The Public Nature of Private Property by Robin Paul Malloy & Michael Diamond

Author:Robin Paul Malloy & Michael Diamond
Language: eng
Format: epub
Publisher: Ashgate Publishing Limited
Published: 2011-10-16T04:00:00+00:00

Chapter 6

Opening Neighborhoods to People with Mobility Impairment: Property, Disability and Inclusive Design Housing

Robin Paul Malloy

Introduction

While much progress has been achieved in making public/common spaces more accessible, residential housing remains largely unable to be freely visited by people with mobility impairment. This is a significant problem because it truncates the socio-economic relationships of a large, diverse, and growing population within our community. The problem is not simply localized; it is national because barriers to accessible housing are present in the vast majority of “private” single-family residential housing units in the United States.

My own tri-level home, for instance, is difficult to access and navigate. Not only are all three entrances to my home subject to access barriers, once a person enters my home she has to deal with a sunken living room (two steps down from the entrance hall), a two step rise to my dining room, a small first floor powder room with a door and interior space too narrow for a wheelchair or walker, a seven step rise to an otherwise accessible master bathroom and a 14-step barrier to our lower level family and activity room. The exclusionary design that makes my home difficult to navigate for family, friends, and colleagues is replicated in the houses of most of my neighbors, and in residential communities across our country.

A significant reason for the failure to adopt nationwide standards of inclusive design for all residential housing, even while improved accessibility in public accommodations has become pervasive, is related to an erroneous framing of the situation in the discourse of legal institutions. For the most part, the legal system frames the discourse of accessibility to residential housing in terms of a false dichotomy between the private and public spheres, with the home understood as private space—a space of intimate relationships, a space easily hidden from public view, and a space carrying high expectations of privacy. In this context, law seems to view residential housing in terms that affirm the voluntary and contractual undertakings of numerous discrete and autonomous individuals; individuals presumed to be empowered by market forces to bargain for socially optimal housing outcomes.

The underlying assumption of this viewpoint is that private parties bargaining in the marketplace can achieve results that simultaneously maximize both private and public benefits. This assumption traces its roots all the way back to Adam Smith and his famous metaphor of the invisible hand.1 Adam Smith suggested that private individuals acting in their own self interest promote the public good even though it is no part of their original intention.2 This means that private and public benefits are invariant.3 As we learn, however, from counter examples such as the tragedy of the commons, the prisoner’s dilemma, and the problem of transactions costs more generally, variance between private and public interest is often observed.

Relying on this dominant frame of reference for addressing the need for inclusionary design in residential housing is problematic. It is problematic in several respects, including: the failure to understand that while a home may be

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