April 6, 2008
Boston Threatens Property Rights
By Richard L. Cravatts
In a move that may prove shortsighted and misguided, the Boston Zoning Commission, with support from City Councilor Michael Ross and Mayor Menino, recently enacted an ordinance ostensibly designed to curb the anti-social behavior of college students who, living as groups in rental units, are accused of having a negative effect on neighborhoods with overcrowding, noise, and raucous parties. Additionally, say families of renters in student-dense neighborhoods, when property owners rent to groups of students, they are able to charge higher rents, thus pricing out families who cannot pool their rent resources in ways students can.
The solution to these problems is a new ordinance which will make it illegal for landlords to rent to more than four students in a single rental unit, even, presumably, if existing zoning laws would normally permit more than that number of individuals to occupy the same unit. The ordinance permits, for example, families or extended families of any number to occupy rental units.
This new housing regulation, like rent control before it, attempts to create some social good -- affordable rental housing, quiet neighborhoods -- but looks to private property owners to remedy what should, as a matter of equitable policy, be solutions borne by taxpayers at large. Having experienced continual pressure from neighborhood residents and affordable housing activists, City officials have reacted with a solution riddled with thorny constitutional questions and issues of practicality and fairness.
The new ordinance stipulates that landlords henceforth will be enjoined from renting to more than four students in a single dwelling, the thinking being that larger student households are more likely to become magnets for parties, rowdiness, and general anti-social behavior. There is a second, even more troubling, intent of the new ordinance, however: if property owners can no longer rent to larger groups of students, it is hoped that rents will thereby be reduced, making units more affordable to traditional families.
While the ordinance was fashioned with good intentions, and hoped to address a significant social issue in Boston neighborhoods, there are some serious flaws in its conception and execution:
- A zoning ordinance that has as one of it objectives to limit the amount of rent an owner could potentially realize in an unregulated market, thus reducing his profits and the value of his property, has been seen by some courts, as it has with rent control, as a "taking" of private property by the government for "public use, without just compensation," a violation of the Fifth Amendment. In his 1960 decision in Armstrong v. United States, for instance, Justice Hugo Black noted that this protection for owners of property "was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." It may seem like a reasonable solution to some housing advocates and politicians to create rental housing affordability for non-students by depriving owners of the higher rents they could charge to students willing to pay them, but they thereby not only deprive students of equal protection under the law, but also introduce regulations that are confiscatory, limit the free use of one's private property, and harm one group of citizens-property owners-while trying to ameliorate the living situations and economic concerns of some other groups.
- Landlords legally cannot proscribe or police the private behavior of tenants -- nor should they have to -- even if it was permitted by housing law. After the tragic 1988 murder of a Boston police officer during a drug raid at a rental property, city officials floated a similarly misguided idea of making property owners liable for the illegal drug activities of tenants living in their rental properties. The concept was legally unworkable, for many of the same reasons that the current proposal involving students will prove impracticable: landlords are specifically prevented from violating the privacy rights of their tenants, and do not have the legal ability to either enter a unit to search for evidence of drug dealing or determine the personal relationships, status, or lifestyles of their tenants. College students are not in themselves what the law recognizes as a "protected class" -- that is, a group whose rights are specifically protected from discrimination in housing -- but how would a property owner deal with a group of more than four students who wished to rent a unit and happened also to be minorities, or physically handicapped, or members of other protected tenant groups?
- The courts have also repeatedly asserted that tenants, when they live in units that conform to zoning regulations, are entitled to an expectation of privacy from government intrusion, something they seemingly would be denied if Boston officials can prevent them from living together merely because they happen to be college students. In his dissent in a 1974 case in which the town of Belle Terre, New York had enacted a similar provision to restrict the number of unrelated students who could occupy a rental unit, Supreme Court Justice Thurgood Marshall suggested that "Zoning officials may restrict the use of land, but may not properly restrict who the persons living on land may be, ‘what they believe, or how they choose to live.'" "That decision," he concluded, alluding to Louis Brandeis' own reverence for the necessity of government to "leave citizens alone," "surely falls within the ambit of the right to privacy protected by the Constitution."
- While the Boston ordinance specifically prevents more than four college students, and only students from living together in a unit, it will allow families, even extended families, to occupy the same units that will now be unavailable to students. That is a very broad and cynical determination that assumes that all students are inherently more likely to be bad neighbors than, say, a related group of illegal immigrants, or five employed motorcycle gang members, or even a conventional family with six vehicles, loud and destructive teenagers, and a propensity for weekly beer-infused barbecues in the backyard. Justice Marshall saw the same inherent unfairness in the Belle Terre statute, since it denied equal protection to all citizens and discriminated
"on the basis of just such a personal lifestyle choice as to household companions. It permit[ed] any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limit[ed] . . . the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home."
- There are other measures to address the social problem of rowdy student behavior which are more practical to implement and less intrusive than regulations which have tended to harm, rather than ameliorate, housing markets. If students misbehave and become nuisances in their rental units, why make property owners bear the burden for this anti-social activity? Existing public nuisance laws and noise ordinances give police and other officials the ability to punish offenders with civil violations. Instead of blaming a landlord for providing living space for a group, why not fine or punish the students themselves if they break the law, just as we would for any group that became a nuisance in a neighborhood? Why not enlist the universities in putting pressure on off-campus students who regularly misbehave, with the threat of sanctions, holding back of transcripts, and, if necessary, expulsion? And what about the students' parents, who, as is generally the case, co-sign their leases and have both a financial and legal responsibility to insure that their children have trouble-free tenancies
Richard L. Cravatts, Ph.D., director of Boston University's program in publishing at the Center for Professional Education, writes frequently about real estate development, affordable housing, and banking.