# Moore v. City of East Cleveland/Concurrence Stevens

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Brennan Stevens
* Dissenting Opinions Burger Stewart White
Mr. Justice Stevens, concurring in the judgment.
In my judgment the critical question presented by this case is whether East Cleveland's housing ordinance is a permissible restriction on appellant's right to use her own property as she sees fit.
Long before the original States adopted the Constitution, the common law protected an owner's right to decide how best to use his own property. This basic right has always been limited by the law of nuisance which proscribes uses that impair the enjoyment of other property in the vicinity. But the question whether an individual owner's use could be further limited by a municipality's comprehensive zoning plan was not finally decided until this century.
The holding in Euclid v. Ambler Realty Co., 272 U.S. 365, that a city could use its police power, not just to abate a specific use of property which proved offensive, but also to create and implement a comprehensive plan for the use of land in the community, vastly diminished the rights of individual property owners. It did not, however, totally extinguish those rights. On the contrary, that case expressly recognized that the broad zoning power must be exercised within constitutional limits.
In his opinion for the Court, Mr. Justice Sutherland fused the two express constitutional restrictions on any state interference with private property--that property shall not be taken without due process nor for a public purpose without just compensation--into a single standard: "[B]efore [a zoning] ordinance can be declared unconstitutional, [it must be shown to be] clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Id., at 395 (emphasis added). This principle was applied in Nectow v. Cambridge, 277 U.S. 183; on the basis of a specific finding made by the state trial court that "the health, safety, convenience and general welfare of the inhabitants of the part of the city affected" would not be promoted by prohibiting the landowner's contemplated use, this Court held that the zoning ordinance as applied was unconstitutional. Id., at 188.
With one minor exception, between the Nectow decision in 1928 and the 1974 decision in Village of Belle Terre v. Boraas, 416 U.S. 1, this Court did not review the substance of any zoning ordinances. The case-by-case development of the constitutional limits on the zoning power has not, therefore, taken place in this Court. On the other hand, during the past half century the broad formulations found in Euclid and Nectow have been applied in countless situations by the state courts. Those cases shed a revelatory light on the character of the single-family zoning ordinance challenged in this case.
Litigation involving single-family zoning ordinances is common. Although there appear to be almost endless differences in the language used in these ordinances, they contain three principal types of restrictions. First, they define the kind of structure that may be erected on vacant land. Second, they require that a single-family home be occupied only by a "single housekeeping unit." Third, they often require that the housekeeping unit be made up of persons related by blood, adoption, or marriage, with certain limited exceptions.
Although the legitimacy of the first two types of restrictions is well settled, attempts to limit occupancy to related persons have not been successful. The state courts have recognized a valid community interest in preserving the stable character of residential neighborhoods which justifies a prohibition against transient occupancy. Nevertheless, in well-reasoned opinions, the courts of Illinois, New York, New Jersey, California, Connecticut, Wisconsin, and other jurisdictions, have permitted unrelated persons to occupy single-family residences notwithstanding an ordinance prohibiting, either expressly or implicitly, such occupancy.
These cases delineate the extent to which the state courts have allowed zoning ordinances to interfere with the right of a property owner to determine the internal composition of his household. The intrusion on that basic property right has not previously gone beyond the point where the ordinance defines a family to include only persons related by blood, marriage, or adoption. Indeed, as the cases in the margin demonstrate, state courts have not always allowed the intrusion to penetrate that far. The state decisions have upheld zoning ordinances which regulated the identity, as opposed to the number, of persons who may compose a household only to the extent that the ordinances require such households to remain nontransient, single-housekeeping units.
There appears to be no precedent for an ordinance which excludes any of an owner's relatives from the group of persons who may occupy his residence on a permanent basis. Nor does there appear to be any justification for such a restriction on an owner's use of his property. The city has failed totally to explain the need for a rule which would allow a homeowner to have two grandchildren live with her if they are brothers, but not if they are cousins. Since this ordinance has not been shown to have any "substantial relation to the public health, safety, morals, or general welfare" of the city of East Cleveland, and since it cuts so deeply into a fundamental right normally associated with the ownership of residential property--that of an owner to decide who may reside on his or her property--it must fall under the limited standard of review of zoning decisions which this Court preserved in Euclid and Nectow. Under that standard, East Cleveland's unprecedented ordinance constitutes a taking of property without due process and without just compensation.
For these reasons, I concur in the Court's judgment.

#### Notes

* ↑ . The Court cited Zahn v. Board of Public Works, 274 U.S. 325. The statement of the rule in Zahn remains viable today:
* ↑ . Goldblatt v. Town of Hempstead, 369 U.S. 590.
* ↑ . See, for example, the various provisions quoted or paraphrased in Brady v. Superior Court, 200 Cal. App. 2d 69, 80-81, n. 3, 19 Cal. Rptr. 242, 249 n. 3 (1962).
* ↑ . As this Court recognized in Euclid, even residential apartments can have a negative impact on an area of single-family homes.
* ↑ . Limiting use to single-housekeeping units, like limitations on the number of occupants, protects the community's interest in minimizing overcrowding, avoiding the excessive use of municipal services, traffic control, and other aspects of an attractive physical environment. See Village of Belle Terre v. Boraas, 416 U.S. 1, 9.
* ↑ . See nn. 4 and 5, supra, and also Professor N. Williams' discussion of the subject in his excellent treatise on zoning law, 2 American Land Planning Law 349-361 (1974).
* ↑ . Types of group living which have not fared well under single-family ordinances include fraternities, Schenectady v. Alumni Assn., 5 App. Div. 2d 14, 168 N. Y. S. 2d 754 (1957); sororities, Cassidy v. Triebel, 337 Ill. App. 117, 85 N.E.2d 461 (1948); a retirement home designed for over 20 people, Kellog v. Joint Council of Women's Auxiliaries Welfare Assn., 265 S.W.2d 374 (Mo. 1954); and a commercial therapeutic home for emotionally disturbed children, Browndale International v. Board of Adjustment, 60 Wis. 2d 182, 208 N.W.2d 121 (1973). These institutional uses are not only inconsistent with the single-housekeeping-unit concept but include many more people than would normally inhabit a single-family dwelling.
* ↑ . In City of Des Plaines v. Trottner, 34 Ill. 2d 432, 216 N.E.2d 116 (1966), the Illinois Supreme Court faced a challenge to a single-family zoning ordinance by a group of four unrelated young men who occupied a dwelling in violation of the ordinance which provided that a "'family' consists of one or more persons each related to the other by blood (or adoption or marriage)...." Id., at 433, 216 N.E.2d, at 117. In his opinion for the court, Justice Schaefer wrote:
* ↑ . In White Plains v. Ferraioli, 34 N.Y.2d 300, 313 N.E.2d 756 (1974), the Court of Appeals of New York refused to apply an ordinance limiting occupancy of single-family dwellings to related individuals to a "group home" licensed by the State to care for abandoned and neglected children. The court wrote:
* ↑ . In Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 252, 281 A.2d 513, 518 (1971), the Supreme Court of New Jersey reviewed a complex single-family zoning ordinance designed to meet what the court recognized to be a pressing community problem. The community, a seaside resort, had been inundated during recent summers by unruly groups of summer visitors renting seaside cottages. To solve the problems of excessive noise, overcrowding, intoxication, wild parties, and immorality that resulted from these group rentals, the community passed a zoning ordinance which prohibited seasonal rentals of cottages by most groups other than "families" related by blood or marriage. The court found that even though the problems were severe, the ordinance "preclude[d] so many harmless dwelling uses" that it became "sweepingly excessive, and therefore legally unreasonable." Ibid. The court quoted, id., at 252, 281 A.2d, at 519, the following language from Gabe Collins Realty, Inc. v. Margate City, 112 N.J. Super. 341, 349, 271 A.2d 430, 434 (1970), in a similar case as "equally applicable here":
"Thus, even in the light of the legitimate concern of the municipality with the undesirable concomitants of group rentals experienced in Margate City, and of the presumption of validity of municipal ordinances, we are satisfied that the remedy here adopted constitutes a sweepingly excessive restriction of property rights as against the problem sought to be dealt with, and in legal contemplation deprives plaintiffs of their property without due process."
The court in Kirsch Holding Co., supra, at 251 n. 6, 281 A.2d., at 518 n. 6, also quoted with approval the following statement from Marino v. Mayor & Council of Norwood, 77 N.J. Super. 587, 594, 187 A.2d 217, 221 (1963):
"Until compelled to do so by a New Jersey precedent squarely in point, this court will not conclude that persons who have economic or other personal reasons for living together as a bona fide single housekeeping unit and who have no other orientation, commit a zoning violation, with possible penal consequences, just because they are not related."
. A California appellate court in Brady v. Superior Court, 200 Cal. App. 2d, at 81, 19 Cal. Rptr., at 250, allowed use of a single-family dwelling by two unrelated students, noting:
"The erection or construction of a 'single family dwelling,' in itself, would imply that any building so constructed would contain a central kitchen, dining room, living room, bedrooms; that is, constitute a single housekeeping unit. Consequently, to qualify as a 'single family dwelling' an erected structure need only be used as a single housekeeping unit."
. The Supreme Court of Connecticut allowed occupancy of a large summer home by four related families because the families did "not occupy separate quarters within the house, [but used] the lodging, cooking and eating facilities [as] common to all." Neptune Park Assn. v. Steinberg, 138 Conn. 357, 360, 84 A.2d 687, 689 (1951).
. The Supreme Court of Wisconsin, noting that "the letter killeth but the spirit giveth life," 2 Corinthians 3:6, held that six priests and two lay brothers constituted a "family" and that their use, for purely residential purposes of a single-family dwelling did not violate a single-family zoning ordinance. Missionaries of Our Lady of LaSalette v. Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627 (1954).
. Carroll v. Miami Beach, 198 So.2d 643 (Fla. App. 1967); Robertson v. Western Baptist Hospital, 267 S.W.2d 395 (Ky. App. 1954); Women's Kansas City St. Andrew Soc. v. Kansas City, 58 F.2d 593 (CA8 1932); University Heights v. Cleveland Jewish Orphans' Home, 20 F.2d 743 (CA6 1927).
. Village of Belle Terre v. Boraas, 416 U.S. 1, is consistent with this line of state authority. Chief Judge Breitel in White Plains v. Ferraioli, supra, at 304-305, 313 N.E.2d, at 758, cogently characterized the Belle Terre decision upholding a single-family ordinance as one primarily concerned with the prevention of transiency in a small, quiet suburban community. He wrote:
"The group home [in White Plains] is not, for purposes of a zoning ordinance, a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school (cf. Village of Belle Terre v. Boraas...). Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes."
. Of course, a community has other legitimate concerns in zoning an area for single-family use including prevention of overcrowding in residences and prevention of traffic congestion. A community which attacks these problems by restricting the composition of a household is using a means not reasonably related to the ends it seeks to achieve. See Des Plaines v. Trottner, 34 Ill. 2d, at 435-436, 216 N.E.2d, at 118. To prevent overcrowding, a community can certainly place a limit on the number of occupants in a household, either in absolute terms or in relation to the available floor space. Indeed, the city of East Cleveland had on its books an ordinance requiring a minimum amount of floor space per occupant in every dwelling. See Nolden v. East Cleveland City Comm'n, 12 Ohio Misc. 205, 232 N.E.2d 421 (Com. Pl. Ct., Cuyahoga Cty. 1966). Similarly, traffic congestion can be reduced by prohibiting on-street parking. To attack these problems through use of a restrictive definition of family is, as one court noted, like "burn[ing] the house to roast the pig." Larson v. Mayor, 99 N.J. Super. 365, 374, 240 A.2d 31, 36 (1968). More narrowly, a limitation on which of the owner's grandchildren may reside with her obviously has no relevance to these problems.