Lead paint amicus: Slumlords rewarded, low-income tenants stiffed if public nuisance decision stands

By Amanda Robert | Feb 9, 2018

SACRAMENTO -  As the Supreme Court of California considers whether to review a ruling that holds major paint companies responsible for remediating lead paint across the state, it will weigh several amicus letters filed by community and business organizations that also request a different outcome in the case.

In January, the National Organization of African Americans in Housing, or NOAAH, was one of the organizations that filed a letter urging the Supreme Court to overturn the California Sixth District Appellate Court’s Nov. 14 decision in The People of the State of California v. Atlantic Richfield Co., et al.

The appellate court largely upheld the Santa Clara Superior Court decision that ordered ConAgra, NL Industries and Sherwin-Williams to fund the investigation and removal of lead paint from homes in seven of California’s most heavily populated counties — Alameda, Los Angeles, Monterey, San Mateo, Santa Clara, Solano and Ventura, and three of its largest cities — Oakland, San Diego and San Francisco.

While the Sixth District held that the paint companies were liable only for homes built pre-1950 at a cost of $600 million—rather than homes built pre-1980 at a cost of $1.15 million—it did not limit the lower court’s definition of lead paint as a public nuisance, which still applies to all pre-1981 homes.

In its letter, NOAAH, a national nonprofit housing association, contends that African Americans, other minorities and low-income families often live in older homes built prior to 1950, which puts them “right in the cross-hairs of the court’s unprecedented decision and ill-conceived abatement plan.”

NOAAH says that the Sixth Circuit’s decision conflicts with California’s legislative and regulatory plan to address hazards from lead-based paint and blood-lead levels in children. The state legislature had already determined that only “deteriorated lead-based paint” is a hazard, the organization says in the letter, but the court’s decision creates a new standard where even intact lead paint is seen as a public nuisance.

“Millions of properties that comply with state law are suddenly public nuisances subject to criminal penalties and enforcement orders,” NOAAH states in its letter.

NOAAH also points out that the Sixth Circuit’s decision rewards slumlords since property owners “with repeated notices of non-compliance with existing lead poisoning prevention laws” and those with “ten or more code violations in the past four years” are now the first to receive abatement funds.

The organization argues that this will create “an incentive for owners to neglect maintenance, knowing they can shift responsibility to the paint manufacturers.”

Kevin Marchman, NOAAH board chairman and managing director, points out that the organization’s primary purpose for submitting the amicus letter to the Supreme Court was to remind the justices of the potential repercussions of the decision.

“California, I applaud them for recognizing the affordable housing crisis that they have, but I’m not sure that the consequences and ramifications of this issue have been considered,” he said.

Marchman says his first question after reading the Sixth Circuit’s decision was how is this going to affect tenants and landlords, particularly in low-income neighborhoods?

He says tenants may find out they are living in housing that no longer complies with the law. At the same time, he says, landlords that may have previously been in compliance may find themselves responsible for bringing their properties up to the new standard.

“So where are the tenants going to go?” Marchman said. “With the housing crisis in this country, particularly for renters and particularly for low-income renters, it seems to be unfair.”

The California Citizens Against Lawsuit Abuse also submitted an amicus letter to the Supreme Court, asking justices to grant the paint companies’ petition for review.

CALA, a nonpartisan grassroots organization based in Sacramento, contends in its letter that all California citizens face significant risks as a result of the Sixth Circuit’s decision, including potential health issues from the abatement of intact lead paint and a reduction in property values of all pre-1981 properties.

Like NOAAH, CALA points out that there is no evidence the judiciary needs to step in for an already successful legislative program. The association says enforcement of local building regulations and the state’s current program to minimize lead exposure have “drastically reduced the number of children with elevated blood lead levels.”

CALA adds that studies show that the court’s plan would “actually expose children to more lead dust, not less.”

CALA also argues in its letter that the Sixth Circuit’s decision, which classifies more than three million homes in 10 jurisdictions as public nuisances, will lead to plummeting property values.

The association says it will have a negative impact on property owners, who are mandated to disclose the existence of a nuisance when selling their property and may then be forced to lower the sales price if their property appraises for less than the buyer’s offer.

“Although this ruling applies only to the 10 jurisdictions, it has placed the legal status of intact lead paint throughout the state in question, and buyers across the state will be wary of purchasing pre-1981 properties,” CALA says.

Ken Barnes, the executive director of CALA, says it is rare for his association to file an amicus letter with the court, but this case and its direct impact on consumers compelled them to take action.

“Does this turn into God knows how many lawsuits being filed because someone sells a home that has, four, five, six layers deep, a coat of lead paint?” he said. “What that does for disclosures, what that does to home values if one house has lead paint present and another house does not, and one is declared a public nuisance and the other is not—that’s the foundation of what caught our attention.”

Barnes contends that declaring millions of homes in California a public nuisance will not only drive down the value of those individual properties, but it will impact schools and other community needs that are largely funded by property taxes.

In addition to NOAAH and CALA, the American Coatings Association, National Association of Manufacturers and the U.S. Chamber of Commerce filed letters asking the Supreme Court to review this case.

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Organizations in this Story

Alameda County Conagra Brands, Inc. County of San Mateo County of Santa Clara, California County of Ventura Los Angeles County Monterey County Sherwin-Williams - Headquarters

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