Five Is a Crowd: A Constitutional Analysis of the Boston Zoning Amendment Prohibiting More Than Four College Students from Living Together

Crane, Edward D., Suffolk University Law Review

"It's 11:30 at night and you want to go to bed, but there's a party going on next door. You tell them that; they don't care. It's having your wife go out to get the paper and cutting her feet on a bottle some undergrad smashed on your doorstep the night before. It's begging [Boston College] to assign its security people to Mary Ann's ... at closing time, so that you're not awakened at 2 a.m. by 300 kids, all plastered, screaming and shouting at each other as they parade back to campus.... It's having some idiot race across the tops of six cars on your street.... This is what it's all about. These streets look like Times Square when the parties break up." (1)

I. Introduction

Boston, Massachusetts is home to thirty-six institutions of higher education that enroll close to 140,000 students, including graduate and part-time students. (2) These institutions provide many different benefits to Boston. (3) For example, colleges and universities spur the local economy by funneling educated young people into the local workforce and by creating a large number of jobs. (4) Despite these benefits, the presence of so many higher-education institutions also leads to problems. (5)

One such problem is the friction between Boston's permanent residents and undergraduate students who live off-campus. (6) Although almost half of Boston's undergraduate students live in campus dormitories, many colleges do not own enough dormitories to house all their enrolled students and require some students to live off-campus. (7) According to Boston Redevelopment Authority statistics, almost 13,000 undergraduate students live off-campus. (8) Conflicts between permanent residents and college students generally arise out of rowdy student behavior, as older residents decry disruptively loud parties that feature binge drinking. (9) Permanent residents also complain of student residents neglecting basic property maintenance and allowing their households to become neighborhood eyesores. (10) After years of attempting to control student behavior through increased policing, the city of Boston recently implemented a direct limitation on off-campus student housing. (11)

On March 12, 2008, the Boston Zoning Commission amended the Boston Zoning Code to restrict more than four undergraduate students from living together in a leased dwelling. (12) The amendment redefined the term "family" in the zoning code by explicitly stating that five or more full-time undergraduate students do not constitute a family. (13) This redefinition made it illegal for five or more undergraduate students to live together, as the City of Boston zones residential districts strictly for "family" habitation. (14) Proponents support the new definition because it strikes directly at the overcrowded, student-occupied dwellings that proponents believe are the main cause of neighborhood disruption. (15) Opponents believe the amendment arbitrarily targets undergraduate students and will result in higher rents. (16) In addition to public policy concerns, critics have raised serious issues regarding the amendment's legality. (17)

An important legal question is whether the amendment violates either the Federal Constitution or the Massachusetts Constitution. (18) The amendment may unconstitutionally discriminate against college students by singling them out for regulation. (19) The new definition of "family" might also unconstitutionally infringe on college students' right to choose their roommates. (20) Furthermore, the amendment may be so arbitrary and irrational that it fails even the most deferential test of constitutional analysis. (21)

This Note explores the amendment through analysis of the aforementioned constitutional issues. (22) Part II.A summarizes the legal challenge that prompted Boston to amend its zoning code. (23) Part II.B examines case law relating to potential constitutional challenges to the amendment involving heightened scrutiny. (24) Part II.C presents case law relevant to the amendment's likelihood of passing the lowest level of judicial scrutiny. (25) With the important case law as a foundation, Part III analyzes the amendment's potential to receive heightened scrutiny and likelihood of passing the lowest level of constitutional review. (26)

II. History

A. Brief History of Boston Zoning

Prior to 2003, Boston's Inspectional Services Department (ISD) relied on the state lodging-house statute when pursuing legal action against proprietors of overcrowded buildings. (27) The lodging-house statute defines a lodging house as "a house where lodgings are let to four or more persons not within the second degree of kinship to the person conducting it." (28) When a house falls within this definition, the statute requires the owner to obtain a lodging-house license from the local municipality. (29)

In 2003, plaintiffs from three Vietnamese families challenged ISD's enforcement of the lodging-house statute in federal court. (30) The plaintiffs and their families faced eviction because ISD determined that each family lived in an unlicensed lodging-house. (31) The plaintiffs claimed ISD incorrectly interpreted the lodging-house statute by enforcing it against unrelated persons who shared living arrangements. (32) The parties settled before the case went to trial and the court issued a consent decree. (33) As part of the consent decree, ISD agreed not to apply the lodging-house statute to unrelated roommates who shared living arrangements. (34) With the statute no longer applicable, ISD had little power to stop large numbers of unrelated people from sharing households. (35)

In December 2007, City Councilor Michael Ross proposed the student-specific amendment in order to re-establish a limitation on large, shared living arrangements and to protect residential quality of life. (36) The Boston City Council unanimously approved Councilor Ross's petition to amend the zoning code, and the Boston Zoning Commission considered the amendment for final approval in March 2008. (37) At the Boston Zoning Commission's public hearing, proponents and opponents gathered in droves to voice their opinions on the amendment. (38) Despite the objections of property owners and students, the Boston Zoning Commission unanimously approved the amendment and Boston Mayor Thomas Menino signed the amendment into law on March 13, 2008. (39)

B. Heightened Scrutiny under Federal and State Constitutions

When a party challenges the constitutionality of legislation, a court generally reviews the legislation under one of three levels of scrutiny: strict, intermediate, or rational basis. (40) If the legislation discriminates against a suspect class or infringes on a fundamental right, the reviewing court applies either strict or intermediate scrutiny. (41) Strict scrutiny requires that the legislation be necessary to achieve a compelling governmental interest. (42) Intermediate scrutiny requires that the legislation substantially relate to an important government purpose. (43) Courts are far more likely to overturn legislation when applying these heightened levels of scrutiny, so the success of a constitutional challenge often depends on whether the court applies heightened scrutiny instead of rational basis scrutiny. (44)

1. Protected Classes

a. What is a Protected Class?

The Supreme Court has interpreted the Fourteenth Amendment to the United States Constitution to require elevated judicial scrutiny when a law discriminates against a protected class. (45) State courts generally apply equality provisions contained in state constitutions in similar fashion. (46) Despite this similarity in federal and state equal protection analyses, the Federal Constitution does not limit state constitutions, so state courts are free to conclude that their respective state constitutions provide more protection to a class than does the Federal Constitution. (47)

The Supreme Court has highlighted a number of factors to consider when determining if a particular classification warrants heightened scrutiny. (48) One factor to consider is the immutability of the classification. (49) Another factor is the ability of the group to protect itself through the political process. (50) Federal courts are also more likely to grant protected class status when the class has been the subject of discrimination throughout history. (51) State courts, including Massachusetts courts, consider the same or similar factors when making protected class determinations under state constitutional law. (52)

The Supreme Court has declined to apply protected class status to classifications based on age, wealth, sexual orientation, and mental retardation. (53) In addition, lower federal courts have rejected numerous other arguments for protected class status. (54) Massachusetts courts have exhibited similar hesitancy towards extending protected class status under the Massachusetts Constitution. (55)

b. Students as a Protected Class

Federal and state courts have rejected arguments that college students warrant protected class status. (56) In Smith v. Lower Merion Township, (57) the United States District Court for the Eastern District of Pennsylvania considered whether an ordinance prohibiting property rental to three or more students violated the Equal Protection Clause. (58) Smith, a landowner who rented primarily to college students, argued that student classifications deserve a heightened standard of scrutiny. (59) The court rejected Smith's argument, noting that society has not been historically prejudiced against students. (60) The United States District Court for the Middle District of Pennsylvania, facing a slightly different type of ordinance, came to the same conclusion in Bloomsburg Landlords Association v. Bloomsburg. (61) The ordinance in question imposed additional legal duties on landowners who rented to three or more unrelated persons. (62) A landowner challenged the ordinance as disguised discrimination against college students and argued for a heightened standard of scrutiny. (63) The court declined to apply a heightened standard of scrutiny, noting the lack of societal prejudice towards college students and citing recent judicial decisions upholding municipal restrictions on young adults' behavior. (64)

2. Fundamental Rights

a. When Is a Right Fundamental?

The Supreme Court has also interpreted the Fourteenth Amendment to require heightened scrutiny when state action deprives an individual of a fundamental right. (65) Equal protection and due process guarantees in state constitutions generally apply in the same manner, subjecting state action to strict scrutiny when the action infringes upon a fundamental right. (66) The Federal Constitution does not limit state constitutional protections; courts may afford a right more protection under a state constitution than the United States Constitution requires. (67)

When determining if a right is fundamental or not, federal and state courts consider whether the applicable constitution explicitly or implicitly protects the right. (68) Even if no textual basis for protection exists, courts have based fundamental rights on history and tradition. (69) Additionally, courts protect rights encompassed within the fundamental right to privacy. (70) Applying the aforementioned factors, the Massachusetts Supreme Judicial Court (SJC) has rejected most fundamental right arguments and has rarely expanded fundamental right protection under the Massachusetts Constitution beyond that of the Federal Constitution. (71)

b. Do Students Have a Fundamental Right to Live Together?

The Supreme Court has held that zoning ordinances limiting the number of unrelated people who can live together in one household do not infringe upon a fundamental right. (72) In Village of Belle Terre v. Boraas, (73) the Court considered the constitutionality of a zoning ordinance that prevented more than two unrelated persons from living together in the same household. (74) Belle Terre charged Boraas with violating the ordinance after he rented a house to six unrelated students from a local university. (75) The landowner and the students challenged the ordinance, claiming that it violated numerous constitutional provisions. (76) The Court upheld the ordinance as constitutional, specifically stating that it did not intrude on the fundamental rights of association or privacy. (77) Therefore, the Court applied rational basis review. (78)

Most state courts have either explicitly or implicitly followed the Court's reasoning in Belle Terre regarding unrelated groups of people and their rights to live together. (79) A number of state courts explicitly adopted the Belle Terre reasoning. (80) Other courts implicitly rejected the notion that unrelated people have a fundamental right to live together by avoiding the issue without discussion and applying the rational basis test. (81) The SJC has not conclusively determined whether unrelated people have a fundamental right to live together under the Massachusetts Constitution. (82)

California is the only state that has held that unrelated persons have a fundamental right to live together. (83) In City of Santa Barbara v. Adamson, (84) the California Supreme Court considered whether a zoning ordinance that restricted more than five unrelated people from living together violated the California Constitution. (85) Three members of a group of twelve adults living together challenged the ordinance. (86) The court held that an individual's right to choose living partners fell within the fundamental right to privacy protected by the California Constitution. (87) Consequently, the court applied strict scrutiny to the zoning ordinance. (88)

C. The Rational Basis Test

1. Application of Rational Basis Review

When legislation does not affect a protected class or infringe on a fundamental right, courts generally review constitutional challenges to that legislation using rational basis scrutiny. (89) The rational basis test is highly deferential under the Federal Constitution; federal courts uphold legislation as long as there is a rational relationship to a legitimate governmental interest. (90) Applying this standard, valid legislation can be significantly overinclusive or underinclusive; it can include people undeserving of regulation and exempt people who presumably should be subject to regulation. (91) Additionally, factual evidence does not need to support legislative rationale. (92) Though most state courts apply an identical rational basis test, some state courts apply stricter versions of the test by explicitly noting the added stringency or subtly using less deference while purporting to apply an identical test. (93)

The Massachusetts SJC appears to apply an enhanced version of the rational basis test when state action infringes on an important, yet not fundamental, right. (94) Goodridge v. Department of Public Health (95) suggests that an individual's right to free association is sufficiently important, so legislation that infringes on this right triggers enhanced rational basis scrutiny. (96) In Goodridge, the court considered whether …

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Publication information: Article title: Five Is a Crowd: A Constitutional Analysis of the Boston Zoning Amendment Prohibiting More Than Four College Students from Living Together. Contributors: Crane, Edward D. - Author. Journal title: Suffolk University Law Review. Volume: 43. Issue: 1 Publication date: Winter 2010. Page number: 217+. © 2009 Suffolk University Law School. COPYRIGHT 2010 Gale Group.

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