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.
2. "two or more people related by blood, marriage or adoption,"
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.
, 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
is defined as follows:
Gerrish Township, Michigan:
- An individual;
- 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
- 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
“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."