Sunday, March 28, 2010

In New York, Roommates and Normatively Acceptable Deviance

The New York Times today ran a great piece ("In New York, Breaking the Law on Roommates") on a regulation that captures the dynamic between acceptable deviance and property rights quite well: limits on the number of roommates that can share an apartment.

As the article shows, illegal behavior with regard to roommates is normatively acceptable.  As one 'deviant' said, “to pack unrelated people in an apartment? I don’t think it’s wrong.  It’s part of New York City culture.” And as usual, enforcement tends to follow the limits of acceptable deviance rather than the law itself: according to the Times, the law is "little known, widely broken and infrequently enforced."

But as the article also shows, the predictable danger when behavior is illegal but normatively acceptable -- selective enforcement -- is lurking.  According to a former New York City housing commissioner, that city's regulation was enacted with a very specific target in mind: "sketchy single-room-occupancy buildings and their often equally sketchy inhabitants."

Mark Edwards

[Comments are much sought after, but are held pending approval]

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Mark, I was about to post my own blog entry on this article. I'm glad I wasn't the only one who read it! Here's my two cents:

The article correctly mentions that similar laws exist in other cities. It does not mention that they are particularly popular in college towns. In 2003, I participated in drafting an amicus brief to the Indiana Supreme Court on behalf of the Indiana Association of Cities and Towns in the case of Dvorak v. City of Bloomington. Bloomington, Indiana, the beautiful home of Indiana University and its 40,000+ students, has an occupancy statute that read as follows:

"A family consists of an individual or people related by blood, marriage, or legal adoption, and any dependent children of the household. In the RE and RS districts and in the RT7 district except where overlaid by a PRO 15 district, "family" also includes a group of no more than three (3) adults, and their dependent children, living together as a single housekeeping unit in a dwelling unit. In all other districts, "family" also includes a group of no more than five (5) adults and their dependent children, living together as a single housekeeping unit." Bloomington Municipal Code §

Mr. Dvorak owned a home which he rented to more than three adults (students at IU). The City of Bloomington cited him for the violation of the zoning code and fined him $2,500 per day. Mr. Dvorak challenged the law on the basis that it violated Article 1, Section 23 of the Indiana Constitution: "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Ind. Const. art. I, § 23.

The briefs and oral arguments were very interesting. Essentially, the challengers argued that the Bloomington ordinance was obviously aimed at students and had a number of potentially unintended consequences. It did, after all, purport to define what a family is. But as I recall, much of the oral argument centered on whether unrelated adults generate more trash, etc., than related adults.

In light of my experience with the Bloomington case, the New York City ordinance is particularly interesting because it seems to be justified by related but different rationales. I wonder if anyone has undertaken a systematic study of these kinds of restrictions across the country?

By the way, part of Mr. Dvorak's argument was also the selective enforcement of the Bloomington zoning ordinance.

Tanya Marsh

Posted by: Tanya Marsh | Mar 29, 2010 12:46:53 PM

Hi Tanya -- Very interesting. I wonder how many of these ordinances have been attacked under State constitutions. The Supreme Court specifically upheld a them as applied to students in the Belle Terre case, holding that the number of unrelated adults could be limited even if the total number of occupants was not. But the Bloomington ordinance you describe would not include grandparents living without their children but with their grandchildren, would it? That might violate Moore v. East Cleveland, if my very sketchy memory serves.

Regardless, thanks for the response! It's great to know someone is reading these things!

Posted by: Mark Edwards | Mar 29, 2010 5:48:07 PM

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