Saturday, August 16, 2008

Single Family Zoning - Defined

The next item in the list of six suggested by Council Member Jack Weiss is a possible rework of the single family definition. In the debate about single family zoning, little else elicits sharp emotional responses more than this so-called “rule of three.” The zoning classification stems from the definition of family in the City of Bellingham Municipal Code. Here is the definition:



F. 1. Family: One or more persons related by blood, marriage, or adoption, or not more than 3 unrelated persons, living together within a single dwelling unit. For purposes of this definition children with familial status within the meaning of Title 42 United States Code, Section 3602(k) and individuals with disabilities within the meaning of Title 42 United States Code, Section 3602(h) will not be counted as unrelated persons. "Adult family homes," as defined by RCW 70.128.175, are included within the definition of "family." Facilities housing individuals who are incarcerated as the result of a conviction or other court order shall not be included within this definition.

The term single family is woven throughout the municipal code to such an extent that elimination of the definition is not feasible. Our Planning Director, Tim Stewart, has spoken to the city council on precisely that difficulty. So it remains to the city government to define family. In 1974, the US Supreme Court upheld a zoning ordinance definition of family which limited the number of unrelated people in a single family rental to two. Justice William O. Douglas wrote the majority opinion. (If you find this surprising, you are likely well over 50.) You can read his opinion by clicking here. Since then, numerous state supreme courts and lesser courts have similarly ruled. The precedents are there for such limitations on the number of unrelated people.

There are those who just do not like Bellingham’s law for a variety of other reasons. The most common objections expressed to me are:

The law is unenforceable.

Absolutely true, if you do not want to enforce it. Nonetheless, we can implement it here, if there is the political will to do so. Let us take a look at Bowling Green, Ohio. The following is from a recent article in the Toledo Blade:

“During the last school year, about 100 homes were investigated for occupancy violations, city [Bowling Green] Prosecutor Matt Reger said. Twenty-one tenants were cited for civil infractions for violating the law, while three landlords were prosecuted criminally for knowingly allowing more than three unrelated people to rent their properties. Mr. Reger said when code enforcement officers substantiate a violation, they give the tenants and landlords 10 days to correct the situation. Most do. "We have corrected more than we've ever prosecuted because people have been cooperative," Mr. Reger said.”

The law is discriminatory.

The law states a number only. It is silent about living arrangements. Justice Douglas said in his 1974 opinion “…every line drawn by a legislature leaves some out that might well have been included.” Similarly single family zoning law in Bloomington, Indiana was upheld by that state’s supreme court where the justices said in part “the zoning ordinances may ‘regulate how real property is developed, maintained and used,’ including the implementation of ‘standards for population density and traffic circulation’ and ‘any other provisions that are necessary to implement the purposes of the zoning ordinance.’ " You can read the entire decision by clicking here.

One way or another, you have to define your terms. The current definition of single family, which underlies the concept of single family zoning, is a valid one though some may not like it. (For the record, I support adding domestic partnerships to the single family definition.) One must not forget that the term single family also appears throughout the neighborhood plans, some of which have just been reworked after hundreds of hours of work by unpaid neighborhood representatives. All the foregoing, comes on the heels of Planning Academy II where the mantra “the neighborhoods will decide ‘the where’ of infill” was trumpeted repeatedly. Yet there are those who would blithely alter or attempt to eliminate altogether the basis for single family zoning, thus creating a totally uncontrolled and unregulated infill of the type unfortunately seen already on too many streets throughout the city.

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