Legal Memorandum LU05


DEFINITION OF "FAMILY" IN ZONING LAW AND BUILDING CODES

An appropriate definition of "family" is basic to density and use prescriptions of zoning laws and to the applicability of building code laws. This memorandum discusses the definition in the context of such laws.

ZONING

Any successful zoning scheme which purports to create and attain a single-family zoning district must contain a definition of family. Dating back to 1974, the U.S. Supreme Court and many state courts, including our New York Court of Appeals, have examined the question of the definition of family, both in enforcement proceedings and in declaratory judgment actions.

This line of family definition cases has followed a very traditional path of analysis. Courts have carefully looked for some reasonable relationship between the zoning regulation and the goals sought to be achieved by the regulation. Generally, they first examine the goal sought to be achieved to see if it furthers a legitimate governmental objective. They then proceed to scrutinize whether the means designed to reach that end -- in this case a definition of family-- are reasonable.

Courts have regularly found a legitimate purpose in zoning regulations which are aimed at achieving a homogeneous, traditional single-family neighborhood. "A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs," according to the U.S. Supreme Court in Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S Ct 1536, 39 L Ed 2d 797 (1974), a case which upheld, as constitutional, a zoning definition of family against a challenge that it violated the equal protection clause.

To preserve this quiet neighborhood character, many municipalities have enacted definitions of "family" to exclude groups of individuals who, it is perceived, degrade the single family district. For example, in college towns or resort areas, municipalities are often concerned about fraternities and other groups of unrelated college students living together in crowded conditions in single family areas. Such living conditions can cause parking, noise, litter and congestion problems. Many local governments, therefore, have enacted restrictive definitions of family within their zoning and building codes, and enforce these provisions against groups who do not meet the "family" definition, in an effort to keep out those who would otherwise cause or contribute to unwanted neighborhood impacts. Unfortunately, these definitions occasionally exclude persons who should properly be included within the term "family."

Both the U.S. Supreme Court and the New York Court of Appeals have not hesitated to strike down zoning definitions of "family" which are so narrowly drawn as to exclude certain family members or families which are not biologically related or are non-traditional. In so doing, the courts, in their opinions, have furnished guideposts which communities can follow in crafting a definition of family which meets constitutional due process requirements.

Courts have not abided restrictive definitions of "family" which keep out certain types of families. For example, the definition of family may not be so restrictive as to exclude from its scope family members who are not expressly listed, such as cousins, uncles, aunts, nieces and nephews. The United States Supreme Court, in Moore v. City of East Cleveland, 431 U.S. 494 (1977), held that, in keeping with due process, a zoning ordinance may not differentiate between relatives of varying degrees of kinship. In his lead opinion, Justice Powell commented that: "The tradition of uncles, aunts, cousins, and especially grand-parents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition." 431 U.S. at 504. Due process, then, would seem to require that any such definition eliminate distinctions among familial degrees.

In the case of City of White Plains v. Ferraioli, 34 N.Y.2d 300, 357 N.Y.S.2d 449 (1974), the New York Court of Appeals held that a group home with ten foster children, headed by the natural parents of two additional children, could together constitute a "family." The Court invalidated a restrictive definition of family limited to blood relatives and spouses, which would have excluded the foster home. The Court stated: "[A]n ordinance may restrict a residential zone to occupancy by stable families occupying single-family homes, but neither by express provision nor construction may it limit the definition of family to exclude a household ‘which in every but a biological sense is a single family.’" (Id. at 306) The Court established a standard that the "... minimal arrangement to meet the test of a zoning provision as this one, is a group headed by a householder caring for a reasonable number of children as one would be likely to find in a biologically unitary family." (Id.)

Factors of importance to the Court in the White Plains case were that the group home: a) was a "single housekeeping unit"; b) was "to all outward appearances, a relatively normal, stable, and permanent family unit"; c) was not "a temporary living arrangement as would be a group of college students sharing a house"; and d) did not provide "a framework for transients or transient living."

Four years later, the Court of Appeals found that a house consisting of two surrogate parents and seven emotionally disturbed children was "... the functional and factual equivalent of a natural family, and to exclude it from a residential area would be to serve no valid purpose." Group House of Port Washington v. Board of Zoning and Appeals of the Town of North Hempstead, 45 N.Y. 2d 266, at 272 (1978). The Town had defined family as

     "[o]ne (1) or more persons related by blood, marriage or legal adoption residing or cooking or warming food as a single housekeeping unit; with whom there may not be more than two (2) boarders, roomers or lodgers who must live together in a common household."

In a 4-3 decision, Court of Appeals held that the definition of "family" improperly excluded from its scope group homes. The Court explained that in zoning for stable neighborhoods in a single family district, local governments must include the functional and factual equivalents of natural families, as well as traditional families.

After White Plains and Group House, municipalities must define families to include groups of unrelated persons who constitute a family. However, even the inclusion of provision for unrelated persons in the zoning definition of family does not guarantee that it will survive a constitutional challenge. For example, during the 1980s, the Town of Oyster Bay defined "family" as:

"(a) Any number of persons, related by blood, marriage, or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit; or

(b) Any two (2) persons not related by blood, marriage or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit, both of whom are sixty-two (62) years of age or over, and residing on the premises."

In 1985, the Court of Appeals in McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 498 N.Y.S.2d 128 (1985) found fault with the alternative definition of a "family" as being "[a]ny two (2) persons not related...both of whom are sixty-two (62) years of age or over." In a unanimous decision, the Court of Appeals invalidated the definition:

"Manifestly, restricting occupancy of single-family housing based generally on the biological or legal relationships between its inhabitants bears no reasonable relationship to the goals of reducing parking and traffic problems, controlling population density and preventing noise and disturbance (citations omitted). Their achievement depends not upon the biological or legal relations between the occupants of a house but generally upon the size of the dwelling and the lot and the number of its occupants. Thus, the definition of family employed here is both fatally overinclusive in prohibiting, for example, a young unmarried couple from occupying a four-bedroom house who do not threaten the purposes of the ordinance and underinclusive in failing to prohibit occupancy of a two-bedroom home by ten or twelve persons who are related in only the most distant manner and who might well be expected to present serious overcrowding and traffic problems." (66 N.Y.2d at 549-550)

The Court cited White Plains (supra) for the proposition that a municipality may not seek to achieve its legitimate objectives of preserving the character of single-family neighborhoods by limiting the definition of "family" to exclude a household which in every sense but a biological one is a single family. "This ordinance, by limiting occupancy of single-family homes to persons related by blood, marriage or adoption or to only two unrelated persons of a certain age, excludes many households who pose no threat to the goal of preserving the character of the traditional single-family neighborhood, such as the households involved in White Plains and Group House, and thus fails the rational relationship test." 66 N.Y.2d at 550.

The Court went on to state: "Because the only alternative definition contained in this ordinance...is more restrictive, both as to the number of unrelated persons and their ages, than is constitutionality permissible, however, the entire definition of family contained in the ordinance violates our state constitutional guarantee that no person shall be deprived of property without due process of law." 66 N.Y.2d at 551.

For a definition of family to be constitutionally permissible, it is necessary to ensure that alternative definitions of family include within them both traditional family units and well-defined non-traditional groups to whom the courts have extended due process protections. This task is one which may involve the drawing of some fine legal distinctions.

Soon after deciding McMinn, the Court of Appeals considered whether a municipality can restrict the number of unrelated persons living together as the functional equivalent of a natural family, while allowing an unlimited number of related persons to reside together. In Baer v. Town of Brookhaven, 73 N.Y.2d 942, 540 N.Y.S.2d 234 (1989) the Court of Appeals held that it cannot.

In Baer, the town of Brookhaven charged five (5) unrelated elderly women residing together in a house located in a single family residential zone with violating the town's zoning law, which provided that not more than 4 unrelated persons living and cooking together as a single housekeeping unit could constitute a family. The zoning law did not place a similar number limit on the number of persons related by blood, marriage or adoption. The Court of Appeals held that the family definition violated the State due process clause because it restricted the size of a functionally equivalent family of unrelated persons but not the size of a traditional family. Such differentiation was not reasonably related to a legitimate zoning purpose, and therefore violated State Due Process. Reading the Baer decision in light of the U.S. Supreme Court’s ruling in Moore v. City of East Cleveland, (supra), it appears that, for zoning purposes, a municipality may not restrict the number of related or unrelated persons who constitute a family. As will be noted later, an appellate court has approved a method for controlling groups of unrelated persons who are not a family.

The definition of family can affect the implementation of other laws unrelated to zoning. For example, in Braschi v Stahl Associates, 74 N.Y.2d 201, 544 N.Y.S.2d 784 (1989), the Court of Appeals ruled that two homosexual men living together in a spousal-like arrangement could constitute a "family" within the context of the non-eviction provisions of the New York City Rent and Eviction regulations. The Court expressly stated that its decision on the definition of family under the rent control regulations had no bearing on the concept of "functional family" in its decisions concerning local zoning regulations. 544 N.Y.S.2d at 796 note 3.

Also, in 1993, a federal district court in the case of Oxford House v. Town of Babylon, 819 F. Supp. 1179 (E.D.N.Y. 1993) concluded that the federal Fair Housing Act prevented the Town of Babylon from evicting recovering alcoholics and drug addicts from a group home based on the town’s zoning definition of family. The town alleged the house was being used in violation of the single family zoning because the residents were transient and not a family. Under the town code, a family is defined to include those related by blood, marriage or adoption, or not more than 4 unrelated individuals living in a stable, non-transient household. Oxford House accommodated between 5 and 8 transient residents. Under the Fair Housing Act, it is unlawful for government to discriminate in the sale, rental or use of housing on the basis of handicap and individuals recovering from drug or alcohol addiction are considered handicapped under the Act. In the court’s view, applying the town's zoning definition of "family" to evict the Oxford House residents due to the size or transient nature of the group living arrangement would discriminate against them because of their handicap. The court determined that the town's interest in uniform enforcement of its zoning ordinance was not a sufficient governmental interest justifying the eviction of the residents of Oxford house, since it had a much greater discriminatory impact on the handicapped.

Finally, in Genesis of Mt. Vernon v. ZBA of City of Mt. Vernon, 81 N.Y.2d 741, 593 N.Y.S.2d 769 (1992), the Court of Appeals struck down the city's definition of "boarding house" as not reasonably related to achieving the ordinance's legitimate purposes of reducing parking and traffic problems and controlling population density. The definition of "boarding house" was so broad it would have prevented any type of family living in a rented house. In the Court’s words: "Because the prohibition against a ‘boarding house’ includes a family expressly permitted under the Zoning Ordinance's definition of ‘family’, the definition of ‘boarding house’ is overbroad, thereby inviting arbitrary application."

I. Guidelines to Drafting a Definition of Family

In light of the numerous state and federal court decisions on the subject of defining "family," some guidelines may be gleaned as to constitutionally permissible standards.

1. Preservation of the character of single-family areas remains a legitimate purpose of zoning.

2. Zoning may not exclude a group which "in every but a biological sense is a single family" (White Plains, supra); or a household "which poses no threat to the goal of preserving the character of the traditional single-family neighborhood" (McMinn supra).

3. Court decisions have indicated that the "factual and functional equivalent" of a traditional family of unrelated persons may be evidenced by the following:

1. single housekeeping unit;

2. more or less permanent living arrangement;

3. stable, rather than transient living arrangements (except where the handicapped are affected);

4. a group headed by a householder caring for a reasonable number of children as one would be likely find in a biologically unitary family (White Plains 34 N.Y.2d at 306).

II. Techniques for Drafting Definitions

     1. Some municipalities have attempted to define "family" to comply with court decisions by providing for discretionary review of groups of unrelated persons greater than a specified number to ensure that they are the functional equivalent of a family.

Under this approach, the municipality defines all related persons and a specific number (e.g.- four) of unrelated individuals as constituting a "family." For groups of greater than four (4) unrelated individuals to constitute a "family," the group would have the burden of proving to an administrative official or entity (such as a zoning official or the board of appeals) that they meet the criteria set forth in the zoning regulations to show that are a "functionally equivalent family." Such an approach is consistent with the cases indicating that defining a "family" of unrelated persons is a factual decision.

Many municipalities in New York have adopted this discretionary review technique for defining family. For example, the City of Poughkeepsie zoning ordinance, in its definition of "family," contains a rebuttable presumption that 4 or more unrelated persons living in a single dwelling do not constitute the functional equivalent of a traditional family. The ordinance provides an opportunity for applicants to convince the Zoning Administrator that the group is the functional equivalent of a traditional family. The factors which must be considered by the Zoning Administrator are whether the group:

1. shares the entire house
2. lives and cooks together as a single housekeeping unit
3. shares expenses for food, rent, utilities or other household expenses, and
4. is permanent and stable.

Such an approach has met with success in the courts. In Unification Theological Seminary v. City of Poughkeepsie, 201 A.D.2d 484, 607 N.Y.S.2d 383 (2nd Dept. 1994), the Appellate Division upheld the City of Poughkeepsie's definition of "family" against a challenge that it violated the Due Process Clause. The Court held that it was valid to use a rebuttable presumption to establish which groups of unrelated individuals should be considered a family. For those municipalities which have enacted or are considering adopting definitions of family similar to that of the City of Poughkeepsie, this case lends constitutional support to those efforts.

      2. Another technique is to correlate the number of occupants to the size of the structure occupied (e.g., by setting a maximum number of persons for a specified floor area, or requiring a given floor area per resident). The advantage of such an approach is that it relates population density to house size and does not address the factors of permanence, stability, non-transience, and outward appearance of a family which all the decisions use. In so doing, it avoids the constitutional problems associated with defining "family."

Maximum occupancy restrictions may be exempt from certain provisions of the Fair Housing Act. In the case of City of Edmonds v. Oxford House, 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995), the U.S. Supreme Court held that the city's zoning code definition of the term "family" is not a maximum occupancy restriction exempt from the Fair Housing Act. In enacting the Fair Housing Act, Congress recognized the distinction between municipal land use regulations--which are subject to the Fair Housing Act--and maximum occupancy restrictions, for which it created an absolute exemption.

Maximum occupancy restrictions cap the number of occupants per dwelling, typically in regard to floor space or the number and type of rooms. These restrictions ordinarily apply uniformly to all residents of all dwelling units. Their purpose is to protect health and safety by preventing overcrowding. These uniform rules are exempt from the provisions of the Fair Housing Act. On the other hand, rules designed to preserve the family character of a neighborhood, keyed to the composition of household rather than on the total number of occupants living quarters can contain, do not qualify for the exemption.

While maximum occupancy restrictions are attractive to many municipalities, a strict quantitative approach may lead to the opposite result from that which the decisions endorse--a stable, single-family area.

NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE

Many local officials and citizens are concerned with the administration and enforcement of zoning and building laws. On the front line is the local building inspector. In many municipalities, the building inspector may wear several “hats” and may be charged with enforcing zoning regulations, State and local building codes and related regulations. In larger municipalities, the various enforcement tasks may be divided among the building inspector, the zoning enforcement officer and perhaps, a number of other officers or employees. The law concerning the concept of “family” differs for the separate contexts of zoning and building code administration. It is important for local officials, whether enforcing zoning regulations and building codes in combination or separately, to learn the law applicable to their respective area of responsibility. This section addresses the concept of “family” in the context of the New York State Uniform Fire Prevention and Building Code (the “Uniform Code”).

The Uniform Code is promulgated by the State Fire Prevention and Building Code Council pursuant to Article 18 of the Executive Law, and is in effect throughout the State (except in New York City). Since January 1, 2003, the Uniform Code has included several sub-units. These sub-units are currently found in Parts 1220 to 1226 of Title 19 of the NYCRR and in the following publications, which have been incorporated by reference in those Parts:

Residential Code of New York State (Part 1220),
Building Code of New York State (Part 1221),
Plumbing Code of New York State (Part 1222),
Mechanical Code of New York State (Part 1223),
Fuel Gas Code of New York State (Part 1224),
Fire Code of New York State (Part 1225), and
Property Maintenance Code of New York State (Part 1226).

The Uniform Code is intended to address building construction and fire prevention concerns in a single code, in order to provide a basic minimum level of protection to all people of the State from hazards of fire and inadequate building construction. See Executive Law § 371. Consistent with the Legislature’s declaration of the purposes and policies, the Uniform Code addresses building construction and fire-safety concerns by classifying buildings according to their uses and occupancies, and providing standards that reflect the relative hazards inherent in those uses and occupancies.

In a number of situations, the classification of a building, and the determination of which provisions of the Uniform Code apply to the building, may depend, in part, on whether the building is or is not a “one- or two family dwelling” or a “multiple single family dwelling (townhouse).” For example, one of the sub-units of the Uniform Code, viz., the Building Code of New York State, applies to the construction, alteration, movement enlargement, replacement, repair, equipment, use and occupancy, location, maintenance, removal and demolition of every building except, inter alia, “detached one- and two-family dwellings and multiple single family dwellings (townhouses) not more than three stories high with separate means of egress . . . .” See Building Code of New York State §101.2. The construction, alteration, movement, enlargement, replacement, repair, equipment, use and occupancy, location, removal and demolition of “detached one- and two-family dwellings and multiple single-family dwellings (townhouses) not more than three stories in height with a separate means of egress” are matters covered by one of the other sub-units of the Uniform Code, viz., the Residential Code of New York State. See Residential Code of New York State §101.2.

While the word “family” is used in the Uniform Code provisions referred to above, and in numerous other provisions of the Uniform Code, the concept of “family” is not as integral to administration and enforcement of the Uniform Code as it is to the operation of local zoning laws. Indeed, the term “family” is not defined in the Uniform Code. However, in the Uniform Code, the term “family” is almost always used as part of the phrase “one- or two-family dwelling” or “multiple single family dwelling (townhouse),” and the term “dwelling” is defined in the Uniform Code. See, for example, Building Code of New York State § 202, which defines “dwelling” as “a building that contains one or two dwelling units used, intended, or designed to be used, rented, leased, let or hired out to be occupied for living purposes.”

The term “dwelling unit” is defined in Building Code of New York State § 310.2 as “a single unit providing complete, independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation.”

Residential Code of New York State § 202 contains similar (but not identical) definitions of “dwelling” and “dwelling unit.” (Residential Code of New York State § 202 also defines the term “townhouse” as “a single-family dwelling unit constructed in a group of three or more attached units in which each unit extends from foundation to roof and with open space on at least two sides.”)

For the purposes of the Uniform Code, a “unit” that provides complete, independent living facilities for one or more persons is a “dwelling unit” without regard to the nature of the relationship between or among the persons occupying the unit. This reflects the fact that the relationship, if any, between or among those persons has no bearing on the building construction and fire safety concerns sought to be addressed by the Uniform Code. Therefore, for the purposes of the Uniform Code:

  • a unit that provides complete, independent living facilities (including permanent provisions for living, sleeping, eating, cooking and sanitation) for one or more persons is a “dwelling unit” without regard to whether the unit is occupied or intended to be occupied by one person, by a “traditional” family, or by a group of unrelated persons;
  • a detached building that contains a single dwelling unit is a “one-family dwelling” without regard to whether the unit is occupied or intended to be occupied by one person, by a “traditional” family, or by a group of unrelated persons;
  • a detached building that contains two dwelling units is a “two-family dwelling” without regard to whether the units are occupied or intended to be occupied by individual persons, by “traditional” families, or by groups of unrelated persons; and
  • a building that contains three or more dwelling units (each of which extends from foundation to roof and has open space on at least two sides) is a “multiple single family dwellings (townhouse)” without regard to whether the units are occupied or intended to be occupied by individual persons, by “traditional” families, or by groups of unrelated persons.

Certain other buildings are classified as one- or two-family dwellings for the purposes of the Uniform Code. For the most part, these additional classifications are included in the Uniform Code for the purpose of complying with other statutes. For example, Residential Code of New York State § 101.2.1 provides that “(f)or the purposes of (the Residential Code of New York State), community residences for 14 or fewer mentally disabled persons, operated by or subject to licensure by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities, shall be classified as one- or two-family dwellings.” This reflects the requirements of subdivision (f) of Mental Hygiene Law §41.34, which provides that “(a) community residence established pursuant to this section and family care homes shall be deemed a family unit, for the purposes of local laws and ordinances.”

See also section 4002 (2-b) of the Public Health Law, which defines the term “hospice residence” as “a hospice operated home which is residential in character and physical structure and operated for the purpose of providing more than two hospice patients but not more than eight hospice patients with hospice care, which may include dually certified hospice in-patient beds” (emphasis added). Residential Code of New York State § 101.2.2, entitled “Hospice residences,” provides that the Residential Code of New York State applies to “(a) one-or two-family dwelling operated for the purpose of providing care to more than two but not more than eight hospice patients, created pursuant to Article 40 of the Public Health Law, and as defined in §4002 of said Law.”