Bruce Boraas v. The Village of Belle Terre, an Incorporated Municipality

al., et Plaintiffs- Bruce BORAAS Appellants, TERRE, OF BELLE in VILLAGE corporated al., municipality, et Defendants-Appellees. 372, Docket

No. 72-2040. Appeals,

United States Court Second Circuit.

Argued Oct. 1972.

Decided Feb. 1973.

Rehearing En Banc

Denied March 1973. From,

Opinion Dissenting Denial Rehearing April En Banc Sager,

Lawrence G. New York (Arthur Ennis, Eisenberg, N. Bruce J. Union, New York Civil Liberties New City, counsel), York plaintiffs-ap- for pellants. Gegan, Washington, Bernard E. Port (James Village Oiste, Atty., N. Y. J. von Jefferson, Y., counsel), Port N. for defendants-appellees. MANSFIELD, Before OAKES

TIMBERS, Judges. Circuit MANSFIELD, Judge: Circuit appeal At issue is the con- zoning stitutionality of a ordinance incorporated Village Terre, of Belle York, prohibits groups New (2) persons, more than two unrelated distinguished from traditional families consisting persons re- number by blood, adoption, marriage, lated or occupying from a residence in an area “one-family” occupancy. zoned for We discriminatory hold that since classi- unsupported by any fication is rational permissible basis consistent with objectives, transgresses Equal law Protection Clause. The district court’s denying preliminary injunctive decision against, relief enforcement of the ordi- nance is reversed. Dickman,

Plaintiffs Edwin and Judith Terre, owners of a house in Belle a sub- municipality approximately urban occupying 700 residents some homes County, York, in Suffolk rent- New six-bedroom, single-family ed their resi- occupancy plaintiffs dence for Bruce Boraas, Anne Parish and Michael Tru- man, University all students at the State Stony Brook, of New York at located eight away, seven or miles three and to attending other students the same uni- versity parties who in- are not origi- premises stant action. The were nally leased on or about December 1971, by plaintiff Truman as lessee ending May 31, 1973, a term at a month- single though housekeeping ly later unit not rental Plaintiff Boraas $500. co-signer by blood, adoption, mar- the lease became a riage same terms. shall be deemed to constitute a Building family.” Zone Ordi- occupants is None of the six student Terre, of Belle nance occupies related. Each one the six (June I, 8,1970). Art. D-1.35a § pays portion of the rent. bedrooms To organized enforce code The six are and function as provides: further single housekeeping insofar as unit shall “Each of this ordinance violation cooking facility, the common dine to- use disorderly . . . conduct. gether constitute housekeeping, “yard” and share pay checking shall be liable chores, [Persons] and a “house” account penalty exceeding Hun- One necessary from which disbursements for imprison- ($100.00) dred expenses Dollars household made. It is con- exceeding period for a not ment occupants ceded that all be- impris- days byor both such fine and manner, responsible haved a and no separate of- A and distinct onment. part sug- immoral conduct on their is on gested. fense shall deemed committed pursuing Four are of them day during each or on a viola- which graduate sociology Stony studies in at Building tion occurs or continues.” Brook. Village Zone of Belle Ordinance of the leasing Plaintiffs аssert that before M-1.4a(2) VIII, 4, Terre, Part Art. § the Belle Terre residence from the Dick- (Oct. 1971). extensively mans looked alter- 8, 1972, Truman and On June Boraas dormitory living, natives traditional passes be were denied residents’ beach admittedly which are available. Conven- allegedly cause considered apartment available, rentals, tional however, when July 19, “illegal them residents.” On beyond were found to their owners-lessors, Dickmans, the means, housing cooperative and a ar- returnable were with a served summons rangement by was considered them to be Village July 28, before Justice on pleasant, convenient, promotive of schol- Village However, 1972. because exchange, arly pocket- and within required of viola Code a 48-hour notice books. tion, with, complied had not been which Village Terre, which con- Belle July On summons was withdrawn. homes, approximately sists of is 31, 1972, Dickmans served were exclusively zoned residence in one- Remedy Viola “Order to dwellings.1 family “family” de- A is plaintiffs fail tions” notified fined as: remedy sub ure the condition commencing by ject liability Au persons or on “One related them to living blood, adoption marriage, gust 3, or 1972. cooking together single and as a August 2, plaintiffs com- On housekeeping ... num- unit a court menced action the district persons exceeding ber of not two but Rights Act of under Civil the federal living (2) cooking together appellees, against and as 42 U.S.C. § one-family dwelling ex- 1. A is defined as: this was 2. Plaintiffs assert consisting planation given detached the individual “A house of or one of occupied Stolz, defendants, a Trustee intended to as a Francis R. residence family family only, Village. are one here Other named defendants Village, Mayor Philbin, lodg after defined. In no ease shall James Trustee, ing house, fraternity Mayor boarding house, Deputy Doerr, and Robert sorority Trustee, house, multiple Bove, Kar- and Vincent house or dwell Vincent wowski, be classified or construed as a one Trustee. family dwelling.” Building Zone Ordi Terre, nance Belle Art. I, D-1.34a § one-family dwellings, Mayor he of Belle summarized Trustees who are and seeking preliminary perma Terre, issue before the court as follows: and against injunctive enforce nent relief posed question ultimately “The declaratory ment of the ordinance and one- to have a whether is lawful invalidating judgment unconstitu dwelling family district which zone prohibition residential tional the equally household excludes small persons occupancy more than two impose greater groups no burdens who blood, adoption, “not building land, on the of use grounded marriage.” Jurisdiction surrounding than a blood-and-mar- 1331(a), on 28 U.S.C. §§ riage family group simple hearing Pending a on the constitutional ground groups such student bare tempo issues, Judge Dooling issued a husband, up of not made families rary restraining order. 73a). (A. wife and children.” Dooling Following hearing plaintiffs’ Judge mo- concluded that ex- on Judge injunction, preliminary clusionary up- tion for could not be classification Dooling September grounds supporting 40- issued held on traditional denying page zoning regulations mo- decision and order as a valid exercise injunction preliminary police power, tion for a see Euclid v. Ambler validity upholding Realty Co., of the ordinance. 47 S.Ct. restraining pro- temporary con- A order was it did L.Ed. 303 because days plaintiffs zoning objectives to enable tinued for five mote “such familiar pending appeal, stay preserva- was safety, adequate light air, seek a and 27, granted September use, by on this Court tion the from overintensive of land avoiding of crowding to the date population, and thereafter extended re- of the congestion our decision and mandate. and duction of traffic facili- water, transportation, adequate of tation opinion carefully In his considered sewerage, school, park other and Dooling Judge he was decided that (A. However, 77a). he de- services.” reaching by precluded merits from the represented a cided that the ordinance Younger Harris, 37, 91 S.Ct. v. “legally protectable lawful exercise of a brethren, 746, (1971), L.Ed.2d 669 family made interest” in the affirmative statute, anti-injunction 28 U. the e., children, up parents of and i. married abstention and that S.C. § “marriage-and-blood-re- the traditional appropriate that for the reason was not type presently of oc- lated” families the clearly in- law the York decisional New Holding cupying that the Belle Terre. zoning would ordinance dicated that of such traditional families interest granted power an exercise of be deemed maintaining of the same character uses enabling legislation, N.Y. New York’s zoning “proper community is a See, g., e. 177. Law §§ consideration,” he described “[s]uch Schenectady Alumni Association v. simply of countless another [as] Chapter, 168 N.Y.S. 5 A.D.2d Union bounty protection with statutes of and Recognizing (3d Dept. 1957). 2d 754 states, them, all of which the plaintiffs “unquestionable that had aggres- government Federal alike group- right together in student live family sively surround traditional ings,” public in- from unwarranted free children, reaching parents and their trusions, just had families family laws, through as traditional laws from court 77a). (A. right restricted inheritance to tax laws.” to live areas right privacy, Specifically, complaint alleged their contravened appeal, primary plaintiffs’ equal reliance travel. On the ordinance denied the equal protection right protection law, claim at their has been on of the violated allegedly as the ordinance the First and least association secured insofar specified unequally impinged Amendments, the other on Fourteenth intruded rights. constitutionally protected right of constitutional their intervention, under the facts at least ble reaching the district its decision Heffernan, v. Thoms weight case. See gave to the smallness court (2d 72-1013, Cir. No. community, F.2d absence the Belle Terre Young Implications 1973); exclusionary of the Note, similar restrictive Availability of Federal nearby er for the Cases communi- in some classifications Equitable Prosecu dormitory Relief When State No ties, fa- existence of and the 874; Pending, Appel- is 72 Colum.L.Rev. Stony Brook itself. at cilities n.1 ground Petrillo, Hull F.2d v. here reversal lants seek (2d 1971). Markle, 452 v. Abele Cir. Cf. ordinance Terre the Belle August (2d 1971). F.2d As of Cir. impinges constitutional initiation of date privacy and association. suit, pending; no federal state case Questions Procedural August liability no fact attached until Terre applicability, 28 U.S.C. sideration of the court outset with questions, plied.) U.S. Ed. 990 lins, strued the section and statewide cause L.Ed.2d 643 consideration “The court has enjoined.” 277 U.S. when a state statute 97, Although we three-judge § we none 101, (1928). (1967); agree 87 S.Ct. 565, application number of statute merits. Moody was not of statutory requirement them court not no ^[2281] 48 S.Ct. are faced three-judge consistently see application. (Emphasis v. is involved but 1544, 1548, Since precludes Ex Flowers, as authoriz- merely procedural 585, state-wide parte sought general district at court, 72 L. Belle sup- con- con Col- 387 be- 18 to parte 52 L.Ed. 714 22835 No. ty barrier. beach anti-injunction state tice of Neither controversy. 1973); Pfister, 1116, justiciable 3, 1972. (1971) , precludes (2d Cir. 72-1013, 473 F.2d 478 court Young, 209 passes 14 July does We are also Abele 380 Younger, 1971). L.Ed.2d 28 overcome proceedings, 91 S.Ct. controversy U.S. not bar and the service (1908), See Thoms further statute, Here the denial Markle, U.S. 479, nor 22, showing and that 42 U.S.C. persuaded that a 123, enjoining Boyle 484 (1965); settled any justiciаbili- Dombrowski 452 F.2d 1121 28 U.S.C. § 28 S.Ct. n.2, L.Ed.2d Heffernan, of such presented. (2d 85 S.Ct. Landry, see future 441, Cir. no- Ex v. congressionally 1983 constitutes § Young- We further conclude that exception anti-injunc carved out to the Harris, 37, 746, er v. 401 U.S. 91 S.Ct. Foster, tion statute. Mitchum 407 U. v. 27 L.Ed.2d 669 225, 2151, 32 S. 92 S.Ct. L.Ed.2d 705 brethren,4 held that in the ab- (1972) . sence extraordinary circumstances threatening Judge irreparable Finally, agree injury with we federal injunctive declaratory Dooling or not relief absention is warranted. should that prosecution pending issue not when a We are not here confronted with situa in a state court an where state court resolution of federal plaintiff, preclude equita- do not federal unclear state statute obviate Boyle Landry, 77, “Anti-Injunction” provides: 4. v. 401 91 U.S. statute S.Ct. 758, (1971) ; 27 696 L.Ed.2d Samuels v. States “A court United Mackell, 66, injunction stay proceedings 764, grant 401 91 U.S. S.Ct. 27 except expressly (1971) ; Ledesma, court as au- L.Ed.2d Perez in a state 688 v. Congress, 82, 674, act or 401 U.S. 91 S.Ct. 27 L.Ed.2d where 701 thorized necessary (1971) ; 200, jurisdiction, Dyson Stein, or in aid of its v. 401 U.S. 91 protect judgments.” (1971) ; Byrne 769, 28 effectuate its S.Ct. 27 L.Ed.2d 781 or Karalexis, 216, 777, (1965). 401 91 2283 S.Ct. U.S.C. § (1971). 27 L.Ed.2d 792 812 land,

necessity of their whether it be to decide federal constitutional the use operation questions. of a business or the con Railroad Commission See regu 643, Co., 496, struction of a home. such 61 unlikely Where Pullman 312 U.S. S.Ct. represent (1941). lations a valid exercise of dele L.Ed. It is 85 971 gated police power de Terre’s state and are York would find Belle New courts signed promote protect public zoning vires the state or ordinance ultra Village Law, health, safety welfare, enаbling legislation, or individu N.Y. right give way particu 175, (McKinney 1966), al’s must to the since sim- §§ community, zoning grounded on lar concern of Euclid v. ilar classifications Co., 365, concept Realty Ambler families” have 272 U.S. 47 S. “natural City (1926); 114, See, e.g., of Sche- Ct. 71 L.Ed. 303 Zahn been sustained. nectady Works, Board v. Alumni of Union of Public 274 U.S. Association (1927); Chapter, ‍​​‌​​​​‌‌​​‌​‌​​​​‌​‌​​‌​​​​‌‌‌‌​​​​​‌​‌‌​​​​‌​‌‍71 L.Ed. A.D.2d 1957). S.Ct. N.Y.S.2d Judge Cambridge, (3d Dept. Moreover, Nectow v. Dooling (1928); 72 L.Ed. 842 noted: S.Ct. cf. Carmichael v. Coal & Coke Southern present court “In the case Co., 81 L.Ed. 57 S.Ct. ordinance, holding decision village construed it, has construed granted authority beyond right of an or individual village by to the York New group, otherwise, of a together to live Law, apparently could be based necessarily guarantee does not argument to hold other- complete location, freedom as to the con impose wise would struction, conditions, living without Village Law an unconstitutional inter- regard zoning reasonably based laws. pretation. Any question of unresolved legislation enacting zoning the local is, the state fore, detectable there- law here authorities vested discre with broad question differently the federal Ordinarily tion. a court will intervene stated.” Cf. Wisconsin v. Constanti- declare ordinance be de neau, 433, 438-439, 91 S.Ct. process only nial of due it where cannot L.Ed.2d supported by in substantial Traditionally may justified terest. The Merits showing is related to such Turning merits, undisput- it is safety, population density, matters as ed that the Belle Terre light adequacy air, noise ne appellants restricts in the exercise of cessity control, transporta for traffic respect use tion, sewerage, school, park and other land in and that it is dis- public promo recently, More services. criminatory unequal and to the extent aspects tion of the aesthetic of a town that, while traditional of more families upheld legitimate zoning has been as a may occupy than two members one- e.g., objective, Advertising Corp. United family dwelling, groups of more than Borough Metuchen, v. 1, 42 N.J. 198 (sometimes two unrelated individuals (1964). A.2d 447 “voluntary” families)' described as prohibited doing very from The basic is- From outset of its so. considera- unequal constitutionality sue before tion of us whether this of local zon- legislative ing laws, classification violates which were then un- attacked Equal Clause, Protection Clause. der the Due Process the Su- preme principle: Court laid down a basic approaching that issue we premise governmental every start on the power that almost “The to interfere represents by zoning regulations local general a re with the rights striction citizens’ freedom of ac of the land owner restrict- tion in the use, exercise of otherwise lawful the character of his not un- rights respect limited, and and, questions aside, constitutional to other

813 Lindsley imposed v. Carbonic if Natural tained. cannot be restriction such (1911), Co., 61, 31 220 78 S.Ct. relation Gas U.S. a substantial it does bear 369; Mary- morals, 337, safety, v. health, 55 L.Ed. McGowan 1101, City land, 426, 420, 6 81 S.Ct. general 366 U.S. Nectow v. welfare.” They suggest (1961). that 188, L.Ed.2d 393 48 S.Ct. Cambridge, 183, 277 U.S. conceivably might the ordinance be since 447, 448, 842 72 L.Ed. designed justified to curb as a measure requirement that To density population and excessive rental satisfy process, enunci due as thus laws costs, preserve or to the traditional fam- brethren, there by Euclid and its ated neighborhood, ily character of the important condition must be added the upheld. be must in violation not discriminate appellants’ respect contention With Equal Clause. While Protection rights by them should invoked tolerated, inequalities Wil some “fundamental,” note classified as we 483, Optical Co., 348 U.S. v. Lee liamson identified the interests thus (1955), a law 461, 90 L.Ed. 563 75 S.Ct. few in num Court have been upheld aas otherwise be right travel, They include the ber. police power will be exercise valid Shapiro Thompson, 618, 89 v. 394 U.S. down where classifies struck (1969), 1322, S.Ct. 22 L.Ed.2d 600 criteria, impermissible such as basis Blumstein, right vote, Dunn v. 405 369, Mulkey, U.S. Reitman v. 387 race. 995, 330, 274 92 31 L.Ed.2d U.S. S.Ct. (1967); 1627, L.Ed.2d 830 18 87 S.Ct. Virginia (1972); Harper Board of v. Kennedy v. Homes Association Park 1079, Elections, 663, 16 383 U.S. 86 S.Ct. (2d Lackawanna, 436 F.2d 108 (1966), right to the L.Ed.2d 169 1010, denied, 1970), 401 U.S. cert. Cir. prosecution of a essential facilities 1256, L.Ed.2d 546 91 28 S.Ct. appeal, Illinois, v. 351 criminal Griffin case, appel Turning present 12, 585, 100 L.Ed. 891 U.S. 76 S.Ct. urge Terre or since the Belle lants vigorous (1956). Despite efforts to ex constitutionally impinges upon dinance into other tend the characterization rights protected character interests including zoning,6 fields, exclusionary i.e., “fundamental,” by them as ized list of so-called “fundamental” rights privacy, of association expanded. At has not been its travel, their freedom as wеll as Supreme-Court last term the declined they please, Eisen live with whom cf. right classify as “fundamental” the 438, Baird, v. U.S. 92 S.Ct. stadt 405 56, housing, Lindsey Normet, v. (1972); 1029, 31 L.Ed.2d 349 Griswold (1972), and 92 S.Ct. 31 L.Ed.2d 36 Connecticut, S.Ct. v. 85 U.S. re reaffirmed similar views with the chal 1678, 14 L.Ed.2d 510 spect payments, to welfare Jefferson legislation lenged must struck down 535, 546, Hackney, 406 92 S.Ct. it is not shown to be the reason that (1972); L.Ed.2d Richard supportable by “compelling inter Belcher, 78, 81, son v. S.Ct. Shapiro Thompson, U. est.” See Dandridge (1971) ; L.Ed.2d L.Ed.2d 600 S. S.Ct. Williams, S.Ct. hand, (1969). Appellees, on the other (1970). L.Ed.2d 25 491 argue if, upon judicial hypothesis, rights any Unquestionably of the claimed state of facts be conceived Certainly appellants important. indicate rational are which would ordinance, personal sus- and basic na- basis must be d (1969); Note, Equal gent, 21 Comm The Protection Clause an Stan.L.Rev. 767 “Family”: Legal Exclusionary Zoning ent, Prob After Valtierra and All In The Harv.Civ.Rights— (1971) ; Communes, Dandridge, 7 81 Yale L.J. 61 lems of (1972). Tight Exclusionary Sager, 393 Little Islands: Civ.Lib.L.Rev. Zoning, Equal Protection, and the Indi- 814 Fortunately poses its law. we of interests of ture those commercial than type there has do not have to decide whether

of under consideration in Linds infringement right supra. of McGowan, ley, supra, and been an On hand, privacy or not travel because we believe the other case does longer present against limited we are no either-or us with discrimination compelling poor. Note, in- minorities choice between the racial or scrutiny per- Equal terest test and the minimal Protection Clause Exclusion Dandridge, Lindsley-McGowan Zoning ary formu- mitted After Valtierra recently (1971); the issue under la. Faced with 1 Yale L.J. 61 Nor 8 Redevelopment circumstances walk CORE v. Norwalk similar Agency, 1968). appears (2d from this F.2d have moved 395 920 Cir. rigid dichotomy, present snugly does described as Nor fit into sometimes case formula,7 categories recognized a more the other “two-tiered” toward as equitable requiring application approach, compelling flexible and given permits Despite consideration to evi- state interest test. inciden ordinance, unequal tal dence the nature of clas- effects of the Terre Belle dealing “suspect” attack, we are sification under the nature of not here awith race, Loving adversely affected, classification such v. and the as Virginia, governmental urged support 1817, 1, 388 18 interest U.S. 87 S.Ct. (1967), approach alienage, of it. L.Ed.2d 1010 or Under this the test Gra Richardson, application Equal 365, ham v. U.S. 91 S. 403 Protection 1848, legislative (1971), Ct. 29 L.Ed.2d is whether classifi- Clause 534 right substantially law directed cation is asso fact sought object political ciation Eisenstadt a means ex statute. v. pression action, Baird, 446-455, g., 438, e. 405 v. Ala U.S. 92 S.Ct. NAACP 1029, bama, 449, (1972); 1163, L.Ed.2d 357 U.S. L. 31 349 Reed v. 78 S.Ct. 2 (1958); Tucker, Reed, 71, 76, 251, 404 Ed.2d 1488 U.S. 92 30 Shelton v. S.Ct. (1971), 479, 247, 364 L.Ed.2d U.S. 81 225 see James v. 5 L.Ed.2d 231 S.Ct. (1969); Strange, 128, 140-141, Rock, Bates v. 407 U.S. Little 361 92 S.Ct. U.S. 516, 412, (1972); (1960), 2027, 80 32 L.Ed.2d 4 600 Jackson S.Ct. L.Ed.2d 480 v. obtaining Indiana, 715, 723-730, or as a means of 406 access U.S. 92 S.Ct. courts, 1845, (1972); 415, Button, NAACP 32 L.Ed.2d v. 285 Weber v. 371 U.S. Co., 328, (1963). 164, 83 9 Aetna Cas. S.Ct. L.Ed.2d & 405 Sur. 172-176, 1396, 92 S.Ct. 31 L.Ed.2d 768 underly (1972). approach suggested by This ing purpose Belle Terre stat language Royster Co. v. Guano Vir- regulate ute is to the intimate moral be ginia, 412, 415, 560, 40 S.Ct. 64 havior residents within distinguished L.Ed. 989 privacy,” Stanlеy Illinois, “zone of commentary, g., tenBroek, e. Tussman & 405 U.S. S.Ct. 31 L.Ed.2d Equal Laws, Protection of the (1972); Baird, Eisenstadt 341, 344-353, Cal.L.Rev. 365-368 U.S. S.Ct. L.Ed.2d 349 classification, If upon review (1972); Connecticut, Griswold v. bearing upon foregoing facts rele- 85 S.Ct. 14 L.Ed.2d 510 factors, vant is shown to have a substan- (1965), and that its effect been to tial objective to a lawful right curb the travel those who reasons, and is not void for other such wish to Shapiro live Belle Terre. ‍​​‌​​​​‌‌​​‌​‌​​​​‌​‌​​‌​​​​‌‌‌‌​​​​​‌​‌‌​​​​‌​‌‍overbreadth, upheld. it will be If Thompson, not, protection. S.Ct. denies Terre, L.Ed.2d Belle “A reasonable, classification ‘must be however, pur- claims that these arbitrary, are not and must rest Gunther, 7. See Equal Protection, for a New 86 Harv.L. Term, Foreword, Evolving 1, Search of (1972). Rev. 10-20 Changing Doctrine a on A Court: Model having present type, where ground of the individ- eases of difference some groups opposed human ual relation to ob- fair substantial per- regulations legislation, to business are ject that all involved. of the so similarly United Carolene Products circumstanced shall See Co., States v. sons 144, 4, n. Royster 152-153 S.Ct. Guano Co. treated alike.’ Virginia, (1938); Tussman & L.Ed. 40 S.Ct. tenBroek, supra ques- at 373. 64 L.Ed. then, by case, presented is tion Turning question in the sex of whether a difference whether the Belle Terre ordinance competing applicants for letters ad- upon application be sustained of the rational relation- ministration bears a foregoing principles, we start exami sought objective ship to state that is ground upon nation of the sole which it operation of to be advanced §§ upheld by namely court, the district 15-312 and 15-314. community in interest of protection local ^{[*] [*] [*] [*] [*] [*]} the prevailing maintenance of the pattern, family traditional however, question, “The crucial occupancy which consists of one-fami objec- whether advances that 15-314 § ly houses families based on consan tive in a manner consistent with the legal guinity affinity. In our view Equal Protection command goal prop such a to fall fails within the hold Clause. We it does not.” police power. er exercise of state It can Reed, 71, 76, S.Ct. Reed v. hardly disputed the district —and 30 L.Ed.2d 225 court so found—that the ordinance has being required In thus on focus purpose permitting and effect ex rationality legislative actual isting compel inhabitants others all attack, means under we asked to do up who would take residence in com historically what courts are to do suited munity prevailing to conform to its —apply the law to factual contexts rath- lifestyle, insuring ideas of community thus accept hypothetical legisla- er than one socially will be structured justification tive to the exclusion of oth- fairly homogeneous basis. social Such represent ers that the true rationale of preferences, however, permissible while the classification.8 This more realistic private club, in a have no relevance judicial scrutiny in cases in which the safety health, or welfare. See compelling state interest is not in- test Holding Borough Kirsch v.Co. of Mana Equal voked serves to render the Protec- squan, 59 N.J. 281 A.2d 513 permit tion Clause effective rather to all (1971); City Trottner, of Des Plaines egregious inequalities go but un- 34 Ill.2d (1966); N.E.2d 116 checked, as was sometimes the case un- Dept. Agriculture, cf. Moreno v. U. S. scrutiny ap- der minimal test. This F.Supp. (D.D.C.) (three-judge proach appropriate is particularly court) (per McGowan, J.), prob. Cir. disagree 8. We with our Brother tack, rights adversely Timbers’ affected and the interpretation requiring of our governmental decision as support interest of it. apply the court a flexible agree standard Judge We Timbers’ con- upon balancing importance based determining legis- clusion that whether respective conflicting governmental equal protec- lation under review denies private legis- interests affected “grossly overinclusive underin- simply lation under review. We believe elusive classifications should not be readi- the court ly However, determine tolerated.” for reasons stat- legislative whether (at 2010-2014) classification ed below we conclude that (rather foot hypothetically) than assuming has a arguendo even the Belle substantial to a lawful ob- Terre had a ob- jective. necessity That jective, determination adopted justi- the means cannot requires the court to consider evidence of fied under this standard. the nature of the classification under af- persons family jur. noted, the conventional unit S.Ct. (husband, wife, brothers, sisters, chil- L.Ed.2d 485 dren, uncles, grandparents) nephews, Terre of the Belle The effect “self-limiting,” to be tends whereas be to exclude from ordinance would regulation limiting the absence of a basis, community, any without rational occupants, of unrelated number the “vol- togeth seeking groups live to unmarried untary” family can be limitless size. college er, they stu be three whether argument by appellees Another advanced nurses, priests, dents, single three three might is that ordinance avoid escala- Although judges. single local or three price rates, of rental which would given wide latitude communities are market, traditional families of the out zoning they needs, achieving possible it groups since that unrelated zoning ordi mask of cannot under willing higher pay would be rentals impose preferences of this nances social consanguineal than would families. We upon To citizens. character fellow speculate are further asked to that “vol- invite, permit would such action be untary” greater pose families would zoning guise, that similar laws parking, problems traffic and noise than having occupants would restrict those would traditional families and that there per family, no more children than two greater degree transiency be a would given radius, employed those within a part on the of the former than the lat- earning income, those minimum or a ter, weakening stability thus of the passing those muster after interview community. community a “Admissions Committee.” hypothesized If some or all of these may such be While selective exclusion objectives supportable, were some form practiced by private institutions, can might of such conceivably govern part be tolerated upheld police as a valid exercise of state body Terre, mental as Belle such power. Upon us, the record before how- public. is bound to serve ever, vestige we fail to find a assuming arguendo Even that social support. groups such To theorize that predilection in the form of entrenched of unrelated members would have more family traditional units constituted occupants per house than would tradi- zoning objective, valid we fail to find a family they groups, tional or that would support shred of rational for the means price the latter of the out market or used here to achieve that is not end. It greater produce parking, noise or traffic suggested appellants or unrelated that problems, speculation, would be rank un- groups functioning single house- supported either facts evidence keeping endanger unit, health, safe- judicially that could We are noticed. ty, existing morals or welfare of resi- Judge here constrained to adhere community. dents of the The most that Dooling’s observation that a re- “Such can be said is that differ from ex- zoning stricted all district well be isting solely residents because of lack impossible justify but if it had marriáge blood or ties. striсtly justified by its service of such zoning objectives safety, familiar ade- Appellees urge regardless light quate preservation air, preferences whether may social avoiding use, from lands overintensive not form a upholding valid basis for crowding population, ordinance, reduction it should nevertheless be sus congestion traffic and facilitation of ad- ground tained on the ra equate transportation, water, sewerage, traditionally recognized tional basis in school, park and other services.” objectives. suggested, instance, justified ordinance is permissible “In terms as a controlling population means of objectives, persons group bound density. This together only contention is based their common desire assumption operate single unit, number housekeeping of related

817 rooms, simply thought limitation of occu- might transient to have a or be housekeeping adversely single pancy unit. to a quality that would affect private stability neighborhood, should Public and nuisance laws of remedy prop- provide adequate depreciate to curb value of an other so pollution requiring erty. rela- noise or other forms of An ordinance regard- marriage adop- occupants dwelling, by blood, part tionship or of tending regarded relationship to other. to less of each be could intensity And of land use. limit the objective If of the ordinance were might group that a of be considered simple inflation, rent reme- avoid persons like- would be more unrelated ly adoption dy would be of rent controls generate parking traffic than the class of rather exclusion problems equal number than would an community. Lastly, people dis- from the persons. of related regarding of evidence absence suggestion support ordi- “But none of these observations re Family of con- nance constitute a means flects a universal truth. trolling traffic, parking groups today, noise, there are and not all mobile variety legislative family internally a wide and exist of local units are stable Family objectives well-disciplined. groups with enactments which these accomplished impinging could or more cars are not be without two unfamiliar. intensity upon privacy And is con and associa- so far as use problem cerned, present persons. If definition in tion of unrelated existed, ordinance, with excessive automobiles it could its reference by restricting ‘respective spouses' simply persons met number dwelling per unit, regardless by blood, marriage adoption, of cars can occupants. regarded hardly of its as an effective family control the size of units.” persuaded to Nor are we Trottner, Plaines v. 34 Des sustain Belle Terre ordinance 432, 434, Ill.2d N.E.2d 119 housing dormitory fact that is available Schaefer). (1966) (per Justice appellants Stony at Brook or one-fam Even if ily the Belle Terre housing nearby in other available conсeivably could have a zon communities have not ex which enacted ing objective, the clusionary zoning classification estab type here under may lished well be vulnerable too attack. fact that an unconstitu sweeping, excessive and over-inclusive. geographi tional ordinance is limited in Holding Borough See Kirsch Co. scope cal abridgement does not less an make Manasquan, guaranteed N.J. 281 A.2d 513 constitution (1971); Developments rights. cf. the Law— Warley, al See Buchanan v. Equal Protection, 82 Harv.L.Rev. 62 L.Ed. S.Ct. instance, 1082-1087 (1917); For if it Pennsylvania, Murdock v. maintaining population were aimed at 87 L.Ed. 1292 S.Ct. density at family the level of (1943). Appellants traditional entitled, subject units, it would not limit the number laws, to lawful and reasonable local occupants persons unrelated (2) to two travel and down settle where per one-family dwelling, please. King admitted See v. New Rochelle Mu ly is average smaller than the size of nicipal Housing Authority, 442 F.2d family. Assuming purpose, (2d such a 1971); Housing a 648 Cir. Cole v. permissive more ordinance would Authority, (1st 1970), suf 435 F.2d Cir. fice. Furthermore, objective affirming such an F.Supp. (D.R.I.1970). could rationally be achieved permitted and If Terre is to exclude Belle. without appellants discrimination borders, unrelated from its other near groups by regulation communities, number co in the absence of dwelling structure, by bedrooms in a regional ordinated, plan, re enforceable persons striction of the ratio of expected Indeed, to bed- do likewise. decidedly availability hardships tips

many already the balance of have.9 The community, favor, housing prerequisities there- in their in another preliminary injunctive fore, relief been constitute a defense. Car- does not Corp. logical such ar- established. conclusion Checker Motors ried its Chrysler (2d Corp., gument might, all communi- Motors after local 405 F.2d 319 Cir.), adopted unjus- 999, denied, had cert. 394 S.Ct. an entire area 89 ties (1969). laws, 22 exclusionary zoning rele- L.Ed.2d 777 tifiable gate against, in this those discriminated Accordingly order of district age jet plane superhighway, reversed case remanded court is and the regions or to other to distant even proceedings for with further consistent states. opinion. Lastly note we that most cases sim Judge (dissent- TIMBERS, Circuit zoning classifications have been ilar ing) : found of Des Plaines invalid. See Trottner, Village 34 Ill.2d 216 Terre, N.E.2d a commu- The of Belle (1966); Holding v. Bor Kirsch Co. nity people, “one- has enacted a of 700 ough Manasquan, of 281 A. family” zoning N.J. similar ordinance (1971). analogous 2d 513 In an context of communi- those in thousands effect three-judge court has struck down a throughout unmar- Nation. Six ties legislative classification which limited fe- and three ried students —three males eligibility stamps food University “related” New males—at the State living individuals one claiming economic unit Stony Brook, that York at sharing cooking common “one-family”, facilities leased have constitute groups excluded purpose of unrelated individuals in Belle Terre for a house appellants Village similar to together. here. living Moreno v. The there Dept. Agriculture, United States prohibits 345 says one-family its ordinance F.Supp. (D.D.C.), jur. noted, prob. living group stu- The such a there. rights dents, S.Ct. 34 L.Ed.2d in their civil action We find brought below, Palo Alto Tenants chal- in the district court (N. Morgan, F.Supp. Union v. lenge ordi- constitutionality D.Cal.1970), by appellees, hearing relied on to be in the district nance. After a unpersuasive. Although thought- court, Judge Dooling, court there in most upheld similarly “single defined perceptive opinion (E.D.N.Y. fami ful and 1972), ly” zoning validity under restrained upheld of the ordi- equal protection scrutiny, found, injunc- preliminary also and denied a nance unlike the district here, court that ma- tion jority enforcement. The rationally ordinance was popu related to today in our Court reverses density control, lation traffic control and Vil- district court and strikes down the lage’s maintenance of lower rental ground rates. ordinance on the equal protection violates clause,

Conclusion Constitution. of the United States disagree. I discriminatory The classifica recognize First, tion created that the Su- Belle I Terre ordi while casting appear preme appears aside supported nance does not Court by any equal rigid protection-new equal rational basis that old is consistent permissible dichotomy, zoning objectives. protection with I believe that per- appellants strong majority incorrectly Since in оur have shown a likelihood of of the new standard success ceives the essence the merits and Reg- Ordinance, 206.1; Zoning See, g., Building General § Zone e. Ordinance of Hampton, ; Babylon, I, Village 100(28) of East Art. Town ulations § Ordinances, Building 309.5; Village Code of § Zone Unified Ordinance of Oldfield, VII, Harbor, Village Sag II, 1(d) ; Art. Ch. Art. § Ordinances II, Zoning, Bellport, Part 7.2. Art. Ch. legisla- or social being developed. will often where economic our decision Since challenged. g., being See, e. beyond immedi- tion was far radiations Optical Co., controversy, compelled Lee Williamson v. I feel ate (1955); Lindsley understanding v. Natural Car- my Co., protection decisions bonic Gas latest Court’s judicial review standard and the new scrutiny” test involved “strict they require. interest-balancing re- more intense and legislative disagree Secondly, ends. view means and I controversy. governmental purpose instant on the merits of the legislation “compelling” my Terre since the Belle view significant the intrusion individual relation- ordinance bears a ship recognized by legislative be traditionally zon- caused classification to the “necessary” by appellees, of this the effectuation objectives asserted “compelling” Shapiro purpose. protection v. equal stand- See satisfies the new (1969). Thompson, This 394 618 U.S. ard. test, as the interventionist also known applied equal protection”, “new was I. provided for dif- where a classification passed century since In the race, ferential treatment basis part protection equal the clause became Loving (1967), Virginia, v. 388 U.S. 1 Constitution, well-defined our two in fact a neutral classification where equal protection es- have been standards adversely affected fundamental scrutiny” “minimal tablished: rights disadvantaged group. See scrutiny” standard and the “strict Elections, Virginia Harper Bd. of 383 v. standard. rights); (voting (1966) Grif- U.S. 663 good “minimal (right A definition of the Illinois, (1956) fin 351 12 v. U.S. scrutiny” test articulat- Shapi- was appeal); standard to an effective criminal by in McGowan ed Justice Warren supra (right Chief Thompson, inter- ro v. Maryland, 425-26 v. 366 travel). U.S. state (1961): majority The here asserts that certain permits protection equal Supreme clause] “[The Court1 recent decisions scope discretion wide States standard review indicate that a third enacting affect' some laws which equal protection of inter- —an standard groups differently than process citizens scrutiny in the mediate —is safeguard by ‍​​‌​​​​‌‌​​‌​‌​​​​‌​‌​​‌​​​​‌‌‌‌​​​​​‌​‌‌​​​​‌​‌‍others. The constitutional is described evolution. This standard eq- if the classification offended majority flexible and as “a more grounds wholly on irrelevant rests permits consid- approach, which uitable objec- of the State’s the achievement given to evidence to be eration statutory discrim- tive .... A un- unequal classification nature of the any if not be set aside ination will ad- attack, nature der reasonably may con- of facts governmental versely affected, and the justify it.” ceived to The urged support of it.” interest majority by proposed test, test known as the also This deferential classification, upon review protection”, most utilized “[i]f “old developing upon standard primarily a third majority five have been relies 1. The Dept. Chicago Mos v. support Police its formulation of of review: decisions to Humphrey (1972) ; v. ley, rationality 92 v. standard: James new generally (1972). (1972) ; Cady, See 504 Strange, Jackson 407 U.S. 128 Term, Gunther, (1972) ; Court Indiana, The Weber U.S. Evolving Foreword, Doctrine Casualty Surety Co., Search & v. Aetna U.S. Changing A A Model (1972) ; Baird, Court: Eisenstadt Protection, Equal 86 Harv.L.Rev. (1972) ; Reed, New Reed Additional decisions recently indicate that the Court cited to foregoing defendants, bearing rele- Court upon decided facts proce- factors, commitment difference between substan- is shown have a vant supported by objective was not rational dures lawful tial to a objective. reasons, basis such void other and is not overbreadth, upheld.” ma- The it will Surety Casualty and Weber v. Aetna jority new that under the further states Co., invalidated 406 U.S. 164 courts courts are “asked what test do discriminated between le- statute which historically apply the suited gitimate dependent, and unac- children do— ac- awarding rather than knowledged legitimates law to contexts factual legislative justifi- hypothetical cept compensation one for the workmen’s benefits rep- the exclusion of others that cation to death common father. classifi- resent the true rationale of the ille- that the discrimination held intensity significant gitimates I cation.” believe that bore “no relation- recognized judicial purposes review ship focus of of re- those majority compensation covery differs cited decisions which workmen’s substantially intensity commendably fo- from statutes serve.” 406 U.S. majority proposed cus of the test at 175. pres- applied chiefly relied two decisions controversy. ent by here, majority the Eisenstadt Baird, Strange, (1972), James and Reed v. U.S. U.S. Reed, (1972), decision, probably (1971), unanimous U.S. 71 strike me as example truly intensity is the the new best Court’s not of illustrative the judicial

policy of intervention without and focus of review associated with the scrutiny”. evolving equal “strict held protection That decision In standard. Reed, re- spec- unconstitutional a Kansas statute for coupment both Baird and the did Court legal expended ify being applied defense fees the test was a indigent for means-scrutiny defendants. What test: whether the means actually Court found rationally about the statute offensive were a val- recoupment was that a debtor in ac- public purpose. id tiny engaged But the actual scru- tion could not num- by avail himself of a in in each exemptions including protective ber of required case seems more intense than — wage garnishment some restrictions on means-scrutiny under the test as de- judgment —afforded to other civil debt- fined. ors. It held that the distinction between Reed, In the Court held unconstitu- judgment these debtors and other civil probate provision tional an Idaho regard debtors exemptions with gave mandatory preference men a over equal protection violated clause be- persons priori-' women when same cause it was not on based “some ration- ty applied appointment class for to ad- ality”. minister a decedent’s estate. Chief Jus- In Indiana, Burger Jackson v. legitimacy” tice in found “some (1972), the Court held that proffered objective the state’s simpli- the state’s fy provisions pretrial probate testing commitment proceedings. inYet mentally incompetent criminal defend- solely the means as related to that aim protection ants violated the clause. the Court held that the sex classification comparison A of the commitment laws “arbitrary”. was It seems clear that the applicable to a criminal substantially defendant means did contribute governing those persons commitment purpose, rationality state’s and that the charged not with offenses disclosed that test was met. The more intense review subject criminal engaged defendants were Court, in more charac- more lenient commitment standards and scrutiny teristic of the strict test than stringent to a more release standard. rationality test, apparently of the new Accepting proffered as unexpressed special suspi- reflected an objective committing criminal cion of sex classifications. conflicting required Mass- dоwn struck Baird, values would be the Court weighed. inquiry achusetts; distribution to be The thus would ban scrupulously persons. on means rather contraceptives focused to unmarried however, result, than ends. reached this The Court legislation scrutinizing more far The states “the na here vigorously under the than would have right ture of the affected” should rejected, means-scrutiny It standard. part rationality determine the rationality appropriate measures means. This indicates that the more means, purposes in two right affected, more “valuable” the fact asserted the state. scrutiny intense should be the and the purpose ban it found credible was a rational must be the means contraceptives stated such. then objective. achieve the I do not find married a distinction between support principle in the Su rationally persons re- was not unmarried preme Court cases. In each the deci ap- objective. The Court lated to this sions, except Baird, Reed and intens judgment pears as to to have reached degree ity review al was the same measuring legitimacy of the ends though dif the interests affected were inter- value the individual “sliding approach ferent. A scale” in- interests ests affected. Since appropriate contexts, but it some pro- closely volved related to those were inappropriate seems to me to be here. Connecticut, tected in Griswold A court should not to at justified the Court tеmpt impossible task of first as subjecting scru- statute to intense sessing right precise value tiny. increasing interest de and then creasing intensity scrutiny ac James, Weber deci Jackson and cordingly. approach confer This would clearly sions the Court is indicate upon judge a wide discretion to overturn pro equal not two-tier content with the largely legislation local based pres may tection doctrine and well own of the of com his estimate value age protection a new standard.2 peting highly interests —a abstract require modest in Such standard would individualistic determination. tervention a court to assure rationali legislative ty of means without re decisions, but The recent Court stricting legislative regard prerogatives my view, judge require in to make ing scrutiny” ends. the “strict Unlike judgments needed narrow value governmental test, importance of the evaluating legislative in A clas- means. apparently interests would not substantially sification must contribute weighed against importance pur- state’s achievement private legisla impaired by interests ground pose. dif- It must “rest on a tion. Courts would not defer to a broad having ference fair substantial re- range imaginable legislative purposes, legislation.” object lation to the proffered by if but the ends the state Reed, supra, Reed v. at 76. 404 U.S. legitimate, right were and no or value grossly would This indicate that overin- support which has clear in constitutional elusive underinclusive classifications аffected, history adversely text and were readily Nor should not be tolerated. hesitancy expanding 2. Four last decisions rendered the Court the list Court’s yet ready See, term g., indicate that is not to of “fundamental interests”. e. equal protection” Lindsey Normet, (1972) abandon “old stand v. 56 U.S. Hackney, (refusal housing ard. Jefferson v. in- find fundamental (1972) ; Lindsey Normet, terest). Indeed, v. 405 U.S. 56 the Court’s use of the (1972) ; Knebel, means-scrutiny v. Schill 404 U.S. 357 new test viewed (1971) ; Belcher, technique Richardson v. as a to avoid the troublesome (1971). judgments identify value new fundamental interests. difficulty judging 3. The the relative value of an interest is illustrated imagi- traditionally reviewing declined to ex- defer to court should a Realty Co., 272 justify plore. Ambler Euclid v. the classi- nable facts that (1926). I am more therefore be taken U.S. 365 But should fication. account apply is the legislative disinclined than the need realities and means-scrutiny legis- short, test legislative flexibility. an intensified In adopt uncharted of the law. means area lature should be able reasonably in achiev- effective that are however, purposes, I For discussion ing legislative end or ends. a valid arguendo the new assume shall applied of review should be standard

II. Belle Terre ordinance. clearly was The Belle Terre ordinance Village of Belle Terre asserts enforced, devised, so nor has been not zoning primary purpose of its against any group be- as to discriminate one-family ordinance is to maintain religious, political racial, сause of its Village for residential character of the Mulkey, Reitman characteristics. major- the welfare its residents. operate to not does It U.S. 369 ity holds that this is not a valid Village. indigent from the exclude and, objective further, the ordi- Redevelop- Norwalk Norwalk CORE means of achiev- nance is not a rational (2 Agency, Cir. ment F.2d objective. find it un- While I in- 1968). Appellants not shown necessary issue, to decide this difficult right fringement of a constitutional rationally ordinance is relat- because the association, Ala- NAACP v. freedom well-accepted objec- ed to other Patterson, bama ex rel. majority’s tives, of the treatment right privacy. (1958), or Griswold subject discussion. deserves some Connecticut, under circumstances I believe that together rights appellants’ to live While the maintenance of the traditional here intru- from the under the roof free same Village arguably family character impor- government-are to be sion said objective. may be is a my rise tant, do view such government doubtful whether local interests”. to the status “fundamental preplanning development com- short, scrutiny” standards the “strict solely for munity could set aside area validity applied should to test not be “family” dwellings single-family ordinance. persons consan- defined as related new ra- the The believes legal affinity, guinity or as not zoning tionality applied test should be persons. is unrelated But that than two ordi- the Belle Terre ordinances such as ordi- here. The Belle Terre not the case however, clear, me, not To it is nance. apparently enacted for the nance prepared Supreme is zoning particular purpose for a apply invigorated rational basis this community neighborhood in a character areas “hands-off” to traditional review always been of that character. that had my legislative activity. I have And development over decision was made The under our do so doubts that we should moving by period time the families a During term, this last own steam. zoning Village. into the reluctance its Court continued merely reinforced the sum therefore explore when it area the welfare many Mandelk- choices. See individual rationality examin- after found minimal Managing er, Environment Urban Our ing in legislation discriminated which 1971). (2d ed. Jeffer- the allocation welfare funds. appellants significant (1972); also that Hackmen, It 406 U.S. 535 son v. housing Belcher, to them similar available have Richardson legiti- assessing Dandridge Williams, nearby areas. In also See particu- macy upon past, a zon- limitation In the of a use ignore area, rel- ing should not a lar a court been area which has another evant, larger pattern development. (1) population ordinance: to control Judge Dooling (2) density; As stated below: to avoid escalation of rent- rates; (3) prevent parking, al safeguard against mistaking “The pur- problems. traffic and noise These particular effect of a ordinance is to (cid:127) poses admittedly primary setting, recognizing see it in its total purposes ordinance, of the I but believe effect, and, therefore, its its va- inquiry that our should not be limited to lidity, may way be influenced primary purposes. pur- Subsidiary its neighboring in which communities are poses may support rationality also zoned.” means. a zoning If the a com- ordinance of small Judge Dooling observed that ordi- munity is viewed from this broader “might impossible nance well be all but partic- perspective, its maintenance of a justi- justify strictly if it neighborhood had to be may ular character not be fied of such zon- service familiar expression parochial seen as an of a ing objectives” those noted above. attitude, exelusionist but instead as He did not general decide whether the ordinance proper power use of the welfare significant bore a to these segment to establish one beneficial objectives. view, my larger the ordinance is scheme. A entire look at rationally related to ends. these area, provides each Brookhaven which I am reinforced in this the deci- view varying activities, uses and indicates sion Palo Alto Mor- Tenants Union v. prop- that Belle Terre’s ordinance awas gan, F.Supp. (N.D.Cal.1970), general power. er exercise of the welfare upheld ordinance almost rationally Certainly ordinance is identical to the Belle Terre ordinance.4 Village objective. The related reasonably two unrelat- determined that obviously here The ordinance involved living persons household ed in the same density provides controls some over change substantially the char- would not limiting per- of unrelated the number neighborhood. acter of the Whether dwelling. single sons who live or four un- limit should been three argued, however, the restric- persons, on which the is a matter arbitrary correspond- no tion is because flexibility. Village is entitled to some placed re- on the number of limit is clearly contributes to the The limitation dwelling. single living persons in a lated neigh- objective family preserving to be do tend But traditional families borhood. average self-limiting, size family (3 persons) pre- demon- objective Belle Terre In addition Village Moreover, serving has family strates. character the traditional integrity preserving neighborhood, interest legal biological family and specified purposes several other by appellant, Alto, upheld relied cases In Palo the court Trottner, family “single Ill. Plaines v. of Des which maintained law “Single and neighborhood. N.E.2d 116 fam- 2d residential” Borough Holding by ily” persons Kirsch Co. as related was defined Manasquan, exceeding group 281 A.2d 513 law, N.J. four or a not blood or persuasive. (N.J.Super.1971), In single housekeeping- are persons living not a as Plaines, challenged by group never Des court The law was unit. protection because persons issue reached the than unrelated of more four rights ground law was ultra that that it violated their it decided Holding Co., privacy. Applying the ordi In Kirsch and vires. association scrutiny” test, after declared unconstitutional “minimal nance was restrained objective was to that found was ra- the court that the classification court held persons prevent population tionally obnoxious behavior control of related to particular during renting The inflation, season. density, of rent and avoidance limiting traffic, prevention parking, the ordinance held that court and noise rationally re not problems. was area to “families” objective. lated to (1) large family- reasons: there for three tives basic discrimination groups presented that no evidence afoul of Constitution. run always swpra. differ- Connecticut, persons unrelated are Cf. Griswold v. re- perfect- with short, ent from traditional families is not the ordinance while (2) given problems; highly effective,' spect there were these ly efficient, it is to the available While more effective methods realities of situation. (3) Village problems; perhaps and may other, to solve these and be there equally curbing ef- population at effective, there were methods least means Village Village permitted density, available to the fective should upon ap- substantially intrusive have been less that would to select means rights. pellants’ legislative purpose. The or- further clearly question does so. dinance in Village need not establish majority’s meth- that other observation always un- there a difference is between density available ods of control respect groups related families upon appel- which are less intrusive enough problems. to these is lants’ strikes me reminiscent usually differences exist. I believe such scrutiny” my test which the “strict Village established that has inapplicable here. view Moreover, majority ap- fact. since the requires plies a new standard which rationally The ordinance also is relat- Village rationality, proof ed to the avoidance of rent inflation. anticipate Village apparently did not Large groups persons typi- of unrelated very standard, such a at least cally independent sources of several or- seems to me that a remand should be family income while the traditional opportuni- dered to allow the usually in- one source of basic ty prove these matters. Large groups come. therefore are will- higher pay The fact the means selected and able to than rent Village may family. Thus, have been the most- could rent the whole may those efficient or the least structure of Belle Terre well be af- intrusive of legally large, by opening under the available is immaterial fected the area to un- living Single means-scrutiny groups. test. If se- the means families substantially may lected rent contributes who forced to out of move end, equаl protection clause has not the area when landlord increases large It is not our function to the rent to a unre- been violated. level he knows engage legisla- groups pay. Perhaps such lated intense review of can and will suspect tion unless the classification is rent controls would have been a better adversely solution, majority suggests; or a fundamental interest as the but rationality affected. test does not demand that employed the means the best means judgment I would affirm the available. The on the num- restriction district court. persons ber of unrelated who live single dwelling significant re- bears a ON DENIAL OF REHEARING lationship to control. rent EN BANC Finally, the ordinance is related poll judges regular A active prevention traffic, parking, and noise having request service been taken at the problems. problems These when occur judge of such a ac- to whether this one-family occupied homes become be reheard en there should banc and large groups persons. of unrelated being no in favor it is thereof, likely people There are to be more rehearing Ordered en banc is de- that more motor vehicles. Judge nied. Chief FRIENDLY and Cir- majority Judges holds HAYS, that the ordinance cuit MULLIGAN and rationally objec- is not related to these TIMBERS dissent.

825 Second, here is 4-4. Judge (dissent- the en vote banc TIMBERS, Circuit during instance, period It is another en of reconsideration from denial ac eight consisted that our Court banc): judges, where en banc reconsidera tive question of unusual a substantial circumstances view of the unusual In being despite importance denied is reconsideration en banc under which judges in favor vote of four of the active being in I think that denied, ease is this Judge Friendly here, of en Chief banc 1 — I interest and in the fairness Judges Mulligan Hays, and Circuit dissenting my for reasons should Timbers. reconsidera- of en banc from denial panel ma- the decision of Third, tion. jority case, in read in the instant when conjunction recent decisions with right involving First, in action Aguayo panels of our in v. other Village of residents of the 700 1973), Richardson, (2 F.2d 1090 Cir. 473 through govern- Terre, local Belle Richardson, 473 York of New v. one-family zoning ordi- ment, to enact a (2 1973), virtually makes it F.2d 923 Cir. panel my already nance, I have stated impossible in this a district court for February 27, F.2d 476 filed dissent Circuit, panel Court, de- of our disagreement my at basis protection equal termine what standard majority in of the with the decision apply in a case before it. Village’s striking ordi- down the Aguayo Richardson, with we dealt ground it violates nance protection challenge equal to New my protection equal The crux clause. project experimental pro- York work disagreement majority centers receiving grams involving families as- misapprehension of the Su- program. sistance under the We AFDC pro- equal preme most recent Court’s equal development noted the new new ‍​​‌​​​​‌‌​​‌​‌​​​​‌​‌​​‌​​​​‌‌‌‌​​​​​‌​‌‌​​​​‌​‌‍standard and the tection decisions prоtection described standard which we require. As- judicial review replacement “a ‘two- as either suming arguendo new means- equal protection’ many have tiered protection standard scrutiny unsatisfactory, . . found . reading (based of the Su- on a correct narrowing gap tiers.” between the decisions) preme should recent Court’s F.2d the New 473 at 1109. held that We zon- area of applied to the uncharted project program York work satisfied ing ordinances, to me that then it seems experimenta- the new standard because valid, the Belle Terre improvements tion to long determine whether significant relationship to bears a system recognized objectives. can be made welfare See, remaining g., e. Scenic Hudson Preservation votes of all five active FPC, judges F.2d 494 were in order banc Conference v. to en (2 (en denied, 4-4), Zahn, supra, 1971) cert. F.2d at Cir. banc the case. See (1972) ; judges denied, Zahn In five 1042. One of the active con Paper Co., panel opinion. 469 F.2d in the ternational curred (2 1972) (en denied, judges 4- wrote the 1040-42 Cir. banc Another of active banc, against), dissenting opinion. panel 4 in If either of i. e. favor of en bane, granted, had voted en cert. U.S. 925 these two (U.S. 20, 1973); Feb. been reconsidered en case could U.S.L.W. Puco, 476 F.2d each favor of en States banc. Since voted United 4-4), (2 1973) (en denied, banc, re banc the desire of the other four to Cir. (May 1973). en banc thwart consider the case was not compаre Machines International Business Ma ed. See International Business But Edelstein, Corp. Corp. v. United States and Edel chines v. United States (2 1973) (en banc) (2 1972) (en stein, Cir. F.2d 471 F.2d 507 banc Cir. February 14, dissenting), slip op. 3375, granted, 5-0, 1973). (Timbers, J., IBM, (May 8, 1973). since three should be noted disqualified, judges were active decision, striking majority’s down a government objective. We The village the de- ordinance which limits the rejected that some of a claim arbitrary persons who of unrelated program number were tails of “ single represents dwelling, an noting live in a unreasonable, it that ‘when and judicial inquiry unusually into extensive point must there that a line is seen government regulation by of land local be, mathemati- that is no and there the ordi- use. The held that fixing logical way precisely, of cal or substantially re- not “in nance was legislature must fact the decision well-recognized zoning ob- lated” to the say accepted that can unless we ” jectives justify by the to asserted very mark.’ of reasonable wide its ordinance. Id. 1110, quoting Louisville Gas at F.2d (1928) Coleman, Co. view, protection my equal In stand- (Holmes, J., dissenting). applied ards three decisions these period within a of than six weeks less City Richardson, York we New They highly are demon- inconsistent. upon with an attack New were concerned urgent for en re- strate need banc requirement York residents State’s consideration restatement contribute of local service social districts protection proper equal standard to be on to state welfare fund Judge applied. correctly Kaufman As recipients basis of the number welfare boundary observed, “the outer [the in the held that an local district. We ambig- equal protection] inquiry remains protection sufficiently equal claim sub- City Richardson, York uous”. New convening require stantial to supra, 473 F.2d at 931. In an area three-judge stated district court was one, as this we not allow vital should alleged where it contribu- protection ap- equal to standard system York in effect New plied by our uncer- Court to-remain so finance residents 74% pending tain further still decisions program where Supreme our 45% Court Court. residents reach- State’s lived there. We courts district Circuit equal protection called by applying equal to decide is- ed this result a new increasing frequency, sues with protection standard which we described virtually day day is ex- basis. as a “modified” rational test. important tremely provide that we them Supreme We observed Court’s guidance with immediate useful rather recent indicated that decisions “[t]he than abandon them to what make protection two-tiered doctrine Supreme will of recent Court decisions begun give way seems to or, worse, even confuse them with graduated, sliding-scale test.” conflicting series own. decisions our F.2d at 931. Certainly enough has been said in recent Supreme major- decisions of the en- ease, In the instant Bomas applied ity able us to state with reasonable assur- its own version of the new general guiding principles. equal protection ance some it de- standard which granting I would do so immediate en scribed as: banc reconsideration the instant case. “a more equitable ap- flexible and permits proach, very consideration to Finally, re Court’s given Independent evidence the nature cent Antonio decision San unequal Rodriguez, classification School under at- District v. (U.S. tack, adversely U.S.L.W. nature governmental affected, strongly 1973), inter- March indicates urged support of it.” 476 F.2d scrutiny equal est minimal traditional at 814. protection ap- standard should have been Rodriguez, light Rodriguez, plied of me in ease.2 In seems to instant in that a that “the traditional the decision instant Court held fortiori surely review, requires case, a which constitutes of sub- standard system municipal- to a stantial interference that the be shown bear with State’s ity’s zoning policies, some rational to We erroneous. purposes”, applied de on should to should correct this our in- state be error own through program itiative en termine a for banc reconsideration whether Texas forcing financing public complied rather education with than of Belle unnecessary expendi- Terre incur protection clause. at money ture of time at 4419. Court obtain what U.S.L.W. appear that, would sure stated of this reversal because “the Justices Supreme I do think expertise Court. the Vil- Court lack both the lage compelled Belle Terre familiarity problems of should local neces with so up to march hill sary making for the sake of to the of wise decisions” marching again, down in of the view respect financing with of Supreme fortnight of Court’s decision education, com and because “in such a ago Rodriguez,3 in plex perfect arena no ... alterna exist”, “impose tives the Court would not For the reasons above, stated I re- rigorous scrutiny.” spectfully too emphatically a standard of but most dissent at U.S. from the denial of U.S.L.W. at In 4419. reconsideration en short, the refused to in banc. Court “intrude traditionally an in area which it de Judge: MANSFIELD, legislatures.” Circuit

ferred to state State regarding local decisions limitations on my Some statements in the dissent of traditionally the use of land have been distinguished brother from the hearing1 Timbers great accorded this same deference denial of Court’s an en banc reply.2 federal for the call for courts same reasons handling public expenditures state’s of Court, including Most of members this are not to dissenting Am brother, be disturbed. our Euclid construed Supreme Realty certain recent Court Co., bler decisions U.S. immeasurably majority opinion 2. 2. En banc review adds Both the of Mr. Justice expenditure judicial time, energy concurring of opinion Powell and crucial part expressly of Mr. and resources of members of Justice Stewart relied upon already opinion this overburdened Court. Chief Justice Warren’s in Maryland, idea of this current McGowan Some Court’s load 425- judicial regular gathered of Justice business can Mr. Stewart referred year principle fact in from the the fiscal McGowan as “[t]his settled 1,593 appeals, compared specific terminated as constitutional law” and as “a application appeals disposed annually principles with 959 five one the first years adjudication previously, or an constitutional increase basic —the 66%. presumption Report validity Annual See of the Director of the constitutional duly Administrative Office of the United States enacted or federal law.” 4425. the Fiscal at Courts Year Table 41 U.S.L.W. at Bl, page 181, and for the Fiscal Year mindful, course, I am none Bl, Appendix Table A-l. Yet the us was aware of the de- Court’s same, the Court size of has remained the Rodriguez cision at the time of the en judgeship with one now vacant for almost poll bane instant case. That 17 months. all the more reason en reconsideration appeals, are en banced Nor rare ex- banc now —to harmonize this law of disposed expeditiously, ceptions, since controlling Supreme Circuit with ' all called members Court are law. hearing participate in the and decision. pursuant Experience proc- 1. An en banc review was denied en banc reveals that provisions may delay 46(e) of 28 U.S.C. be ultimate § ess Court’s deci- requested by “majority appeal cause it was not sion of than six judges of the circuit circuit who months. regular aсtive service.” indicating degree equally trend toward modifica- essential. A certain softening previously flexibility describing Equal had tion or what Protection interpreted rigid, two-tiered must therefore been be inevitable. my judg- Equal In Protection doctrine.3 Supreme Nor Court’s 5 to does inconsisténcy ment there is no between Independent decision in Antonio San general by different observations voiced Rodriguez, School District v. including panels Court, this the ma- of 1, (Mar. 93 S.Ct. 36 L.Ed.2d 16 jority subject case, on in this of foregoing. 21, 1973), alter the There the apparent elasticity trend toward following path used Court, well beaten application principle in of the basic types in of economic review of certain Equal But even if there Protection. discrimination, applied traditional “the were in lan- some differences the broad legislation of review” to state standard guage by panels, used different it would nature, essentially which of an economic pointless attempt unwise to to ex- and challenged of its social con because press crystallized terms standard sequences. we are not concerned Here along suggested by the lines the dissent. legislation but with with commercial squarely hearing An en banc directed local ordinance would not contrib significant right any way clarity personal to as ute in of individuals and together found Equal coherence in live area sociate and Protec “impossible to pursuing court to be for the reason the district quest justify” zon elusive ing of “such familiar terms standards we deal are light safety, ing adequate general objectives principles as with broad from capable widely preservation adaption must be of the lands air, crowding varying use, avoiding Nothing factual over-intensive contexts. we might say proteus-like population, traffic con reduction of about this con adequate cept, gestion sufficiently pre and facilitation could be therefore, school, sewerage, binding throughout water, transportation, cise to have a effect any cases, Circuit If park in other services.” and other which would inevitably significantly thing, with involve differ is in accord our decision here factors, ent especially Supreme since views decision Rodri our Court’s expressed court, describing would applied guez. a divided the standard judges looking with primarily district by it, “the there stated that the Court Supreme Court for ultimate scheme must still be examined Texas guidance. principle rationally At no time has the furthers determine whether Equal pur Protection been legitimate, articulated articulated some State Supreme Court or (id. 1288), ourselves pose” at at S.Ct. “litmus-paper a deed, precise test” or rule. In . . “the traditional standard review . Supreme description Court’s only system requires that the State’s “Due Process” in Larche, Hannah 363 shown to bear some rational 420, 442, (id. 80 S.Ct. L. legitimate purposes” at State Ed.2d 1307 “elusive con 1300), cоnsti and that “[t]he 93 S.Ct. cept exact [whose] boundaries are un Equal Pro under the tutional standard definable and cording challenged content varies ac [whose] tection is whether the Clause specific ap legiti factual contexts” rationally furthers a state action plies Equal with the same (id. Pro force purpose at interest” mate 55, certainty tection. While 1308). in the law is a These 93 S.Ct. at statements virtue, history discloses that resilience our review consistent Aguayo York, Education, 29, 1973, Slip New Cir. Jan. Sheet (per (per Feinberg, Lumbard, F.2d 1090 at 1108-1110 Friend at 1726-28 ly, Waterman, Hays, C.JJ.) ; City Mansfield, C.JJ.) ; Boraas v. Richardson, New York v. Terre, Cir. Belle 2 Cir. 476 F.2d 806 (per Kaufman, Mansfield, Timbers, (per Oakes, C.JJ.). F.2d 923 at 930-931 Lum bard, Mansfield, C.JJ.) ; Green Board nullify require Belle us to but would to further failure

Terre zoning objective. therefore, not, one of those This extraordinary that warrants

truly cases hear- such a would en banc. Nor review expenditure unnecessary the render determine money of time agree will whether case, disposition since of this with our well, agree majority of this Court by the reached the result not, appellants panel did and, if it by undoubtedly review seek would open Terre has Supreme Belle Court.4 inexpensive solution. simple and it a bearing a new can enact rational some objectives. RAILWAY CITY SOUTHERN

KANSAS COMPANY, corporation, Plaintiff- Appellant, GAS COM

ARKANSAS LOUISIANA Defendant-Appellee. PANY, corporation,

FO BUREN RAIL

RT SMITH AND VAN COMPANY, corporation, WAY Plaintiff-Appellant, LOUISIANA COM

ARKANSAS GAS PANY, corporation, ‍​​‌​​​​‌‌​​‌​‌​​​​‌​‌​​‌​​​​‌‌‌‌​​​​​‌​‌‌​​​​‌​‌‍Defendant- Appellee. 72-1369.

No. Appeals, States

United

Tenth Circuit.

Argued Sept. and Submitted

Decided March “sure” its action in feel that our diet that we are 4. While we confident views disapproved area of law. not be fluid will Court, pre- we would not be so vain

Case Details

Case Name: Bruce Boraas v. The Village of Belle Terre, an Incorporated Municipality

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 5, 1973

Citation: 476 F.2d 806

Docket Number: 372, Docket 72-2040

Court Abbreviation: 2d Cir.