Boston's new student occupancy ordinance

[cden4]

Is it unconstitutional?

http://www.americanthinker.com/2008/...erty_righ.html

April 06, 2008
Boston Threatens Property Rights
By Richard L. Cravatts

In a move that may prove shortsighted and misguided, the Boston Zoning Commission, with support from City Councilor Michael Ross and Mayor Menino, recently enacted an ordinance ostensibly designed to curb the anti-social behavior of college students who, living as groups in rental units, are accused of having a negative effect on neighborhoods with overcrowding, noise, and raucous parties. Additionally, say families of renters in student-dense neighborhoods, when property owners rent to groups of students, they are able to charge higher rents, thus pricing out families who cannot pool their rent resources in ways students can.

The solution to these problems is a new ordinance which will make it illegal for landlords to rent to more than four students in a single rental unit, even, presumably, if existing zoning laws would normally permit more than that number of individuals to occupy the same unit. The ordinance permits, for example, families or extended families of any number to occupy rental units.

This new housing regulation, like rent control before it, attempts to create some social good -- affordable rental housing, quiet neighborhoods -- but looks to private property owners to remedy what should, as a matter of equitable policy, be solutions borne by taxpayers at large. Having experienced continual pressure from neighborhood residents and affordable housing activists, City officials have reacted with a solution riddled with thorny constitutional questions and issues of practicality and fairness.

The new ordinance stipulates that landlords henceforth will be enjoined from renting to more than four students in a single dwelling, the thinking being that larger student households are more likely to become magnets for parties, rowdiness, and general anti-social behavior. There is a second, even more troubling, intent of the new ordinance, however: if property owners can no longer rent to larger groups of students, it is hoped that rents will thereby be reduced, making units more affordable to traditional families.

While the ordinance was fashioned with good intentions, and hoped to address a significant social issue in Boston neighborhoods, there are some serious flaws in its conception and execution:

* 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. In his 1960 decision in Armstrong v. United States, for instance, Justice Hugo Black noted that this protection for owners of property "was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." It may seem like a reasonable solution to some housing advocates and politicians to create rental housing affordability for non-students by depriving owners of the higher rents they could charge to students willing to pay them, but they thereby not only deprive students of equal protection under the law, but also introduce regulations that are confiscatory, limit the free use of one's private property, and harm one group of citizens-property owners-while trying to ameliorate the living situations and economic concerns of some other groups.

* Landlords legally cannot proscribe or police the private behavior of tenants -- nor should they have to -- even if it was permitted by housing law. After the tragic 1988 murder of a Boston police officer during a drug raid at a rental property, city officials floated a similarly misguided idea of making property owners liable for the illegal drug activities of tenants living in their rental properties. The concept was legally unworkable, for many of the same reasons that the current proposal involving students will prove impracticable: landlords are specifically prevented from violating the privacy rights of their tenants, and do not have the legal ability to either enter a unit to search for evidence of drug dealing or determine the personal relationships, status, or lifestyles of their tenants. College students are not in themselves what the law recognizes as a "protected class" -- that is, a group whose rights are specifically protected from discrimination in housing -- but how would a property owner deal with a group of more than four students who wished to rent a unit and happened also to be minorities, or physically handicapped, or members of other protected tenant groups?

* 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. In his dissent in a 1974 case in which the town of Belle Terre, New York had enacted a similar provision to restrict the number of unrelated students who could occupy a rental unit, Supreme Court Justice Thurgood Marshall suggested that "Zoning officials may restrict the use of land, but may not properly restrict who the persons living on land may be, ?what they believe, or how they choose to live.'" "That decision," he concluded, alluding to Louis Brandeis' own reverence for the necessity of government to "leave citizens alone," "surely falls within the ambit of the right to privacy protected by the Constitution."

* 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. That is a very broad and cynical determination that assumes that all students are inherently more likely to be bad neighbors than, say, a related group of illegal immigrants, or five employed motorcycle gang members, or even a conventional family with six vehicles, loud and destructive teenagers, and a propensity for weekly beer-infused barbecues in the backyard. Justice Marshall saw the same inherent unfairness in the Belle Terre statute, since it denied equal protection to all citizens and discriminated

"on the basis of just such a personal lifestyle choice as to household companions. It permit[ed] any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limit[ed] . . . the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home."

* 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. If students misbehave and become nuisances in their rental units, why make property owners bear the burden for this anti-social activity? Existing public nuisance laws and noise ordinances give police and other officials the ability to punish offenders with civil violations. Instead of blaming a landlord for providing living space for a group, why not fine or punish the students themselves if they break the law, just as we would for any group that became a nuisance in a neighborhood? Why not enlist the universities in putting pressure on off-campus students who regularly misbehave, with the threat of sanctions, holding back of transcripts, and, if necessary, expulsion? And what about the students' parents, who, as is generally the case, co-sign their leases and have both a financial and legal responsibility to insure that their children have trouble-free tenancies

Richard L. Cravatts, Ph.D., advertising and publications manager at law firm Nixon Peabody LLP, writes frequently about real estate development, affordable housing, and banking.

[budman3]

It doesn't really solve one problem by creating another one. Housing is an issue in general, for students and for families. Now there'll just be less housing in general for everyone. Students need housing and families need housing, but restricting one to help the other may seem noble because a family needs a home, but instead 4 kids per unit will be the case in simply more units because if they are going to go to school in Boston, and aren't local like most students who do so, they still need a place to stay and means to do so. There are so many more issues at hand that makes this new law flawed, and this article covers a lot of it. It doesn't seem very constitutional.

[endus]

This would definitely seem to harm property owners, and I don't think it will make any difference at all. Open space in your apartment just makes your place better for a party anyway...

If people don't like the noise, don't move to neighborhoods where there are a lot of students. It's not like this is a new problem.

[cden4]

Looks like there already is a lawsuit:
http://www.wickedlocal.com/allston/homepage/x125183916

Undergrad housing law to face court challenge
By David Golann, Correspondent
Wed Apr 02, 2008, 03:55 PM EDT

Allston-Brighton - A new restriction limiting the number of college students who can rent housing together in Boston may soon be challenged in court.

In late 2007, the Boston City Council unanimously passed an amendment to the zoning code in order to prevent groups of five or more undergraduates from living in a single rental unit. The measure, intended to stem escalating home values and prevent rowdy ?animal houses,? recently received final approval from the Boston Redevelopment Authority and the Boston Zoning Commission.

Opponents of the new law now have a 30-day window in which to mount a legal challenge. Attorney Stephen Greenbaum is spearheading the main effort to prevent the law?s immediate enforcement and eventually invalidate it.

?We will be raising every single legal ground which we think is viable,? said Greenbaum. ?We will seek a declaration from the court that the amendment is null and void.?

Greenbaum believes the new law violates several basic constitutional liberties, such as the rights to freedom of association and equal protection under the law. He also claims that the ordinance could not be enforced without violating students? right to privacy.

?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.?

Many opponents of the amendment claim that it violates several specific Boston laws, including one banning rent control.

?Councilor Ross has repeatedly said that his intent is to reduce rents and reduce the value of buildings containing these units,? said Greenbaum. ?So there is clearly a stated intent to create an illicit form of rent control.?

The TAB was not able to speak with parties involved in the case, and their names will not be revealed until their case is filed in court. Greenbaum did state that they constituted a ?broad cross-section of people who will be affected by this change,? including student tenants, landlords and other stakeholders.

According to Skip Schloming of the Small Property Owners Association, many tenants and landlords are afraid to come forward and participate in the case. He said that Realtors and tenants participating in the lawsuit risk the loss of their livelihoods and housing if their activities are revealed to be illegal.

?No one wants to come out because everyone is afraid of being targeted,? said Schloming. ?They want to use a landlord on the verge of retiring so if he gets targeted, that?s just his retirement.?

The future of this legal effort is uncertain, since most challenges to similar student housing-related laws have failed. The United States Supreme Court has repeatedly upheld occupancy restrictions on unrelated college students starting with the well-known 1974 case Belle Terre vs. Boraas. Several legal scholars agreed that this ruling is the largest obstacle to Greenbaum?s legal challenge.

?The case has been criticized, but it is still good law,? said Suffolk University Law Professor Renee Landers. ?They have had opportunities to reconsider it, but they have not.?

?I feel that we are on solid legal footing,? said City Councilor Michael Ross, referring to the Belle Terre ruling. ?I think that this is standard zoning, and similar zoning is in place across the country.?

?There is precedent for regulating the number of unrelated undergraduate students living together,? agreed City Councilor Mark Ciommo. ?Cities like Philadelphia, Milwaukee, San Francisco, Salt Lake City and Boulder [Colorado] all have similar laws.?

Boston?s unique set of local laws leave the future of this particular case uncertain, however. One local real estate professional and lawyer, who prefers to remain anonymous, believed this law will be invalidated because it targets students more explicitly than the occupancy restrictions on the books in other college towns.

?It?s true that college students are not afforded the protections based on race and gender, but they are protected. Other similar housing laws that have been upheld do not specifically mention college students, but this one does,? said the lawyer. ?I do not think the law will be upheld.?

The details of the case will become clearer when it is filed in either Suffolk Superior Court or the Massachusetts Land Court. The case will most likely be filed by a deadline in mid-April.

[JimboJones]

This new law needs to be crushed so bad that any public official supporting it is left gasping for air, and out of a job, pronto.

I find it so offensive!

Not sure why, I just do. It's unbelievably stupid!

[bosdevelopment]

offensive. Only in Boston.

[cden4]

My main problem with it is that it singles out a certain group of people and limits their choices while it's not clear at all whether it will have any positive effects at all.

Will rents go up or down? Will parties continue or not? My prediction is that rents will not be affected at all, or will go up, and that partying will continue.

There are most certainly other ways of dealing with disruptive behavior and increasing rents than by limiting people's choices. It's basically those in power ganging up on students once again. Students may not be perfect, but it's really not fair to punish the many for the bad deeds of a few.

[palindrome]

Speaking as a college student living off campus, this law will change nothing. 9/10's of noise complaints are when people invite people over for big sports events on tv, and partying, which will definitely continue.This will only make housing more expensive for students.

As it is now, i guess i am living illegally.

[JimboJones]

Palindrome: you missed the sentence where the city council said their next ordinance will outlaw having more than four other students over to your apartment at any one time.

[tobyjug]

Good thing Max Mosley isn't a student.

www.newsoftheworld.co.uk

[N.starluna]

Students are not a legally protected class. There have been ordinances in college towns that explicitly target college students and those have been upheld by the federal courts - or rather the courts have declined to review them. Either way, the outcome is the same, the ordinance is effectively upheld. As long as the law does not target a federal protected class (race/ethnicity, color, gender, family status, national origin, creed, disability) or state protected class (sexual orientation in MA is protected for housing), the city of Boston is likely well within its legal authority to restrict the occupancy levels of housing by college students.

I don't agree with the ordinance either. It will actually cause more of the same problem that Ross says he is trying to address. By increasing the number of students out on the market, it increases demand. As demand goes up, so do prices. It will be almost impossible to enforce without violating other due process protections. It also falsely pits students against families when both are being screwed by absentee landlords and property management companies.

I teach at Northeastern and this ordinance is generally aimed at my students. And our new dorms, when they open, will not decrease the demand for off-campus housing. Our dorms are simply too expensive for most students and priority goes to freshmen, sophomores, and middlers. And the upperclassmen tend to not want to share space with the younger classes. I can't say I blame them.

Ross has also reportedly dismissed our attempts by Northeastern to work with the students to teach them how to be good neighbors and to create better student-community relations in Mission Hill. Ross is simply vying for votes from the few remaining voters in Mission Hill.

[Ron Newman]

Is age a legally protected class, and is undergraduate status a 'proxy' for age?

[jass]

Originally Posted by Ron Newman

Is age a legally protected class, and is undergraduate status a 'proxy' for age?

Age is, but only the other way, that is, discrimination against someone for being to old.

[daimio1]

Originally Posted by jass

Age is, but only the other way, that is, discrimination against someone for being to old.

in terms of renter's rights, age as defined by MGLc.151b, 4(7) is:
The word ?age? as used in this subsection shall not apply to persons who are minors nor to residency in state-aided or federally-aided housing developments for the elderly nor to residency in housing developments assisted under the federal low income housing tax credit and intended for use as housing for persons 55 years of age or over or 62 years of age or over, nor to residency in communities consisting of either a structure or structures constructed expressly for use as housing for persons 55 years of age or over or 62 years of age or over if the housing owner or manager register biennially with the department of housing and community development.

So theoretically, unless an amendment is made to MGL, I can sue my landlord for upholding this ordinance.

[N.starluna]

MGL c.151B ?4(7)'s clarification of age is to allow age restrictions for elderly housing development projects. In the definitions section of this statute, the age of concern are those over 40. What this subsection effectively says is that a person between the age of 40 and 55 (or 62) cannot sue a landlord or property management firm for age discrimination because of age restrictions in an elder housing development.

As Jass stated, age discrimination restrictions only apply to those over the age of 40. And the concern there is largely in employment. In Massachusetts, you can discriminate against college-aged persons in employment and in housing. Young people are not a protected class.

[InTheHood]

Mike Ross is on solid legal ground.

Unfortunately, he's not on solid economic ground. Limiting the number of students per apartment obviously isn't going to reduce rents because it does nothing about the total number of students seeking apartments. It may mean that 20 students collectively need to lease 5 apartments instead of 4, which is going to push rents higher, not lower. It passed so easily because most landlords who usually rally against restrictions can tolerate restrictions that help their bottom line.

This isn't the first time Ross has shown his inability to master Econ 101. In a single meeting, I've seen him advocate rent control (because rents are "too high") while showing his reflexive opposition to any development of size (he'll note that "luxury" condos won't address the affordable housing shortage). The man can't connect the simplest economic dots. Two decades from now, when every last brownstone in his district will have been converted from apartments (many of which are affordable) to expensive condos, will it occur to him that he didn't reduce the number of rich people, either, and that if we had built twice as many luxury highrises then the yuppies might not have gut renovated every single tenement?

When he went back to school to get his law degree a few years ago, my neighbors and I groaned. If he had gone back for an economics degree, we might have chipped in.

[JimboJones]

Whoa, that's exactly the same feeling I got, InTheHood, while watching him on the Em Rooney show. Before that, I had never seen him speak. I always figured when he said stuff like this, it was because he was pandering to certain members of his community. But, when I saw him on Greater Boston, I got really, really scared. The guy REALLY BELIEVES what he says.

I'd give him a bit of credit if I knew he had done some research to come to his conclusions, but I don't think he has.

He really really believes that by reducing the number of students allowed in any one home that it will mean less students in his neighborhood.

He's quite clueless.

[Spatch]

Back in the 90s when I was going to school at UMass Amherst, the town floated a proposal that would have prohibited freshman students from driving a car. This was obstensibly proposed in an attempt to alleviate traffic problems in the amazingly congested Route 9 corridor between Northampton and Amherst (most importantly, the Connecticut River crossing in Hadley) and sparked a hell of a debate, as most things in Amherst often do.

However, it could not be concluded that the number of first-year students in Amherst (the town with three colleges) were directly contributing to the congestion. It was a fact that traffic got worse when school was in session, but that's what happens when your population triples in September... and goes back to "regular" levels in June. Arbitrarily penalizing one subset of the student population was silly and accomplished nothing. In the end the proposal was kicked to the curb and life went on as usual.

In that vein, I think the ordinance won't solve the problems Mike Ross wants it to solve. It's an idea, a suggestion, something to mull over, but it hasn't been thought all the way through.

On the other hand, there's something to be said about preventing absentee landlords from cramming nine students into one floor of an Allston/Brighton triple decker. The kids may not know better (I shared my first apartment with 8 other people, only 5 of whom were actually on the lease; we didn't know what was up) but they at least deserve better.

[shawn]

^---- Didn't the Rt 9 traffic also have to do with the never-ending construction on the bridge that spanned the Connecticut River? Whenever I visited my brother back then, traffic was often reduced to just one lane on the Hadley side of the bridge.

Also, regarding Ross' legislation: this will effectively create a bidding war between students and families, and who do you think will come out on top? Lower-middle class families or out-of-state BU students with upper-middle class parents who foot their kids' bills? What a complete disregard for basic Micro econ principles.