Legal Objections to the Four Student Apartment Zoning Ordinance: "Is That All You've Got?"

Opponents of the recently enacted zoning amendment limiting off-campus undergraduate students to four or fewer per apartment appear to be preparing a legal challenge, according to the TAB newspapers.

What might be the legal arguments at the basis of their challenge?

An online op-ed by Dr. Richard Cravatts, advertising and publications manager at law firm Nixon Peabody LLP, at the American Thinker website presents a series of potential arguments against the zoning amendment. I suspect that the arguments he makes will be similar to many arguments that will appear in a lawsuit seeking to overturn the zoning amendment. He works for a law firm, while I'm not a lawyer at all, so it makes perfect sense for me to be presumptuous by analyzing his legal arguments. I am admittedly surprised by how poor those legal arguments against the zoning amendment appear to be.

1. A zoning ordinance that has as one of it objectives to limit the amount of rent an owner could potentially realize in an unregulated market, thus reducing his profits and the value of his property, has been seen by some courts, as it has with rent control, as a "taking" of private property by the government for "public use, without just compensation," a violation of the Fifth Amendment.

At no time have I heard the proponents state that the zoning amendment has anything to do with rent control; instead, it is the opponents who claim that the amendment amounts to a backdoor version of rent control. Councilor Michael Ross and other supporters justified the amendment on the basis of over-crowding and quality-of-life issues. While some have claimed that the outcome of the zoning amendment could be to make such units more affordable to families, a plausible argument could even be made that the zoning amendment will actually drive up rental prices, because it will increase the demand, as measured in number of units, while not increasing the supply of units.

Opponents of the zoning amendment also frequently argue that it will increase the price per person for student rentals -- landlords continue to charge the same amount per unit, in order to pay off their costs, thereby charging more per occupant when there are fewer occupants -- which is contrary to the position that landlords will now be earning less per unit. Many students remark that they pay more for on-campus housing, yet still prefer to live on-campus, indicating that there is more money available to many students per person to pay for off-campus housing than they currently pay.

If the lawsuit simultaneously argues both that the zoning amendment amounts to rent control and that students will have to pay more for apartments as a result of it, then expect any decent defense lawyer to tear apart the argument by showing the inherent contradiction.

If the TAB article is correct, then a form of this argument (#1) will be the primary basis for the lawsuit. Skip Schlomming of the Small Property Owners Association told the TAB, "They want to use a landlord on the verge of retiring so if he gets targeted, that’s just his retirement." Such a landlord's legal standing would be his financial harm due to the decreased occupancy.

2. Landlords legally cannot proscribe or police the private behavior of tenants -- nor should they have to -- even if it was permitted by housing law.

The zoning amendment as I understand it does not include any provision for policing the private behavior of tenants; its enforcement plan doesn't yet exist, but will presumably be written by the city's Inspectional Services Division. Indications are that enforcement action would be initiated by a complaint, and that the enforcement would target the landlord, not the tenant.

Standard leases state the names of all people allowed to occupy the unit; if other people not listed on the lease occupy the unit, then the tenant is in violation of the contract, and the landlord can just throw them out. If the landlord, however, signs one or more leases for a unit that include, in writing, more than four undergraduate student occupants, then the landlord is violating the new zoning amendment. In neither case is the landlord "[policing] the private behavior of tenants" -- he is only required not to sign leases to more than four students.

Something I expect to occur is that some students may now sign leases that do not list all the occupants. If they do so, they may become liable for paying the fines and also subject to eviction. It's one thing to like to watch Jeopardy, but quite another to be living in a state of continual jeopardy that could suddenly throw you out onto the street in the middle of the winter. Since ISD enforcement is likely to be triggered by complaints, students engaged in such illegal living arrangements would definitely not want to be throwing noisy parties with underage drinking.

3. The courts have also repeatedly asserted that tenants, when they live in units that conform to zoning regulations, are entitled to an expectation of privacy from government intrusion, something they seemingly would be denied if Boston officials can prevent them from living together merely because they happen to be college students.

Cravatts' sole legal argument here invokes the dissent in the U. S. Supreme Court's 1974 Belle Terre v. Boraas case; a lower court hearing a lawsuit against the zoning amendment would be unlikely to reject the majority decision in favor of the dissent, since this would likely not survive an appeal.

4. While the Boston ordinance specifically prevents more than four college students, and only students from living together in a unit, it will allow families, even extended families, to occupy the same units that will now be unavailable to students.

On a factual basis, the defense would cede this point. The reason is that students are not legally a protected housing class, regardless of whether or not some people consider this unfair. Cravatts' once again uses only the Belle Terre dissent as a legal argument that would be unlikely to carry the day.

5. There are other measures to address the social problem of rowdy student behavior which are more practical to implement and less intrusive than regulations which have tended to harm, rather than ameliorate, housing markets.

Whether or not this is true it does not invalidate the zoning amendment. Cravatts is making a political argument rather than a legal one. Government has every right to choose among competing options to address a problem, as long as they are all legal.


One more argument was made by attorney Stephen Greenbaum in the TAB article:

6. “The city would have to ascertain students’ personal academic status in order to determine the legality of their living arrangements,” said Greenbaum. “Students are under no obligation to disclose that information.”

Greenbaum's argument is that the law is not enforceable on a practical level, because students living off-campus will simply refuse to say whether or not they are students. Yes, that may very well happen, and the apartment would not get cited. But if the students deliberately lied to an ISD officer that might open up more legal jeopardy if ISD could determine their enrollment status through independent means.

Boston College Police, for example, jointly patrol off-campus with Boston Police Department details, and regularly are supported in their work by BC employees who identify whether or not a given apartment is occupied by BC students. BC students having a noisy party may prefer to be identified as being students to go through the student disciplinary system rather than initiating a criminal record.


I must say that I am quite unimpressed with these legal arguments against the zoning amendment. I honestly thought that there would be stronger legal arguments than these -- they amount to a Hail Mary pass, not a slam dunk. As The Decider asked Brother George, "Is that all you've got?"

More discussion on this topic is at the AllstonBrighton2006 google group.

Boston Zoning Commission Passes Rule Limiting Student Off-Campus Apartments to Four Occupants

The Boston Zoning Commission unanimously passed an amendment to the zoning code that allows only four or fewer off-campus undergraduate students to share a single apartment. The amendment clarifies the definition of a "family" under the city's zoning code after a recent court case and subsequent consent decree.

The hearing room was packed both by supporters and opponents of the proposal, according to several people who attended. [Read their reports below.] The Boston Globe story posted on boston.com includes pictures of a long line of people waiting to speak in the hearing room. The meeting was long, beginning promptly at 9:00 am and continuing until 12:45 pm.

There were some indications that organizations of local realtors, small property owners, and students may have been planning to attend the hearing en masse. Supporters of the amendment were apparently offered a cute button to wear during the event.

The Boston City Council unanimously passed the original petition in December 2007, while the Board of the Boston Redevelopment Authority passed the zoning amendment in February 2008. The Zoning Commission approval was the last hurdle for it to pass.

Mayor Thomas Menino recently wrote a letter in support of the zoning rule change in advance of the Zoning Commission's consideration of the proposal.

WHDH has an online story that includes an image of Boston College's campus. Does WHDH realize that the zoning rule applies to off-campus housing, not on-campus housing?


Summary of the Arguments Supporting and Opposing the Amendment

One Brighton resident who attended the meeting, Sandy Furman, spoke in support of the amendment. He wrote this description of the main arguments of those both supporting and opposing the zoning amendment. (Furman did not take notes at the meeting, but wrote this summary from memory later in the day -- he hopes he remembered it all accurately.)

Interestingly, the proposed amendment had the support of Mayor Menino, a unanimous City Council, and a unanimous BRA Board.

The meeting room was packed, standing room only, with a line out the door into the corridor. I am arithmetically challenged, but I'd say there were well over a hundred people present, perhaps several hundred. The atmosphere was highly charged, with strong emotions on display from both sides. Tensions were also high.

Councilor Ross began with a PowerPoint presentation:

• After the Sang Vo case, which had been brought by Greater Boston Legal Services and resolved with a consent decree, it became open season for landlords to buy up Victorians, two family and three family houses, and convert them into student apartments, at exorbitant rates.

• This was done especially in the neighborhood he represents, Mission Hill, but also in other neighborhoods such as Allston and Brighton.

• This development caused massive increases in the values of these homes, with commensurate increases in property taxes for all who live nearby.

• Quality of life issues such as noise, litter, public urinating, etc., became larger problems for the communities.

• Families and young professionals found themselves displaced at worst and unable to afford housing at best.

• Most (he said all) major cities around the country have some kind of restriction on the number of people who reside in houses/apartments.

• Some of them discriminate explicitly against students. (“Discriminate” is my wording, not his.)

• His conclusion is that this plan, to redefine family in the zoning code so as to exclude five or more undergraduate students from any unit, is legal.

• The plan is not a panacea that solves all problems, but it is an important step towards saving and, in some cases, taking back our neighborhoods.

• By limiting housing units to no more than four students, the average rental of those units would fall from $5000-6000 per month to approximately $3000 per month, which he views as affordable.

• Dispersing students more broadly rather than concentrating them in clusters or "ghettos" benefits the embattled neighborhoods while having a minimal impact on the other neighborhoods that might inherit some students.

After he finished speaking there was a parade of proponents of the amendment. This included elected officials – Councilor Sam Yoon, other City Councilors, a representative from the Mayor's office, a representative from the BRA, and numerous residents, including Alex Selvig, Shelby Marshall, and myself. Most of the speakers were from the Mission Hill neighborhood.

We mostly echoed Ross's comments, while adding personal stories.

I, for example, described the rapid turnover of the Foster Street, Kirkwood Road, Radnor Road, Gerald Road, Greycliff Road, and Lane Park area in the few years since the enactment of the Sang Vo consent decree, and that I was weary of being told that "this is a college town, man". I also pointed out that I personally am prepared to risk that the value of my home might be adversely affected by this proposal, if it will save the neighborhood.

Then the barrage kicked in from the opponents.

There were at least as many opponents, probably more. They appeared well organized. They included a Northeastern University economics professor who claims to live in Mission Hill, some students from Northeastern University, a real estate lawyer, and numerous property owners -- including an 82-year-old sympathetic woman -- several of whom claim to live in the community.

For them it was all about rights to property and profit. (Do you detect a bit of bias here?) Half or more of those speaking in opposition identified themselves as being involved in real estate: owners, sales, and/or rentals.

Their arguments included the following:

• The proposal is nothing more than a back door attempt at rent control, something for which Councilor Ross has been fighting his entire career.

• The proposal unfairly discriminates against a class of people, i.e., undergraduate students.

• We, as residents, should appreciate the wonderful things that the institutions in general, and the students in particular, bring to our neighborhoods.

• The proposal is misguided because it unfairly (as well as unlawfully) penalizes property owners, most of whom (all of whom if the speakers can be believed) are responsible, and should not be held responsible for the bad behavior of a few bad apples.

• The problems, such as they (minimally are), can and should be solved by enhanced enforcement of existing laws and regulations -- police, ISD, the universities themselves.

• If the change is enacted, then it will be impossible to enforce given both the very limited resources of ISD and the privacy issues.

• If taxes do in fact go down, the ripple effect on city services such as schools, let alone ISD, will be severe.

• Rents will not go down because the parents of these students will pay whatever they have to.

• The "Starbuck's Crowd" will come into the neighborhood and pay rents equal to the student housing rental rates. The result is that there won't be any restoration of families or young working people to the neighborhoods. (I guess real families don't drink Starbuck's -- which is why, for example, in Brighton Center we obviously cannot sustain Starbuck's, Café Nation, and Athans).

• The restriction will increase the problem by spreading students further out into more houses and more neighborhoods -- bringing the problems, such as they are, to other neighborhoods.

• A landlord known to reside in Newton, far away from BC, who owns several properties, spoke of the wonderful improvements he made in his house, and the great tenants the students make.

I must say, the "Starbuck's Crowd" argument is downright odd because it contradicts two of the other arguments. If a non-student class of people -- this "Starbuck's Crowd" -- would really move into the apartments currently housing excessive numbers of students and pay the same price the students are currently paying, then the zoning amendment will neither result in rent control nor cause property owners to suffer financially. Someone needs to go back to the talking points.

I have not heard that anyone from the Greater Boston Real Estate Board, a trade association, spoke in opposition to the amendment. The Boston Herald noted that "some real estate groups are rallying their members against the proposal," yet only quotes GBREB as "[contending that] the proposal is legally flawed and won’t stand up to a challenge in court." Their GBREB website makes no mention of the issue.


Another Brighton Resident Summarizes the Meeting

Another Brighton resident, Shelby Marshall, spoke at the meeting in support the zoning amendment. He summarized the meeting:

"Councilor Ross did a wonderful job laying out the arguments for the amendment. He has really done his homework. Quite a few officials spoke strongly, and then lots of community members spoke. Many were from Mission Hill, and a few people from the Boston College neighborhood... took our turns, too.

The opposition came down to three basic arguments: they'll lose money, it won't work, and it's discriminatory. Oh, yes, and to make sure they don't lose money, they'll raise their rents so that the few students who remain will pay more. And, by the way, the government's job is to raise taxes, not to regulate the market. So higher rents, higher house prices, and higher tax rates are good.

The landlords who spoke... swore that they and every other investor they know takes wonderful care of their houses (which they buy in awful condition and fix up, by the way), better than many of the neighbors; don't let students party in their houses; and believe that student behavior should be regulated -- something they would love to discuss with neighbors, colleges, and city authorities."

Hmmmm... I detect just the slightest bit of sarcasm there.

Simple examination of the police blotter demonstrates that students are partying in the houses, and that many landlords are not regulating the student behavior. As for the condition of the party houses, I can't imagine anyone in the "Starbuck's Crowd" wanting to move into one of them after they have been packed with students for years -- unless the units undergo substantial renovation after the students move out.



UPDATE: The full Boston Globe story has now appeared. It includes the "Starbuck's Crowd" quotation. The enforcement mechanism, according to Councilor Ross last month and, now, an official with the city's Inspectional Services Department, will enforce the zoning change in response to complaints, not proactively:

Enforcement of the law would be driven by neighborhood complaints, city officials said.

"As with other zoning violations, the Inspectional Services Department will develop an enforcement strategy to respond to any property owners reported or found to be in violation of the code," Dorothy Joyce, the mayor's press secretary, said in a written statement. "We will work with local colleges and universities to educate students and property owners about the new zoning. As [with] all zoning, we expect all property owners to adhere to the letter of the law."

Officials have not determined the specifics of enforcement, including possible fines.

The text of the zoning amendment is quite brief, merely changing the definition of what constitutes a "family" under the zoning code. No enforcement procedure or penalties was part of the amendment, but will instead be developed by the city after the Mayor signs the amendment.


UPDATE: The Allston-Brighton TAB has also come out with their story which quotes Councilor Stephen Murphy repeatedly. Councilor Murphy claims that the idea for the zoning change came from conversations dating to 1998 between him and late Allston-Brighton District 9 City Councilor Brian Honan:

"The late Councilor Brian Honan and I talked about this in 1998 before [Michael] Ross got on to the body. It’s been an issue predominantly in student neighborhoods for a number of years."

Councilor Honan died unexpectedly in 2002.

The TAB did not ask Councilor Murphy the obvious question about why he and Councilor Honan would have been talking about this zoning change back in 1998. The city had zoning language in place in 1998 limiting apartment occupancy to four or fewer unrelated people, which led to the Boston court case and subsequent consent decree in 2003 invalidating that zoning language. It was the 2003 court case that allowed property owners to pack students into apartments legally for the last five years. Before 2003, students could be packed into the apartments illegally -- and from now forward they could be packed into apartments illegally, too -- meaning that the problem in 1998 was one of enforcement, not of the zoning language in place at the time.

I take this to mean that Councilor Murphy was actually referring to 1998 conversations about what to do about illegal apartment-packing, not that he and the late Councilor Honan were talking in 1998 about instituting a zoning change like the one adopted yesterday.

BRA Board Votes to Limit Apartments to Four or Fewer Students

In an unannounced appearance at the conclusion of the Allston Brighton Green Gathering, Councilor Michael Ross of Mission Hill delivered the news that the BRA Board voted earlier in the day in favor of limiting apartment occupancy in Boston to four or fewer students.

Councilor Ross submitted the petition to change the definition of a "family" under the city's Zoning Code that would exclude groups of "five or more students enrolled at or attending a post-secondary educational institution" from being able to live together in a single housing unit. The city's previous definition of "family" was overruled by a 2003 court decision and subsequent consent decree, which meant that landlords could rent to larger groups of students during the past five years than previously allowed.

The Boston City Council has already unanimously approved Councilor Ross's petition. The next and final step for approval will be an appearance before the city's Zoning Board on March 12th. Councilor Ross said that opponents to his proposal -- I'm guessing that these include the Small Property Owners of America -- have put out the call to appear in large numbers at the upcoming Zoning Board meeting.

The most surprising detail was that many of the city's institutions of higher education have come out in favor of his proposal. After the event, Councilor Ross stated Northeastern University, Wentworth Institute of Technology, Massachusetts College of Art, Massachusetts College of Pharmacy, the School of the Museum of Fine Arts, and Suffolk University were all backing his proposal. He also noted that several other prominent institutions were considering supporting the proposal, including Simmons College, Boston University, and Boston College.

Councilor Ross also noted that the Greater Boston Legal Services, who had brought the court challenge to the previous definition of a "family" under the Zoning Code, were now supporting Ross's petition.

The Allston-Brighton TAB already filed their story about how the BRA Board is soon to vote on the issue. I think they've got a day or two to add to their story before deadline... Their story provides interesting background from last week's meeting of the Allston Civic Association (ACA):

Many other cities and towns regulate the number of occupants a housing unit may have.

At the Green Gathering, Councilor Ross noted that Newton had similar problems with over-crowded, off-campus student housing and pass an ordinance much like Ross's proposal. The Newton ordinance, he said, was successfully defended in court.

The TAB article continued:

Ross said some neighborhoods, including Brighton, have an overabundance of students. Students will move to areas with more space for them as a result of the proposal.

Enforcement of the law would be complaint-driven; for example, if a neighbor reports a lot of occupants in a house with nightly parties to the Inspectional Services Department.

Ross said 99 percent of the people who support the proposal are from the community, whereas 99 percent of those who oppose it work in real estate. The ACA supports it.

A-B City Councilor Mark Ciommo said, “A-B is unique because we have so many students living off-campus, and I believe this amendment would help reduce problems with overcrowding and quality of life in these neighborhoods.” He also said it would alleviate problems associated with absentee landlords.

The meeting of the Zoning Board will be on March 12, 2008, at 9:00 am, in Room 900 on the 9th Floor of Boston's City Hall.

Local Impacts of Proposed City Ordinance on Student Off-Campus Dwellings

The Boston City Council is considering an ordinance that would petition the Boston Zoning Commission and the Board of the Boston Redevelopment Authority to ban more than four off-campus students from living together in a single apartment. The proposed ordinance will be presented and discussed at Wednesday night's meeting of the Allston Civic Association.

A recent court case and subsequent consent decree defined what kind of living arrangements constitute an illegal boarding-house, which, in effect, loosened up the restrictions. As long as unrelated residents of an apartment shared common space, such as kitchen and bathrooms, do not have locks on individual bedroom doors, and don't individually rent from the owner, then the occupants are considered a "family" unit that can legally rent an apartment together. Off-campus student housing in Allston-Brighton often lawfully exceeds four students per apartment. "Club Kirkwood" is one notable example.

Can students be separately categorized in an ordinance such as this one? Likely yes, according to a government housing specialist contacted recently, because students do not consitute a protected housing class under federal or state law. If Ross's proposed ordinance were to restrict housing on the basis of race, however, it would be illegal, because ethnicity is a protected housing class. (On a related, albeit not identical, issue, Boston College administration officials have recently proposed instituting a ban on their undergraduates from living in 1- and 2-family houses in three zip-codes in Allston-Brighton and Newton, a policy which BC officials have stated publicly several times has been checked for its legality.)

District 8 City Councilor Michael Ross wrote in a January 25, 2008 letter to John Palmieri, the Director of the BRA:

Since [2003] the current definition of family remains unresolved, causing an ambiguity in the law and its enforcement. As a result, unscrupulous landlords have taken advantage of this limbo by packing upwards of ten students into college apartments that once housed families. These actions have subsequently raised rents to a level where virtually no one can afford to live within certain neighborhoods of the city. The proposed change to the zoning code will require that landlords cap the number of students living within one dwelling to four, thereby restoring a semblance of control to what has become an escalating crisis.

BC's student newspaper, The Heights, ran a news story on the issue and also an editorial opposing the proposed ordinance. The editorial says that the proposed ordinance treats students "unfairly" and is "counter-productive to the constituency it seeks to placate" -- i.e., "neighbor's concerns about loud parties and poorly-kept residences."

As the aforementioned example of Club Kirkwood indicated, however, the problems of the over-crowded housing are code violations and dangerous conditions. I wrote back in October 2007:

As Bill Mills noted at the October 16th meeting of the BC Task Force, they allegedly found smoke detectors had been removed from the ceilings, missing CO detectors, underage drinking, and so on. A sting operation was planned for inspectors from the city's Inspectional Services Department, which identified other problems -- such as residents illegally housed in the basement, others housed in parts of the attic that don't meet height requirements, and locks on the bedroom doors (that might have constituted an illegal boarding house).

The news story in The Heights makes a series of unattributed statements, some of which appear to be factually incorrect. An example:

The effect [of the ordinance on student-occupied off-campus housing] is not wholly seen in the Brighton area that surrounds BC, mainly because most of the houses are owned by the people living in them.

The owner-occupied housing rate was only 19.3% in Allston-Brighton in the 2000 U. S. Census; in Brighton alone, the rate was 23.6%. Of owner-occupied housing in Allston-Brighton, only 26% of the units had more than 0.5 persons per room, while 49% of renter-occupied housing units did. The conclusion from the census data: most of Allston-Brighton's housing stock is renter-occupied, and the rental units are, on average, more packed with occupants than the owner-occupied units. It is hard to know where The Heights gathered its facts since so many of the story's statements, such as the one above, have no attribution.

Small Property Owners of America opposes the proposed ordinance, providing a series of arguments against it: displacement and high rents; de facto rent control and devaluation; housing shortage and higher rents; and college and university concerns.


Councilors Ross and Ciommo to Attend ACA Meeting on Proposed Ordinance

Councilors Michael Ross and Mark Ciommo will be appearing at a meeting Wednesday night of the Allston Civic Association in order to discuss the proposed ordinance.

Councilor Ross submitted the original petition in December 2007. His office is spearheading the effort to pass the ordinance. In a community-wide letter sent out recently by staff member Johanna Sena, she anticipates that "this issue will be coming before the BRA Board for their approval at the end of February and before the Zoning Commission in early March."

The text of the ordinance proposes a change in the definition of "family" under the Boston Zoning Code, so that it would be defined as:

'Family' one person or two or more persons related by blood, marriage, adoption or other analogous family union occupying a dwelling unit and living as a single, nonprofit housekeeping unit, provided that a group of five (5) or more students enrolled at or attending a post-secondary educational institution shall not be deemed to constitute a family. A group residence, limited... shall be deemed a family.

The meeting of the Allston Civic Association will be:

Wednesday, February 20, 2008
Honan-Allston Library
300 North Harvard Street
Allston, MA 02134

Other items on the agenda are listing at Harry Mattison's blog.

Some questions I would like to see addressed in the meeting:

• How will the city prevent the landlords from obtaining zoning variances in order to chop up the housing into smaller and smaller units to keep each unit's occupancy below five?
• What is that anticipated increase in expense for off-campus housing for various neighborhoods of the city, e.g., Brighton, where occupancy would suddenly switch from, say, ten tenants to four?
• What are the universities' plans for dealing with the added increase in off-campus housing that will result? In particular, what would Boston College possibly do to provide on-campus housing for its students with greatest financial need who might not be able to deal with the rental increase?
• If half the Radnor/Kirkwood/Upper Foster area off-campus students, for example, were suddenly required to find alternative housing, where do real estate professionals believe that they would be most likely to move in the current housing market?
• What fraction of the impacted rental units are suitable for family housing, and what fraction are excessively-sized such that they are beyond the needs and/or means of most families?

UPDATE: UniversalHub has a series of comments posted about this topic.