Daily Development for Monday, February 24, 2003

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING LAND USE; HOUSING REGULATION: City's lodging house ordinance aimed at prohibiting condominium owners from renting to four or more unrelated college students is not constitutionally vague because it describes the prohibited activity as keeping "lodgers" rather than "tenants.".

City of Worcester v. Bonaventura, 775 N.E.2d 795 (Mass.App.Ct. 2002).

The plaintiff, city of Worcester, filed six complaints in Housing Court seeking permanent injunctive relief against the defendants, six condominium owners in the area of Holy Cross University. The defendants each owned condominium units located in a residential zoned district within the city. Each unit contained two or three bedrooms and was occupied by four unrelated college students. The city sought to enforce its orders directing the defendants to cease from operating their respective condominium units as unlicensed and unpermitted "lodging houses.".

The Housing Court judge noted that the ordinance restricted "lodging houses." As applied to the instant uses, the court concluded that the term "lodging houses" was unconstitutionally vague, since it was not clear why these students were not simply "tenants," and the court viewed the term "lodgers" as arguably distinct from "tenants," in that tenants have a right of possession while lodgers have only a right of use.

The Housing Court judge further concluded that the living arrangements of the defendants' group(s) of tenants formed a single housekeeping unit, which were entitled to the same treatment as families under the city's ordinances.

The Appeals Court of Massachusetts, Worcester, (the "Court") vacated the judgment of the Housing Court and remanded the case to the Superior Court for further proceedings. The Court noted that whether the defendants were operating lodging houses should not turn on the status of the student occupants as tenants. In concluding that the ordinance was not unconstitutionally vague, the Court held that zoning ordinance terms should be interpreted in the context of the ordinance as a whole and should be given their ordinary meaning, to the extent consistent with common sense and practicality, citing Hall v. Zoning Board of Appeals of Edgartown, 28 Mass. App.Ct. 249 (1990). The city ordinance's definition of "lodging house" stated, in relevant part that a lodging house is a 'dwelling where sleeping accommodations are let, with or without kitchen facilities, to four or more persons not within the second degree of kindred to the person conducting it.' The ordinance further defined various forms of "dwelling" as 'places for human habitation providing independent living facilities for one or more persons,' and "family" as 'one of more persons occupying a dwelling unit and living together as a single housekeeping unit, not including a group of more than three persons who are not within the second degree of kinship.'

The Court reasoned that when the definitions are taken together, a lodging house is defined as a dwelling unit that is rented to four or more persons not constituting a family. The Court stated that nothing on the record suggested that the ordinance was open to a varied application. The Court held that the definition of "family" in the ordinance did not violate constitutional boundaries. The Court cited Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) noting that the Supreme Court upheld the constitutionality of an ordinance that limited the definition of "family" to no more than two unrelated individuals. In addition, the Supreme Court in Belle Terre had held that the police power of a municipality, as exercised in a zoning code can extend to protecting values important to the community, including preserving the quiet character of neighborhoods, and that limiting the number of unrelated people living together was rationally related to this legislative purpose. Following the Supreme Court's precedent, the court in this case held the city's ordinance was not unconstitutionally vague.

Comment 1: Compare: City of Santa Barbara v. Adamson, 164 Cal. Rptr. 539 (Cal. 1980) (ordinance restricting the number of unrelated adults who may livetogether in a single family residence is unconstitutional under the Right of Privacy recognized by the California Constitution (this case has an extensive collection of subsequent opinions distinguishing it); College Area Renters and Landlord Assoc. v.

City of San Diego,50 Cal. Rptr..2d 515 (Cal. App. 1996) (City ordinance that restricts numbers of adults that may occupy single family residences but exempts owner occupied residences violates the Equal Protection Clause.).

Comment 2: On the other hand, see: Stegman v. City of Ann Arbor, 540 N.W.2d 724 (Mich. App. 1995), where the court upheld an ordinance restricting density in residentially zoned neighborhoods by restricting occupancy to families of any size or four unrelated persons plus their offspring or "functional families" of no more than six unrelated persons. "Functional families" was defined to exclude fraternities, sororities or the like "where the common living arrangement or basis for the establishment of the housekeeping unit is temporary." This case survived a Santa Barbara-type challenge in Michigan.

Also, see Unification Theological Seminary v. City Poughkeepsie, 607 N.Y.S.2d 383 (N.Y. App. Div. 1994) (upholding a rebuttable presumption that unrelated groups of four or more people do not constitute a functional family.)