NYS Department of State Counsel's Office

Legal Memorandum LU05
DEFINITION OF "FAMILY" IN ZONING LAW AND BUILDING CODES

An appropriate definition of "family" is basic to density and use prescriptions of zoning laws and to the applicability of building code laws. This memorandum discusses the definition in the context of such laws.

ZONING

Any successful zoning scheme which purports to create and attain a single-family zoning district must contain a definition of family. Dating back to 1974, the U.S. Supreme Court and many state courts, including our New York Court of Appeals, have examined the question of the definition of family, both in enforcement proceedings and in declaratory judgment actions.

This line of family definition cases has followed a very traditional path of analysis. Courts have carefully looked for some reasonable relationship between the zoning regulation and the goals sought to be achieved by the regulation. Generally, they first examine the goal sought to be achieved to see if it furthers a legitimate governmental objective. They then proceed to scrutinize whether the means designed to reach that end -- in this case a definition of family-- are reasonable.

Courts have regularly found a legitimate purpose in zoning regulations which are aimed at achieving a homogeneous, traditional single-family neighborhood. "A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs," according to the U.S. Supreme Court in Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S Ct 1536, 39 L Ed 2d 797 (1974), a case which upheld, as constitutional, a zoning definition of family against a challenge that it violated the equal protection clause.

To preserve this quiet neighborhood character, many municipalities have enacted definitions of "family" to exclude groups of individuals who, it is perceived, degrade the single family district. For example, in college towns or resort areas, municipalities are often concerned about fraternities and other groups of unrelated college students living together in crowded conditions in single family areas. Such living conditions can cause parking, noise, litter and congestion problems. Many local governments, therefore, have enacted restrictive definitions of family within their zoning and building codes, and enforce these provisions against groups who do not meet the "family" definition, in an effort to keep out those who would otherwise cause or contribute to unwanted neighborhood impacts. Unfortunately, these definitions occasionally exclude persons who should properly be included within the term "family."

Both the U.S. Supreme Court and the New York Court of Appeals have not hesitated to strike down zoning definitions of "family" which are so narrowly drawn as to exclude certain family members or families which are not biologically related or are non-traditional. In so doing, the courts, in their opinions, have furnished guideposts which communities can follow in crafting a definition of family which meets constitutional due process requirements.

Courts have not abided restrictive definitions of "family" which keep out certain types of families. For example, the definition of family may not be so restrictive as to exclude from its scope family members who are not expressly listed, such as cousins, uncles, aunts, nieces and nephews. The United States Supreme Court, in Moore v. City of East Cleveland, 431 U.S. 494 (1977), held that, in keeping with due process, a zoning ordinance may not differentiate between relatives of varying degrees of kinship. In his lead opinion, Justice Powell commented that: "The tradition of uncles, aunts, cousins, and especially grand-parents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition." 431 U.S. at 504. Due process, then, would seem to require that any such definition eliminate distinctions among familial degrees.

In the case of City of White Plains v. Ferraioli, 34 N.Y.2d 300, 357 N.Y.S.2d 449 (1974), the New York Court of Appeals held that a group home with ten foster children, headed by the natural parents of two additional children, could together constitute a "family." The Court invalidated a restrictive definition of family limited to blood relatives and spouses, which would have excluded the foster home. The Court stated: "[A]n ordinance may restrict a residential zone to occupancy by stable families occupying single-family homes, but neither by express provision nor construction may it limit the definition of family to exclude a household ‘which in every but a biological sense is a single family.’" (Id. at 306) The Court established a standard that the "... minimal arrangement to meet the test of a zoning provision as this one, is a group headed by a householder caring for a reasonable number of children as one would be likely to find in a biologically unitary family." (Id.)

Factors of importance to the Court in the White Plains case were that the group home: a) was a "single housekeeping unit"; b) was "to all outward appearances, a relatively normal, stable, and permanent family unit"; c) was not "a temporary living arrangement as would be a group of college students sharing a house"; and d) did not provide "a framework for transients or transient living."

Four years later, the Court of Appeals found that a house consisting of two surrogate parents and seven emotionally disturbed children was "... the functional and factual equivalent of a natural family, and to exclude it from a residential area would be to serve no valid purpose." Group House of Port Washington v. Board of Zoning and Appeals of the Town of North Hempstead, 45 N.Y. 2d 266, at 272 (1978). The Town had defined family as

"[o]ne (1) or more persons related by blood, marriage or legal adoption residing or cooking or warming food as a single housekeeping unit; with whom there may not be more than two (2) boarders, roomers or lodgers who must live together in a common household."
In a 4-3 decision, Court of Appeals held that the definition of "family" improperly excluded from its scope group homes. The Court explained that in zoning for stable neighborhoods in a single family district, local governments must include the functional and factual equivalents of natural families, as well as traditional families.

After White Plains and Group House, municipalities must define families to include groups of unrelated persons who constitute a family. However, even the inclusion of provision for unrelated persons in the zoning definition of family does not guarantee that it will survive a constitutional challenge. For example, during the 1980s, the Town of Oyster Bay defined "family" as:

"(a) Any number of persons, related by blood, marriage, or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit; or

(b) Any two (2) persons not related by blood, marriage or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit, both of whom are sixty-two (62) years of age or over, and residing on the premises."

In 1985, the Court of Appeals in McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 498 N.Y.S.2d 128 (1985) found fault with the alternative definition of a "family" as being "[a]ny two (2) persons not related...both of whom are sixty-two (62) years of age or over." In a unanimous decision, the Court of Appeals invalidated the definition:
"Manifestly, restricting occupancy of single-family housing based generally on the biological or legal relationships between its inhabitants bears no reasonable relationship to the goals of reducing parking and traffic problems, controlling population density and preventing noise and disturbance (citations omitted). Their achievement depends not upon the biological or legal relations between the occupants of a house but generally upon the size of the dwelling and the lot and the number of its occupants. Thus, the definition of family employed here is both fatally overinclusive in prohibiting, for example, a young unmarried couple from occupying a four-bedroom house who do not threaten the purposes of the ordinance and underinclusive in failing to prohibit occupancy of a two-bedroom home by ten or twelve persons who are related in only the most distant manner and who might well be expected to present serious overcrowding and traffic problems." (66 N.Y.2d at 549-550)
The Court cited White Plains (supra) for the proposition that a municipality may not seek to achieve its legitimate objectives of preserving the character of single-family neighborhoods by limiting the definition of "family" to exclude a household which in every sense but a biological one is a single family. "This ordinance, by limiting occupancy of single-family homes to persons related by blood, marriage or adoption or to only two unrelated persons of a certain age, excludes many households who pose no threat to the goal of preserving the character of the traditional single-family neighborhood, such as the households involved in White Plains and Group House, and thus fails the rational relationship test." 66 N.Y.2d at 550.

The Court went on to state: "Because the only alternative definition contained in this ordinance...is more restrictive, both as to the number of unrelated persons and their ages, than is constitutionality permissible, however, the entire definition of family contained in the ordinance violates our state constitutional guarantee that no person shall be deprived of property without due process of law." 66 N.Y.2d at 551.

For a definition of family to be constitutionally permissible, it is necessary to ensure that alternative definitions of family include within them both traditional family units and well-defined non-traditional groups to whom the courts have extended due process protections. This task is one which may involve the drawing of some fine legal distinctions.

Soon after deciding McMinn, the Court of Appeals considered whether a municipality can restrict the number of unrelated persons living together as the functional equivalent of a natural family, while allowing an unlimited number of related persons to reside together. In Baer v. Town of Brookhaven, 73 N.Y.2d 942, 540 N.Y.S.2d 234 (1989) the Court of Appeals held that it cannot.

In Baer, the town of Brookhaven charged five (5) unrelated elderly women residing together in a house located in a single family residential zone with violating the town's zoning law, which provided that not more than 4 unrelated persons living and cooking together as a single housekeeping unit could constitute a family. The zoning law did not place a similar number limit on the number of persons related by blood, marriage or adoption. The Court of Appeals held that the family definition violated the State due process clause because it restricted the size of a functionally equivalent family of unrelated persons but not the size of a traditional family. Such differentiation was not reasonably related to a legitimate zoning purpose, and therefore violated State Due Process. Reading the Baer decision in light of the U.S. Supreme Court’s ruling in Moore v. City of East Cleveland, (supra), it appears that, for zoning purposes, a municipality may not restrict the number of related or unrelated persons who constitute a family. As will be noted later, an appellate court has approved a method for controlling groups of unrelated persons who are not a family.

The definition of family can affect the implementation of other laws unrelated to zoning. For example, in Braschi v Stahl Associates, 74 N.Y.2d 201, 544 N.Y.S.2d 784 (1989), the Court of Appeals ruled that two homosexual men living together in a spousal-like arrangement could constitute a "family" within the context of the non-eviction provisions of the New York City Rent and Eviction regulations. The Court expressly stated that its decision on the definition of family under the rent control regulations had no bearing on the concept of "functional family" in its decisions concerning local zoning regulations. 544 N.Y.S.2d at 796 note 3.

Also, in 1993, a federal district court in the case of Oxford House v. Town of Babylon, 819 F. Supp. 1179 (E.D.N.Y. 1993) concluded that the federal Fair Housing Act prevented the Town of Babylon from evicting recovering alcoholics and drug addicts from a group home based on the town’s zoning definition of family. The town alleged the house was being used in violation of the single family zoning because the residents were transient and not a family. Under the town code, a family is defined to include those related by blood, marriage or adoption, or not more than 4 unrelated individuals living in a stable, non-transient household. Oxford House accommodated between 5 and 8 transient residents. Under the Fair Housing Act, it is unlawful for government to discriminate in the sale, rental or use of housing on the basis of handicap and individuals recovering from drug or alcohol addiction are considered handicapped under the Act. In the court’s view, applying the town's zoning definition of "family" to evict the Oxford House residents due to the size or transient nature of the group living arrangement would discriminate against them because of their handicap. The court determined that the town's interest in uniform enforcement of its zoning ordinance was not a sufficient governmental interest justifying the eviction of the residents of Oxford house, since it had a much greater discriminatory impact on the handicapped.

Finally, in Genesis of Mt. Vernon v. ZBA of City of Mt. Vernon, 81 N.Y.2d 741, 593 N.Y.S.2d 769 (1992), the Court of Appeals struck down the city's definition of "boarding house" as not reasonably related to achieving the ordinance's legitimate purposes of reducing parking and traffic problems and controlling population density. The definition of "boarding house" was so broad it would have prevented any type of family living in a rented house. In the Court’s words: "Because the prohibition against a ‘boarding house’ includes a family expressly permitted under the Zoning Ordinance's definition of ‘family’, the definition of ‘boarding house’ is overbroad, thereby inviting arbitrary application."

I. Guidelines to Drafting a Definition of Family

In light of the numerous state and federal court decisions on the subject of defining "family," some guidelines may be gleaned as to constitutionally permissible standards.

  1. Preservation of the character of single-family areas remains a legitimate purpose of zoning.

  2. Zoning may not exclude a group which "in every but a biological sense is a single family" (White Plains, supra); or a household "which poses no threat to the goal of preserving the character of the traditional single-family neighborhood" (McMinn supra).

  3. Court decisions have indicated that the "factual and functional equivalent" of a traditional family of unrelated persons may be evidenced by the following:

    1. single housekeeping unit;

    2. more or less permanent living arrangement;

    3. stable, rather than transient living arrangements (except where the handicapped are affected);

    4. a group headed by a householder caring for a reasonable number of children as one would be likely find in a biologically unitary family (White Plains 34 N.Y.2d at 306).
II. Techniques for Drafting Definitions
  1. Some municipalities have attempted to define "family" to comply with court decisions by providing for discretionary review of groups of unrelated persons greater than a specified number to ensure that they are the functional equivalent of a family.

    Under this approach, the municipality defines all related persons and a specific number (e.g.- four) of unrelated individuals as constituting a "family." For groups of greater than four (4) unrelated individuals to constitute a "family," the group would have the burden of proving to an administrative official or entity (such as a zoning official or the board of appeals) that they meet the criteria set forth in the zoning regulations to show that are a "functionally equivalent family." Such an approach is consistent with the cases indicating that defining a "family" of unrelated persons is a factual decision.

    Many municipalities in New York have adopted this discretionary review technique for defining family. For example, the City of Poughkeepsie zoning ordinance, in its definition of "family," contains a rebuttable presumption that 4 or more unrelated persons living in a single dwelling do not constitute the functional equivalent of a traditional family. The ordinance provides an opportunity for applicants to convince the Zoning Administrator that the group is the functional equivalent of a traditional family. The factors which must be considered by the Zoning Administrator are whether the group:

    1. shares the entire house
    2. lives and cooks together as a single housekeeping unit
    3. shares expenses for food, rent, utilities or other household expenses, and
    4. is permanent and stable.

    Such an approach has met with success in the courts. In Unification Theological Seminary v. City of Poughkeepsie, 201 A.D.2d 484, 607 N.Y.S.2d 383 (2nd Dept. 1994), the Appellate Division upheld the City of Poughkeepsie's definition of "family" against a challenge that it violated the Due Process Clause. The Court held that it was valid to use a rebuttable presumption to establish which groups of unrelated individuals should be considered a family. For those municipalities which have enacted or are considering adopting definitions of family similar to that of the City of Poughkeepsie, this case lends constitutional support to those efforts.

  2. Another technique is to correlate the number of occupants to the size of the structure occupied (e.g., by setting a maximum number of persons for a specified floor area, or requiring a given floor area per resident). The advantage of such an approach is that it relates population density to house size and does not address the factors of permanence, stability, non-transience, and outward appearance of a family which all the decisions use. In so doing, it avoids the constitutional problems associated with defining "family."

    Maximum occupancy restrictions may be exempt from certain provisions of the Fair Housing Act. In the case of City of Edmonds v. Oxford House, 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995), the U.S. Supreme Court held that the city's zoning code definition of the term "family" is not a maximum occupancy restriction exempt from the Fair Housing Act. In enacting the Fair Housing Act, Congress recognized the distinction between municipal land use regulations--which are subject to the Fair Housing Act--and maximum occupancy restrictions, for which it created an absolute exemption.

    Maximum occupancy restrictions cap the number of occupants per dwelling, typically in regard to floor space or the number and type of rooms. These restrictions ordinarily apply uniformly to all residents of all dwelling units. Their purpose is to protect health and safety by preventing overcrowding. These uniform rules are exempt from the provisions of the Fair Housing Act. On the other hand, rules designed to preserve the family character of a neighborhood, keyed to the composition of household rather than on the total number of occupants living quarters can contain, do not qualify for the exemption.

    While maximum occupancy restrictions are attractive to many municipalities, a strict quantitative approach may lead to the opposite result from that which the decisions endorse--a stable, single-family area.

NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE

Many local officials and citizens are concerned with the administration and enforcement of zoning and building laws. On the front line is the local building inspector. In many municipalities, the building inspector may wear several "hats" and may be charged with enforcing zoning regulations, State and local building codes and related regulations. In larger municipalities, the various enforcement tasks may be divided among the building inspector, the zoning enforcement officer and perhaps, a number of other officers or employees. The law concerning the definition of family differs for the separate contexts of zoning and building code administration. It is important for local officials, whether enforcing zoning and building in combination or separately, to learn the law applicable to their respective area of responsibility. This section addresses the definition of family in the context of the New York State Uniform Fire Prevention and Building Code.

Successful administration and enforcement of the New York State Uniform Fire Prevention and Building Code (Uniform Code) does not depend upon enactment of a definition of the term family by a municipality. The code itself defines the word family to mean "(a) household constituting a single housekeeping unit occupied by one or more persons" (9 NYCRR 606.3(a)(66)). The concept of family, however, is not as integral to administration and enforcement of the code as it is to the operation of a local zoning law.

The word family appears in the Uniform Code primarily in the context of occupancy classifications. Pursuant to Part 701 of the code, all buildings and structures are classified by their occupancy or use group. Section 701.2 states that "(o)ne- and two family dwellings for purposes of this code shall be classified with respect to the number of dwelling units for families each having not more than four lodgers . . . " (emphasis supplied). The regulation further provides that classification shall be in accordance with the following groups:

Group A1 --- buildings containing one dwelling unit; a bed and breakfast dwelling.
Group A2 --- buildings containing two dwelling units.
Occupancy classifications are critical to administration of the Uniform Code because the applicability of many code provisions depends upon a building’s occupancy classification. The terms one-family dwelling and two-family dwelling are used in the Uniform Code when the intent is to subject Group A1 and/or Group A2 buildings to the requirements of a particular code provision.

The occupancy classification of a residential building generally depends upon the number of dwelling units contained within the building rather than upon the nature of the relationship between the building’s occupants. The Uniform Code defines the terms dwelling and dwelling unit as follows:

Dwelling. Building containing not more than two dwelling units occupied exclusively for residential uses.
  1. One-family dwelling. Building arranged for one dwelling unit.
  2. Two-family dwelling. Building arranged for two dwelling units.
    (9 NYCRR 606.3(a)(55))
Dwelling unit. One or more rooms with provision for living, cooking, sanitary and sleeping facilities arranged for the use of one family. (9 NYCRR 606.3(a)(57))
In most instances, therefore, classifying a residential building is a matter of counting the dwelling units: one dwelling unit is a one-family dwelling (Group A1); two dwelling units is a two-family dwelling (Group A2); three or more dwelling units is a multiple dwelling (Groups B1, B2, B3, and B4).

In only one circumstance would the nature of the relationship of the occupants of a residential building affect the occupancy classification of the building. Section 701.2 of the Uniform Code provides that one- and two-family dwellings be classified on the basis of the "number of dwelling units for families each having not more than four lodgers, except that up to 10 transient lodgers are permitted in a one-family dwelling used as a bed and breakfast dwelling in accordance with section 1231.2(e) of (the) code." (emphasis supplied). Consequently, the presence of more than four lodgers residing in an individual dwelling unit, except in the context of operation of a bed and breakfast establishment, would be inconsistent with the classification of the building containing such dwelling unit as an A1 or A2 occupancy, even though the building contains only one or two dwelling units. The term lodger is defined in the code as follows:

Lodger. A transient, temporary or permanent paying guest. (9 NYCRR 606.3(a)(130))
In this limited circumstance the relationship between the occupants of a dwelling unit will be relevant to assigning the proper occupancy classification to a building. If five or more occupants of a dwelling unit must be characterized as "a paying guest" rather than a member of a "household constituting a single housekeeping unit," the building containing the dwelling unit cannot be classified as an A1 or A2 occupancy unless the building is a bed and breakfast dwelling.

Questions have been raised as to what effect certain New York statutes and regulations may have on the classification of a building as a one-family dwelling or a two-family dwelling for purposes of the Uniform Code. Subdivision (f) of Mental Hygiene Law §41.34 ("the Padavan Law") provides that "(a) community residence established pursuant to this section and family care homes shall be deemed a family unit, for the purposes of local laws and ordinances." Section 1.03 of the Mental Hygiene Law defines the term community residence to mean:

Any facility operated by or subject to licensure by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities which provides a supervised residence or residential respite services for mentally disabled persons and a homelike environment and room, board and responsible supervision for the habilitation or rehabilitation of mentally disabled persons as part of an overall service delivery system.

Subdivision 12 of Social Services Law §390 provides:

(a) Notwithstanding any other provision of law, except as may be required as a condition of licensure or registration by regulation promulgated pursuant to this section, no village, town (outside the area of any incorporated village), city or county shall adopt or enact any law, ordinance, rule or regulation which would impose, mandate or otherwise enforce standards for sanitation, health, fire safety or building construction on a one or two family dwelling or multiple dwelling used to provide group family day care or family day care than would be applicable were such child day care not provided on the premises. Nothing in this paragraph shall preclude local authorities with enforcement jurisdiction of the applicable sanitation, health, fire safety or building construction code from making appropriate inspections to assure compliance with such standards. The department of social services shall provide to the secretary of state on a monthly basis, a list of child day care registrants.

(b) Notwithstanding any other provision of law: for the purposes of this subdivision, no local government may prohibit use of a single family dwelling for family day care or group family day care where a permit for such use has been issued in accordance with regulations issued pursuant to this section; nor may any local government prohibit use for family day care or group family day care, of a multiple dwelling classified as fireproof or prohibit use for family day care or group family day care, of a dwelling unit located on the ground floor of a multiple dwelling not classified as fireproof, where in either case a registration or license for such use has been issued in accordance with regulations adopted pursuant to this section and such use is otherwise permitted under state fire and safety standards (the state code) and under any other existing standard for permitted uses of the multiple dwelling.

The provisions of the Uniform Code pertaining to the occupancy classification of buildings are not in conflict with the quoted provisions of the Mental Hygiene Law and the Social Services Law. The code defines community residence as a facility for the mentally disabled as defined by Mental Hygiene Law §1.03 and any rules and regulations promulgated under that statute (9 NYCRR 606.3(a)(34)). Section 701.2 of the code provides that one- and two-family dwellings shall also be classified as a community residence where applicable. The intent of that provision is to clearly establish that a building operating as a community residence may properly be classified as a one- or two-family dwelling, depending on whether the building contains one or two dwelling units. Classifying such a facility as an A1 or A2 occupancy conforms with the provisions of Mental Hygiene Law §41.34 which directs that the occupants of a community residence be deemed a family unit for purposes of local laws or ordinances.

Nor is the code in conflict with the provisions of Social Services Law §390 pertaining to the operation of family day care homes and group family day care homes. There is no provision of the Uniform Code which restricts operation of family day care or group family day care in a dwelling unit in a building classified as a one-family dwelling (A1 occupancy), a two-family dwelling (A2 occupancy) or a multiple dwelling (B1 occupancy). Indeed, the provisions of Social Services Law §390 quoted above clearly prohibit the Uniform Code from imposing any such restrictions upon premises otherwise used for residential purposes. The operation of a family day care home or a group family day care home is not a factor in the occupancy classification assigned to the building wherein the day care is provided.


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