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

ZONING AND PLANNING; CONSTITUTIONAL LAW; DENSITY RESTRICTIONS: Ordinance limiting to three the number of unrelated adults who could live together as a family in one unit is constitutional as it is bears a real and substantial relation to the city's goal of controlling population density.

City of Brookings v. Winker, 554 N.W.2d 827 (S.D. 1996).

College town passed an ordinance limiting to two, the number of families that may reside in certain zones and further defining family in terms restricting the number of adults unrelated by blood or law to three or less. In a case of first impression in South Dakota, the South Dakota Supreme Court was urged to adopt the reasoning of U.S. Supreme Court set forth in the Village of Belle Terre v. Borraas, 94 S.Ct. 1536 (1974), where a similar ordinance was upheld based on its rational relationship to the permissible goal of laying out zones that enhanced family values and a peaceful environment.

The court noted that the states own enabling legislation empowered municipalities to promote the health, safety, morals and general welfare of the community. Furthermore, the ordinance satisfied the more stringent "real and substantial" relation standard, as opposed to the "rational" relation standard. The court determined that statute's development as a result of the unavoidable problems associated with population density in a college town, met the more stringent standard. The court also found that the number of permitted unrelated inhabitants permitted was neither arbitrary nor capricious and thus the defendant failed to overcome the presumed validity of the ordinance.

The court distinguished a line of contrary New Jersey cases on the grounds of differences in enabling legislation. It noted that the Michigan Supreme Court has specifically rejected the Belle Terre reasoning and would strike down ordinances limiting density based upon lack of blood relationships. Charter Township of Delta v. Dinolfo, 351 N.W.2d 831 (1984).

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

Comment: The ordinance is not limiting density, it is proclaiming values. If five adult cousins can live together, why can't five good friends? In the editor's view, the zoning authority should be required to tailor its limitations on occupancy more narrowly to achieve its legitimate goals without intruding upon what should be protected associational and privacy rights of its citizens.

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