Donald V. Rider, Jr. is an assistant city solicitor and the head of the civil litigation unit for the city of Worcester. He served as appellate counsel representing Worcester in the Bonaventura case
Nearly 30 years ago, the United States Supreme Court in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), upheld against constitutional challenge a municipality's ability to limit the number of unrelated persons living together in residential zoning districts by defining the word "family" to include only persons related by blood, marriage or adoption. This ability is derived from the police power. It is a power, so the Supreme Court declared, not confined to elimination of threats to the health or safety of the public, but instead expansive enough to provide for the blessings of quiet neighborhoods unburdened by overcrowding caused by unrelated persons living together in lodging houses, boarding houses, fraternities and the like. Thus, in Belle Terre, the Supreme Court examined a municipal zoning ordinance that limited a "family" to no more than two persons living together as a single housekeeping unit who were not related by blood, marriage or adoption, and held that that ordinance constitutionally prohibited the living together of six university students who were not related by blood, marriage or adoption.
The nearly three decades since the Belle Terre decision have seen state courts diverge on the constitutionality of zoning ordinances that seek to restrict the benefits of single-family zoning districts to persons related by blood, marriage or adoption. Hall v. Zoning Board of Appeals of Edgartown, 28 Mass. App. Ct. 249, 256 n.8 (1990). Specifically, the legal/biological concept of "family" upheld in Belle Terre has been competing with a functional concept of "family," defined as unrelated persons who function together as a single housekeeping unit that reflects a certain level of stability, normality and permanence.
These competing concepts of "family" once again found a litigational arena in the recent case of City of Worcester v. Bonaventura, 56 Mass. App. Ct. 166 (2002). Bonaventura is a case that at once affirms the police power of municipalities to use the legal/biological concept in defining "family" in zoning matters, even as it illustrates some of the difficulties inherent in navigating the shoals of constitutional waters.
Bonaventura arose out of six complaints filed by the city of Worcester in the Housing Court for the county of Worcester. In those complaints, Worcester sought to permanently enjoin six condominium owners from operating their respective units as lodging houses without a special permit, as required in the general residential zone in which each owner's property was located. Each owner had received cease-and-desist orders issued by Worcester's zoning ordinance enforcement officers, who had determined that the owners were operating their units in violation of Worcester's "lodging house" zoning ordinance. The orders had required the owners, within seven days after receipt of the orders, to cease and desist from operating their respective units as lodging houses and to obtain a special permit from Worcester's zoning board of appeals, as well as approval from Worcester's planning board plus building and occupancy permits. The six owners declined to obey the cease-and-desist orders, giving rise to the injunctive complaints filed by Worcester.
Specifically, each condominium unit was being rented to four unrelated students attending the nearby College of the Holy Cross in Worcester. Each unit contained two or three bedrooms. The students in each unit were signatories to a lease for that unit, were jointly and severally liable for the rent of that unit, were responsible for their own heat and utilities in that unit, and possessed a key to their unit, of which they had full use inasmuch as the interior doors were not locked.
Worcester's zoning ordinance defines a "lodging house" as:
A dwelling or that part of a dwelling where sleeping accommodations are let, with or without kitchen facilities, to four (4) or more persons not within the second degree of kindred to the person conducting it, and shall include rooming houses, boarding houses and tourist homes, but shall not include hotels, motels, inns, sorority, fraternity and cooperative residences, dormitories, or convalescent homes, nursing homes, rest homes, or group residences licensed or regulated by agencies of the Commonwealth.
Thus, Worcester's "lodging house" zoning ordinance does not contain the word "family."
The Housing Court examined the above-quoted definition of "lodging house" contained in Worcester's zoning ordinance, and declared it to be unconstitutionally vague. In particular, the Housing Court declared that Worcester, in proceeding with the enforcement actions against the six condominium unit owners, had too narrowly construed the word "family" so as to exclude a group of four or more persons not within the second degree of kinship. The Housing Court opined that Worcester's reliance on biological relationship was at odds with the composition of a single housekeeping unit and engendered the possibility of arbitrary and discriminatory enforcement.
In arriving at this opinion, the Housing Court decided that the students were tenants, not lodgers, because the students had the right to full possession of their respective units; and that the living arrangements in those units approximated the living arrangements of traditional families, such that the students in each unit formed a single housekeeping unit entitled to the same treatment as traditional families under Worcester's zoning ordinance.
The Appeals Court vacated the Housing Court's declaration that the above-quoted definition of "lodging house" contained in Worcester's zoning ordinance was unconstitutionally vague. The Appeals Court first determined that the distinction between lodger and tenant, while not without precedent in Massachusetts law, was not dispositive in this case in view of a statutory provision, G.L. c. 186, ß 17, which permits a lodger to obtain a possessory interest as a tenant at will as long as that lodger resides in the same place for three consecutive months.
The Appeals Court next determined that Worcester's "lodging house" zoning ordinance was precise, inasmuch as that ordinance used words such as "dwelling," which were elsewhere defined in the zoning ordinance. In particular, whereas the Housing Court had ruled that Worcester had too narrowly construed the word "family," the Appeals Court determined that the zoning ordinance elsewhere defined "family" as one or more persons occupying a dwelling unit "and living together as a single housekeeping unit, not including a group of more than three (3) persons who are not within second degree of kinship." Thus, although Worcester's "lodging house" zoning ordinance did not, in fact, itself contain the word "family," the Appeals Court ruled that Worcester had clearly defined a "lodging house" "as a dwelling unit that is rented to four or more persons not constituting a family."
Lastly, the Appeals Court determined that Worcester's definition of "family" was not an impermissible exercise of the police power. Citing Belle Terre, the Appeals Court stated that a municipality's police power may permissibly extend beyond the curing of urban blight to the preserving of the quiet character of neighborhoods. Accordingly, in the Appeals Court's view, the "lodging house" zoning ordinance's limitation of the number of unrelated people living together was rationally related to the legislative purpose of preservation of quiet neighborhoods.
Lessons from Bonaventura
Several lessons of value to the land-use practitioner emerge from the Appeals Court's decision in Bonaventura, particularly as involving challenges to municipal zoning ordinances on constitutional grounds. First, the Appeals Court observed in a footnote that the Attorney General must be notified of challenges to the constitutionality of municipal ordinances, which typically occur in the context of declaratory judgment. G.L. c. 231A, ß 8; Gamache v. Acushnet, 14 Mass. App. Ct. 215, 223 (1982). This notification requirement becomes only the more necessary when one notices the close similarity of Worcester's "lodging house" zoning ordinance to the commonwealth's statute governing lodging houses, G.L. c. 140, ß 22. Section 22 defines a lodging house as "a house where lodgings are let to four or more persons not within the second degree of kindred to the person conducting it, and shall include fraternity houses and dormitories of educational institutions … ." A determination, such as had been made by the Housing Court, that Worcester's ordinance is unconstitutionally vague would be tantamount to a like determination as to ß 22.
Next, the Appeals Court stressed the strong presumption of constitutional validity to which a municipality's zoning ordinance is entitled. Given that strong presumption of constitutionality, the Appeals Court continued, courts should be wary of declaring a municipality's zoning ordinance void for vagueness. Indeed, as the Appeals Court stated, a municipality's zoning ordinance must be enforced, unless there is a showing, beyond a reasonable doubt, that the ordinance conflicts with the Constitution or the enabling statute, Chapter 808 of the Acts of 1975. The importation into zoning law of the criminal law's burden of proof only underscores the difficulty of establishing a zoning ordinance's unconstitutionality.
Further, the Bonaventura decision illustrates the need to interpret zoning ordinance terms in the context of the zoning ordinance as a whole. Thus, although Worcester's "lodging house" zoning ordinance did not contain the word "family," which the Housing Court found unconstitutionally vague, the Appeals Court noted that Worcester's zoning ordinance did elsewhere define the term "family" as well as the term "dwelling." Those terms were to be interpreted in conjunction with the "lodging house" zoning ordinance, yielding, in the Appeals Court's analysis, a clear definition of a "lodging house" as a dwelling unit that is rented to four or more persons not constituting a family. It was that analysis by the Appeals Court that led it to conclude that nothing on the appellate record suggested Worcester's "lodging house" zoning ordinance was open to various interpretations and, hence, was unconstitutionally vague.
Bonaventura serves, then, as an illustration of a due process challenge to an ordinance based on the ground of vagueness. An ordinance is adequate to survive a vagueness challenge if, as in Bonaventura, it definitively describes the conduct that is proscribed; conversely, an ordinance is vague, and violates the due process right to fair notice of the proscribed conduct, only where persons of common intelligence must necessarily guess at its meaning and differ as to its application.
Indeed, while the Bonaventura decision contains no mention of the language in the deeds for each of the condominium units at issue, those deeds, which had conveyed the units to the defendant owners, contained express language that each unit was intended for residential purposes only by one family or by not more than three unrelated persons. That deed language is, in effect, the language of Worcester's "lodging house" zoning ordinance. The defendant owners were thus put on notice, at least as early as their respective dates of purchase, that their units were not to be used for more than three unrelated persons, i.e., were not to be used for lodging houses as defined by Worcester's "lodging house" zoning ordinance. Worcester's attempt to enforce that ordinance in Bonaventura was an attempt to proscribe the very conduct that the defendant owners themselves, via their unit deeds, had already been put on prior notice to avoid. Accordingly, prior to mounting a vagueness challenge to a zoning ordinance, a careful examination of a client's deed, lease agreement or like document may well be warranted.
But Bonaventura also serves as an illustration of a due process challenge to an ordinance based on the ground of arbitrariness. When the Appeals Court, citing Belle Terre, determined that Worcester's definition of "family" was a permissible exercise of the police power extending to the preserving of the quiet character of neighborhoods, it also determined that the "lodging house" zoning ordinance's limitation of the number of unrelated people living together was rationally related to this legislative purpose of preservation of quiet neighborhoods.
In effect, then, the Appeals Court was determining that Worcester's ordinance was not arbitrary. The Massachusetts Declaration of Rights dictates that legislation must bear a real and substantial relation to the health, safety, morals or welfare of the public. In the judgment of the Appeals Court, Worcester's "lodging house" zoning ordinance met that constitutional dictate.
Ordinances employing the legal/biological concept of "family" such as was upheld in Belle Terre presume that occupancy of a single-family residence by a critical mass of persons unrelated by blood, marriage or adoption is antithetical to the public's health, safety or welfare. The thesis of such ordinances is that they preserve the character of single-family residential areas by reducing parking and traffic problems, by limiting population density and by lessening noise and disturbance. The burden of such ordinances is whether they constitute a means reasonably related to the ends sought. It may be, for example, that, in any given case, the legal/biological definition of "family" disserves the public's health, safety or welfare because, in that given case, the legal/biological family might generate as much parking and traffic problems, and as much noise and disturbance, as is generated by a functional family, defined as unrelated persons who function together as a single housekeeping unit that reflects a certain level of stability, normality and permanence.
This tension between the legal/biological concept of "family" and the functional concept of "family" has marked the nearly 30 years since the Supreme Court's decision in Belle Terre upheld a municipality's police power to define "family" using the former concept. The Appeals Court's decision in Bonaventura provides affirmation that the legal/biological concept of "family" endures under Massachusetts jurisprudence.