Sunday, May 21, 2006

Unmarried Couple Families -- Not Allowed to Live Together? (Part Two)

From Ash:

In a previous post, I started to address a current news story -- the Shelltrack-Loving family, headed by an unmarried couple, has been denied an occupancy permit for a single-family house in Black Jack, Missouri. If it goes to Court, the law will probably be on the side of Black Jack; the City Council will win, because its zoning does not specifically define who can be in a family. It's just that this particular family falls through the zoning cracks. That doesn't by itself make the zoning ordinance itself invalid.

I know a lot of you are probably shocked by that. But first consider this: Why is it that there are tree-lined neighborhoods of single-family homes, and other parts of town that are made up of row after row of warehouses? Why are some of the neighborhoods freestanding houses, while others are nothing but apartment buildings?

The answer is that there are zoning laws. Zoning defines which type of building can go in which area. But it isn't limited to buildings.

Zoning also limits who can do what in those buildings.

Zoning laws are the ordinances that stop your next-door neighbor from turning his house into a big-box superstore. The ordinances that right now are being rewritten to prevent people from building McMansions that barely fit on the lots they sit on and are twice the size as every other house on the street.

If your house is zoned as a single-family residence, then it really means that. One family per house. It's not just a realtor's pitch -- that's, in all likelihood, the law. And you can't turn your spare bedrooms into a college dorm or restaurant or homeless shelter.

So all of the Mayor's arguments that were being dismissed by critics as ridiculous -- zoning being about controlling housing density, traffic etc. -- those are all concerns the Supreme Court has upheld as legitimate. Even the character of a community is an acceptable basis for zoning.

Zoning is so important to a community that Supreme Court Justice Thurgood Marshall once wrote:

"I am in full agreement with the majority that zoning is a complex and important function of the State. It may indeed be the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life." (emphasis added)

Now, the problem in the Black Jack situation is how the ordinance defines who constitutes a single family able to live in a single-family residence.

If you're back to being shocked and appalled at the idea that it's up to the government what constitutes a "family" -- well, don't be. Because what's the alternative? If not, how will you stop me from turning my house into a college dorm? I just have a very big family -- I'll insist -- lots of kids I consider my family.

That isn't just a hypothetical. It's actually the 1974 U.S. Supreme Court case Village of Belle Terre v. Boraas. In that case, the Supreme Court upheld a zoning ordinance that prohibited a group of college students from living in a single-family residence. In that case, the ordinance required that a family living in such a residence be:

"[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants [or] 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"

Even though the people objecting were students, even at that time, there was an argument made that the ordinance unfairly discriminated against unmarried couples. The Majority of the Justices dismissed this, saying that unmarried couples were expressly allowed in under the provision: two could live together despite the fact they weren't married or related by blood or adoption.

And while the Court admitted that its ruling would mean that, ultimately, there would be arbitrary lines drawn -- that always happened in law and there was no way to avoid it.

So then compare the Belle Terre requirements to those of Black Jack. In order to live in a Black Jack single family dwelling, you need to be one of the following:

1. an individual, living by himself.

or

2. "two or more people related by blood, marriage or adoption,"

or

3. "A group of not more than three (3) persons who need not be related by blood, marriage or adoption."

In other words, it's broader than the Belle Terre ordinance, because it allows three unrelated, unmarried people, not just two, to live together within a "family."

So, contrary to what some news reports are saying, what is keeping the Sheltrack-Lovings out of their home is not the fact that they are unmarried. It's actually that they have too many kids. They have three. They're only allowed one. Seriously, if my reading is correct, an unmarried couple without kids, or an unmarried couple with one kid, could move right in.

Okay, I know that sounds insane, but, if you take a look at the requirements again, I think you'll see that, similarly, a married couple can only take in one foster child -- and they might not even be able to do that if they already have children.

The only real leading authority that helps the Shelltrack-Lovings is a different Supreme Court case, Moore v. East Cleveland. This is another zoning case, to no doubt appear in an ACLU brief soon, with great quotes like this:

" . . . the Constitution prevents East Cleveland from standardizing its children - and its adults - by forcing all to live in certain narrowly defined family patterns."

But the fact of the matter isn't even Moore really isn't that much help.

In Moore, a grandmother was thrown in prison because she took in one of her grandchildren, while one of her adult sons and his child already lived in the house. The Supreme Court threw out that zoning ordinance.

But the problem there was that the zoning defined family by so narrowly, that it prevented any sort of extended family from living together. It literally defined a family in terms direct relationship to a householder. You basically had to be the householder's spouse or unmarried child to live there -- even siblings of the householder or grandparents and grandchildren weren't allowed. It capped the number of adult children who could living with their parents. It even went so far as to relate these definitions of who could be in the family by their income contributions. And the Court rejected that.

But if you look again -- that's not what is going on in Black Jack. Under that ordinance, anyone related by blood, marriage, or adoption is a family. So it could be a household of just siblings or a combination of generations or a stepfamily. It also allows for completely unrelated individuals to live together.

The real mess here is that both of the parents are related to the children -- but they aren't related to each other. So Black Jack is applying the unrelated strangers provision to everyone -- the total number in the house. That exceeds the maximum of three. It's a tricky way of reading the language, but you can't say it is completely illogical. In fact, I'm not sure how else to read it, unless you just didn't count minor children as people -- but there's nothing in the law to say that's the case.

And it's important to note that this isn't the first time this has happened in Black Jack: they aren't the only unmarried couple-family that has been turned away. (On the other hand, if married couples are successfully evading the codes, then we may have a different story.)

As I mentioned yesterday, I don't yet know current Missouri law on parentage, but it could very well be that there is no legal record that Mr. Loving is actually the father of these children. So, in the eyes of the law, they may not really be a single-family -- not even entitled to make the argument that they are a family at all.

Because Black Jack's zoning is so close to the Belle Terre version, what the Shelltrack-Lovings should have done was not ask the City Council to rewrite the law for the whole community. Instead, they should have asked for a variance. A variance is literally that -- the ability for the City Council to look at a particular house and, say because of a particular situation -- this particular house / homeowner does not have to follow the general rule.

If that failed, then they should have (may still) sue the realtor who sold them the house without telling them about the housing code to begin with.

Of course, if the realtor had warned them about the zoning (especially with other families having the same thing happen), and they still bought the house, we call that in the law, "coming to the nuisance." There are cities that define "family" for zoning incredibly broadly; they didn't move there. Instead, if they willfully went where they knew they would not be welcome, that is their own fault, and the law won't help them.

Speaking of which, I linked to them before, but below are a few other examples of similar housing code provisions, to show just how common provisions like these are.

And if you still think it's unfair to discriminate against unmarried couples, well, let's leave resolution of that for another day. But first, definitely make sure you read my Friday post -- about how that is not just happening in Black Jack, but throughout society.



Chesterfield, VA: family is defined as follows:
  1. An individual;
  2. Two (2) or more persons related by blood, marriage, adoption or guardianship plus any domestic servants, foster children and not more than two (2) roomers, living together as a single nonprofit housekeeping unit in a dwelling or dwelling unit; or
  3. A group of not more than four (4) persons not related by blood, marriage, adoption or guardianship living together as a single nonprofit housekeeping unit in a dwelling or dwelling unit

Gerrish Township, Michigan: “Family” is defined as:
a. One (1) person or two or more persons living together in one (1) dwelling unit and related by bonds of marriage, blood, or legal adoption (may include up to a total of three (3) additional persons not so related who are either domestic servants or servants or gratuitous guest), comprising a single housekeeping unit, or;
b. A group of not more than four (4) persons not related [by] blood, marriage or adoption, living together as a single housekeeping unit.

Gwinnett County, GA: "An individual, or two (2) or more persons related by blood, marriage, adoption or guardianship, or a group of not more than four (4) unrelated persons, occupying a single dwelling unit...."

Salem, Massachusetts: "A family: One or more persons related by blood, adoption, or marriage living and cooking together as a single housekeeping unit, excluding household servants. A number of persons but not exceeding three living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed toconstitute, a family. (Ord. of 5-10-84, Section 3)."

Fairbanks: "a. [AN INDIVIDUAL, OR TWO (2) OR MORE PERSONS] two or more persons living in a dwelling unit who are related to each other by blood, marriage, adoption or other means of legal custody [OR A GROUP OF NOT MORE THAN FOUR (4) PERSONS NOT ALL SO RELATED,TOGETHER WITH HIS OR THEIR DOMESTIC SERVANTS, LIVING IN A DWELLING UNIT. A FAMILY MAY INCLUDE, IN ADDITION, NOT MORE THAN TWO (2) BOARDERS, ROOMERS OR PERMANENT GUESTS, WHETHER OR NOT GRATUITOUS.];
b. a group of not more than two persons not all so related;
c. a group of not more than two persons not all so related living together as a single housekeeping unit, except that children with familial status within the meaning of the Fair Housing Act will not be counted as unrelated persons; or
d. a group of not more than two persons not all so related living together as a single housekeeping unit, except that, persons with disabilities within the meaning of the Fair Housing Act and the Americans with Disabilities Act will not be counted as unrelated persons."

13 Comments:

Blogger Moonbear said...

My Goodness. A peak into zoning law is frightening thing! I had no inkling that living with my son and daughter-in-law and their son might be against zoning regs. Makes me feel positively non-compliant. But I like that.
So if we should get busted, would both my husband and I go to jail, or would just the younger family?

6:10 PM  
Blogger Ashley Merryman said...

Well, I can't give any legal advice / can't say anything about your particular arrangement. But, generally, most current zoning for single family residences seem to define a family as blood relations, and would likely allow that type of a family arrangement. And Black Jack's ordinance is a little more narrow -- other communities will allow more nonrelated adults in a family. There are also communities that have very little restrictions on who can live in a residence. So it really depends on where you are living. If you're concerned, you could always check with a local city zoning office, attorney, etc.

And what the penalty would be would again, be something that was local, so I can't predict anything beyond saying that I doubt any of you would just suddenly be told to go to jail -- most likely get warnings or fines first, unless there was a real problem. Those would most likely be directed to whomever is the householder of record. But again, you might consider checking with an attorney. (That's the first thing they teach you in law school. The answer is always "Call your lawyer." :)

12:27 AM  
Blogger Colleen said...

Those are interesting scenarios that you present. As I read the different case law, I couldn't help but wonder where 'common-law' came in... I am living in Canada and as soon as two individuals have a child together they are considered common-law married, and then would fit the criteria of family. I am unsure what happens in the case of step-families, but I know that individuals can claim common-law status if they have been living together for more than 3 years. Would the US be different? It seems absurd that there would be an issue for a family of this nature -- it is too normal an occurrence in today's society!

10:43 AM  
Blogger Ashley Merryman said...

That's a fascinating approach. Hmm. I need to look into that.

Actually, in the US, it's a state by state basis, but I believe that there really isn't anything such as common-law marriage in most states in the US right now.

12:54 PM  
Anonymous Anonymous said...

my goodness! this is so unbelievable. it is like a test to see what the lawmakers can get away with.

what is next? it will be against the law for FAT people to live in the neighborhood? So, if you weigh over 300 pounds, you will be thrown out?

What about "no one taller than 6 feet tall" are allowed to live within city limits?

What if you are not blond enough? You do not have blue eyes so you cannot live here. Sorry.

Think about what happened in Nazi Germany. It will be interesting to see what the zoning laws were like under Nazi Germany.

If my questions seem ludicrous, then that was my intent. I am saying that these zoning laws are so ridiculous that it sounds more like a Saturday Night Live skit.

Unfortunately, it is reality in some places.

7:51 AM  
Blogger Ashley Merryman said...

Actually, zoning is the reality not in just some places, but throughout the US, to one extent or another.

Just to be clear, those such as you mentioned-- though I know it was in jest -- regarding physical characteristics would not be allowed.

As to those regarding social status, I remember how troubled I was when I was first studying about them, so I understand your strong reaction. But most zoning rules are pretty benign, and I doubt you'd have any objection to them.

8:20 AM  
Anonymous Anonymous said...

"But most zoning rules are pretty benign, and I doubt you'd have any objection to them."

I'd object to ANY and ALL of them that tell a property owner how they can use their property. It's no one else's business what my lifestyle or living arrangements are. Until my use of my property physically threatens you or causes real damage to your property (or creates iminent danger thereof), any legal action or zoning law is intrusive and diminishes the value of my property.

This used to be a free country, but these kinds of petty invasions of privacy and predations on our liberties have rendered it a police state. It's no wonder that a populace that will accept these kinds of limitations as routine or even beneficial will gladly submit to tyranny. Begnign, no. The first signs of a rapidly spreading cancer, yes.

6:37 PM  
Anonymous Anonymous said...

But doesn't this zoning regulation violate the "familial status" stipulation of the Fair Housing Act?

10:40 PM  
Blogger Ashley Merryman said...

The FHA defines "familial status" as:

"one or more individuals (who have not attained the age of 18 years) being domiciled with -
(1) a parent or another person having legal custody of such individual or individuals; or
(2) the designee of such parent or other person having such custody, with the written permission of such parent or other person."

Apparently, for the Shelltrack-Lovings (at the time of the news, I'm not sure the status now), the two adults were not apparently not both legal custodians or formal designees of all the children. If those facts proved otherwise, that's a different scenario.

But the point is that the legal protection of the FHA under "familial status" doesn't mean that all family forms are protected. It actually reads the opposite: a particular kind of family (parent/guardian and child) is protected.

7:30 AM  
Blogger Morgan said...

Henrico seems very broad in defining a family as "a person living alone or any number of persons living together as a single housekeeping unit including domestic servants, caregivers, foster children and adults, and supervisory personnel in a group care facility." then states a special use as "The keeping of not more than two roomers or boarders in an otherwise private dwelling." does that mean a couple and three unrelated adults may consider themselves a single housekeeping unit?

6:35 PM  
Anonymous Anonymous said...

What a disgrace.
However cleverly you want to break it down and defend the law, there is a HUGE difference between you running a homeless shelter in your basement, or taking in a slew of local college kids as borders, and a couple with three kids living as a family being told they are not allowed to live in their home anymore because they are unmarried.
The state may have clear reasons for not wanting properties to be overcrowded, and services over utilized, but there is absolutely no difference between a married couple with three bio kids living in that house and an unmarried couple with two of hers/ one of his kids residing there. No extra sewage burden, waste burden, schooling needs, etc.
It is pure discrimination that bans them, and frankly that is a disgrace.
It would be a disgrace in 1970's America, and it is unthinkably so in 2007.

1:00 AM  
Blogger Po Bronson & Ashley Merryman said...

It may seem like there is an easy, clear difference in each of those situations, but how do you propose that it be regulated so that each can be effectively delineated in the law? That's the problem.

And please note that unmarried couples living together at all is still out-and-out illegal in a small number of states. One state recently struck down that law -- and the legislature wasn't unanimous in that action. I think that's sort of amazing, but that's the reality.

7:26 AM  
Blogger sleepless in san diego said...

I own a house in san Diego County. First they tried to tell me no one but first generation blood relatives could live in my house. Later they tried to cover that up by saying my roommates did not live together as a single housekeeping unit. They say that if one can leave on their own free will and the others stay that they are not a family. I do not get it. How many times do Dads leave or Moms leave or children do not follow the rules and are asked to go to Dads house or move out? This is crazy in our day. How does a landlord know if someone is related or living as a family when you can not ask those questions. Sleepless in San Diego

5:45 AM  

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