Zoned Out: How Zoning Law Undermines Family Law's Functional Turn.

• Author: Redburn, Kate

NOTE CONTENTS INTRODUCTION 2415 I. COHABITATION IN FAMILY LAW'S FUNCTIONAL TURN 2422 A. The Functional Turn in Family Law 2423 B. Cohabitation in Functional Partnership 2425 C. Cohabitation in Functional Parentage 2428 II. REGULATING FAMILY THROUGH ZONING LAW 2430 A. The Formal Family Comes to Zoning Law 2432 1. The Functional Family in Zoning Jurisprudence 2432 2. The First Signs of the Formal Approach 2435 B. Homeowner Interests and Countercultural Living 2438 1. Homeownership and "Traditional Family" Values 2438 2. Countercultural Living and the Rise of Formal-Family 2441 Zoning 3. Long Island Groupers and Belle Terre v. Boraas 2446 C. The Triumph of the Formal Family 2448 1. Belle Terre and Its Immediate Aftermath 2448 2. Formal Family Since Belle Terre 2452 III. FUNCTIONAL FAMILIES WE CHOOSE 2457 A. Disentangling the Legal Family from the Legal Household 2459 B. Zoning Law as Social Regulation 2464 IV. HARMONIZING FAMILY LAW AND ZONING LAW 2468 A. Legislative Solutions 2468 B. Judicial Solutions 2470 CONCLUSION 2473 INTRODUCTION

Olivia Shelltrack and Fondray Loving had recently relocated their family of five to Black Jack, a middle-class suburb of St. Louis, Missouri, when they received some unexpected news. (1) The town had denied their occupancy permit because their family comprised more than three unrelated people living together, in violation of the local zoning code. (2) In addition to their two biological children, Shelltrack and Loving were raising Shelltrack's child from a previous relationship. The family "knew something was wrong when the housing inspector asked for the children's birth certificates." (3)

The couple sought reprieve from local officials, first requesting an exemption from paying five hundred dollars per day in fines. (4) But they were denied the exemption, so they turned to the city council with a request to broaden the definition of "family" in the zoning code. By a vote of five to three, the council declined. Shelltrack was dismayed: "Are you serious?" she thought. "What do you mean I don't fit your definition of a family?... We've put everything into this house, and now, oh, my God, what are we going to do?" (5)

Shelltrack and Loving eventually received support from the ACLU, which uncovered evidence that at least four other families had been ejected from Black Jack for similar reasons. (6) In a letter to another aggrieved household, Mayor Norman McCourt wrote that Black Jack residents "do not believe that an unmarried couple having children residing in our community is an appropriate standard that they wish to approve." (7) Shelltrack recognized the inherent prejudice of that message, remarking that city leadership "clearly sends a message ...: Don't be gay, don't be unmarried, don't have children out of wedlock, and don't be a foster parent." (8)

Black Jack's restrictive zoning policy cut to the core of what it means to be a family But regulations like Black Jack's are not only common, they're legal. Under the 1974 Supreme Court decision in Village of Belle Terre v. Boraas, zoning ordinances that restrict cohabitation by unrelated parties--defined as individuals who are not relatives by blood, marriage, or adoption--do not violate the Fourteenth Amendment's Due Process Clause. (9) As this Note will demonstrate, the Court's decision contradicted decades of zoning jurisprudence that recognized a variety of living arrangements as permissible in single-family zones--amounting to a forgotten jurisprudence of "functional family" in zoning law.

Belle Terre's consequences extend far beyond eviction. Consider if Shelltrack and Loving were forced to break up their family to remain in town. What would happen if their romantic relationship ended? Missouri family law has taken a functional turn, imputing certain marital rights and obligations to unmarried cohabitants. But in Missouri--and many other states with functional-family doctrines--the doctrinal inquiry is predicated on cohabitation or treats cohabitation as a necessary condition within a multifactor test. (10) Family law is thus tied to zoning law through cohabitation requirements, with potentially dire consequences. For Shelltrack and Loving, it could have impeded Loving's ability to gain child custody or visitation rights over his nonbiological child, and the two could face barriers to equitably distributing assets acquired during their relationship.

The Shelltrack-Loving family's ordeal illustrates a legal bind that affects families across the country. Today, fewer and fewer Americans engage in married coupledom and biological parentage. According to a 2012 Census Bureau report, 6.1% of Americans live with a householder to whom they are not related: 5.2 million people live in equitable arrangements with roommates ("doubling up"), and 7.7 million Americans reside as unmarried couples. (11) Unmarried partner cohabitation rose 41% in just ten years, between 2000 and 2010, having already increased fourfold from 1977-1997. (12) Even more recent data show that nearly half of American adults are unmarried, and unmarried people represent 47% of all households. (13) Among unmarried, heterosexual cohabitating couples, nearly 40% were raising at least one biological child of either partner. (14) Family law and zoning law have responded to these trends in divergent and contradictory ways, and today formal-family zoning threatens to undermine functional-family doctrine in at least thirty-one states. (15)

How did we get here? Family law historically embraced a "formal" approach to defining the family--prioritizing marital partnerships and biological motherhood. Starting in the 1970s, and propelled by the gay rights movement of the 1980s, some state courts began replacing strict formal definitions of family with more flexible multifactor tests for partnership and parentage. (16) Today, the term "functional family" extends beyond people related by blood, marriage, or adoption to those who have formed intimate interpersonal connections that echo the archetypal nuclear family. The law typically recognizes their connections through traditionally domestic spaces and tasks. They are committed to long-term, mutual emotional and material support. (17) This family law definition can include unmarried straight or gay couples living with or without children, adoptive families, foster families, and in rare instances, groups of three or more coparenting adults. (18)

But family law has a Belle Terre problem. In the process of making the definition of family more inclusive, state courts made cohabitation essential to functional parentage and partnership analyses. (19) Over the same period, however, local jurisdictions began revising occupancy provisions in zoning laws to confine the definition of family to relations of "blood, marriage, or adoption." (20) Despite this incongruity, the Supreme Court has not revisited the intersection of family and zoning law since 1977. (21) As a result, family law's move to recognize diverse families is compromised by a reciprocal formal turn in zoning. This reality should surprise both the family and zoning law communities: family law scholars and practitioners should be alarmed that functional-family doctrines can be undermined by local zoning laws. In turn, zoning law scholars and practitioners should lament the erasure of zoning's longstanding functional-family tradition.

In this Note, I show that both zoning and family law doctrines have blurred the line between family and household, treating them as equivalent while ignoring the extent to which their legal definitions conflict. To reconcile this incongruity, I argue first that the terms "family" and "household" should be legally distinct, and second that zoning law should embrace diverse family forms for normative and practical reasons. At the most basic level, residential zoning should embrace the panoply of social arrangements that people choose. (22) Formal-family zoning ignores the lived reality of millions of Americans and signals contempt for family forms and living arrangements that differ from marital nuclear families. The dignitary and material consequences of such discrimination have no place in local government law. On a practical level, my proposal shows that it is possible to preserve the historical purposes of both family and zoning law while eliminating social discrimination. While family law endeavors to distribute the benefits and obligations of long-term familial connections, residential zoning law aims to ensure the health, safety, and wellness of residential communities. Judges need not dwell on family form to fulfill the primary objectives of zoning regimes.

Instead, I argue that judges should avoid intrusive inquiries into relationships between cohabiters altogether and instead limit their functional-family inquiry to whether or not the number of cohabitants poses a health or safety risk. As long as those who cohabit can do so safely, they satisfy the purposes of zoning and should be able to live together legally. Under this definition, permissible cohabiting groups include, but are not limited to, foster families, communes, students, seniors, friends, people with disabilities, formerly incarcerated people, people recovering from substance abuse, fraternities, and sororities. Zoning law's definition of a family should not be linked to definitions in family law at all.

For example, while family law may limit which groups of cohabitants can claim parental rights over children in the home based on an analysis of their bonds of mutual support and obligation, zoning law need not be so restrictive. There is no health, safety, or wellness justification for prohibiting a group of four unrelated adults and one child from living together in a three-bedroom house, even if the house is zoned only for families related by blood, marriage, or adoption. This proposal decouples the legal definitions of household and family, validating greater...