Academic journal article The Yale Law Journal

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

Academic journal article The Yale Law Journal

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

Article excerpt

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. …

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