Goodbye to Single-Family Zoning?

 Berkeley California made news within the last week or so and announcing that it is planning to phase out zoning districts which allow only single-family residences. It appears as though they would simply amend the zoning regulations to allow other types of housing in those districts, but the possibility of eliminating single-family residential zoning can seem pretty fantastical. See a local news item here.

Several other jurisdictions across the country have also analysis similar efforts. Minneapolis culminated a multiyear effort to accomplish the same objective in the last year or two. Take a look here.  Other cities are considering similar efforts.

It is interesting to consider these efforts in the context of Nashville and other Tennessee cities. While I certainly don't expect that Nashville or for that matter, any of the other large cities here in Tennessee would consider eliminating single-family residential zoning, viewed in a historical context, there is an interesting twist. When I started practicing law in Nashville in 1979, and I clerked while I was in law school for the Metro legal department in 1978, there was no single-family zoning in the city. The least intensive zoning districts for residential (as opposed to agricultural) purposes, R40, allow both single-family and two-family dwellings on lots which had to be 40,000 square feet or larger. In fact, all of the zoning, R20, R15, R10 and so forth, allowed duplexes. 

I asked one of the planners who worked at the Metro Planning Commission at the time, Bob Pasley, why it was that these zoning districts which in other cities would have been single-family only, also allowed duplex residences. Bob wasn't quite sure, but indicated that it was a historical anomaly that had simply carried through from the 1920s when zoning first started in Nashville.

Beginning in the early 80s, of movement towards what is now known as RS40 (and so on) began, so that duplexes could no longer be constructed in single-family residential areas. So, in an interesting way, the original zoning districts in Nashville did not permit single-family zoning but also allowed duplex residences; it wasn't until some 60 years after zoning began here, that the push for single-family only zoning districts began. Now the conversion is virtually complete. Most of the areas in town where you would envision single-family zoning have been changed to that type of designation.

It's generally agreed by most planners that single-family zoning contributes to urban sprawl, and of course, in the Berkeley instance, questions concerning racial inequality have added to the push to eliminate such zoning. Nevertheless, it will probably be a long time before we see it here in Tennessee in any of the large cities. But it is interesting that zoning here in Nashville started off by allowing duplex residences in all or virtually all residential zoning districts. 

Definition of Single Family Residence

The definition of single-family residential use has over the years been the subject on numerous occasions of judicial scrutiny. The Pennsylvania Commw. Court had occasion recently to revisit this issue and I think maintained what I would call the majority view by upholding a definition which included any number of people living together related by blood, marriage, or adoption, or no more than three people living together as a single housekeeping unit.

Therefore, we reaffirm that a zoning ordinance limiting single-family residential use based on a definition of “family” that permits an unlimited number of persons related by blood, marriage, or adoption to cohabitate in a single-family residence, while restricting the number of unrelated persons who may do so, is not subject to strict scrutiny under the Pennsylvania Constitution and instead should be reviewed to determine if the ordinance has a rational basis.

Schwartz v. Philadelphia Zoning Bd. of Adjustment, 2015 WL 5601248 (Pa. Commw. Ct. Sept. 24, 2015).

The Pennsylvania court properly cited the US Supreme Court decision in  Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), and the Pennsylvania Supreme Court decision in Appeal of Miller, 511 Pa. 631, 515 A.2d 904, 909 (Pa.1986).

Interestingly, in Pennsylvania, rather than apply a mechanical rule, the Commw. Court examined the record before the board of zoning appeals in order to determine whether the residence of the home treated it as a communal living arrangement or were simply a group of separate individuals (students in this case). The court clearly indicated that to the extent that there were clear communal living arrangements, that the ordinance, as applied, might not be applicable to prevent such use. On the other hand, if the living arrangements were not communal, but were rather separate individuals living in the same structure, as the court found in this case, then the ordinance would be applied is written in the use of the property declared illegal. That was the result of this case.

With the advent of AirBnB and VRBO, issues regarding the definition of single-family residential use have become more more important. The Pennsylvania court seems to take a fairly nuanced approach which is probably more sophisticated than the mechanical approach taken by many courts.

I don’t know of any cases in Tennessee which address this specific issue. There have been several which have come close, but ordinarily, because of a failure of the ordinance to have the required definition at all, the property owner has usually prevailed.

Most zoning ordinances to have a definition. Metro has a fairly typical definition of the term “family:”

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.

I have seen many local ordinances which would restrict the term family to a single person (or any number of related by blood, marriage, or adoption). It seems to me that this is clearly unconstitutional; certainly, any two people who wanted to live together as a single housekeeping unit, whether married or not, should have the right to do so pursuant to the federal (if not the state) Constitution. As a result, if the definition is limited to one person, it outlaws to people living together as though they were married and is in my mind almost certainly unconstitutional.

Hopefully, even though there are a large number of definitions like that across middle Tennessee, the codes enforcement officers likely know better than to bring an action based on such a violation.