on gaining inclusion to areas and amenities previously unobtainable. Within this latter group, these residents of the city seek to reclaim vacant houses in decaying neighborhoods. (10) They seek affordable rental and ownership opportunities in communities, or resist displacement in gentrifying neighborhoods. They run businesses at the margins of legality. They seek creative ways to occupy the city by doubling up in apartments, squatting in vacant buildings, and building makeshift shantytowns and tent cities on vacant land. (11)

These competing claims to urban space operate within macro-policies that shape cities. In the United States, the urban form has been shaped by racial conflict as well as by federal government policies such as highways and urban renewal. (12) Additionally, macroeconomic factors shape urban spaces. The gap between income levels and housing prices continues to rise. (13) Scholars and policymakers have long considered possible solutions to these spatial inequalities and conflicts, yet they persist. (14)

This Article considers what a right to the city means in Brazil and what it could mean in the United States. The right to the city suggests, in part, a right to housing. The right to the city incorporates a right to housing in its charter document. Additionally, the full application of the social function of property and the social function of the city, with their emphasis on access to city space, seem to require some degree of increased access to housing. The right to the city, however, is not as pithy as guaranteeing all persons shelter. Instead, it is better conceptualized as a movement increasing the ability of poor persons without property to more effectively access housing and shelter opportunities within cities. Part II of this Article explores the right to the city movement generally as well as its application in Brazil through the City Statute and the Constitution. This Part highlights participation and property themes in Brazil's urban history and in recent trends. Part III traces the possible meaning of a right to the city in the United States through the same themes of participation and property, noting how property views in the United States shape the law's ability to conceptualize approaches to a right to housing. Part III concludes by exploring affordable housing planning and land trusts as two hopeful examples of realizing a right to the city in the United States.

  1. EXPRESSIONS OF THE RIGHT TO THE CITY

    1. The Right to the City Movement

      The urban landscape imagined as a contest for space is the nucleus of philosopher Henri Lefebvre's right to the city. Henri Lefebvre popularized the right to the city in writings in the late 1960s. (15) Lefebvre's right to the city involves "a transformed and renewed right to urban life." (16) This right to urban life incorporates two principal rights: the right to participation and the right of appropriation. (17) The right to participation means that urban residents should have the opportunity and power to make meaningful determinations of the contours of urban space. The right of appropriation prioritizes the rights of city residents as occupiers and users of city space. The inhabitant of the city should have access to city space.

      The right to the city ... should modify, concretize and make more practical the rights of the citizen as urban dweller ... and user of multiple services. It would affirm, on the one hand, the right of users to make known their ideas on the space and time of their activities in the urban area; it would also cover the right to the use of the center, a privileged place, instead of being dispersed and stuck into ghettos.... (18) Lefebvre identifies the inhabitant in large part with the working class and a struggle against the forces of private capital. (19) The antithesis of the inhabitant is speculative capital. (20) Private capital and speculative capital work to exclude inhabitants from access to city spaces and participation in city life.

      Claims to space under the right to the city are multifaceted. For example, Raul Villa details the struggle of Mexicans for urban space in Los Angeles, California, after the arrival of the railroad in the 1870s spurred new urban development. (21) He describes the appropriation of space through instances of Mexican "public cultural spectacle "(22) and "symbolic spatial practices." (23) Other writers describe the social symbolism of "[t]aking to the streets" in cities across Latin America. (24) In the United States, Peter Marcuse demonstrates limitations on taking to the streets in protest in New York after the September 11 terrorist attacks. (25) Some descriptions of the right to the city detail the physical struggle to maintain neighborhoods and resist displacement in the face of urban renewal activity, (26) and to devise strategies to increase participation in land use and other decisions of city governance. (27) Gated communities and "fortified enclaves" limit public spaces and contribute to spatial segregation. (28) Highways eliminate local neighborhood streets and the "outdoor political domain of social...

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