by Jacob Huebert

February 15, 2019

Until this month, the city of Bowling Green, Ohio, had a strange rule about who could live together in the same house: Three people could share a “single-family” home, but only if at least two of them were related to each other by blood or marriage. And if more than three people shared a single-family home, only one or two of them could be unrelated to the others.

That meant, for example, that three unrelated people couldn’t share a house as roommates. And a couple engaged to be married couldn’t take on a roommate who wasn’t related to one of them.

What did “related” mean for purposes of this rule? City officials said virtually any bloodrelationship would do—even third cousins were “related” enough to live together without limitation.  

That’s bizarre because, as anyone who’s looked for relatives through a DNA-matching database such as 23andMe knows, a person’s third cousins likely include many people he doesn’t know, will never meet, and has little in common with besides some genes. Yet Bowling Green gave third cousins’ distant relationship a higher status than close relationships such as those of long-term domestic partners and lifelong friends.

Fortunately, the nonsensical provision of the city’s zoning code is no longer in effect, thanks to a lawsuit the 1851 Center for Constitutional Law brought on behalf of three fraternity brothers who wanted to share a house and the landlord who wanted to rent it to them. On February 1, United States Magistrate Judge James R. Knepp, II struck the law down for violating the Ohio Constitution’s guarantees of due process and equal protection.

Knepp wrote, “under the Ohio Constitution, private property rights are ‘fundamental rights’ to be ‘strongly protected.” And that means that when the government restricts the property rights of some people but not others, courts must ensure that the difference in treatment actually bears a reasonable relationship to some legitimate government purpose.

Knepp found that this rule was not reasonably related to any legitimate purpose.

The city claimed the rule served to protect the public’s “health, safety, morals, comfort, and general welfare,” to conserve property values, to facilitate the provision of public utilities and schools, and to reduce congestion on city streets. But Knepp didn’t accept that justification. He observed that the law exempted 233 houses that were “grandfathered in” and allowed an unlimited number of related adults to live together, even though those people would presumably pose the same concerns as unrelated individuals living together—so the law hardly seemed tailored to address the alleged problems the city cited.

Knepp also found the rule to be overly broad because it restricted living arrangements that had no greater impact on population density than the living arrangements that were allowed. “Rather than regulating based on space”—which might make some sense for the purpose of limiting population density—the city’s restriction was “based on relationship,” which had no apparent relevance to limiting population density.

What about the city’s view that college-age residents in particular could threaten a community’s peace and quiet? Knepp said the city hadn’t explained why the occupancy limit would address that problem, and, anyway, the law applied to anyone, not just college students.

The court rightly pointed out that the government could address any legitimate concerns about noise, property maintenance, parking, and traffic congestion directly and specifically by actually targeting those problems instead of targeting certain people based on questionable generalizations about them.

This decision shows how judges can give laws that infringe on property rights serious constitutional scrutiny. Too often, courts simply rubber-stamp state and local laws based on whatever flimsy pretext the government offers. Knepp, however, did what all judges should do by analyzing whether the government’s purported justification for its infringement on property rights actually made sense as a means of serving some legitimate purpose. And then he rightly struck down the law because it obviously didn’t make sense.

Serious scrutiny is especially appropriate for zoning rules, which have historically been used for illegitimate purposes such as keeping supposed “undesirables” out of certain neighborhoods.

This decision also shows how state constitutions can provide stronger protection for people’s rights than the federal constitution. Although the U.S. Supreme Court once held that occupancy limits like Bowling Green’s don’t violate the federal Constitution, Knepp rightly recognized that the Ohio Constitution could—and did—provide greater protection for property rights. In doing so, he cited the landmark Norwood v. Horneydecision, in which the Ohio Supreme Court ruled the state’s constitution barred local governments from using eminent domain to take property from one private party and give it to another based only on the supposed economic benefit to the community—even though the U.S. Supreme Court had ruled that the federal Constitution allowed such takings in the notorious Kelo case.

Bowling Green’s rule may stand out as absurd, but in fact local governments violate property rights in countless arbitrary ways. Lately, for example, many have been restricting people’s ability to share their homes through services such as Airbnb—often limiting who may share their homes instead of directly targeting the nuisances, such as the noise and parking congestion that they fear home-sharing could cause. As courts consider constitutional challenges to these restrictions, in lawsuits brought by the Goldwater Institute and others, they can look to Knepp’s opinion for an excellent example of how to give property rights the protection they deserve.  

Jacob Huebert is a Senior Attorney at the Goldwater Institute.

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