At Item 10 of the May 10th Planning Commission meeting, the Planning Commission considered a residential overlay ordinance, that would place greater restrictions than there would be, for example, in a conventional R-1 zoning district. (Two or fewer unrelated persons living in the single residence, rather than three or fewer persons.) The item stated that the Commission would
[H]old a public hearing to consider a change of the Zoning Ordinance regulations, to enact proposed amendments to the City of Whitewater Municipal Code Chapter 19, by creating Chapter 19.25, R-O Non-family Residential Overlay District. Said District will provide the City of Whitewater with an option to impose a restriction on designated areas of the City, after a public hearing is held, that will limit non-family households to 2 or less [sic] unrelated individuals.
Here are sundry remarks on the discussion of an overlay, a discussion that beings at about 74:00 in the city’s recording of the meeting. (The video recording of the meeting is available at http://blip.tv/file/3624624. The meeting’s agenda is available at Planning Commission Agenda & Attached Documents.)
A Campus Town. Rental housing has been a contentious topic in Whitewater for years, and so it remains. This overlay won’t change that. We’re a campus town. That’s why we have so much rental property relative to single family housing. Single family housing near a campus is susceptible of conversion because of its proximity to campus. When residents of a neighborhood complain about rental housing, they should look out their windows, and think about where they live. It’s next to a university. That’s why their neighborhood is attractive to buyers looking for rental housing, or current owners thinking about renting their homes.
Voluntary Transactions. There are no successful sellers without willing and able buyers. There wouldn’t be any rental housing in some of these neighborhoods without a high demand for it. That demand has continued, and that’s why some residents seek overlay restrictions: they don’t like the voluntary transactions of others, and seek to stop those free and cooperative exchanges.
Instead of restricting the economic liberty of others, they should find a place where they can live without inhibiting the economic opportunities of buyers and sellers.
Rather than decide for their properties alone, they seek an imposed rule to prevent others from free transactions and free association. They may only own one house, but they want to decide for others’ houses, too. Those favoring restrictions haven’t the means to purchase all the houses in a neighborhood themselves, so they want to use government to compel everyone (including those who paid for their own homes) to accept a restrictive policy.
Whitewater’s not talking about the underprivileged needing government services, either. These are property owners who want to use ordinances to restrict the free activities of others. If local government has a place other than public safety, then it should be to provide limited services to the poor, and it might do other things, too, short of telling owners how they can sell the property they bought with their earnings.
(That’s part of what’s absurd and disgraceful about Whitewater’s city manager once saying that these housing issues were the city’s biggest problem. No, and no again. We have above-average child poverty in Whitewater, and that’s a bigger problem than this rental housing issue. It’s morally obtuse to think otherwise. I’m very sure that many proponents of this ordinance would see that there are bigger issues in the city. That our city manager once said otherwise is simply ridiculous, and likely just ignorant pandering.)
These are property owners, using government as a cudgel and crowbar, to get their way, over other owners and prospective owners.
They are very happy with private property for themselves, but quick to interfere through legislation with others’ property.
Short Memories? I know that this proposal might be applied anywhere, but it’s the Starin Park neighborhood that’s been pushing this measure. There’s no secret in that. Only nine months ago, in August, Whitewater’s paid planning consultant proposed, on August 17th, a series of neighborhood preservation zones that would not have included the Starin neighborhood near campus. I find it unpersuasive that that same consultant now contends that the Comprehensive Plan always contemplated this outcome.
Not for the Starin neighborhood, it didn’t — and that’s one reason the neighborhood association is driving this proposal so strongly.
How Whitewater Got Here. I’m not surprised that we’re here, with a neighborhood association wanting an overlay ordinance. (I know that this ordinance might be applied anywhere.) Rental registration, supposedly strict enforcement of existing zone regulations, flyers, education programs, more talk about enforcement, etc.: yet here we are, with a special interest group seeking more restrictions.
They’re back seeking because everything else this city has done, in enforcement or otherwise, has been inadequate. For a municipal administration that once proclaimed this as our greatest problem, they’ve not made much progress. Spending time and wasting taxpayers’ money on marquee projects like the Innovation Center has been a triple waste: of tax funds and debt for the Center, of failure to address housing issues, and (worst of all) of ignoring greater problems of poverty and the inadequate administration of justice.
Applied to One Property? Beginning at 82.10, hears that this overlay could be applied to a single property. I’m sure it could; I’m equally certain how absurd that would be.
Wrong Standard for an Ordinance. There’s much that’s absurd about the contention — from the city of attorney, of all people — that under an ordinance one “could do a lot of crazy things.” I’m not sure whether he should be commended for his accurate assessment of Whitewater’s political culture, or criticized for his inability or unwillingness to help craft an ordinance that couldn’t be used in a “crazy” way. Too funny, all around.
By the way, legisaltion that’s so broad that one has to hope, or expect, that it will be used judiciously is legislation that’s too broad. When a politician says that enforcement will have to be careful, he should ask himself in what town he lives. It was a failure of this administration over many years, of enforcing too loosely and too strictly by turns, that exacerbated this problem. Now one is to hope that this new proposal, should it finally become law, will be enforced carefully?
Careful is not something Whitewater does very well, and it’s laughable to hope for what we have yet to see.
Past is prologue.
“Effectiveness” Breeds Only Failure. Let’s assume that a part of the city, like the Starin neighborhood, does face tremendous pressure to its current character, that can and should be overcome by an overlay. If the pressure is that great, and the ordinance is so effective, then does anyone doubt that the demand for rental housing will simply be diverted elsewhere in the city?
Those neighborhoods feeling demand diverted from another area will want their own overlays. One will beget another, until all the city will have one. After it all, we’ll still have unmet rental demand, and homeowners who will be unable to sell at a good price to meet that demand.
The Dissent Over Individual Rights. Finally, there is a longstanding federal case, that addressed restrictions like this, years ago having been imposed in New York. See, Village of Belle Terre v. Borass, 416 U.S. 1 (1974). The court’s majority opinion held that the residential restrictions under review in that case where legally valid under the United States Constitution. I don’t doubt that this overlay would be lawful, excepting only application to ludicrously small areas.
Still, I find that parts of Justice Marshall’s in dissent in Belle Terre are persuasive, as he wrote about the damage that such restrictions on residential arrangements did to freedom of association:
I am in full agreement with the majority that zoning is a complex and important function of the State. It may indeed be the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life. I therefore continue to adhere to the principle of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), that deference should be given to governmental judgments concerning proper land-use allocation…..
I would also agree with the majority that local zoning authorities may properly act in furtherance of the objectives asserted to be served by the ordinance at issue here: restricting uncontrolled growth, solving traffic problems, keeping rental costs at a reasonable level, and making the community attractive to families…. But deference does not mean abdication. This Court has an obligation to ensure that zoning ordinances, even when adopted in furtherance of such legitimate aims, do not infringe upon fundamental constitutional rights….
My disagreement with the Court today is based upon my view that the ordinance in this case unnecessarily burdens appellees’ First Amendment freedom of association and their constitutionally guaranteed right to privacy. Our decisions establish that the First and Fourteenth Amendments protect the freedom to choose one’s associates. NAACP v. Button, 371 U. S. 415, 430 (1963). Constitutional protection is extended, not only to modes of association that are political in the usual sense, but also to those that pertain to the social and economic benefit of the members. Id., at 430-431; Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964). See United Transportation Union v. State Bar of Michigan, 401 U. S. 576 (1971); Mine Workers v. Illinois State Bar Assn., 389 U. S. 217 (1967). The selection of one’s living companions involves similar choices as to the emotional, social, or economic benefits to be derived from alternative living arrangements.
The freedom of association is often inextricably entwined with the constitutionally guaranteed right of privacy. The right to “establish a home” is an essential part of the liberty guaranteed by the Fourteenth Amendment. Meyer v. Nebraska, 262 U. S. 390, 399 (1923); Griswold v. Connecticut, 381 U. S. 479, 495 (1965) (Goldberg, J., concurring). And the Constitution secures to an individual a freedom “to satisfy his intellectual and emotional needs in the privacy of his own home.” Stanley v. Georgia, 394 U. S. 557, 565 (1969); see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 66-67 (1973). Constitutionally protected privacy is, in Mr. Justice Brandeis’ words, “as against the Government, the right to be let alone . . . the right most valued by civilized man.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (dissenting opinion). The choice of household companions—of whether a person’s “intellectual and emotional needs” are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution. See Roe v. Wade, 410 U. S. 113, 153 (1973); Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Stanley v. Georgia, supra, at 564-565; Griswold v. Connecticut, supra, at 483, 486; Olmstead v. United States, supra, at 478 (Brandeis, J., dissenting); Moreno v. Department of Agriculture, 345 F. Supp. 310, 315 (DC 1972), aff’d, 413 U. S. 528 (1973).
The instant ordinance discriminates on the basis of just such a personal lifestyle choice as to household companions. It permits any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limits to two the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home. Belle Terre imposes upon those who deviate from the community norm in their choice of living companions significantly greater restrictions than are applied to residential groups who are related by blood or marriage, and compose the established order within the community.[4] The village has, in effect, acted to fence out those individuals whose choice of lifestyle differs from that of its current residents.[5]
This is not a case where the Court is being asked to nullify a township’s sincere efforts to maintain its residential character by preventing the operation of rooming houses, fraternity houses, or other commercial or high-density residental uses. [Note: Whitewater, Wisconsin already has the means through other zoning classifications to limit those uses.] Unquestionably, a town is free to restrict such uses. Moreover, as a general proposition, I see no constitutional infirmity in a town’s limiting the density of use in residential areas by zoning regulations which do not discriminate on the basis of constitutionally suspect criteria.[6] This ordinance, however, limits the density of occupancy of only those homes occupied by unrelated persons. It thus reaches beyond control of the use of land or the density of population, and undertakes to regulate the way people choose to associate with each other within the privacy of their own homes….
A variety of justifications have been proffered in support of the village’s ordinance. It is claimed that the ordinance controls population density, prevents noise, traffic and parking problems, and preserves the rent structure of the community and its attractiveness to families. As I noted earlier, these are all legitimate and substantial interests of government. But I think it clear that the means chosen to accomplish these purposes are both overinclusive and underinclusive, and that the asserted goals could be as effectively achieved by means of an ordinance that did not discriminate on the basis of constitutionally protected choices of lifestyle. The ordinance imposes no restriction whatsoever on the number of persons who may live in a house, as long as they are related by marital or sanguinary bonds—presumably no matter how distant their relationship. Nor does the ordinance restrict the number of income earners who may contribute to rent in such a household, or the number of automobiles that may be maintained by its occupants. In that sense the ordinance is underinclusive. On the other hand, the statute restricts the number of unrelated persons who may live in a home to no more than two. It would therefore prevent three unrelated people from occupying a dwelling even if among them they had but one income and no vehicles. While an extended family of a dozen or more might live in a small bungalow, three elderly and retired persons could not occupy the large manor house next door. Thus the statute is also grossly overinclusive to accomplish its intended purposes….
By limiting unrelated households to two person while placing no limitation on households of related individuals, the village has embarked upon its commendable course in a constitutionally faulty vessel. Cf. Marshall v. United States, 414 U. S. 417, 430 (1974) (dissenting opinion). I would find the challenged ordinance unconstitutional. But I would not ask the village to abandon its goal of providing quiet streets, little traffic, and a pleasant and reasonably priced environment in which families might raise their children. Rather, I would commend the village to continue to pursue those purposes but by means of more carefully drawn and even-handed legislation.
I believe that writing in dissent, Marshall was generally right. (I wouldn’t regulate at all, though, rather than offer neutral regulations as he suggested. Still, I surely agree that the disparity between different associations of person is an infringement on liberty and a bad one.)
Perhaps, a future court, re-visting these issues, will embrace Marshall’s view as the law of this country. That day is not today, and it will not be tomorrow, in Whitewater. I hope it will come, believing we will be better off for it.
I think it better to dissent from Whitewater’s proposed overlay, as Marshall did from a majority opinion handed down decades ago.