by Jacob Huebert
February 15, 2019
Until this month, the city
of Bowling Green, Ohio, had a strange rule about who could live together in the
same house: Three people could share a “single-family” home, but only if at
least two of them were related to each other by blood or marriage. And if more
than three people shared a single-family home, only one or two of them could be
unrelated to the others.
That meant, for
example, that three unrelated people couldn’t share a house as roommates. And a
couple engaged to be married couldn’t take on a roommate who wasn’t related to
one of them.
What did “related” mean
for purposes of this rule? City officials said virtually any bloodrelationship
would do—even third cousins were “related” enough to live together without
limitation.
That’s bizarre because,
as anyone who’s looked for relatives through a DNA-matching database such as
23andMe knows, a person’s third cousins likely include many people he doesn’t
know, will never meet, and has little in common with besides some genes. Yet
Bowling Green gave third cousins’ distant relationship a higher status than close
relationships such as those of long-term domestic partners and lifelong friends.
Fortunately, the
nonsensical provision of the city’s zoning code is no longer in effect, thanks
to a lawsuit the 1851 Center for Constitutional Law brought on behalf of three
fraternity brothers who wanted to share a house and the landlord who wanted to
rent it to them. On February 1, United States Magistrate Judge James R. Knepp,
II struck
the law down for violating the Ohio Constitution’s guarantees of due
process and equal protection.
Knepp wrote, “under the
Ohio Constitution, private property rights are ‘fundamental rights’ to be
‘strongly protected.” And that means that when the government restricts the
property rights of some people but not others, courts must ensure that the
difference in treatment actually bears a reasonable relationship to some
legitimate government purpose.
Knepp found that this
rule was not reasonably related to
any legitimate purpose.
The city claimed the
rule served to protect the public’s “health, safety, morals, comfort, and
general welfare,” to conserve property values, to facilitate the provision of
public utilities and schools, and to reduce congestion on city streets. But Knepp
didn’t accept that justification. He observed that the law exempted 233 houses
that were “grandfathered in” and allowed an unlimited number of related adults
to live together, even though those people would presumably pose the same
concerns as unrelated individuals living together—so the law hardly seemed
tailored to address the alleged problems the city cited.
Knepp also found the
rule to be overly broad because it restricted living arrangements that had no
greater impact on population density than the living arrangements that were
allowed. “Rather than regulating based on space”—which
might make some sense for the purpose of limiting population density—the city’s
restriction was “based on relationship,”
which had no apparent relevance to limiting population density.
What about the city’s view
that college-age residents in particular could threaten a community’s peace and
quiet? Knepp said the city hadn’t explained why the occupancy limit would address
that problem, and, anyway, the law applied to anyone, not just college students.
The court rightly pointed
out that the government could address any legitimate concerns about noise,
property maintenance, parking, and traffic congestion directly and specifically
by actually targeting those problems
instead of targeting certain people based
on questionable generalizations about them.
This decision shows how
judges can give laws that infringe on property rights serious constitutional
scrutiny. Too often, courts simply rubber-stamp state and local laws based on
whatever flimsy pretext the government offers. Knepp, however, did what all
judges should do by analyzing whether the government’s purported justification
for its infringement on property rights actually made sense as a means of
serving some legitimate purpose. And then he rightly struck down the law
because it obviously didn’t make sense.
Serious scrutiny is
especially appropriate for zoning rules, which have
historically been used for illegitimate purposes such as keeping
supposed “undesirables” out of certain neighborhoods.
This decision also shows
how state constitutions can provide stronger protection for people’s rights
than the federal constitution. Although the U.S. Supreme Court once held that
occupancy limits like Bowling Green’s don’t violate the federal Constitution, Knepp rightly recognized that the Ohio
Constitution could—and did—provide greater protection for property rights. In
doing so, he cited the landmark Norwood
v. Horneydecision, in
which the Ohio Supreme Court ruled the state’s constitution barred local
governments from using eminent domain to take property from one private party
and give it to another based only on the supposed economic benefit to the
community—even though the U.S. Supreme Court had ruled that the federal
Constitution allowed such takings in the notorious Kelo case.
Bowling Green’s rule
may stand out as absurd, but in fact local governments violate property rights
in countless arbitrary ways. Lately, for example, many have been restricting
people’s ability to share their homes through services such as
Airbnb—often limiting who may share
their homes instead of directly targeting the nuisances, such as the noise and
parking congestion that they fear home-sharing could cause. As courts consider
constitutional challenges to these restrictions, in
lawsuits brought by the Goldwater Institute and others, they can
look to Knepp’s opinion for an excellent example of how to give property rights
the protection they deserve.
Jacob
Huebert is a Senior Attorney at the Goldwater Institute.
