A house with a for sale sign.
A large house advertised as for sale in California. Should zoning ordinances restrict what kind of functional family can inhabit this house? Ben Margot/AP

Why Are Zoning Laws Defining What Constitutes a Family?

It’s wrong to exclude safe uses of housing because of who belongs to a household. Like family law, zoning ordinances should prioritize functional families.

Laura Rozza and Simon DeSantis were overjoyed to discover that the mansion on Scarborough Street was within their price range. The ten-bedroom, five-bathroom home in Hartford, Connecticut, could be theirs for $453,000, and would have plenty of room for their family. In July of 2012 they purchased the property but just a few weeks after moving in, they received a cease-and-desist letter from the city of Hartford ordering them to leave, as first covered by the Hartford Courant.

According to the city, Rozza, DeSantis, and their chosen family—totaling eight adults and three children—violated the definition of “family” in the Hartford zoning code. The ordinance allowed an unlimited number of people related by blood, marriage, civil union, or adoption to constitute a zoning family, but only two unrelated people could legally co-habitate in a dwelling designated for a single family. The “Scarborough 11,” as they came to be known, refused to leave their home, and Hartford sued them in federal court. After years of litigation, including a countersuit from the Scarborough 11, the city dropped the suit in 2016 citing costs, and the town even revised its zoning ordinance to increase the number of legal unrelated cohabitants to three. Although they have been able to stay in their home, the Scarborough 11 faced blatant discrimination because their family is “functional” rather than “formal.”

Formal family zoning punishes the millions of Americans who choose alternatives to nuclear family, but it also has under-appreciated effects on the ability of functional families to access important family law obligations and protections. In a paper recently published in the Yale Law Journal, I show how formal family zoning may undermine progressive family law doctrines in many states, and what we should do to fix it.

Today, when courts ask “what makes a family?” they often look beyond blood, marriage, and adoption to see if people have made other meaningful, familial commitments that qualify for the obligations and benefits that family law provides. As functional family law developed, cohabitation became one of the most important factors, if not the determining factor, in these kinds of cases. The problem is that zoning laws often prevent these same functional families from living together in the first place. Through this underlying connection to zoning, functional developments in family law are much more vulnerable than they appear.

“Formal family” regulations in zoning are pervasive, and come with the imprimatur of the nation’s highest court. In the 1974 case Village of Belle Terre v. Boraas, the U.S. Supreme Court ruled that municipalities can legally differentiate between related and unrelated families. In the intervening years, courts in 14 states have ruled that “formal-family” zoning is permitted by state constitutions, and the issue remains undecided in an additional 30 states. Only four state courts, in New Jersey, California, Michigan, and New York, have refused to sanction this form of discrimination, and lawmakers in Iowa recently became the first legislators to ban it. The Supreme Court has only revisited the issue once, in 1978, to clarify that the zoning definition of family cannot prevent blood relatives from living together.

Zoning law can serve its historic functions without defining family at all. We can amend zoning codes to protect health, safety, and wellness by limiting cohabitation based on the health and safety limits of residential structures. By uncoupling the definition of family from residential limits, all kinds of chosen families—foster families, communes, students, seniors, and group homes—would be able to live together legally.

Recent data on the prevalence of functional families helps drive home the urgency of addressing the problem. According to analysis of the most recent census, 7.7 million Americans live in unmarried couples, 40 percent of whom are raising at least one biological child of either partner. An additional 5.2 million people are “doubling up” with roommates. These numbers have increased over the past 40 years, and are especially prevalent among younger people. In the annual America’s Families and Living Arrangements data for 2018, Census researchers found that 9 percent of Americans aged 18-24 are cohabiting with a partner, a figure which climbs to nearly 15 percent for Americans aged 25-34 (and only 30 percent of 18-34 year olds are married, down from 59 percent in 1979).

The good news is that formal family zoning is of surprisingly recent vintage. There is a long history of functional family approaches to zoning in American jurisprudence, dating back to the early 20th century advent of zoning law. The first zoning ordinances didn’t define “family,” at all, and throughout the first 50 years of their operation, courts often ruled that functional families of all kinds—from gay couples and religious adherents to cult followers and sororities—could live together in peace. Even as “blood, marriage, or adoption” ordinances became more common, courts continued to rule that functional families fell within their wide interpretive ambit.

The fortunes of functional families began to shift in the mid-1960s as fears of the family in crisis swept the nation. The rising New Right dovetailed with a generation of politicized post-war homeowners, both of which saw formal-family zoning as a vindication of their values. For social conservatives, formal-family zoning could help stave off the decline in nuclear family formation, and for homeowners, it could protect their property values against their perception that having abnormal neighbors might drive prices down.

Neither is a persuasive reason to discriminate against functional families in zoning codes. Formal family zoning is a familiar song—the same legal mechanisms that famously reinforced housing discrimination on the basis of race, also discriminate against families that vary from the nuclear ideal of a heterosexual couple raising their biological children. There is also compelling evidence that low-density zoning, like formal family ordinances, is a significant driver of racial and class segregation. In short, formal family zoning discriminates against non-normative families, but it also reinforces the racial and economic segregation effects of low-density zoning in general.

And from a purely practical perspective, using the definition of family in zoning as social regulation doesn’t work. More and more Americans are forming functional families, meaning that the only real effect of these ordinances is to make it more difficult for people to live with their loved ones. The laws aren’t channeling more people into nuclear families, but penalizing the growing share of Americans who choose other kinds of kinship.

More importantly, it’s wrong to exclude perfectly healthy and safe uses of residential housing simply because some of the neighbors disapprove of the form that family takes. In another famous decision from the height of the counterculture, U.S. Supreme Court Justice Brennan wrote, that if “the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” In other words, Justice Brennan believed that distaste is no justification for discrimination. That same logic surely holds today.  

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