In this New York case, a single family residential use was permitted in the zoning district, but a rooming house was not.  The Court had to decide whether all of the people residing in the house met the definition of “family” or whether the living arrangement constituted a “rooming house.”

 

The defendant’s residence was located in a B residential zone, where he lived with his mother, minor son, girlfriend and sometimes his girlfriend’s minor son.  His mother lived in an authorized and permitted accessory apartment. Following a hearsay complaint that alleged 13-14 unrelated people/veterans lived in the house, the building inspector determined that on a particular night, also residing in the house were two unidentified veterans who were friends of the defendant. While the Town offered no evidence concerning rental or lodging payments, the defendant told the court that his mother and girlfriend communally contribute to the household mortgage and food expenses, and that when veteran friends reside at the premises, there is an information understanding that they will contribute for food. The Town of Babylon Town Code prohibits rooming houses” in the B residence district, but it does allow for a one family residence.  A rooming house is defined in the Code as “a dwelling, other than a hotel or motel, where lodging is provided for compensation.” While the Code does not define “lodging” or “compensation,” it does provide an expansive definition of family.

 

The Court, in looking for a definition of “lodger,” concluded that under New York law, a lodger is a person who contracts for less than a landlord/tenant relationship wherein the owner does not surrender dominion or control over the premises to the lodger.  The Court noted that this definition would include non children occupants who are not on the deed or lease, and further, that “Kinsfolk who are provided ‘with board and the confines of a home’ are historically considered lodgers.”   In searching for a definition of “compensation,” the Court used the Black’s Law Dictionary definition which provides that “compensation is the giving back of an equivalent, in either money…or in actual value otherwise conferred.”

 

The Court next turned to the definition of family. Noting that to pass constitutional muster, a definition of “family” “must allow for the cohabitation of more than blood or marriage related persons and must include the factual equivalent of a natural family.”  The Town Code defines family as “a single person or collective group of persons related by kinship, adoption, blood or marriage, or the functional and factual equivalent of a natural family, living together under the same roof and cooking together as a single housekeeping unit, in a common household whose relation is of permanent and distinct domestic character.” Further, the Town Code provides: “A single housekeeping unit bearing the generic character of a family unit as a relatively permanent household, not a framework for transients or transient living, leading a stable, nonprofit, family-like existence, headed by a householder as one would likely find in a biologically unitary family; in every sense but a biological one it must function as a stable, single-family unit, albeit occasionally changing in composition even as a natural family might and does.”

 

In finding that the mother and son met the traditional definition of family, the Court turned to the girlfriend, her son and the two veteran friends, to determine whether they fell within the definition of family or whether they constituted lodgers. Noting that the Code does not expressly mention “friends” and thus does not distinguish between female and male friends, the Court said it is possible to include “friends” in the definition of family and that the statute is gender neutral. The Court determined that the girlfriend, her son and the veterans maintained identical status for the purposes of the decision. While the defendant is constitutionally entitled to associate and entertain friends overnight, the tender of any compensation criminalizes the occupancy of his friends unless they are members of his non traditional family. The Town had the burden of proof of non family status beyond a reasonable doubt and since they failed to meet this burden, the Court found the defendant not guilty.

 

People of the State of New York v. Hyland, 2008 NY Slip Op 50716U, 2008 N.Y. Misc. LEXIS 1883 (Sup. Ct. Suffolk Co. 4/2/2008).

 

Thanks to Dwight Merriam, Esq., FAICP of Robinson & Cole in Hartford, CT for first bringing this case to my attention. See, http://www.rc.com/BioMERRI.htm