Four’s company, five’s a crowd — by zoning officials’ count; Landlords take on city over new roomate policy

By Ted Siefer

“A bunch of fascists,” muttered a supporter of the plaintiffs as she exited a Boston courtroom of the Land Court recently. Presumably she was referring to city officials and their new policy prohibiting landlords from renting apartments, regardless of their size, to more than four undergraduate students.

Those plaintiffs - four property owners and a student - were in court seeking a preliminary injunction on the policy. In a wide-ranging lawsuit, they charged the city of Boston with violating their right to equal protection, to association and privacy, and to turn a profit.

The Boston Zoning Commission, with strong backing from Mayor Thomas M. Menino and the City Council, had adopted the measure, which alters the definition of family in residential districts to exclude five or more students, in March. The amendment gives the city legal grounds for cracking down on de facto dorms near campuses, where students, sometimes eight or nine per unit, have a reputation for pushing the limits of their newfound independence.

The lead plaintiff in the Land Court suit, Mark Rosenberg, who owns more than 15 properties in Allston-Brighton, told Exhibit A that he finds the new policy to be blatantly discriminatory.

“What are we supposed to do? Advertise: ‘No students - working-people only’?” he asked. “It just seems so unfair to owners and students.”

City Councilor Michael P. Ross, the original proponent of the measure, is not shedding any tears.

“The plaintiffs represent the very type of property owners and the problems we’re trying to discourage,” he said.

Rosenberg, for example, is on the Inspectional Services Department’s top 20 list of code violation ticket scofflaws, issued primarily for improper trash disposal.

“We fully expected a legal challenge,” said Ross, who represents Beacon Hill, Mission Hill and the Fenway, neighborhoods that are battlegrounds for town-gown tensions. “I think we’re on solid footing here,” he added.

Violinists or motorcyclists?

For all the claims raised in the plaintiffs’ complaint, the thrust of their case, as laid out by Boston attorney Stephen A. Greenbaum at the Land Court hearing in May, is that the zoning amendment does not make sense.

“According to this amendment, five violin players at a conservatory cannot live together, but five or more Starbucks baristas or members of a motorcycle gang can,” Greenbaum told Land Court Judge Charles W. Trombly Jr.

Moreover, Greenbaum argued, determining and monitoring who is a full-time undergraduate student would violate students’ privacy and make the law “simply impossible to enforce.”

If Greenbaum’s argument is based more on the impracticality than the unconstitutionality of the zoning amendment, it is because the lawsuit’s first hurdle will likely be the “rational basis test.” The well-established doctrine holds that courts should refrain from overruling legislative actions, even arguably unsound ones, so long as they are rationally connected to a legitimate aim of the government.

Thus Saul A. Schapiro, the Boston lawyer hired by the city to defend the policy, maintains that the zoning amendment was carefully conceived and directly linked to addressing the “massive impact students have, depriving residents of affordable places to live and creating garbage and noise.”

‘The residential character’

Boston is not the first municipality to use zoning to keep students out of residential neighborhoods - or to limit their numbers. Nor is Boston the only place those laws have been challenged, although most of those cases have been brought in suburban regions where a diverse array of communities is presumably less an accepted fact of life.

And despite the insistence by attorney Schapiro and councilor Ross that “students are not a protected class,” as is race or religion, the other cases present a range of interpretations on how the 14th Amendment right to equal protection applies to students in zoning decisions.

For example, in a 1993 case cited by Greenbaum, Kirsch v. Prince George’s County, the Maryland Court of Appeals invalidated a zoning ordinance restricting rentals to no more than three college students. The court found that the impact of the so-called “mini-dorm” ordinance “denied those students equal protection of the laws under the 14th Amendment.”

In a 2003 case, a court in Newark, Md., invoked the Fair Housing Act of 1968 to strike down a similar zoning law, finding that it “facially discriminated based upon the marital status of a tenant.”

On the other hand, Schapiro, in his response to the landlords’ suit, cites a 1992 case, Smith v. Lower Merion Township, in which a U.S. District Court in Pennsylvania upheld a student-targeted zoning law, based largely on “rational basis” grounds. The law, the court found, was “rationally related to a constitutionally permissible purpose, the preservation of the residential character of the community and the reduction of noise and congestion.”

Both the case cited by Schapiro and the one by Greenbaum were appealed to the U.S. Supreme Court, which declined to hear them, leaving the question for lower courts to hash out.

‘Contrary to the law’

In making the case that the city’s law is “arbitrary and capricious,” Greenbaum could have also pointed out that, prior to the amendment, the Boston Zoning Code already barred more than four unrelated people - students or otherwise - from sharing an apartment.

But Schapiro claimed this argument for his own purposes, to justify why the plaintiffs should not be grandfathered in under the new law. “To the extent plaintiffs were doing this prior to the amendment, they were acting contrary to the law,” Schapiro told the judge.

It appears that, in enforcing occupancy limits, the city’s Inspectional Services Department generally relied on the state Lodging House law, not on the Boston Zoning Code. The statute requires landlords seeking to rent to four or more unrelated people to obtain a license, which would hinge on the unlikely prospect of community approval. (ISD brought into court at least one of the plaintiffs in the suit, Lloyd Rosenthal, for violating the statute, in 1993.)

In response to a lawsuit brought by three Vietnamese immigrant families, the U.S. District Court ruled in 2003 that ISD had overstepped its bounds in enforcing the statute. The Sang Vo ruling limited what types of housing were governed under lodging house laws, specifically excluding apartments shared by roommates and setting strict guidelines for how inspections are conducted.

City Councilor Ross said that Sang Vo left ISD without marching orders for cracking down on overcrowded apartments and that this lack of direction prompted the need for an updated law.

‘Going to make things worse’

As the start of the fall semester approaches, students, property owners and rental companies seem to be banking on the fact that the new ordinance will be as spottily enforced as the old one.

Valerie Brinker, one of several real estate agents who have five-bedroom-plus apartments in student areas advertised on the craigslist website, reports that neither landlords nor students seem particularly inhibited by the new law.

“I think [the ordinance] is unconstitutional, and it will just make things worse,” Brinker says. “The partiers will just have more room to throw parties.”

In any case, an ISD spokesperson said the department will not be enforcing the policy until the fall when new leases commence. {EXA}

Editor’s note: Prior to deadline, the Land Court judge denied the plaintiffs’ request for an injunction, finding that they were not facing “irreparable harm” as a result of the city’s policy. He avoided the equal protection issue but wrote that if he were to consider it at a later stage, rational basis review would incline him to be “lenient” toward the city. The lawyer for the plaintiffs said they intend to continue their legal challenge.

Ted Siefer is a Boston-based freelance writer. He can be contacted at  tedsiefer at mac.com.