Wednesday, December 21, 2011

Define Family?

The definition of the term “family” is almost always a key provision to focus on any zoning ordinance. If that definition is for some reason legally indefensible, it may subject the entire zoning ordinance to a challenge. Usually, the biggest issue in such definitions has to do with the number of unrelated persons who may live together as a family.

Metro Nashville’s definition of family is is fairly typical:

"Family" means one of the following:

1. An individual, or two or more persons related by blood, marriage or law, or, unless otherwise required by federal or state law, a group of not more than three unrelated persons living together in a dwelling unit. Servants and temporary nonpaying guests having common housekeeping facilities with a family are a part of the family for this code;

2. A group of not more than eight unrelated mentally retarded, mentally handicapped, or physically handicapped persons, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit in accordance with Tennessee Code Annotated § 13-24-102. For purposes of this subsection, 'mentally handicapped' and 'physically handicapped' includes persons being professionally treated for drug and/or alcohol dependency or abuse. For the purposes of this subsection, "mentally handicapped" does not include persons who are mentally ill and, because of such mental illness, pose a likelihood of serious harm as defined in Tennessee Code Annotated § 33-6-501, or who have been convicted of serious criminal conduct related to such mental illness.

3. A group of not more than eight unrelated persons over the age of sixty-five, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit.

Limiting the number of unrelated persons living together to three is a fairly standard approach. Notice that in the third section of Metro’s definition, if the unrelated people are over the age of 65, eight persons are permitted to live together as a single housekeeping unit. I’ve never seen any case law on this, but I wonder whether the restriction in part 1 is somewhat undone by the provisions of part 3. More specifically, does the discrimination in favor of the elderly in part 3 have the effect of creating an equal protection violation when compared with part 1? Maybe someday the courts will give us an answer.

Recently, in McMaster v. Columbia Bd. of Zoning Appeals, 2011 WL 6156995 (S.C. 12/12/2011), the South Carolina Supreme Court upheld a provision similar to Metro’s part 1. The zoning ordinance in Columbia, South Carolina defined “family” as "an individual; or two or more persons related by blood or marriage living together; or a group of individuals, of not more than three persons, not related by blood or marriage but living together as a single housekeeping unit."

The important constitutional question raised in these cases, and there are quite a few of them, is whether there is a violation of the individual’s right to privacy by virtue of the zoning restrictions. As Justice Marshall said, in dissent, in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974):

The choice of household companions—of whether a person's "intellectual and emotional needs" are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution.

Notice I said in dissent: the US Supreme Court upheld the municipal ordinance which limited a family to to unrelated individuals. The ordinance read as follows:

"[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family."

In any event, after this US Supreme Court decision, a large number of state Supreme Court’s got involved with a result turning generally on the perspective of the various courts. For example, in New Jersey, in State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979), struck down an ordinance limiting to four the number of unrelated persons:

One (1) or more persons occupying a dwelling unit as a single non-profit housekeeping unit. More than four (4) persons * * * not related by blood, marriage, or adoption shall not be considered to constitute a family.

Actually, the New Jersey Supreme Court seemed to rely less on the right of privacy, and more on the fact that the classification system did not seem to work in the overall zoning context. For example,

The fatal flaw in attempting to maintain a stable residential neighborhood through the use of criteria based upon biological or legal relationships is that such classifications operate to prohibit a plethora of uses which pose no threat to the accomplishment of the end sought to be achieved. Moreover, such a classification system legitimizes many uses which defeat that goal. Plainfield's ordinance, for example, would prohibit a group of five unrelated "widows, widowers, older spinsters or bachelors — or even of judges" from residing in a single unit within the municipality. On the other hand, a group consisting of 10 distant cousins could so reside without violating the ordinance. Thus the ordinance distinguishes between acceptable and prohibited uses on grounds which may, in many cases, have no rational relationship to the problem sought to be ameliorated.

Returning to the South Carolina Supreme Court, it basically relied upon the US Supreme Court decision: “as many other states have found, we find the rationale of Belle Terre persuasive and find there is a rational relationship between the Ordinance's definition of "family" and the legitimate governmental interests the Ordinance seeks to further”.

The ordinance was rational and the court found no privacy interest in the householders that would require a more exacting standard of review. As a result, the South Carolina ordinance was upheld.

While my thought is that these ordinances should be drafted differently and that a restriction on the number of people who wish to reside in a home as a family is inappropriate, the Tennessee Supreme Court most likely would follow a more traditional view and like the South Carolina Court, most likely uphold the Metro Nashville ordinance, and others similar to it. Maybe one day we’ll get a case here in Tennessee and get a chance to see what the Supreme Court holds.

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