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“Family” is one of those words that everyone knows, yet at times struggles to fully define. Over time, the thinking of what constitutes a family has changed as the actual composition of what is a family has evolved.

According to the U.S. Census Bureau’s 2013 Annual Social and Economic Supplement to the Current Population Survey, the following findings compared with 1970 are noted:

  • 66% of households were family households (was 81%).
  • 19% of households were married couples with children (was 40%) and 29% without children (was 30%).
  • 7% of households are cohabitating couples, with 37% of such having children <18 years old.
  • 10% of children live with a grandparent, with 20% of such not including a parent.
  • 25% of mothers with children <18 years old have no spouse or partner.
  • 48% of children living only with a mother had a mother who had never married (was 7%).

The Census Bureau uses the following definitions:

  • “A family is a group of two people or more (one of whom is the householder) related by birth, marriage, or adoption and residing together; all such people (including related subfamily members) are considered as members of one family.”
  • “A family group is any two or more people (not necessarily including a householder) residing together, and related by birth, marriage, or adoption.”
  • “A family household is a household maintained by a householder who is in a family…, and includes any unrelated people… who may be residing there.”
  • “A household consists of all the people who occupy a housing unit. A household includes the related family members and all the unrelated people, if any, such as lodgers, foster children, wards, or employees who share the housing unit. A person living alone in a housing unit, or a group of unrelated people sharing a housing unit such as partners or roomers, is also counted as a household. There are two major categories of households, “family” and “nonfamily”.”

To add to the array of definitions of “family” and “household”, the legal system has continued to wrestle with what constitutes a family. Is a family only a “nuclear family” of two parents and their children? Do parents have to be heterosexual or can they be gay or lesbian? Can there be only one parent, such in situations of marital separation, divorce, or never married? Can parents live together, but not be married? What about grandparents raising a child without the parents present? 

Planning and zoning commissions are mindful of these legal and social issues. Towns deal with the population density and intensity in any given geographic area by permitting and prohibiting certain types of land uses in those areas. These regulations have a reasonable relationship with the goals of zoning: protecting public safety, health and welfare, among other things. Your town uses zoning and building regulations to achieve these legitimate governmental interests. The challenge lies in the means employed to achieve these ends.

The constitutional issues at play involve due process (regulations that are used in a way that reasonably achieve a valid purpose while not jeopardizing people’s fundamental interests) and equal protection (regulations that are applied equally, yet when necessary to differentiate between certain peoples or groups, do so in a valid, rational way).

In the 1974 case of Village of Belle Terre v. Boraas, the U.S. Supreme Court ruled constitutional the use of zoning regulations to preserve the character of traditional single-family neighborhoods. The Village of Belle Terre described family as being either “one 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 but blood, adoption, or marriage”. Such regulations were designed to keep out non-family types of housing, such as dormitories, group homes or boarding houses. 

Justice Thurgood Marshall dissented from the court’s decision. He said that “By limiting unrelated households to two persons while placing no limitation on households of related individuals, the village has embarked upon its commendable course in a constitutionally faulty vessel” because “while an extended family of a dozen or more might live in a small bungalow, three elderly and retired persons could not occupy the large manor house next door”. Furthermore, he opined, “I would not ask the village to abandon its goal of providing quiet streets, little traffic, and a pleasant and reasonably priced environment in which families might raise their children. Rather, I would commend the village to continue to pursue those purposes, but by means of more carefully drawn and even-handed legislation.”

The courts have held as unconstitutional regulations that are underinclusive (not applying to all similar people or groups of people) or overinclusive (applying to more people or groups than are reasonably necessary). For examples, regulations cannot exclude grandparents, uncles, aunts, and cousins from a definition of family or cannot exclude non-biologically related people from living together as a “functional and factual equivalent of a natural family”, such as foster homes.

These legal issues are related to, but different from, building, health and fire safety maximum occupancy codes. Only so many people, regardless of whom they are, can safely live in a defined amount of floor space with only a certain amount of amenities. Such rules are constitutional so long as they do not pay regard to the identities of the people choosing to live together, whether biologically related or not, as the means to restrict their numbers. The Fair Housing Act, which prohibits discrimination, allows such maximum occupancy regulations if used only in this manner.

The task of defining “family” is not an easy one. It takes a lot of time and thought. On the one hand, definitions need to be flexible to accommodate today’s reality of traditional and non-traditional families, as well as what may evolve in the future. On the other hand, definitions need to differentiate between single family, multi-family, and transient living arrangements. Whatever definitions are used, the goals of municipal zoning pertaining to families and housing must be anchored to legitimate, reasonable governmental goals and the means used to achieve those goals must always be compliant with constitutional due process and equal protection.

Dr. Jeffrey A. Gordon is Chairman of Woodstock’s Planning and Zoning Commission. This article neither reflects any official statement of nor any specific work being done by the Commission. Check out www.JeffreyGordon.com.

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