By Stephanie McCrummen
Washington Post Staff Writer
Friday, December 30, 2005
The city of Manassas yesterday defended a new zoning ordinance that restricts households to immediate relatives, saying that the city acted within its limited right to control residential occupancy and that the new rule defining "family" was adopted in response to "broad-based community concerns about overcrowding."
"The City views residential zoning regulations as a covenant with citizens who purchase property in the community, and our actions honor this commitment," city officials said in a written statement. "The suggestion that changes in the zoning ordinance reflect any other intent on the part of City government are absolutely false."
Although the city says the law was aimed narrowly at dealing with overcrowded housing, Vice Mayor Harry "Hal" Parrish said earlier this month that the law also was aimed at addressing illegal immigration and the problems the city associates with it -- including parking, garbage issues and tight school budgets.
"I know there's frustration out in the community from the people we talk to, our citizens, and largely they believe, as do I, that the federal government hasn't followed through with enforcing its [immigration] laws . . .," he said. "And we're trying our best to deal with it."
Whatever the intent, city officials say the new ordinance, which is enforced when complaints are received, is so far overwhelmingly affecting the city's growing Latino population.
The new rule, adopted by the City Council on Dec. 5, narrowed a definition of "family" in the city's zoning ordinance. The old definition was broad, allowing virtually any relatives to live in a single-family house, as long as the total did not exceed the occupancy limit.
The new definition restricts households to immediate relatives, plus one unrelated person, and excludes aunts, uncles, nieces, nephews, cousins and other members of the extended family. A family of seven that includes nieces and nephews is now illegal in Manassas, for instance, even if the occupancy limit is 10.
The American Civil Liberties Union of Virginia said this week that it is "strongly inclined" to challenge the ordinance and is examining its legal vulnerabilities, which, some legal experts say, are many.
"It's hard to describe how many parts of the U.S. Constitution this law actually violates . . . " said Jonathan Turley, a constitutional law professor at George Washington University. "It interferes with constitutional guarantees regarding contracts [to rent rooms], families, equal protection, even First Amendment issues like freedom of association. . . . It's hard to believe any attorney actually reviewed this law."
City Attorney Bob Bendall, Mayor Douglas S. Waldron, City Manager Lawrence D. Hughes and several City Council members did not return several calls for comment.
Council member Judith Hays (R), however, said it's possible the city went too far.
"I admit, we're legislators," she said, "part-time legislators. We do the best we can, and if we made a mistake with this, we will reconsider."
Legal experts agreed that the ordinance is problematic and that it might be challenged in numerous ways, but they differed in their assessments of how a challenge might fare in the courts.
The ordinance might be challenged under the Fair Housing Act on the grounds that it disproportionately affects Latinos. Whether a challenger would have to show an intent to discriminate is a question the courts have not settled.
Generally speaking, though, experts agreed that the main problem with the ordinance is that it may violate 14th Amendment protections regarding "family" as described in a 1977 U.S. Supreme Court decision.
In that case, a similar law defining family in the city of East Cleveland, Ohio, was challenged by a woman who lived with two grandsons. The law was struck down in a 5 to 4 vote. Writing for the majority, Justice Lewis Powell said that the city had failed to demonstrate that the ordinance actually served its stated purpose to alleviate overcrowding and that it violated "the sanctity of the family."
"Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family," Powell wrote. "The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition."
Armed with that ruling, a challenge to the Manassas ordinance could be argued in several ways, said Richard D. Friedman, a University of Michigan law professor.
For one, as in the 1977 case, it could be argued that the ordinance violates the protections of family and privacy found in the 14th Amendment. It could be argued that its intent was to single out Latinos, he said, and that it is unjustifiably discriminatory. Third, it could be argued that it is the business of the federal government, not local government, to control illegal immigration.
"It seems to me this ordinance would be clearly unconstitutional," Friedman said.
Others are less certain.
Roger Clegg, general counsel for the Center for Equal Opportunity, a think tank Clegg described as conservative, said that the 1977 opinion was not definitive and that 30 years later the context in which Manassas adopted its ordinance matters.
Clegg said city officials might actually help themselves by arguing that their intent was to combat illegal immigration and that it was in their legitimate governmental interest to do so, "that we're trying to do our part to discourage illegal immigration and we have found that overcrowding generally or very frequently disproportionately involves illegal immigrants, so that's why we tightened the rules."
"I think that the most critical question in this case is whether people challenging it can show the city was motivated by a desire to discriminate on the basis of national origin," Clegg said. "If they can show that, they will win. If they can't show that, they will probably lose."