In the Town of St. John, Indiana city zoning regulations prohibit unrelated adults from living together in a single family home. The U.S. Justice Department is now suing the town because it would not grant a variance to allow another adult to reside with a person suffering from multiple sclerosis. The Justice Department suit is being brought under the federal Fair Housing Act, which prohibits discrimination based on a person's disability among other things.
I was surprised to learn that there are municipalities in this state which still enforce these so-called "anti-shack up" ordinances. It is so commonplace for unrelated adults to live together. Some are opposite-sex partners who don't want to get married. Some are same-sex couples who can't get married. And still others are just friends sharing a home together. In child custody disputes, judges sometimes impose a requirement that a parent exercising parenting time with their child not be shacking up with another adult to whom they aren't married. I recall reading a few years ago about one of suburban cities (I'm thinking it was Westfield) considering such an ordinance. Critics of that proposal claimed the city was using it to discourage undocumented Mexican-Americans from moving into the town.
If you know of other communities with similar ordinances, please share with us. I'm surprised these ordinances haven't caught the attention of the American Civil Liberties Union of Indiana. Someone should challenge the constitutionality of these ordinances. I think one can make an argument the government does not have a compelling governmental interest in prohibiting co-habitating living arrangements--at least under the U.S. Constitution's equal protection clause. Indiana equal protection jurisprudence instructs us that legislative body can pass almost any law it chooses and the state courts will still find a legitimate basis for the statute's enactment under its deferential rational basis test it applies in such cases.
Hat tip to Indiana Law Blog for pointing this case out.
I think you are right, Gary. Even given rationale basis, Lawrence still makes clear that animus towards a group of people is not a legitimate state interest. Zoning restrictions like this ought to be based on actual policy concerns like noise control and health and safety standards. None of those reasonably apply to a bar on two people sharing a home. Apparently North Carolina has had this be an issue as well. Though I don't know how the case came out- the ACLU did sue in that situation.
ReplyDeleteI vaguely recall reading someplace that the majority of "households" in the USA do not consist of married couples.
ReplyDeleteExcellent post--I had no idea this was still going on.
ReplyDeleteReality check.
I think it was farther north than that, AI, for some reason, Sheridan comes to mind.
ReplyDeleteAlso, think college towns who sometimes do not want more than 3 or 4 unrelated adults (regardless of their romantic interests) sharing their residence. The assumption is they'll be better able to stop loud and large parties from happening.
ReplyDeleteIf I'm not mistaken, I believe that the ACLU did file suit on behalf of a group of university students in Bloomington a few years back. I don't recall ever hearing what came of the matter, though.
ReplyDeleteSure enough, our state Supreme Court upheld a slightly different ordinance in Bloomington. Here is the pertinent parts of the decision written by Justice Dickson:
ReplyDeleteDickson, Justice.
This appeal challenges the trial court's determination that a local zoning ordinance restricting the number of unrelated adult persons per dwelling in a single-family residential zone does not violate the Privileges and Immunities Clause of the Indiana Constitution and was not an ultra vires act. We affirm.
Peter Dvorak is the owner of a residential property located at 107 S. Bryan Avenue in Bloomington. On April 23, 1996, the City filed a complaint against Dvorak and the other defendants-appellants, tenants of Dvorak (hereinafter collectively "Dvorak"), claiming that they violated a zoning ordinance in the Bloomington Municipal Code which prohibits the property from being occupied by more than four adults unrelated by blood, marriage, or adoption.1 The City’s complaint sought to enjoin future use of the property inconsistent with the ordinance and to impose a fine of $2,500 per day from the time the violation began until the time it ceased. Dvorak filed a motion for summary judgment, claiming that the ordinance was void as an ultra vires act and that it violated Article 1, Section 23, the Equal Privileges and Immunities Clause, of the Indiana Constitution. After a hearing and the submission of briefs by the parties, the trial court denied the motion, finding that the ordinance was neither ultra vires nor unconstitutional. At Dvorak's request, the trial court certified the ruling for interlocutory appeal. The Court of Appeals accepted the appeal, vacated the decision of the trial court, and remanded for further proceedings, noting that the trial court had relieved the City of its duty to answer an interrogatory seeking "the City's justification(s) and rationale(s)" for the ordinance, and holding that Dvorak "should be given a reasonable opportunity for discovery in order to determine what goals the Ordinance was designed to promote." Dvorak v. City of Bloomington, 702 N.E.2d 1121, 1126 (Ind. Ct. App. 1998). Thereafter, in a bifurcated bench trial on the issues of constitutionality and whether its adoption was an ultra vires act, the trial court entered judgment upholding the ordinance. Upon review of this judgment, the Court of Appeals reversed, finding the zoning ordinance unconstitutional under Section 23. Dvorak v. City of Bloomington, 768 N.E.2d 490 (Ind. Ct. App. 2002). We granted the City's petition for transfer. Dvorak v. City of Bloomington, 783 N.E.2d 695 (Ind. 2002) (table).
Dvorak contends on appeal that the zoning ordinance violates Section 23 and that its adoption was an ultra vires act.
Article 1, § 23
When an enactment is challenged under the Indiana Constitution, it stands before this Court "clothed with the presumption of constitutionality until clearly overcome by a contrary showing." Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996) (citing Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1058 (Ind. 1992); State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992); Eddy v. McGinnis, 523 N.E.2d 737, 738 (Ind. 1988)). The party challenging the constitutionality of the enactment bears the burden of proof, and all doubts are resolved against that party. Id.
The requirements of Article 1, § 23 govern not only state statutes, but also the enactments and actions of county, municipal, and other governmental agencies and their equivalents. See, e.g., IHSAA, Inc. v. Carlberg, 694 N.E.2d 222, 231 (Ind. 1997); Haas v. South Bend Comm. Sch. Corp., 259 Ind. 515, 289 N.E.2d 495 (1972); Phillips v. Officials of Valparaiso, 233 Ind. 414, 120 N.E.2d 398 (1954); Kersey v. City of Terre Haute, 161 Ind. 471, 68 N.E. 1027 (1903); Graffty v. City of Rushville, 107 Ind. 502, 509, 8 N.E. 609, 612 (1886); Indianapolis v. Clint's Wrecker Serv., Inc., 440 N.E.2d 737, 744 (Ind. Ct. App. 1982). But see Bd. of Comm'rs of the County of Howard v. Kokomo City Plan Comm'n, 263 Ind. 282, 294, 330 N.E.2d 92, 100 (1975).
The Privileges and Immunities Clause of the Indiana Constitution states, "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Ind. Const. art. I, § 23. In Collins v. Day, we analyzed the common understanding of the framers and ratifiers of Section 23 and early cases implementing that section, concluding as follows:
To summarize, we hold that Article I, Section 23 of the Indiana Constitution imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of persons. First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.
644 N.E.2d 72, 80 (Ind. 1994).
Directing their first two claims to the first requirement in Collins, Dvorak contends:
No inherent distinctions exist between equal numbers of related and unrelated adults that are reasonably connected to the accomplishment of the Ordinance's objectives of reducing trash, noise, and traffic and maintaining core neighborhoods by reducing adult population density.
. . . .
No inherent distinctions exist between equal numbers of related and unrelated adults that are reasonably connected to family values or providing healthful surroundings for family life.
Br. of Appellants at 12, 18. Dvorak's third claim involves the second Collins requirement: "[t]he Ordinance permits some non-family groups to live in single-family zones but denies this privilege to other similarly situated groups." Id. at 20.
As a preliminary matter, we note that Dvorak's constitutional arguments place considerable emphasis upon the alleged failures of the City to establish or demonstrate that disparate treatment of different classifications under the ordinance was reasonably connected to the City's legislative goals. Because it is Dvorak, not the City, who asserts this constitutional challenge, however, there is no burden upon the City to demonstrate that the ordinance is constitutional. Rather, the burden is entirely upon Dvorak to overcome the presumption of constitutionality and to establish a constitutional violation. Sims v. United States Fid. & Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003); Boehm v. Town of St. John, 675 N.E.2d at 321; Collins, 644 N.E.2d at 81.
Dvorak asserts that the ordinance, Bloomington Municipal Code § 20.02.01.00, excludes from single-family residential districts households consisting of more than three adults not related by blood, marriage or legal adoption. Br. of Appellants at 4. The Bryan Avenue property was "grandfathered" to permit four unrelated adults to occupy the property. Appellants' App. at 143. Dvorak does not challenge the propriety of the City's creation of single-family residential districts, but claims a constitutional violation contending that the ordinance unequally treats two different classes: households comprised of four or more related adults and those comprised of four or more unrelated adults. Dvorak argues that the City's purposes in enacting the ordinance are not reasonably related to any inherent characteristics that distinguish these two classes.
This argument places a strained construction on Collins, which requires only that the "the disparate treatment accorded by the legislation," not the purposes of the legislation, "be reasonably related to the inherent characteristics which distinguish the unequally treated classes." Collins, 644 N.E.2d at 79; Boggs v. Tri-State Radiology, Inc., 730 N.E.2d 692, 696 (Ind. 2000) (considering whether special medical malpractice statute of limitations was reasonably related to the inherent characteristics distinguishing medical malpractice victims from other tort victims); McIntosh v. Melroe Co., 729 N.E.2d 973, 981 (Ind. 2000) (deciding whether the products liability statute of repose is reasonably related to the inherent characteristics that define the distinction); IHSAA, Inc., 694 N.E.2d at 240 (determining whether limited athletic eligibility is reasonably related to inherent distinctions distinguishing transfer students from other students). While it is the treatment, not the legislative purpose, which must be reasonably related to the inherent distinctions between the classes, the legislative purposes may be a factor considered in making this determination. See, e.g., Sims, 782 N.E.2d at 353-54.
We therefore find this appeal to present the following appellate issue: whether Dvorak has demonstrated either (1) that the ordinance's disparate treatment of two classes of persons is not reasonably related to their distinguishing inherent characteristics, or (2) that the preferential treatment accorded one of the classes is not uniformly applicable and equally available to all persons similarly situated.
As to the first issue, the disparate treatment provided by the ordinance is one of exclusion. Unlike households comprised of four or more adults related by blood, marriage or legal adoption, similar households comprised of four or more adults not so related are prohibited in single-family residential zones. Thus, the issue is whether this exclusion is reasonably related to the characteristic distinguishing these two classes—whether the members of a household are related by blood, marriage, or legal adoption. The answer is self-evident: limiting multiple-adult households in single family residential zones to families, and excluding non-families, is reasonably related to the difference between families and non-families. To put it another way, considering whether groups are or are not families is obviously related to determining whether to exclude them from districts zoned for family residential use.
Wow. That is even worse than Morrison v. Sadler. It seems that the underlying standard is that if you can make a grammatically correct sentence supporting, or seeming to support, the discriminatory law, in Indiana you are all good.
ReplyDeleteFrom the Dwelling Districts Zoning Ordinance of Indianapolis Marion County, Section 731-102 of the Revised Code of the Consolidated City/County, Indianapolis, Marion County:
ReplyDelete(59) Family: One (1) or more human beings related by blood, marriage, adoption, foster care or guardianship together with incidental domestic servants
and temporary, noncompensating guests; or, not more than four (4) human
beings not so related, occupying a dwelling unit and living as a single
housekeeping unit.
Currently, West Lafayette and Weida Properties are fighting in court over the city's ordinance forbidding more than three unrelated people to live in the same house. Ms. Weida rented out rooms in a five-bedroom property that she owns to five students.
ReplyDeleteMy own suspicion is that this is a test case, since this situation should and probably could be resolved with a variance. Should Ms. Weida prevail, I fear that landlords in WL will cram students into any crevice available.
Currently the city and its landlords are in running battles; landlords complain that WL is suing before advising; renters complain that landlords don't keep up their property and steal security deposits from students. Naturally, partisan lines are present, with the mayor being Democratic, Ms. Weida and some other landlords being Republican.