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.