Zoning Practice — March 2007

Ask the Author

Here are reader questions answered by Dwight Merriam, FAICP, author of the February 2007 Zoning Practice article "Ozzie and Harriet Don't Live Here Anymore: Time to Redefine Family."

Question from Rick Hamelin, Warren, Massachusetts:

My community of 4,500 is governed by a selectboard, and our funds are limited, and our needs are great including funding two municipal building projects and two building upgrade/restoration projects. Our property values are beginning to slide as foreclosures increase and the population leaves our commonwealth.

I believe that a town manager is essential to help supervise our government operations. Yet, I recognize that our current loss of several hundred jobs which relocated out of state and the dire business climate of Massachusetts require that we hire a town planner in an attempt to attract industry. I do not believe that our town can financially pay for both. Is it possible to hire a person to function as both a town manager and town planner? Do you have any recommendations for or against such a position?

Our town is an old two-mill town, largely wooded with some existing farmland including dairy and orchards. We don't really have any marketable tourism attractions. We are typical of every small town in Massachusetts that is losing industry and would like to improve its job base. With that said, it would be competing with every other similar community whether statewide or nationally.

Answer from author Dwight Merriam:

Thank you for your inquiry. I grew up in Needham, Massachusetts, and graduated from the University of Massachusetts, so I am familiar with the Commonwealth and the town of Warren.

Your question is a little off the subject, but let me address it.

I don't know offhand of any communities where the town manager is also the town planner, but there are numerous instances where town planners have become managers and managers have become town planners. I know several planners who have a master's in public administration instead of a master's in planning.

My guess is that, with the town of your size, it would be quite difficult to do both jobs well. There simply is too much responsibility in both positions. However, as my mother used to say: "Half a loaf is better than none," and you might look for a planner who is interested in making the transition to being a manager. They could become a manager, and you could capitalize on their planning skills.

One Massachusetts town of similar size has recently advertised this position (note the reference to planning):

Town Administrator
Town of Hubbardston

Hubbardston, Mass., a growing community of 4,800 with an operating budget of $6 million located 19 miles northwest of Worcester, seeks a qualified candidate for the position of Town Administrator. The Town Administrator provides administrative support to a three-member Selectboard and supervision for several departments. Candidates should be self-motivated and highly organized and possess strong skills in budget development, capital planning, and public sector procurement. Excellent oral and written communication skills. Familiarity with local government operations, state law relative to local government, planning, and human resources management. Experience with collective bargaining and grant writing is desirable. This is a full-time position with a salary range of $44,000-$60,000 DOQ. Please submit a letter of interest, resume, and list of three references to Personnel Board, P.O. Box 206, Hubbardston, MA 01452. Deadline for applications is 4 p.m. on Monday, April 9, 2007. EOE (posted 3/21, exp. 4/09).

Hubbardston does not have a planner.

You might wish to contact the Massachusetts Municipal Association and talk to its executive director or other members of the staff regarding your question: www.mma.org.

Question from Rebecca Retzlaff, Auburn, Alabama:

I really enjoyed the latest Zoning Practice. In Auburn (Alabama), a college town, we have an ordinance that no more than two unrelated persons can live together. We recently had front-page headlines about zoning enforcement officers entering a home where four students were living, and making them leave because they were in violation of the ordinance (the newspapers said that it was very early in the morning and still dark out). The article said that the officers did an investigation and determined that there were unrelated people living there because of numerous cars parked on the property. This seems to be a particularly big problem for students because Auburn has very few dorms, and no married student housing.

I own a house with a small apartment in the lower floor (with a separate kitchen, bathroom, bedroom, and living room), but it is just an accessory apartment — within a single family residence. The previous owner built it for her elderly mother to live in. So it seems that if I want to rent it out, then I cannot have somebody living with me in the main part of the house (unless we are married), because we have no "living as a family unit" part of our ordinance, and then there would be more than two unrelated people in the house. Are you aware of any similar cases or exceptions for accessory apartments?

Answer from author Dwight Merriam:

Glad you enjoyed it. I am not aware of any similar cases, but I would think that the accessory apartment is a separate dwelling unit with its own cooking facilities and bath, so even though it is within a single-family house, there are two dwelling units, and each unit can have two unrelated persons. I do not give advice on whether people should marry or not.

But ... I am not a member of the Alabama bar and cannot give advice on your state's laws.

Question from Ryan Levesque, Tempe, Arizona:

Currently, our city's zoning ordinance restricts the number of nonrelated family members to no more than two in a single-family home. This means that you’re allowed to have up to two nonrelated persons and one primary household, defined as being related by blood, marriage, domestic partner, or option to the third degree of consanguinity (cousins not considered the primary household). This regulation has been in place because our city is a college town, with concerns of student rentals causing disruption in the neighborhood with loud parties, excessive parking, and a perceived lack of property maintenance.

Part of the recent issues with these regulations is the perception that it is unenforceable in the courts to uphold these regulations. A request had initially been made to remove these regulations and fall back on the rental housing code with occupancy limitations. The problem was that the alternative was actually less restrictive and could allow additional people within a home and still not solve the problem of enforcement. Are our city's regulations still appropriate and/or legal, and are there alternative ordinance regulations in addressing single-family homes with student rental housing? Your thoughts and comments are welcome, thank you.

Answer from author Dwight Merriam:

Thank you for your inquiry. I am not a member of the Arizona bar and cannot answer the question of what is legal in that state. As my article indicates, it varies from state to state and is changing. Former APA staffer Frank Bangs in Tucson at 520-622-2090 is an Arizona lawyer and you might talk with him.

I like Ames's approach — I wrote the regs! — and they address the student housing issue. Take a look at that part of the article.

Finally, Michael Dyett is rewriting Mesa's regs (I was part of the original team) — you might go down the street and see what they are doing with their regulations (www.cityofmesa.org/Planning/ZoningOrdinanceRewrite/Documents/IssuesOptions-Final-31907.pdf).

Question from Marty Ryan, Cedar Falls, Iowa:

I am the city planner for Cedar Falls, Iowa. We have also considered this issue recently. Our current "magic number" is no more than four unrelated persons. There has been some suggestion to provide a different definition in different zoning districts. That doesn't seem right to me; a "family" is a "family" regardless of zoning boundary. But your article seemed to suggest otherwise. Did I read that correctly? What do you think: Can you have a different "family" number, say in the R-4, high-density residential district, compared to the low-density R-1 district? (i.e., five-member "family" in R-4, but three-member "family" in R-1). I'm skeptical. The discussion about nontraditional families has long bothered me as well. It simply doesn't get enforced here to that degree. We have a college here in Cedar Falls (University of Northern Iowa), so you can imagine who our "target families" are, thus the focus of concern. I am also skeptical about an apparent bias against "student renters" that seems to emerge in many of these poorly veiled ordinances to which you refer. Seems to be quite discriminatory. thank you for your consideration.

Answer from author Dwight Merriam:

Thank you for your inquiry. I'm not a member of the Iowa bar, so I cannot comment on Iowa law.

However, you will see in my article how I encourage municipalities to push/pull the college students to areas close to campus. Allowing large groups of unrelated people is a different use, so why not have that definition, maybe as an overlay, in areas right next to campus? Could be by special use — a "Student Housing" permit.

The definition of family generally does not implicate a suspect classification or fundamental right so you only need to show some reasonable relationship. Your objective is to open up housing close to campus ... Fact is, my bias is to create housing opportunities for students, but close to campus so they can walk.