A look at the efficacy of Amherst’s occupancy restriction Reply

Amherst has a zoning bylaw that restricts the number of unrelated individuals that can live in a home to four.  If you have a family of more than four, however, that is not an issue. The reason for the bylaw restricting the number of those who are not related is to get a grip on the large population of students and their impact on housing and the neighborhoods in which they reside.  However, will Amherst’s occupancy restrictions have the desired effect of mitigating the impacts of off-campus student housing or will it do more harm than good?  Moreover, are they discriminatory and a direct violation of Massachusetts fair housing laws.

A colleague said that he had heard of municipal laws of the 19th and early 20th century that sought to prevent the establishment of houses of ill repute, known as brothels, which limited the number of women who were not related from living together.  He said that they may be the precedent that set the stage for Amherst’s modern day occupancy restrictions.  Always looking for fodder for an interesting blog post, I decided to look into it to see if this could actually be the case.  So I broke out my Google machine to see what turned up.

It turns out that, according to the sources I could find, these so-called “Brothel Laws” are more of a myth, but occupancy restrictions are not. However, there is a state law on the books that seems to address brothel-like activities in lodging houses.

Further, there is currently a case out of Worcester that is being appealed to the Massachusetts Supreme Judicial Court.  A landlord is appealing a lower court’s decision that the city can limit occupancy to 3 or less per unit based on a 1918 definition of lodging house as, “let to four or more persons not within second degree of kindred to the person conducting it…”.  This could have deleterious consequences for renters throughout the commonwealth.  One brief refers to this possible unintended consequence as an “Orwellian twist” stating, “the [lower] Court has expanded the notion of “lodging house” to encompass each and every dwelling unit in the Commonwealth that is rented to four or more persons (not just adults, i.e., mother, father/ two or more children), unless at least one of the persons is a parent, child/ grandparent, grandchild, brother/ or sister of the ‘person conducting it’.”

So I sent an email to Amherst’s Planning Director, Jonathan Tucker, to see if he could offer any insights into the history of Amherst’s occupancy restriction.  He advised me that Amherst’s zoning bylaws restricting the number of unrelated individuals were adopted in the mid-1960’s as a response to the growth of UMass and that, understandably, brothels were not a concern at that time.

Open Saturday 1-3pm (There is more on this below video)

“The overriding issue from the mid-1960s until the mid-1970s was the exponential growth of the University and the resulting impacts on Amherst’s existing housing stock,” Tucker stated in an email.  “It is almost certain that the four unrelated definition was adopted as an attempt to get a handle on unregulated informal student residences that began appearing throughout Amherst.”

Tucker explained that Amherst didn’t have any zoning until the 1920’s, but there was a law that prohibited the use of property that was “harmful to public morals”. However, there were not restrictions regarding unrelated people living together at that time.

Although I learned through my Google machine that other municipalities throughout the country have similar bylaws, Tucker was kind enough to send a legal opinion from the town’s attorney,  Joel Bard of Kopelman and Paige,  that cited United States Supreme Court cases that defend these types of bylaws.  He also sent a list of towns in the commonwealth with similar bylaws, which include Easthampton, Greenfield, Hadley, Hatfield, Northampton, Pelham, Shutesbury, South Hadley, Williamsburg, and Whately.  However, I do not know to what degree these bylaws are enforced.

Evanston, Illinois is the home of Northwestern University, which also has a so-called brothel law on the books and started enforcing it only in the last couple of years, according to local news reports (these news reports actually refer to it as a brothel law).  In their effort to convince the community that their brothel law is not effective, the North Shore-Barrington Association of REALTORS® brought in UMass, Amherst Associate Professor of Regional Planning Ellen J. Pader, who they billed as a leading scholar of occupancy issues, to give a talk at their local public library in front of a reported 80 attendees and quoted her in their position paper on the issue, Defining an Evanston family: An analysis of the City of Evanston’s definition of family and its impact on housing and the community. 

The NSBAR paper makes 8 key points that dispute the notion that these types of occupancy restrictions are a solution to the issues student housing brings.    The UMass professor was cited to support  the REALTOR® association’s first two key points, that “the number of unrelated individuals in a dwelling unit and over-occupancy are separate and distinct issues” and those such laws, “provide an outdated, artificial, arbitrary and culturally biased definition of a family.”

Open House Sunday 1-3pm (There is more on this below the video.)

Citing a 1999 paper, Restricting occupancy, hurting families, NSBAR quote Pader to complement their contention that arguments that claim restricting the number of unrelated individuals is a safety matter are disingenuous as she stated: “While appearing to be neutral, and purported by their supporters to be in the interest of protecting the physical and mental health and safety of all, property owners and municipalities have long used overly restrictive occupancy codes explicitly to keep out unwanted populations…”.  The ellipsis ends the quote because the sentence ends with, “and maintains a particular ethnic status quo in a community.”  So in the paper she is referring to racial housing discrimination, which is illegal under fair housing laws. (In a news report covering Pader’s visit, Pader explains that occupancy laws originate from colonial America to deal with immigrants from different cultures living in the same neighborhoods because they didn’t mesh well.)

Regarding how occupancy restrictions are outdated an arbitrary, Pader is quoted in the same paper and an earlier one dating back to 1994 from the ‘Lectric Law Library in NSBAR’s contention that occupancy restrictions are discriminatory.

“What we’re really talking about here is a culturally constructed definition of appropriate family composition and the apportioning of domestic space masquerading as a neutral, and even healthy and necessary, social policy,” Pader was quoted as stating. “Occupancy standards ‘are based on a middle-class, Anglo-saxon concept of family relationships and living space.’”

The other arguments that NSBAR make are:

  • The law does little to curb student nuisance.
  • The law exasperates neighborhood nuisances.
  • The law decreases housing affordability.
  • The law discourages investment and likely reduces property values.
  • Property owners and real estate licensees are placed in the position of people’s relationship status.

As a REALTOR®, I have had first-hand experience regarding Amherst’s occupancy restriction discouraging investment and reducing property values.  I had a listing near UMass that several investors were interested in the property because of its proximity to campus, but because of the town’s occupancy restriction, the numbers did not work for what the seller wanted.  If investors were unencumbered by the restriction, it is likely that they would have been willing to pay more for it.

Also, as a REALTOR®, it would be illegal for me to steer a consumer away from a property because of their familial status, so these occupancy restrictions and other that address a certain segment of a community make me uncomfortable.  Further, Massachusetts Fair Housing Law seems to trump these housing restrictions as it states that, among other things, you can’t discrimination based on marital status nor age.  Most students are young and single.  Regardless of the fact that an individual is a student,  they are still being discriminated against because of their status as young and single people.  The fact that they are also students is irrelevant, in my opinion.

So while these laws may not be traced to a need to prevent the establishment of brothels, they may fail at their intended goals and find that they are discriminatory.   Despite the fact that town counsel offered an opinion that lends credibility to the law that included a 1970’s U.S. Supreme Court decision, as UMass political science professor Sheldon Goldman told Masslive in 2009 regarding one of the cases cited in Kopelman and Paige’s opinion, “”But since then privacy law has been liberalized although to the best of my knowledge the precise question before the Court in Belle Terre has not been reconsidered. A good legal argument can be made on both sides of the issue.”

There is no doubt that there needs to be accountability among Amherst’s student population and among the landlords that rent to them.  Students should also respect their neighbors when they decide to live off-campus.  However, restricting the number of people who can live in a residence simply because they are not related to one another is a burdensome solution on many levels that will likely do more harm than good.  In a liberal and intellectual community such as Amherst, I would expect a more intelligent solution than one as capricious as occupancy restrictions.

For me, the fallacy of the notion that occupancy restrictions will solve the impacts caused by off-campus student housing is as frustrating as the fallacy, adopted by some, that the global warming that we are experiencing is a natural cycle of climate change.   The problems regarding the impacts student housing lies with student and landlord accountability, not with the number of people living in a home.

If you are planning on buying or selling a home in the Pioneer Valley, make your first call to Michael Seward at 413-531-7129 or email michael.seward@comcast.net


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