Zoning fight requires political, not judicial, resolution

An interesting sideshow has developed where semi-perennial political candidate Steve Myers, whose livelihood involves brokering and renting houses in Baton Rouge, has challenged the ability of the local planning authority to prevent multi-family residences in single dwellings in certain parts of town. Even if there is a certain deprivation of property rights inherent to the idea, it’s a battle he’s unlikely to win.

Myers, who most recently ran and finished dismally in the 2012 mayor-president’s election, argues that the city-parish’s unified code is unconstitutional because it prohibits people unrelated to each other by birth, marriage, or legally (specified as through adoption) in one dwelling, excepting the provision mandated in the federal Fair Housing Act that allows this for up to four additional unrelated individuals if one is the owner. The city-parish has sued him at least three times for violations, and he counter-sued with this claim.

He asserts that the zoning law violated the Act and suggested that “family” be redefined to include people unrelated by birth, marriage, or legally. But while the Act says “family includes a single individual,” it defines it in no other way and does not speak to any other comprehensive definition. Further, it does not define as discrimination choices to rent on the basis of “family.”

Just so. The U.S. Constitution grants a general police power to states that includes their ability to define what is a “family.” However, neither has the state of Louisiana provided any such comprehensive definition, leaving instead clues related to birth, marriage, and legal status, such as through its Constitution’s prohibition of same-sex marriages and the law that an adopted minor is related legally only to a married couple or single individual.

In absence of such a comprehensive definition, local governments may choose to define “family” in accordance with those parameters, with special ability to do so granted to those governments operating under a home rule charter – as is the metropolitan government in this case. Therefore, its choice of this definition is constitutional. Further, the question of whether this kind of restriction long ago has been settled as part of the doctrine that local governments may zone as long as it does not constitute an illegitimate taking of private property.

Thus, Myers and others who see this kind of ordinance as too abusive of property rights have several political recourses, as they have none constitutionally. One would be to get the state to put into the Constitution or law a definition of “family” that includes persons unrelated by birth, marriage, or some other legal arrangement, or at least broaden the arrangements available, and then prohibit rental discrimination on that basis. A second would be to get the metropolitan government to change its zoning laws. A third option would be to get it to get rid of zoning entirely. A fourth, and perhaps least involved, would be to get a zoning variance.

Solutions exist, but they are not along the lines of banking on judicial activism. If you find those outcomes as abusive of property rights, then mobilize politically to redefine the law at the state or local level, or in the Constitution or charter. In this case, operating by court fiat neither is appropriate nor possible.