by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

CONSTITUTIONAL LAW; EQUAL PROTECTION; OCCUPANCY RESTRICTIONS: City ordinance that restricts number of adults that may occupy single family residences but exempts owner occupied residences violates the Equal Protection Clause. College Area Renters and Landlord Assoc. V. City of San Diego, 49 Cal. Rptr. 2d 809 (Cal. App. 1996)

The city was trying to address primarily the problem of "mini-dorms" in residential neighborhoods, where landlords would "pack in" student tenants, creating significant parking and noise problems. The city did a pretty good job of documenting the reasons for the ordinance, and the court, at least in the excerpt of the opinion released for publication, appears to accept the rationale. Further, the restrictions were not absolute, but rather tied to the number and size of bedrooms, number of bathrooms, available parking, and available common areas. It applied only to residents over the age of 18. Certainly it met the "rationale basis" test.

But the court pointed out that all of the problems created by the overcrowded housing targeted by the ordinance would be created to the same degree by owner occupied housing that was overcrowded. There was no rationale basis, in light of the objectives of the ordinance, to exempt owner occupied housing from the restriction.

Comment 1: Regulation in this area is always a ticklish proposition. As the court notes in this opinion, a 1980 California Supreme Court opinion struck down under the Right of Privacy recognized by the California Constitution an ordinance restricting the number of unrelated adults who may live together in a single family residence. City of Santa Barbara v. Adamson, 164 Cal. Rptr. 539 (Cal. 1980).

Comment 2: These kinds of regulations probably still can be imposed by private servitude regimes. But there have been continuing efforts to establish that enforcement of such servitudes entails "state action" and therefore is subject to Constitutional limitations. But in some situations, discriminating in favor of owner/occupants makes sense. For a recent Daily Development case in which a California court upheld a "residents only" restriction for condominium tennis facilities, prhoibiting a non-resident owner from using them, see Liebler v. Point Loma Tennis Club, 47 Cal. Rptr. 2d 783 (Cal. App. 1995).

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