Re by fionan


									Milford Special Town Meeting of February 13, 2006 – Case #3730 Case Comment The Attorney General disapproves and deletes a proposed by-law amendment that would have struck the current definition of "family" and inserted a new definition. The new definition would have infringed on the rights regarding family relations guaranteed under both the United States and Massachusetts Constitutions. The amendment, as applied throughout the Milford Zoning by-law, would have defined who could (and could not) live together in single-family, two-family, and multi-family dwelling units.

August 11, 2006

Mr. Joseph Arcudi, Town Clerk Milford Town Hall 52 Main Street (Route 16) Milford, MA 01757-2679 Re: Milford Special Town Meeting of February 13, 2006 – Case #3730 Warrant Article #2 (Zoning)

Dear Mr. Arcudi: Article 2 – I return with the disapproval of this Office the amendment to the Milford Town Zoning By-Law adopted under this Article.1 The amendment adopted under Warrant Article 2 pertains to Article IV, Definitions, of the Milford Zoning By-Law. Specifically, the amendment would have struck the current definition of “Family” 2 and replaced it with the following definition:
Family – One (1) or more persons occupying a dwelling unit and living together as a single housekeeping unit, not including a group of more than three (3) persons who are not within the second degree of kinship. 3 1 On May 2, 2006, the Attorney General and Town Counsel agreed to extend the 90-day period for the Attorney General‟s review for Article 2 for an additional 90-day period ending on August 17, 2006. See Chapter 299 of the Acts of 2000 (authorizing such extensions). 2 The current definition of “Family” is as follows: “Family – Any number of individuals living and cooking together on the premises as a single housekeeping unit.” We understand the term “degree of kinship,” as used in the amendment, to refer to the distance or number of “removes” that separate two persons who are related by consanguinity (blood). See 21

This amendment, as applied throughout the Milford Zoning By-Law, would have defined who could (and could not) live together in single-family, two-family, and multi-family dwelling units. A municipality‟s police power authorizes zoning legislation to advance the public health, safety, morals or general welfare of its residents. Mass. Const. Pt. 2, c.1, § 1, art. IV; Commonwealth v. Libbey, 216 Mass. 356, 358 (1914); cf. Cross v. Planning Board of Chelmsford, 345 Mass. 618, 620-1 (1963) (zoning by-law invalid where it was not rationally related to purposes for which zoning is authorized). Zoning regulations are presumed to be valid and will be enforced unless in conflict with the Constitution or laws of the Commonwealth. W.R. Grace & Co. v. Cambridge City Council, 56 Mass. App. Ct. 559, 566-7 (2002). See, e,g, Framingham Clinic, Inc. v. Board of Selectmen of Southborough, 373 Mass. 279, 283 (1977) (by-law invalid because it infringed constitutionally protected right of a woman to terminate her pregnancy). The Town of Milford informed us that it developed the proposed definition of “Family” as part of a continuing effort to address overcrowding in its housing stock. The Town notes that instances of overcrowding have caused significant disruption in neighborhoods, resulting in noise, accumulation of garbage, and the crowding of streets with vehicles. That Milford has the authority to address overcrowding through its Zoning By-Law is, as explained above, undisputed. Mass. Const. Pt. 2, c.1, § 1, art. IV; Libbey, 216 Mass. at 358. We must note, however, that under the amendment any number of persons within the second degree of kinship may reside together in a dwelling unit, regardless of the unit‟s size; thus, if the amendment limits occupancy at all, it does so only indirectly. The amendment would, however, have restricted the extent to which an extended family could reside together by limiting, to three, the number of persons in the household who are not within the second degree of kinship. We have concluded that this feature of the amendment would infringe rights regarding family relations guaranteed under both the United States and Massachusetts Constitutions. The Supreme Court “has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977), quoting Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974). 4 See A.Z. v. B.Z., 431
Massachusetts Practice § 8.6 (Dunphy, S. 1997 ed.) (discussing degrees of kindred under Massachusetts laws of descent and distribution). Thus, we understand the first degree of kinship to include a person‟s spouse, mother, father, son(s) and daughter(s); the second degree of kinship to include a person‟s sister(s), brother(s), grandparent(s), and grandchildren; and the third and higher degrees of kinship to include, for example, a person‟s aunt(s), uncle(s), niece(s), nephew(s) and cousin(s). Id. See 21 Massachusetts Practice § 8.18 (chart of degrees of kindred).

4 The Due Process Clause provides that “No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. AMEND. XIV, § 1.

Mass. 150, 162 (2000) (also acknowledging that the constitution protects freedom of choice in matters of “family life”). In Moore, the Court held that the housing code of the City of East Cleveland impermissibly infringed this liberty interest. The East Cleveland code limited occupancy of a dwelling unit to a single family and defined “family” to include “only a few categories of related individuals.” In particular, the code prohibited a grandmother from living with her son and two grandsons who were cousins, but not brothers. Moore, 431 U.S. at 496-7. The Court noted the potentially harsh consequences of this approach:
East Cleveland . . . has chosen to regulate the occupancy of its housing by slicing deeply into the family itself. This is no mere incidental result of the ordinance. On its face it selects certain categories of relatives who may live together and declares that others may not. In particular, it makes a crime of a grandmother‟s choice to live with her grandson in circumstances like those presented here. Id. at 499.

After extensively examining its precedents, the Moore Court concluded that the Fourteenth Amendment's Due Process Clause protects an extended family‟s choice to live together. In reaching its conclusion, the Court stated:
Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it. [* * * ] Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home.

Id. at 504. The Court determined that “when the government intrudes on choices concerning family living arrangements, [a court] must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. Id. at 499. In these circumstances, “the usual judicial deference to the legislature is inappropriate.” Id. The Court found East Cleveland‟s asserted justification for its ordinance – “as a means of preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on [the] school system”– to be legitimate, but served only “marginally, at best” by the ordinance. Id. at 499-500. 5 The Court ultimately held that “the Constitution prevents East Cleveland from standardizing its children and its adults by forcing all to live in certain narrowly defined family patterns.” Id. at 506. 6
5 The Court observed that, for example, “the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers, each with his or her own car.” Id. at 500. 6 In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), the Supreme Court considered the constitutionality of a zoning ordinance limiting the occupancy of single family dwellings to “one or more persons related by blood, adoption, or marriage . . . .[or] [a] number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption or marriage . . . .” The Court concluded that the ordinance affected no fundamental right and so upheld it as a valid land

Mr. Joseph Arcudi, Town Clerk August 11, 2006 Page 4 The Milford by-law contains the type of restriction on family living arrangements that Moore found to infringe the liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The amendment would, for example, prevent a married couple from residing with more than three of their nieces or nephews, regardless of the size of the dwelling unit. At the same time, because the amendment would have permitted any number of people within the second degree of kinship to reside together, it would not materially advance its objective of addressing overcrowding and congestion. For example, two parents could reside with their six children, even if the dwelling unit contained only two bedrooms. Because the amendment would intrude heavily “on choices concerning family living arrangements” while only marginally addressing residential overcrowding, the Supreme Court‟s rationale in Moore requires disapproval of the amendment.7 Milford has suggested that support for its amendment is found in City of Worcester v. Bonaventura, 56 Mass. App. Ct. 166 (2002). That case, however, does not address the constitutional liberty interests of family members seeking to reside together. Rather, in Bonaventura, the Court was asked to determine whether the Worcester zoning ordinance defining a lodging house was unconstitutionally vague, where the City sought to impose the requirements for lodging houses against owners of condominium units occupied by unrelated individuals (i.e. students attending College of the Holy Cross). Id. at 166-67. The Court upheld enforcement of the ordinance, finding that it clearly defined a lodging house “as a dwelling unit that is rented to four or more persons not constituting a family.” Id. at 169. 8
use regulation. Id. at 9. Two years later, in Moore v. City of East Cleveland, the Court distinguished Village of Belle Terre, noting that the Belle Terre ordinance “affected only unrelated individuals.” It expressly allowed all who were related by „blood, adoption, or marriage‟ to live together, and in sustaining the ordinance we were careful to note that it promoted „family needs‟ and „family values.‟” Moore, 431 U.S. at 498 quoting Village of Belle Terre v. Boraas, 416 U.S. at 9. See also, Antoine-Dorcelli v. INS, 703 F.2d 19, 22 n.4 (1st Cir. 1983) (explaining that the Court in Moore distinguished its holding in Village of Belle Terre.

7 Although research revealed no Massachusetts appellate decision addressing the precise issue before us,
we conclude that the Supreme Judicial Court would find the same protection in the Massachusetts Constitution that the Supreme Court, in Moore, identified in the Fourteenth Amendment. See A.Z. v. B.Z., 431 Mass. 150, 162 (2000) (observing that the constitution protects freedom of choice in matters of “family life”). Cf. e.g., Moe v Secretary of Administration and Finance, 382 Mass. 629, 649-51 (1981) (concluding that Mass. Declaration of Rights “affords a greater degree of protection to the [privacy] right asserted [in the case] than does the Federal Constitution”). 8 Questions of enforcement of a lodging house ordinance would not, by definition, implicate matters of “family choice” protected by the Fourteenth Amendment. In Massachusetts, lodging houses are living arrangements where tenants rent rooms in a building where someone else, not a relative, is the primary occupant and/or possessor of the property. See Hall v. Zoning Board of Appeals of Edgartown, 28 Mass. App. Ct. 249, 254 (1990)(“the critical distinguishing feature of a „lodger‟ is his lack of interest in the real property and his contractual relationship with the owner”). General Laws Chapter 140, Section 22, defines

Mr. Joseph Arcudi, Town Clerk August 11, 2006 Page 5 Although the Bonaventura Court, in dicta, observed that the definition of “family” in the Worcester zoning ordinance – which is almost identical to the Milford amendment -- “does not trespass on constitutional inhibitions,” the Court considered only the extent to which such a definition can limit the number of unrelated persons living together, which was the city‟s concern in regulating occupancy by college students of condominium units. Id. at 169, discussing Village of Belle Terre v. Boraas, 416 U.S. at 1, 7. Because Bonaventura did not consider the extent to which a housing code can limit the number of related persons residing together, and did not cite or discuss Moore v. East Cleveland, its observation concerning the Worcester code is not pertinent here. Moore settled that restrictive definitions of “family” in a housing code can violate liberty interests protected by the Fourteenth Amendment and we consider it controlling in the matter before us. In closing, we emphasize that this Office recognizes the importance of the Town‟s interest in addressing overcrowding and, in general, protecting the quality of life and public health of its residents. In disapproving this amendment, we note that the Town is not without criminal and civil enforcement remedies in this regard. The Town continues to have available to it enforcement of the occupancy limits established under the State Sanitary Code. See 105 Code Mass. Reg. 410.400 (establishing specific minimum per person square-footage requirements for dwelling units and bedrooms therein); 105 Code Mass. Reg. 410.830 (authorizing local boards of health to issue corrective orders for violations of State Sanitary Code). Additionally, the Town recently enacted a new by-law establishing a registration and permitting process for residential occupancies. Under this by-law, registrations issued to owners of rental properties will identify, for each property, the number of persons that may occupy each rented dwelling unit, calculated with reference to the requirements of the State Sanitary Code. We read these amendments as a means by which the Town can monitor the condition of residential tenancies so as to effectively intervene when breaches of occupancy limits are found to exist. Such a by-law is consistent with the constitutional exercise of the Town‟s police powers and, as such, enjoys a general presumption of validity.
Under G.L. c. 40, ' 32, neither general nor zoning by-laws take effect until the town has first satisfied the posting/publishing requirements of this section. Once this statutory duty is fulfilled, (1) general by-laws and amendments take effect on the date that these posting and publishing requirements are satisfied unless a later effective date is prescribed in the by-law, and (2) zoning by-laws and amendments are deemed to have taken effect from the date they were voted by Town Meeting, unless a later effective date is prescribed in the by-law. If the Attorney General has disapproved and deleted one or more portions of any by-law or by-law amendment submitted for approval, only those portions approved are to be posted and published pursuant to G.L. c. 40, ' 32. We ask that you forward to us a copy of the final text of the by-law or


a lodging house as “a house where lodgings are let to four or more persons not within the second degree of kindred to the person conducting it” and G. L. c. 148, § 22, defines a lodging house as “a house where lodgings are let to six or more persons not within the second degree of kindred to the person conducting it.”

Mr. Joseph Arcudi, Town Clerk August 11, 2006 Page 6
by-law amendments reflecting any such deletion. It will be sufficient to send us a copy of the text posted and published by the Town Clerk pursuant to this statute.

Very truly yours, THOMAS F. REILLY ATTORNEY GENERAL ____________________________________ by: Robert W. Ritchie, Assistant Attorney General Director, Municipal Law Unit 1350 Main Street, 4 th Floor Springfield, MA 01103-1629 (413) 784-1240, x 116 enc. pc:

Town Counsel

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