There’s a controversy in Hartford about eleven people, many unrelated to each other, living in a house zoned for single-family use. Because Hartford’s zoning regulations do not define them as being a “family”, they are in violation of the regulations about who may reside in a single-family house.
“Family” is one of those words that everyone knows, yet struggles to define. The thinking of what constitutes a family has changed as the actual composition of what is a family has evolved.
The U.S. Census Bureau data has noted the following trends over the last 40 years:
- Fewer households are traditional family households, but still are a majority;
- Fewer households are married couples with children <18 years, but married couples without children living with them has remained unchanged;
- More households with unmarried couples living together have children <18 years old;
- More mothers with children are single; and
- Decreasing size of families.
The Census Bureau defines “family” as “a group of two people or more (one of whom is the householder) related by birth, marriage, or adoption and residing together”.
The Census Bureau defines “household” as “all the people who occupy a housing unit” and “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”, including a “person living alone in a housing unit, or a group of unrelated people sharing a housing unit such as partners or roomers”. This distinguishes between “family” and “nonfamily” households.
The Census Bureau’s definitions are for demographic purposes. This is distinct from legal definitions in Hartford’s and your town’s zoning regulations.
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 as in situations of marital separation, divorce, or never married? Can unmarried parents live together? What about grandparents raising a child without the parents present? What about unrelated persons who live together in a self-sufficient manner?
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, building, health, and fire 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 landmark 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 prohibit non-family types of housing, such as dormitories, group homes or boarding houses.
Justice Thurgood Marshall dissented, saying, “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”. 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 under-inclusive (not applying to all similar people or groups of people) or over-inclusive (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 challenging. It takes time, thought, and common sense. 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 (roommates, lodgers, boarders, renters, students, etc., whether commercial or non-commercial in nature).
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. Each community must decide its conventions within this framework. Thus, what is happening in Hartford is an example of the dynamics of municipal zoning that occurs in all of our towns.
Dr. Jeffrey A. Gordon is Chairman of Woodstock’s Planning and Zoning Commission. This article does not reflect any official statement of the Commission. Check out www.JeffreyGordon.com.