PALO ALTO TENANTS'UNION v. Morgan

• Decision Date: 13 November 1973
• Docket Number: No. 71-1656.,71-1656.
• Citation: 487 F.2d 883
• Parties: PALO ALTO TENANTS' UNION, an unincorporated association, et al., Plaintiffs-Appellants, v. George MORGAN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

487 F.2d 883 (1973)

PALO ALTO TENANTS' UNION, an unincorporated association, et al., Plaintiffs-Appellants, v. George MORGAN et al., Defendants-Appellees.

No. 71-1656.

United States Court of Appeals, Ninth Circuit.

November 13, 1973.

Norton Tooby (argued), Romines, Wolpman, Tooby, Eichner, Sorensen & Constantinides, Menlo Park, Cal., Legal Aid Society of San Mateo County, Redwood City, Cal., American Civil Liberties Union, San Francisco, Cal., for plaintiffs-appellants.

Peter G. Stone, City Atty., Robert K. Booth, Jr., Senior Asst. City Atty. (argued), Palo Alto, Cal., for defendants-appellees.

Before MERRILL and BROWNING, Circuit Judges, and ANDERSON, District Judge.^*

PER CURIAM:

Plaintiffs-appellants have brought this action under the civil rights and declaratory judgment statutes, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202. They challenge as unconstitutional certain zoning laws of the City of Palo Alto, Municipal Code §§ 18.04.210 and 18.88.050, defining "R-1" or "single family residential" neighborhoods. Section 18.04.210 defines "family" to mean "one person living alone or two or more persons related by blood, marriage or legal adoption, or a group not exceeding four persons living as a single housekeeping unit." Plaintiffs-appellants sue on behalf of themselves as well as all others who constitute groups of unrelated persons in excess of four who inhabit dwellings in "R-1" neighborhoods in the City of Palo Alto. They seek an injunction against enforcement of the ordinances. The District Court denied injunctive relief, finding the ordinances to be constitutional and rendered judgment for defendants-appellees. Its opinion appears at 321 F.Supp. 908. From that judgment this appeal is taken.

On appeal plaintiffs-appellants rely on Boraas v. Village of Belle Terre, 476 F.2d 806 (2d Cir. 1973), in which case the Supreme Court has noted probable jurisdiction. 414 U.S. 907, 94 S.Ct. 234, 38 L.Ed.2d 145 (1973). In that case the ordinance of the Village of Belle Terre limited occupancy of single family dwellings to traditional families or to groups of not more than two unrelated persons. This ordinance was held to be a classification unconstitutionally discriminating against unrelated groups in excess of two persons. In our view the opinion in that case expressly serves to distinguish the ordinances in the case before us. Here the District Court noted: "The fact is that the average size of even the traditional family is less than four members * * *." 321 F.Supp. at 912. In the Belle Terre case the court stated, with...