Boraas v. Village of Belle Terre
| Decision Date | 27 February 1973 |
| Docket Number | No. 372,Docket 72-2040.,372 |
| Citation | 476 F.2d 806 |
| Parties | Bruce BORAAS et al., Plaintiffs-Appellants, v. The VILLAGE OF BELLE TERRE, an incorporated municipality, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
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Lawrence G. Sager, New York City (Arthur N. Eisenberg, Bruce J. Ennis, New York Civil Liberties Union, New York City, of counsel), for plaintiffs-appellants.
Bernard E. Gegan, Port Washington, N. Y. (James J. von Oiste, Village Atty., Port Jefferson, N. Y., of counsel), for defendants-appellees.
Before MANSFIELD, OAKES and TIMBERS, Circuit Judges.
Opinion Dissenting From Denial of Rehearing En Banc April 5, 1973.
Rehearing En Banc Denied March 16, 1973.
At issue upon this appeal is the constitutionality of a zoning ordinance of the incorporated Village of Belle Terre, New York, which prohibits groups of more than two (2) unrelated persons, as distinguished from traditional families consisting of any number of persons related by blood, adoption, or marriage, from occupying a residence in an area zoned for "one-family" occupancy. We hold that since the discriminatory classification is unsupported by any rational basis consistent with permissible zoning law objectives, it transgresses the Equal Protection Clause. The district court's decision denying preliminary injunctive relief against enforcement of the ordinance is reversed.
Plaintiffs Edwin and Judith Dickman, owners of a house in Belle Terre, a suburban municipality with approximately 700 residents occupying some 220 homes in Suffolk County, New York, have rented their six-bedroom, single-family residence for occupancy to plaintiffs Bruce Boraas, Anne Parish and Michael Truman, all students at the State University of New York at Stony Brook, located seven or eight miles away, and to three other students attending the same university who are not parties to the instant action. The premises were originally leased on or about December 31, 1971, by plaintiff Truman as lessee for a term ending May 31, 1973, at a monthly rental of $500. Plaintiff Boraas later became a co-signer of the lease on the same terms.
None of the six student occupants is related. Each occupies one of the six bedrooms and pays a portion of the rent. The six are organized and function as a single housekeeping unit insofar as they use the common cooking facility, dine together and share housekeeping, "yard" chores, and a "house" checking account from which disbursements for necessary household expenses are made. It is conceded that all of the occupants have behaved in a responsible manner, and no immoral conduct on their part is suggested. Four of them are pursuing graduate studies in sociology at Stony Brook.
Plaintiffs assert that before leasing the Belle Terre residence from the Dickmans they looked extensively for alternatives to traditional dormitory living, which admittedly are available. Conventional apartment rentals, when available, however, were found to be beyond their means, and a cooperative housing arrangement was considered by them to be pleasant, convenient, promotive of scholarly exchange, and within their pocketbooks.
The Village of Belle Terre, which consists of approximately 220 homes, is zoned exclusively for residence in one-family dwellings.1 A "family" is defined as:
"One or more persons related by blood, adoption or marriage, living and cooking together as a single housekeeping unit . . . a number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family." The Building Zone Ordinance of the Village of Belle Terre, Art. I, § D-1.35a (June 8, 1970).
To enforce the zoning code the ordinance further provides:
Building Zone Ordinance of the Village of Belle Terre, Art. VIII, Part 4, § M-1.4a(2) (Oct. 17, 1971).
On June 8, 1972, Boraas and Truman were denied residents' beach passes because the ordinance allegedly considered them "illegal residents."2 On July 19, 1972, the Dickmans, the owners-lessors, were served with a summons returnable before the Village Justice on July 28, 1972. However, because the Village Code required a 48-hour notice of violation, which had not been complied with, the summons was withdrawn. On July 31, 1972, the Dickmans were served with the required "Order to Remedy Violations" which notified plaintiffs that failure to remedy the condition might subject them to liability commencing on August 3, 1972.
On August 2, 1972, plaintiffs commenced an action in the district court under the federal Civil Rights Act of 1871, 42 U.S.C. § 1983, against appellees, who are the Mayor and Trustees of Belle Terre, seeking preliminary and permanent injunctive relief against enforcement of the ordinance and a declaratory judgment invalidating as unconstitutional the prohibition against residential occupancy by more than two persons "not related by blood, adoption, or marriage."3 Jurisdiction was grounded on 28 U.S.C. §§ 1331(a), 1343, and 2201. Pending a hearing on the constitutional issues, Judge Dooling issued a temporary restraining order.
Following a hearing on plaintiffs' motion for a preliminary injunction, Judge Dooling on September 20 issued a 40-page decision and order denying the motion for a preliminary injunction and upholding the validity of the ordinance. A temporary restraining order was continued for five days to enable plaintiffs to seek a stay pending appeal, which was granted by this Court on September 27, and thereafter extended to the date of our decision and mandate.
In his carefully considered opinion Judge Dooling decided that he was not precluded from reaching the merits by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), its brethren, or by the anti-injunction statute, 28 U.S.C. § 2283 (1965), and that abstention was not appropriate for the reason that the New York decisional law clearly indicated that the zoning ordinance would be deemed an exercise of power granted by New York's enabling legislation, N.Y. Village Law §§ 175, 177. See, e. g., City of Schenectady v. Alumni Association of Union Chapter, 5 A.D.2d 14, 168 N.Y.S. 2d 754 (3d Dept. 1957). Recognizing that plaintiffs had the "unquestionable right to live together in student groupings," free from unwarranted public intrusions, just as traditional families had the right to live in areas restricted to one-family dwellings, he summarized the issue before the court as follows:
"The question ultimately posed is whether it is lawful to have a one-family dwelling zone district which excludes equally small household groups who impose no greater burdens of use on the land, the building or the surrounding than a blood-and-marriage family group on the simple and bare ground that such student groups are not families made up of husband, wife and children." (A. 73a).
Judge Dooling concluded that the exclusionary classification could not be upheld on traditional grounds supporting zoning regulations as a valid exercise of state police power, see Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), because it did not promote "such familiar zoning objectives as safety, adequate light and air, preservation of the land from overintensive use, avoiding crowding of the population, reduction of traffic congestion and facilitation of adequate transportation, water, sewerage, school, park and other public services." (A. 77a). However, he decided that the ordinance represented a lawful exercise of a "legally protectable affirmative interest" in the family made up of married parents and children, i. e., the traditional "marriage-and-blood-related" families of the type presently occupying Belle Terre. Holding that the interest of such traditional families in maintaining uses of the same character in the community is a "proper zoning consideration," he described "such zoning as simply another of countless statutes of bounty and protection with which the states, and all of them, and the Federal government alike aggressively surround the traditional family of parents and their children, reaching from family court laws, through laws of inheritance to tax laws." (A. 77a).
In reaching its decision the district court gave weight to the smallness of the Belle Terre community, the absence of similar restrictive or exclusionary classifications in some nearby communities, and the existence of dormitory facilities at Stony Brook itself. Appellants here seek reversal on the ground that the Belle Terre zoning ordinance impinges upon their constitutional rights of privacy and association.
Although we are faced at the outset with a number of procedural questions, we agree with the district court that none of them precludes consideration of the merits. Since the Belle Terre ordinance was not of state-wide applicability, the statutory requirement for consideration by a three-judge court, 28 U.S.C. § 2281, has no application.
"The court has consistently construed the section 2281 as authorizing a three-judge court not merely because a state statute is involved but only when a state statute of general and statewide application is sought to be enjoined." Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967); see Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928). (Emphasis supplied.)
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