People v. Multari

• Decision Date: 09 June 1987
• Citation: 135 Misc.2d 913,517 N.Y.S.2d 374
• Parties: , 40 Ed. Law Rep. 912 The PEOPLE of the State of New York, Plaintiffs-Respondents, v. Angelina MULTARI and Frank Multari, Defendants-Appellants. The PEOPLE of the State of New York, Plaintiffs-Respondents, v. Jasmine SEE, Defendant-Appellant.
• Court: New York County Court

Page 374

517 N.Y.S.2d 374

135 Misc.2d 913, 40 Ed. Law Rep. 912

The PEOPLE of the State of New York, Plaintiffs-Respondents, v. Angelina MULTARI and Frank Multari, Defendants-Appellants.

The PEOPLE of the State of New York, Plaintiffs-Respondents, v. Jasmine SEE, Defendant-Appellant.

Albany County Court.

June 9, 1987.

Vincent J. McArdle, Jr., Corp. Counsel, James D. Linnan, Asst. Corp. Counsel, Albany (of counsel), for plaintiffs-respondents.

Shaye & Milstein, James Milstein, Albany (of counsel), for defendants-appellants Multari.

William A. Toomey, Jr., Shawn D. Flaherty, Albany (of counsel), for defendant-appellant See.

JOSEPH HARRIS, Judge.

These two cases on appeal from judgments rendered in Albany Police Court (Keegan, J.), present the issue of the constitutionality of that portion of the City's zoning ordinance commonly referred to as the Grouper Law. Specifically, appellants urge that the definition of family contained in Section 27-160 of the Code of the City of Albany on its face infringes upon the due process protections afforded by the New York State Constitution.

In McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 547-548, 498 N.Y.S.2d 128, 488 N.E.2d 1240, the Court of Appeals struck down a zoning ordinance which attempted to limit occupancy of single-family houses by defining the term family in the following manner:

"(a) Any number of persons, related by blood, marriage, or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit; or

(b) Any two (2) persons not related by blood, marriage, or legal adoption, living and cooking on the premises together as a single, nonprofit housekeeping unit, both of whom are sixty-two (62) years of age or over, and residing on the premises."

In McMinn, supra, the Court noted that zoning ordinances, like other legislative enactments, are presumed constitutional and the burden is on the party challenging the ordinance to prove its unconstitutionality. Nevertheless, it is well established that in order for a zoning ordinance to be a valid exercise of the police power, it must survive a two-part test: (1) it must have been enacted in furtherance of a legitimate governmental purpose, and (2) there must be a "reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end." (McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 547, 498 N.Y.S.2d 128, 488 N.E.2d 1240). Finally, if the ordinance fails either part of this test, it is unreasonable and constitutes a deprivation of property without due process of law under our State Constitution (French Investing Co. v. City of New York, 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381).

Further, in McMinn, supra, at 550-551, 498 N.Y.S.2d 128, 488 N.E.2d 1240, the New York Court of Appeals held: "Zoning is 'intended to control types of housing and living and not the genetic or intimate internal family relations of human beings' (City of White Plains v. Ferraioli, 34 N.Y.2d 300, 305, 357 N.Y.S.2d 449, 313 N.E.2d 756) and if a household is 'the functional and factual equivalent of a natural family' (Group House v. Board of Zoning & Appeals, 45 N.Y.2d 266, 272, 408 N.Y.S.2d 377, 380 N.E.2d 207) the ordinance may not exclude it from a single-family neighborhood and still serve a valid purpose ... Zoning ordinances may define the term family alternatively to include various circumstances and relationships ... but only so long as the ordinance, when read in its entirety, does not exclude any households that due process requires be included ... is not per se unconstitutional provided the ordinance contains an alternative definition of family as any number of unrelated persons living together who meet the indicia we set forth for the functional equivalent of a traditional family in Group House v. Board of Zoning & Appeals, supra, at pp. 272-273, 408 N.Y.S.2d 377, 380 N.E.2d 207 and City of White Plains v. Ferraioli, supra, at pp. 305-306, 357 N.Y.S.2d 449, 313 N.E.2d 756 ..."

From the above two cases it is clear that what is meant by the Court of Appeals in its phrase "the functional equivalent of a traditional family", which must be permitted under any restrictive definition of family in order to pass constitutional muster, is the traditional structure known as a "group home", consisting of one or more surrogate parents and a number of foster children, living together as a permanent-like surrogate family--not as an institution, not as a temporary residence for transients, but akin to a permanent family structure.

Section 27-160 of the Code of the City of Albany defines the term family as:

"One or more persons occupying a premises and living together as a single housekeeping unit, subject to a limit of not more than three unrelated persons 18 years of age or over."

As in McMinn, it cannot be seriously disputed that this ordinance was enacted to further several legitimate, and in fact highly desirable governmental objectives, including preservation of the character of traditional single-family neighborhoods, reduction of parking and traffic problems, control of population density and prevention of noise and disturbance, among others.

However, the ordinance in McMinn, supra, faltered in failing to provide as part of its definition of family, alternatives that would permit inclusion of any number of unrelated persons living together as "the functional equivalent of a traditional family"--that is, group homes as described and mandated in Group House v. Board of Zoning & Appeals, supra, and City of White Plains v. Ferraioli, supra.

In order to survive this challenge, the ordinance of the City of Albany must be examined to determine whether, on its face, the definition of family prohibits those types of living arrangements that amount to "the functional equivalent of a traditional family."

The ordinance of the City of Albany was artfully drawn to meet the requirements of Group House v. Board of Zoning & Appeals and City of White Plains v. Ferraioli. The ordinance does not require the existence of blood, marriage or adoption, it places no restriction whatsoever on the number of unrelated children who may reside together and it allows up to three unrelated adults to live together. Limiting occupancy to not more than three unrelated persons 18 years of age or over, does not exclude that type of living arrangement known as "group homes", used for the foster care of children, and which have expressly been termed "the functional and factual equivalent of a natural family" (Group House v. Board of Zoning & Appeals, 45 N.Y.2d 266, 272, 408 N.Y.S.2d 377, 380 N.E.2d 207).

On its face, by definition, and in fact, respondent's ordinance defining family does not unconstitutionally exclude or restrict those living arrangements that have previously been pronounced the functional equivalent of a traditional family.

There being a reasonable relation between the legitimate governmental ends sought to be achieved by the ordinance--to wit, the reduction of parking and traffic problems, control of population density, prevention of noise and disturbance, and preservation of the character of traditional single-family neighborhoods (See: Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d...