The Supreme Court Breaks the Zoning Silence: Village of Belle Terre v. Boraas

One issue disputed by environmentalists and poverty lawyers has been that of exclusionary zoning. Advocates of controlled land use have long supported legislative restrictions on indiscriminate development of land resources. Population density, with its correlates of air, water, and noise pollution, and of aesthetically offensive high-rise apartments, has often been cited as justifying drastic restrictions upon prospective users of existing sanitary facilities as well as use of other methods of development control.Local jurisdictions have used several techniques of exclusionary zoning, including prohibition of mobile homes and multi-family developments, and high minimum living space, lot-width, and lot-size requirements. An example of the prevalence of exclusionary zoning techniques is provided in four nonthern New Jersey counties where 99.5 percent of the residential land was found by one study to be zoned for single families.¹

Those concerned with the unavailability of low cost housing have decried the proliferation of exclusionary zoning controls, maintaining that such limits place decent housing far beyond the means of the poor and seal off people in the ghetto from achieving better standards of living. Civil libertarians point out that some zoning methods conflict with enlightened concepts of individual liberty. When single-family zoning ordinances have not defined "family," so-called "voluntary" families, groups of unrelated persons living together, such as communes, have found the courts liberal in including within the term those not genetically or legally related.² However, many ordinances have narrowly defined the limits of a "family" as including only persons related by blood, marriage, or adoption or a restricted number of unrelated persons living together, varying from two to four.³ The Supreme Court's recent decision in Village of Belle Terre v. Boraas dealt with such an ordinance.⁴

Forty-six years have passed since the Supreme Court last reviewed the constitutionality of a zoning ordinance in Nectow v. City of Cambridge.⁵ A strong presumption of validity has consistently been applied to zoning laws by both state and federal courts since Nectow. The holding by the Court of Appeals for the Second Circuit in Boraas v. Belle Terre⁶ that the restrictive definition of "family" used in the Village of Belle Terre, New York, zoning ordinance was a denial of equal protection, represented a significant change in the uniformity of zoning law decisions. The Supreme Court's reversal of the Court of Appeals reaffirms the Court's reluctance to interfere with an expanding concept of the police power.

History of the Case

Plaintiffs in the case were a group of six unrelated students at the State University of New York at Stony Brook. All were living in a single house that was leased from the co-plaintiff owners. Belle Terre's ordinance defined "family" as persons related by blood, adoption, or marriage, or not more than two unrelated persons living and cooking together as a single housekeeping unit. Plaintiffs, notified that the Village intended to prosecute violation of the ordinance, brought suit under 42 U.S.C. § 1983 for an injunction declaring the provision unconstitutional. The District Court denied plaintiff's motion for a preliminary injunction, indicating that the ordinance could not be held valid on the traditional basis of the police power in that it did not encourage "such familiar zoning objectives as safety, adequate light and air, preservation of the land from overintensive use, avoiding crowing of the population, reduction of traffic congestion and facilitation of adequate transportation, water, sewerage, school, park, and other public services." However, the District Court found that the statute could be upheld because it was a proper exercise of a "legally protectable affirmative interest" in the traditional family.

The opinion of the Court of Appeals in reversing the lower court indicated that an interest in the maintenance of the traditional family character of the neighborhood did not make the ordinance a lawful exercise of the police power. The court found that the other claimed rational zoning bases for the ordinance, curbing population density [4 ELR 10058] and excessive rental costs, could be achieved without discrimination of unrelated groups such as plaintiffs, by requirements of less than a certain number of bedrooms per dwelling, restrictions of the ratio of persons to bedrooms, or limitation of occupancy to a single house-keeping unit. Whatever economic advantages a "voluntary" family might have over a traditional family with a single wage-earner that might result in the increase of rents for the area could be equalized through a system of rent control. The court found that problems of noise and auto congestion could be more rationally solved through enforcement of nuisance laws and restrictions of the number of cars per dwelling unit "regardless of the relationship of the occupants." The dissent's argument that the traditional family tended to be self-limiting and therefore smaller than a "voluntary" family was considered by the majority merely a speculative conclusion.

The Supreme Court's Opinion

The Court, in an opinion written by Mr. Justice Douglas, found unpersuasive the plaintiff's assertions that the ordinance unconstitutionally interfered with the right to travel and to settle and migrate within the states, discouraged social heterogenity and violated plaintiff's right of privacy. The Court stated that the ordinance involved no fundamental right demanding a stepped-up standard of constitutional protection, citing those decisions dealing with such fundamental rights as the right of association and the right of privacy, but without an explanation of why these prior decisions do not encompass the facts of Belle Terre. Justice Douglas dealt with the question of the right of association in one sentence, indicating that the "family" defined in the statute "may … entertain whomever they like." The Court's opinion concludes that the police power "is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people." No explication of the reasons for or even the meaning of "family values, youth values" is given. The Court's opinion does not deal with the point raised by the Court of Appeals, that the objectives of peace and a clean environment might be obtained through equally effective but less discriminatory means.

Justices Brennan and Marshall dissented from the majority opinion. Justice Brennan argued that the case did not meet the Article III requirement of a "case or controversy," as it was moot. He noted that the named plaintiffs in the case no longer lived in the house, and that the present tenants had not intervened. Justice Brennan considered the jus tertii (rights of a third person) problem and determined that the lessors of the house did not meet the standard which would enable them to assert the rights of prospective tenants: a danger of substantial economic injury or criminal prosecution, and so close an intertwining of interests that if they, the lessors, were not allowed to assert the rights of lessees, those rights could not be vindicated.

Justice Marshall's dissent urged that the Court has a duty to "ensure that zoning ordinances, even when adopted in furtherance of such legitimate aims, do not infringe fundamental constitutional rights." He stated that the ordinance violated both the plaintiffs' First Amendment right to freedom of association and their right to privacy. Justice Marshall stated that constitutional protection of the right of association extends to "modes of association … that pertain to the social and economic benefit of the members." The ordinance, he found, discriminates on the basis of personal life style in that an unlimited number of related persons may satisfy the ordinance's requirements, while a group of only three persons "bound by prefession, love, friendship, religious or political affiliation or mere economics" would be in violation of the village's mandates. Justice Marshall pointed out that the freedom to entertain guests at will does not constitute the full extent of the right of association. He noted Moreno v. Department of Agriculture,⁷ in which Justice Douglas stated in a concurring opinion that the freedom of association included the right not only to entertain visitors in one's home but also to invite them to join the household. The essence of Justice Marshall's dissent was that although the goals of the ordinance might be legitimate, its provisions are not precise enough to accomplish these objectives without violating plaintiff's rights.

Conclusion

The Court's decision is in accord with its tradition of restraint in reviewing local zoning ordinances. But on the complicated question of reconciling individual liberties with zoning controls, it is troubling that the opinion accords only scant response to the arguments expressed by both Justice Marshall and the Court of Appeals. Land use planning represents one of the best available tools to ensure that communities do not become unfit places to live. It is essential, however, that the legitimate goals of environmental protection not become a screen for improper curtailment of citizens' rights to privacy and free association. Legislative motivation is a perpetual thorn in the side of the law; courts know that a legislature can create a legislative history to give a legitimate appearance to virtually any desired enactment, proper or improper. It is not surprising that the Court should be wary of entering the morass of case-by-case adjudication of zoning ordinances. But Belle Terre, like the Court's decision in the area of obscenity, goes sharply in the opposite direction, giving a disturbingly broad license to local governments at the expense of rights guaranteed to every citizen.

1. Williams and Norman, Exclusionary Land Use Controls: The Case of North-Eastern New Jersey, 22 Syracuse L. Rev. 475, 486-87 (1971).

2. Comment, All In The "Family": Legal Problems of Communes, 7 Harv. Civ. Rights — Civ. Lib. L.Rev. 393 (1972).

3. For cases dealing with such ordinances see, e.g., Palo Alto Tenants Union v. Morgan, 321 F. Supp. 908 (N.D. Cal. 1970), and Kirsch Holding Co. v. Borough of Manasquan, 281 A.2d 513 (N.J. Supreme Ct. 1971).

4. 4 ELR 20302 (U.S. April 1, 1974).

5. 277 U.S. 183 (1928)

6. 476 F.2d 806 (1973).

7. 413 U.S. 528, 538-45 (1973).