By JAN LARSON McLAUGHLIN
BG Independent News
A federal court has demolished the City of Bowling Green’s ordinance that restricts the number of unrelated people who can live in a rental property.
The city has used the ordinance for decades to limit the number of people living in rental units to three people – unless they are related.
But the ruling issued on Friday, by Federal Judge James R. Knepp, states that the number of people allowed in a home should be determined by the number of bedrooms – not by the city’s desire to limit density in single-family neighborhoods.
The ruling is a victory for at least 23 landlords in Bowling Green.
“A landlord will be able to rent a home to the suitable number of people,” said attorney Maurice Thompson, of the 1851 Center for Constitutional Law in Columbus.
The federal court ruling should be the end of the city telling landlords they can rent to no more than three unrelated people – regardless of how many bedrooms are in the house, Thompson said on Sunday.
“I don’t think Bowling Green will appeal,” he said. “They can, but they will lose.”
The lawsuit was filed a year ago against the city on behalf of 23 Bowling Green landlords and three student renters. The landlords reportedly own more than 161 homes that could not be rented out to more than three unrelated people – even though the homes have four or more bedrooms and ample parking.
The three students – who were living in a four-bedroom house owned by Thompson on East Merry Street – became involved after reportedly being threatened with eviction last year for violating the city ordinance.
In the lawsuit, Thompson said the city’s ordinance violates the Ohio Constitution by suppressing private property rights,imposing vague standards and excessive fines of $500 per day.
Since the ruling just came down late on Friday, city officials have not had time to digest exactly what it means for Bowling Green, Mayor Dick Edwards said on Sunday.
“I’ve got to read the opinion,” Edwards said. “I really don’t know what to make of it.”
The city’s zoning ordinance limiting residency in rentals has been in place for decades.
“It’s been upheld by the Ohio Supreme Court,” the mayor said. “It affects other university communities as well.”
When the lawsuit was filed last year, Bowling Green City Attorney Mike Marsh said the renter limit has been in place as long as the city zoning – and was upheld by the Ohio Supreme Court in 1974.
“He’s claiming the limit is arbitrary,” that it doesn’t take into account the size of the home and the parking space available, Marsh said. That’s true, he agreed. The purpose of the law is to help maintain the density of single-family neighborhoods.
“These are traditional single-family homes converted into rental housing,” Marsh said.
A handful of other college towns in Ohio have similar ordinances, Thompson said last year.
“Bowling Green is by no means the only city that has this,” he said. “But one thing that makes Bowling Green’s unique is that the city claims it is to control population density, yet there are all kinds of exemptions.”
Many properties are “grandfathered in,” but which properties qualify is unclear, Thompson said.
Marsh disagreed. “I think we have a pretty good handle on those grandfathered in,” which include rentals predating zoning.
According to Thompson, Bowling Green is more aggressive than other communities – ordering that extra renters be “thrown out” within 10 days of the violation notice. He questioned the legality of that action.
“Bowling Green’s standards are so egregious,” Thompson said last year after he filed the lawsuit. “Bowling Green has been pretty aggressive in enforcing this.”
Marsh disagreed again. No one has been ousted in 10 days since Marsh has been working with the city the last 30 years. “We try to work with people when they are over-occupied,” he said.
Students are often allowed to finish a semester or complete a lease, he said. “I’m not aware that we’ve ever tried to kick people out in a short period of time.”
Only landlords who own homes with four or more bedrooms, plus parking for four or more cars, were included in the lawsuit, Thompson said. “In that scenario, there’s no reason for them to be limited to three.”
Though many of the landlords were aware of the city ordinance when they purchased the homes, the law was unevenly enforced, he said. In many cases, the renters invite friends to move in with them, without the landlord knowing, he added.
Among the landlords on the lawsuit are Robert Maurer, John Frobose, Kory Iott, Randall Roberts and Anthony Wulff.
“Most of them have abided by it, much to their frustration,” Thompson said of the landlords.
In some cases, Marsh said last year, the landlords have tried to deceive the city after renting to too many students.
Thompson accused the city of “social engineering.”
“This regulation is aimed at government-controlled social engineering, i.e. keeping ‘the wrong kind of people’ out of certain neighborhoods, rather than land use. Unruly behavior should be directly regulated, rather than regulated on the basis of the relationships between those who live together,” Thompson stated. “Ohioans should not be forced to pay higher rent or endure longer commutes due to such arbitrary regulations.”
To make his point, Thompson argued that the city’s ordinance would prohibit four cleancut missionaries from occupying a large house, but would allow an “unruly family of eight” to live in a smaller house next door.
Following are portions of the ruling issued Friday by Knepp, who happens to be a BGSU alumnus, according to the mayor.
The U.S. District Court concluded that the city’s dwelling limit is impermissibly arbitrary, oppressive, and untailored: the limit applies unequally, is under-inclusive, over-inclusive, and can punish innocent owners.
Within the regulations, the city claims to be effectuating a governmental interest in limiting population density. In their response to Plaintiffs’ motion, Defendants state that the zoning code is “for the purpose of promoting the public health, safety, morals, comfort, and general welfare; conserving the values of property; facilitating the provision of public utilities, schools, and other public requirement; and lessening or avoiding congestion on public streets and highways.”
And, Defendants contend, dwellings leased or rented to college-age individuals result in more exterior code violations, nuisance parties, and disorderly conduct incidents. But the city’s dwelling limit only focuses on the type of relationship between those living together in a home, and as such, is both over- and under-inclusive with respect to either of these interests.
The Court thus concludes the dwelling limit is an “unreasonable and arbitrary” restriction on the issue of property. First, the law is under-inclusive as to any governmental interest. There are 233 houses in the city which, irrespective of size, are “grandfathered in” and therefore exempt from this regulation.
And, while the dwelling limit does not forbid an unlimited number of related adults from dwelling together in a four-bedroom home, just four unrelated adults may not do the same. Paradoxically, under the dwelling limit, again assuming compliance with health regulations, ten related individuals could reside in a two-bedroom home with no parking, while only three unrelated individuals may reside in a six-bedroom home with abundant parking.
And, the city indicates that even the most attenuated family connection suffices: four third cousins may live together without penalty, even though few would elevate such a relationship above a close friendship, a romantic relationship, or a couple engaged to be married.
Second, the dwelling limit is over-inclusive as to its purported goals. The dwelling limit prohibits living arrangements that have no greater impact on population density than those of a family. A house with four unrelated roommates creates no more population density than one with four related roommates.
Rather than regulating based on space, the dwelling limit operates based on relationship. That is, there is no reasonable relationship between the end and the means used to effectuate it. Individuals – related or not – create the same population density.
Moreover, the dwelling limit sweeps far more broadly than just to avoid purported problems with college-aged renters. The dwelling limit prohibits any four unrelated individuals, regardless of their propensity to cause disturbances.
And the city does not explain why prohibiting more than three college-aged renters from living together prevents these issues. That is, why are four unrelated roommates more problematic than three? Finally, the dwelling limit impermissibly imposes strict liability even on occasions where the homeowner may not be aware that four unrelated individuals are residing within a home that he or she owns.
Thus, the limit is arbitrary, unduly oppressive, fails to substantially advance the avowed government interests of reducing population density or targeting specific issues with college-aged inhabitants, and treats similarly-situated homeowners and tenants differently without any justifiable basis.
Consequently, the Court finds the dwelling limit is unconstitutional, as applied, and therefore unenforceable.
The City of Bowling Green is permanently enjoined from enforcing its zoning code so as to prohibit, fine, or punish the occupancy of a home when the number of unrelated occupants does not exceed the number of bedrooms.
