Document Type

Article

Publication Date

Winter 2020

Keywords

Functional family, Zoning

Disciplines

Family Law | Housing Law | Land Use Law | Property Law and Real Estate | State and Local Government Law

Abstract

Is a group of eight unrelated adults and three children living together and sharing meals, household expenses, and responsibilities—and holding themselves out to the world to have long-term commitments to each other—a family? Not according to most zoning codes—including that of Hartford, Connecticut, where the preceding scenario presented itself a few years ago. Zoning, which is the local regulation of land use, almost always defines family, limiting those who may live in a dwelling unit to those who satisfy the zoning code’s definition. Often times, this definition is drafted in a way that excludes many modern living arrangements and preferences.

This Article begins by exploring how zoning codes define both the family and the “functional family,” namely, a group of individuals living together like the Hartford group described above. The Article then carefully tracks judicial decisions that have rejected restrictive definitions of family and analyzes sociological and anthropological literature demonstrating that definitions excluding functional families are unreasonable as a matter of law. Based on the law as it has developed and demographic trends, my view is that governments must allow, but may regulate, functional families.

The Article concludes with suggestions for local governments to revise their zoning codes to allow for functional families. In making these revisions, communities must weigh the real need to control density, the desire of functional families for privacy, and the urge to manage community character. Local governments who choose to regulate functional families may choose between three models of regulation: the density model, the privacy model, and the character model. Once decision-makers recognize these choices, they may more appropriately consider fellow community members’ increasingly diverse living arrangements and preferences—and better zone for families, whatever their modern form may entail.

Comments

This article predates the author's affiliation with Cornell University.

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