Petition for Writ of Certiorari — Villages, Inc. v. Metropolitan Development Commission
Supreme Court brief1985
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eesive Supreme Court, US.
FILLED
84°1294 FEB 12 1985
ALEXANDER L. STEVAS,
CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1984
THE VILLAGES, INC.,
Petitioner,
Va
THE METROPOLITAN DEVELOPMENT COMMISSION
OF MARION COUNTY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF iNDIANA,
THIRD DISTRICT
WILSON S. STOBER
(Counsel of Record)
HARRY F. MCNAUGHT, JR.
BAKER & DANIELS
810 Fletcher Trust Building
Indianapolis, Indiana 46204
(317) 636-4535
Counsel for Petitioner
PRATER, a ee ee
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001
QUESTION PRESENTED
This petition squarely presents the following question:
Whether construction of a zoning ordinance to prohibit a
married couple and several foster children from residing
together as a single housekeeping unit in a home situated
in an area zoned for one family dwelling constitutes
(a) a deprivation of property without due process
of law,
(b) a violation of the equal protection of the laws,
or
(ec) an infringment of the rights of association,
privacy, and family integrity.
PARTIES BELOW
The caption of the case contains the names of all par-
ties to the proceeding. Petitioner, The Villages, Inc., is a
Kansas not-for-profit corporation doing business in the
State of Indiana. Respondent, The Metropolitan Develop-
ment Commission of Marion County (‘‘Commission’’), is
a governmental entity established by state statute, Ind.
Code 36-7-4-202(c), for a consolidated city. Indianapolis
is the only consolidated city in Indiana.
(i)
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2
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TABLE OF CONTENTS
QUESTION PRESENTED o000......--c-scssscccsssvsessecssseeeeeeen
PARTIES BELOW ................. i as,
TABLE OF CONTENTS ....-..--ccscs-scccccssseeescecsssseeeeeseeee
TABLE OF AUTHORITIES ...00..-----cccsss0s---cccessssssseeseeee
REPORTS OF OPINIONS BELOW |...
Nessa cncensonsurencnneces
CONSTITUTIONAL PROVISIONS INVOLVED .........
STATEMENT OF THE CASE ...0....-.---00------- eee
A.
B.
I iecasatataninsatinesands eisai ccmtbaaiatbblibhbnihanansie
RAISING THE FEDERAL QUESTIONS........
REASONS THE WRIT SHOULD BE GRANTED......
A. THE DECISION BELOW CONFLICTS WITH
B.
C.
OTHER DECISIONS ON THE SAME ISSUE..
A ZONING ORDINANCE PROHIBITING A
FOSTER FAMILY FROM RESIDING TO-
GETHER AS A SINGLE HOUSEKEEPING
UNIT IN AN AREA ZONED FOR ONE-
FAMILY DWELLINGS CONSTITUTES A
DEPRIVATION OF PROPERTY WITHOUT
DUE PROCESS OF LAW. ............ scelnadenicnnctattane
EXCLUSION OF A FOSTER FAMILY FROM
A ONE-FAMILY DWELLING DISTRICT
VIOLATES THE EQUAL PROTECTION OF
aaa cia dieiphanainddetnnnanshanciiesieeicatnaacase
. EXCLUSION OF A FOSTER FAMILY FROM
A ONE-FAMILY DWELLING DISTRICT IN-
FRINGES UPON FUNDAMENTAL RIGHTS
OF ASSOCIATION, PRIVACY, AND FAM-
cana anernncngnenahennanabanndaanassannenee
ai iasdininditanatshanensthndcnshansnaninsnasncesnncnanioes
APPENDICES
20
23
29
iv
TABLE OF AUTHORITIES
CASES: Page
Agins v. City of Tiburon, 447 U.S. 255 (1980) ...... 15
Ashwander v. Tennessee Valley Authority, 297
WER I CD een cknincciwriceeneertcirecics 17 n.10
Berger v. State, 71 N.J. 206, 364 A.2d 993 (1976)... 10
Bose Corp. v. Consumers Union of United States, '
Fae., 104 S. Ct. 1968 (2966) ................................. 15
Charter Township of Delta v. Dinolfo, 419 Mich.
258, 351 N.W.2d 831 (1964) ..............................-.- ll
Children’s Aid Society v. Zoning Board of Ad-
justment, 44 Pa. Commw. 123, 402 A.2d 1162
CID accents eceenenndactrenesnianinineanereninaiioinnie 10
Children’s Home of Easton v. City of Easton, 53
Pa. Commw. 216, 417 A.2d 830 (1980) ................ 10
City of Cleburne v. Cleburne Living Center, 726
F.2d 191 (5th Cir.), cert. granted, 105 S. Ct.
Sy ID scncocanuissercesieniersesboourenesnneations 8 n.3, 21, 22, 29
City of Des Plaines v. Trottner, 34 Ill.2d 432, 216
2} i Blk RRR ee eeiecsererernn 18
City of Eastlake v. Forest City Enterprises, Inc.,
Oe eh I ks cacndendstconeianinienens 16 n.9
City of Santa Barbara v. Adamson, 164 Cal. Rptr.
RAF Be neon 11, 12
City of White Plains v. Ferraioli, 34 N.Y.2d 300,
SE IED CUI, TIO ste cssctnssasaneniesincninncniesaneienness 10,18
Clark v. Community for Creative Non-Violence, 104
i I saa cemedacliniininnodlobal 28, 28 n.19
Cleveland Board of Education v. LaFleur, 414 U.S.
I a a alate aes cent lainmacctanisnsnal 24
Drummond v. Fulton County Department of Fam-
ily and Children Services, 547 F.2d 835 (5th
Cir.), rev’d, 563 F.2d 1200 (5th Cir. 1977) (en
banc), cert. denied, 487 U.S. 910 (1978) ............. 26 n.17
Griswold v. Connecticut, 381 U.S. 479 (1965) _..... 24
Group House of Port Washington, Inc. v. Board of
Zoning and Appeals of the Town of North
Hempstead, 45 N.Y.2d 266, 380 N.E.2d 207
IIE a orios <5 cic laden neces ickee cibineneaesneiermataoeneeoen Seal 10, 19
Hamuer v. Best, 656 S.W.2d 253 (Ky. App. 1983)... 10
Hessling v. City of Broomfield, 193 Colo. 124, 563
I te OED pccsnasiasestnncntctnssttnecianinbadininmciienniinnane 10
V
TABLE OF AUTHORITIES—Continued
Page
Holy Name Hospital v. Montroy, 153 N.J. Super.
Big Cee ae I CTO ce eervecccnctsineventncceremecenmentane 11
Hopkins v. Zoning Hearing Board of Abington
Township, 55 Pa. Commw. 365, 423 A.2d 1082
SEITE chipApinieacdeleiendigegsiniiienh cata ee a 10
Kirsch Holding Co. v. Borough of Manasquan, 59
N.J. 241, 281 A.2d 518 (1971)... 18
Kyees v. County Department of Public Welfare of
Tippecanoe County, 600 F.2d 693 (7th Cir.
i ROTOR IND ee ee Ale ey ocala Mae ee pho 26 n.17
Lakeside Youth Service v. Zoning Hearing Board
of Upper Moreland Township, 51 Pa. Commw.
485, 414 A.2d 11165 (1980) ..................................... 20 n.15
Lehr v. Robertson, 463 U.S. 248 (1983) 24, 25
Louisville Gas & Electric Co. v. Coleman, State
Auditor, 277 1.3. 33 (1988). .................................. 20
Loving v. Virginia, 388 U.S. 1 (1967) 24
McMinn v. Town of Oyster Bay, N.E.2d ——,
N.Y.L.J., December 26, 1984, p. 1, col. 4 (Sup.
Ct., App. Div., 2nd Dept., 1984)... 11
Massachusetts v. Upton, 104 S. Ct. 2085 (1984) ...... 12 n.4
May v. Anderson, 345 U.S. 528 (1953) 24
Members of the City Council of the City of Los
Angeles v. Taxpayers for Vincent, 104 S. Ct.
|) BERR ea ler Come EDN TOES 1s eee 28
Meyer v. Nebraska, 262 U.S. 390 (1923) ...... hia 6, 24
Michigan v. Long, 463 U.S. 1032 (1983) _......... 11,11n.4
Moore v. City of East Cleveland, 481 U.S. 494
CR setae inrckid 5, 6, 8, 9, 12, 17, 20, 24, 25, 26, 27 n.18
Nectow v. City of Cambridge, 277 U.S. 183 (1927)... 16, 20
Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 22, 24
Plyler v. Doe, 457 U.S. 202 (1982) _........0000. 9, 23
Prince v. Massachusetts, 321 U.S. 158 (1944)... 24
Rivera v. Marcus, 696 F.2d 1016 (2nd Cir. 1982) ..26 n.17
Roberts v. United States Jaycees, 104 S. Ct. 3244
CUTE nchaetstastinscetieanantoccia ts ieee a 23, 25, 27
Santosky v. Kramer, 455 U.S. 745 (1982) 23
Saunders v. Clark County Zoning Department, 66
Ohio St.2d 259, 421 N.E.2d 152 (1981)... 5, 6, 10
vi
TABLE OF AUTHORITIES—Continued
Page
Schad v. Borough of Mt. Ephraim, 452 U.S. 61
IIIT ncn eriactnditehiniphenetnaananiaginiatennnsleassaheaeanane 18, 15, 18
Secretary of State of Maryland v. Joseph H. Mun-
son Co., Inc., 104 S. Ct. 28389 (1984) ..................... 22
Sherrard v. Owens, 644 F.2d 542 (6th Cir.) (per
curiam), cert. denied, 454 U.S. 828 (1981) ....... 26 n.17
Skinner v. Oklahoma ex rel. Williamson, 316 U.S.
SII citi ts nisi cipndidehetaleuhauadhdnegliohabenaenalaniltins 24
Smith v. Organization of Foster Families for
Equality and Reform, 4381 U.S. 816 (1977)......5, 22, 24,
25, 26
Stanley v. Illinois, 405 U.S. 645 (1972) .................. 24, 25
State ex rel. Ellis v. Liddle, 520 S.W.2d 644 (Mo.
SII TEI.‘ cannnssennnanesilinsindicnssiesecnaiiinastalialoiaisiseihiveapeciiant 10
State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979)...... 11, 12
Thomas v. Collins, 323 U.S. 516 (1945) .................. 18
United States Department of Agriculture v.
Moreno, 418 U.S. 528 (1978) ..... SSE 9, 21
United States v. O’Brien, 391 U.S. 367 (1968) ........ 27, 28,
28 n.19
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)... 5, 6, 8,
12, 15, 16, 16 n.9, 17, 21, 25
Village of Euclid v. Ambler Realty Co., 272 US.
2g RE 6, 8, 14, 15, 17, 18, 18 n.12, 19,
19 n.13, 20, 21
Village of University Heights v. Cleveland Jewish
Orphans’ Home, 20 F.2d 743 (6th Cir.), cert.
denied, 275 U.S. 569 (1927) ................ 10, 17, 18, 20 n.15
Washington ex rel. Seattle Title Trust Co. v.
Roberge, 278 U.S. 116 (1928) .......................... 15, 16 n.9
Wengert v. Zoning Hearing Board of Upper
Merion Tewnship, 51 Pa. Commw. 79, 414 A.2d
| RETIRE SUR LCR pe a 20 n.15
Wolff v. McDonnell, 418 U.S. 589 (1974) -............... 26 n.17
Women’s Kansas City St. Andrew Society v. Kan-
sas City, Mo., 58 F.2d 593 (8th Cir. 19382) ......... 16 n.9,
20 n.15
Zablocki v. Redhail, 484 U.S. 374 (1978) —........ 24, 25, 27
vii
TABLE OF AUTHORITIES—Continued
CONSTITUTIONAL PROVISIONS: Page
U.S. Const., Amendment IX _....... 2
U.S. Const., Amendment XIV, Section 1... 2
STATUTES AND ORDINANCE:
5 CENT Rr a ee a ee 2
ER TE 2
Ind. Code § 36-7-4-202(C) _..........ooccccccccccccccecececceceeceee i
Dwelling Districts Zoning Ordinance, Code of In-
dianapolis and Marion County, Indiana 2
MISCELLANEOUS:
Annot., 12 A.L.R. 4th 238 (1983)... none 12
Annot., 71 A.L.R. 3d 693 (1976) 8
Brennan, State Constitutions in the Protection of
Individual Rights, 90 Harv. L. Rev. 498 (1977).. 12 n.4
Carlin, Moore v. City of East Cleveland: Freedom
of Personal Choice for The Extended Family, 10
ma, TF. Ke, TU. GE CRITI nna nn cance vtecsecseeennnnne 13
Comment, 91 Harv. L. Rev. 1427 (1978) _............. 13
Hartman, Village of Belle Terre v. Boraas: Belle
Terre is a Nice Place to Visit—But Only ‘Fam-
ilies’ May Live There, 8 Urb. L. Ann. 198
RN giviadisddiiientctaiiiieetaninecebaietc ieee rae X. 12 n.5
Note, Village of Belle Terre v. Boraas: A Sanctu-
ary for People, 9 U.S.F.L. Rev. 391 (1974)........ 12 n.5
Perry, Modern Equal Protection: a conceptualiza-
tion and appraisal, 79 Celum. L. Rev. 1028
UISTIIIET Ssss tuicienbauashiicicoscsadkaansecpalibseuadiiie taceiaicaenpenscacaae tiem 13
Statistical Abstract of the United States (104th
Bs ITE <ciniceniniseniiicaninn iosehasacsliiehaiiidsanintaseaiacbaiaaanciadae 27 n.18
Supreme Court Rule 17.1(b) 20.0000 12n.4
L. Tribe, American Constitutional Law (1978)... 12
Williams and Doughty, Studies in Legal Realism:
Mount Laurel, Belle Terre, and Berman, 29
Rutgers L. Rev. 78 (1975) ...............0.0.0.00000000. .. 12n.5
IN THE
Supreme Court of the United States
OCTOBER TERM, 1984
No.
THE VILLAGES, INC.,
Petitioner,
Vv.
THE METROPOLITAN DEVELOPMENT COMMISSION
OF MARION COUNTY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF INDIANA,
THIRD DISTRICT
Petitioner, The Villages, Inc. (“The Villages’), respect-
fully prays that a writ of certiorari issue to review the
judgment and opinion entered by the Court of Appeals of
Indiana, Third District, in this cause on June 138, 1984,
the Supreme Court of Indiana having denied The Vil-
lages’ petition to transfer on November 15, 1984.
REPORTS OF OPINIONS BELOW
The opinion of the Municipal Court of Marion County,
Room No. 12, is not reported, but is reproduced in the
Appendix. App. 17a. The majority and dissenting opin-
ions of the Court of Appeals of Indiana, Third District,
are reported at 464 N.E.2d 367. App. la-16a. The split
decision of the Supreme Court of Indiana, denying trans-
fer, is also included in the Appendix. App. 34a.
aati eee aaa
2
JURISDICTION
Jurisdiction to review the judgment below is invoked
pursuant to 28 U.S.C. § 1257(3). The judgment of the
Court of Appeals of Indiana was entered on June 13,
1984. App. la. A timely petition for rehearing in the
Court of Appeals was denied on July 17, 1984. App. 33a.
A timely petition to transfer to the Supreme Court of
Indiana was denied by an order dated November 15,
1984. App. 34a. This petition is timely under 28 U.S.C.
§ 2101(c), having been filed within 90 days of the date
upon which the Supreme Court of Indiana denied discre-
tionary review.
CONSTITUTIONAL PROVISIONS
AND ORDINANCE INVOLVED
Amendment 1X, United States Constitution
“The Enumeration in the Constitution, of Certain
Rights, Shall Not be Construed to Deny or Disparage
Others Retained by the People.”
Amendment XIV, Section 1, United States Constitution
“No State Shall... Deprive Any Person of Life, Lib-
erty, or Property Without Due Process of Law; Nor Deny
to Any Person Within its Jurisdiction the Equal Protec-
tion of the Laws.”
Relevant portions of the zoning ordinance involved,
Dwelling Districts Ordinance of Marion County, Indiana,
are set forth in the Appendix at pages 36a-50a.
STATEMENT OF THE CASE
A. Facts
This case focuses upon the right of a married couple
and a reasonable number of foster children to make their
home, as a single-housekeeping unit, in a house situated
in an area zoned for one-family dwellings. The Villages
has been providing homes for orphans and abused, aban-
3
doned, or neglected children throughout the Midwest since
the 1960s. With the aid and encouragement of private
philanthropic funding grants, The Villages began estab-
lishing several homes for foster children in Indiana in
1980.
The Villages unites children with foster parents who
will care for their emotional, nutritional, and other needs
on a permanent basis, just as natural parents would do,
in a home setting which in every respect mirrors a tra-
ditional family residence. The foster parents reside in a
home provided by The Villages on an around-the-clock
basis. The home serves as their exclusive residence. The
home also serves as the permanent home for the children
as long as it is in their best interests, usually until gradu-
ation from high school. Trial Court Decision, App. 19a-
20a.
Great care is taken to determine each child’s “willing-
ness, ability and commitment to live in and contribute to
a family environment and to remain in tl > home through
high school graduation.” Jd. The children attend the
same local schools as other neighborhood children.
In the fall of 1982, The Villages found a large house
in a residential area of Indianapolis ideally suited for a
family. The home had been previously occupied by a
married couple and their eleven children. Id. at 19a. The
Villages closed the purchase of the property after receiv-
ing advice from legal counsel that the foster family use
it contemplated for the dwelling was permissible under
the local zoning ordinance.
1 Only after The Villages had entered an unconditional agree-
ment to purchase the property in October, 1982, did zoning authori-
ties first assert that residential zoning was somehow inappropriate
for foster family use of the home. Counsel for The Villages then
wrote the zoning authorities explaining how the Villages’ proposed
use fitted within the applicable ordinance. The letter went un-
answered for over a month and The Villages closed the real estate
purchase as required by its contract. After the closing, zoning
authorities reasserted their position that The Villages’ proposed
use was illegal. Trial Court Decision, App. 20a-21a.
4
The Commission instituted this action in the Municipal
Court of Marion County, Room No. 12, on March 1, 1983,
seeking a preliminary and permanent injunction barring
the proposed use of The Villages’ property by the foster
family, contending that the use was not permitted under
the local zoning ordinance which limits the property in
question to a “one-family dwelling” use. App. 39a. The
ordinance does not contain a definition of “family” or
“one-family.”
On March 9, 1983, a full hearing was conducted by the
trial court and on April 18, 1983, the trial court issued
its opinion, including detailed findings of fact and con-
clusions of law, and entered final judgment in favor of
The Villages, ruling that the proposed use of the home by
a foster family fit comfortably within the meaning of
“one-family.” The trial court’s findings of fact have
never been challenged below.
The trial court found that the “house-parents and the
foster children will keep and maintain the house as a
single-housekeeping unit, having one kitchen, eating to-
gether at mealtime, celebrating holidays together, and
enjoying vacations together.” “[T]jhe house will be uti-
lized by persons living there as a family, as a single-
housekeeping unit and as their sole personal residence.”
App. 19a, 22a. The trial court further found that The
Villages’ proposed use of the home “will have every ap-
pearance of a one-family dwelling” and that the purpose
in establishing the residence was “to emulate a stable
family environment for children who would otherwise not
have one.” Id. at 19a-20a.
The trial court, observing that the applicable zoning
ordinance lacked any specific definition of “family,” can-
vassed case law from other jurisdictions interpreting sim-
ilar ordinances. The trial court expressly recognized the
basic premise that the term family should be interpreted
broadly in order to avoid the constitutional infirmity pre-
5
sented by a narrow construction, relying upon the follow-
ing statement in Saunders v. Clark County Zoning De-
partment, 66 Ohio St.2d 259, 421 N.E.2d 152, 155 (1981):
In our view, any resolution seeking to define this
term narrowly would unconstitutionally intrude upon
an individual’s right to choose the family living ar-
rangement best suited to him and his loved ones.
Moore v. East Cleveland (1977), 481 U.S. 494,
a
App. 24a (parallel citations omitted).
The trial judge further recognized that the “pursuit of
the goal of a ‘. . . quiet place where yards are wide,
people few, and motor vehicles restricted .. .’ isa legitimate
interest of land use regulation. Village of Belle Terre v.
Boraas, 416 U.S. 1... [a]nd the term ‘family’ must be
defined within that context.” App. 24a-25a. The court
below found that the interests of the foster children were
identical to these legitimate state interests underlying
single-family zoning districts, observing that the tranquil
characteristics of single-family districts attracted the
foster family to the area and that the “needs and desires
[of the existing residents and the foster family] ... are
the same—a quiet peaceful neighborhood.” App. 25a.
The trial judge concluded that a compelling governmen-
tal interest would be required to justify a definition of
family which would exclude a foster family from residing
in a home owned by The Villages in the one-family dwell-
ing zoning district, quoting from Saunders v. Clark
County Zoning Department, supra, 421 N.E.2d at 155-56:
A family unit, which performs a social function of
child-rearing, regardless of its relationship or com-
position or whether it includes foster children as well
as natural children, is constitutionally protected
against governmental intrusion not supported by a
compelling governmental interest. Smith v. Organi-
zation of Foster Families (1977), 431 U.S. 816, 844-
845 ...; Wisconsin v. Yoder [406 U.S. 205 (1972)]:
6
Meyer v. Nebraska (1923), 262 U.S. 390, 399-401
...; 91 Harv. L. Rev. 1427, 1571-1574.
App. 30a (parallel citations omitted). Not surprisingly,
the court below found such a compelling governmental in-
terest lacking in this case. Id.
The Commission appealed, and a divided panel of the
Court of Appeals of Indiana reversed the judgment of the
trial court. 464 N.E.2d 367 (1984). The majority did
not disturb any of the trial court’s findings of fact. In-
stead, based on its analysis of the language of the zoning
ordinance, the majority concluded that the foster family
did not constitute a “family” within the meaning of the
ordinance as a matter of law, primarily relying upon the
legal maxim expressio unius est exclusio alterius. The
majority opinion brushes by the significant constitutional
issues raised by The Villages in holding:
Local governments may reasonably restrict the use of
land into districts for the promotion of public health,
safety, morals, and welfare. Euclid v. Ambler Realty
Co. (1926), 272 U.S. 365. ... The police power of
local legislative bodies may be properly used to limit
the number of non-related persons inhabiting homes
and residential districts without violating constitu-
tional rights. Village of Belle Terre v. Boraas,
(1974) 416 U.S. 1...; see also Moore v. Cleveland,
(1977) 431 U.S. 494. ... Thus, the issue at bar is
not constitutional in nature, but instead involves a
question of statutory interpretation.
464 N.E.2d at 368-69 (parallel citations omitted) ; App.
3a.
Relying upon decisions from numerous other jurisdic-
tions, and accusing the majority of attempting “to evade”
Saunders and other cited cases, the dissent concluded that
the contemplated use of the residence as a home for foster
children “in a simulated family environment constitutes
a single-family dwelling within the restrictions of the
zoning ordinance.” Jd. at 371 (Ratliff, J., dissenting) ;
App. 9a.
7
By a vote of 3-2, the Supreme Court of Indiana denied
The Villages’ petition to transfer (discretionary review),
with the two dissenting judges voting to grant transfer,
reverse the decision of the Court of Appeals and affirm
the trial court. This Petition for a Writ of Certiorari
follows.”
B. Raising the Federal Questions
The Villages raised the federal questions sought to be
reviewed at every stage of the state court proceedings.
The Villages argued in the trial court that application of
the ordinance to exclude a foster family from residing
in a one-family dwelling district would constitute a viola-
tion of the due process and equal protection clauses, and
infringe fundamental liberties of association, privacy, and
family integrity. App. 5la-52a. The trial court agreed
with The Villages’ contention that a narrow construction
of the statute excluding this foster family from the one-
family dwelling district would violate fundamental con-
stitutional rights, and found no compelling state interest
to justify such an infringement. See supra at 5-6; App.
30a. The Villages repeated its constitutional arguments
in defense of the trial court judgment in its brief on ap-
peal before the Court of Appeals of Indiana, App. 53a-
54a, in its Petition for Rehearing before the Court of Ap-
peals, App. 55a-56a, and in its Petition for Transfer to
the Supreme Court of Indiana, App. 57a-58a. The ma-
jority of the Court of Appeals rejected The Villages’ con-
stitutional arguments in a cursory fashion, see supra at
6, App. 3a, and by the narrowest of margins the Supreme
Court of Indiana declined to exercise its discretion to
grant transfer of the case.
? As a result of proceedings in this case in the trial court and
the Court of Appeals subsequent to the denial of transfer by the
Supreme Court of Indiana, The Villages is being required to remove
the foster family from the home by June 30, 1985.
8
REASONS THE WRIT SHOULD BE GRANTED
This case challenges the power of the state to exclude
a foster family which is functionally identical to a family
of related persons from an area restricted by a zoning
ordinance to orie-family dwelling uses. The issue arises
with increasing frequency in recent times and has na-
tionwide practical significance. In light of the Village of
Belle Terre v. Boraas, 416 U.S. 1 (1974), and Moore v.
City of East Cleveland, 431 U.S. 494 (1977), decisions,
this issue possesses a doctrinal importance transcending
the immediate factual situation, and currently is the sub-
ject of conflicting decisions by both state and lower federal
courts.
Virtually all municipalities in this Nation commonly
reserve large areas within their jurisdiction for use by
single-family residences through exercise of their zoning
authority. Annot., 71 A.L.R.3d 693 (1976). The question
of what constitutes a family under these ordinances has
been a fertile source of litigation. Jd. Many ordinances
explicitly impose a requirement that the individuals resid-
ing together in a single-family district be biologically re-
lated to one another.
A zoning ordinance which establishes a single-family
district is unconstitutional if applied to exclude a foster
family from residing in the single-family zoning district.
Application of such an ordinance to exclude residential
use by the foster family is “clearly arbitrary and un-
reascnable, having no substantial relation to the public
health, safety, morals, or general welfare” under the test
of Village of Euclid v. Ambler Realty Co., 272 U.S. 365,
395 (1926). It is equally invalid under the Equal Protec-
tion Clause, irrespective of what level of scrutiny is ap-
plied.* The distinction between foster families and related
3 Currently pending before the Court is City of Cleburne v.
Cleburne Living Center, 726 F.2d 191 (5th Cir. 1984), cert. granted,
105 S. Ct. 427 (1984), which also involves the application of a
zoning ordinance excluding a group of unrelated persons from a
residential zoning district. Although the facts of Cleburne may
_
9
families fails to survive even minimal scrutiny in the con-
text of a single-family zoning ordinance, since it is not
“rationally related to a legitimate governmental interest,”
United States Department of Agriculture v. Moreno, 413
U.S. 528, 534 (1973), and further fails to survive the de-
manding standard of scrutiny more appropriate in this
case, see Plyler v. Doe, 457 U.S. 202 (1982).
Finally, exclusion of foster families from single-family
districts violates in a most basic fashion the rights of
association, privacy, and family integrity of the foster
parents and foster children and does not serve a counter-
vailing compelling governmental interest. See, e.g., Moore
v. City of East Cleveland, 431 U.S. 494 (1977).
Before analyzing the questions presented, it should be
emphasized what this case does not involve. The Villages
does not challenge the legitimacy of single-family zoning
districts. To the contrary, The Villages seeks the same
desirable protection afforded to families residing in such
districts. Moreover, The Villages does not contend that
the state has an affirmative constitutional obligation to
place displaced children in a traditional home setting or
in the least restrictive environment possible. Rather, The
Villages contends that the private efforts of citizens to
provide a family and a home for displaced children are
protected against irrational and arbitrary interference
by the state, and that a married couple attempting to es-
tablish a family with foster children is protected against
state interference not supported by a compelling govern-
mental interest.
A. THE DECISION BELOW CONFLICTS WITH
OTHER DECISIONS ON THE SAME ISSUE
The decision below is in direct conflict with decisions
in other jurisdictions which hold that exclusion of foster
families from single-family residency districts is uncon-
lead to a different result, it becomes apparent that a hold of the
instant petition may be in order for the reasons more fully dis-
cussed in the text below at pages 21-22.
10
stitutional, either on the due process ground that no legit-
imate state interest in zoning is rationally served by such
an exclusion, Children’s Home of Easton v. City of Easton,
53 Pa. Commw. 216, 417 A.2d 830, 833 (1980) ; Hopkins
v. Zoning Hearing Board of Abington Township, 55 Pa.
Commw. 365, 423 A.2d 1082, 1084-85 (1980); Berger v.
State, 71 N.J. 206, 364 A.2d 993, 1002 (1976); see Vil-
lage of University Heights v. Cleveland Jewish Orphans’
Home, 20 F.2d 743, 745 (6th Cir.), cert. denied, 275 U.S.
569 (1927), or on the ground that such an exclusion
would unconstitutionally intrude upon an_ individual’s
right to choose the family living arrangement best suited
to him and his loved ones, Saunders v. Clark County
Zoning Department, 66 Ohio St.2d 259, 421 N.E.2d 152,
155-56 (1981).
The decision below is also in conflict with decisions in
other jurisdictions holding that a foster family consisting
of a married couple and foster children who reside to-
gether as a single housekeeping unit meets the definition
of a single-family residence even under an ordinance
which explicitly contains a requirement that the individ-
uals be related. Children’s Aid Society v. Zoning Board
of Adjustment, 44 Pa. Commw. 123, 402 A.2d 1162
(1979) ; Group House of Port Washington v. Board of
Zoning, 45 N.Y.2d 266, 380 N.E.2d 207 (1978) ; Hessling
v. City of Broomfield, 193 Colo. 124, 563 P.2d 12 (1977);
State ex rel, Ellis v. Liddle, 520 S.W.2d 644 (Mo. App.
1975) ; City of White Plains v. Ferraioli, 34 N.Y.2d 300,
313 N.E.2d 756 (1974); cf. Hamner v. Best, 656 S.W.2d
253 (Ky. App. 1983) (where ordinance lacked definition
of single family). While these cases may not expressly
rest their judgments on constitutional grounds, they never-
theless bear on the constitutional questions presented by
the case at bar. These cases hold, even in the face of a
single-family zoning ordinance expressly requiring that
the individuals comprising the household be related, that
a foster home of unrelated individuals functionally iden-
tical to the families permitted to reside in the district by
the statute, are likewise families within the meaning of
11
the statute. The basic thrust of these cases is that it is
irrational and arbitrary to exclude from an area zoned
exclusively for families a family unit which in every ma-
terial respect constitutes a family and advances the pur-
poses which the zoning ordinance serves.
Finally, the decision below is in conflict with decisions
in other jurisdictions declaring invalid on state constitu-
tional grounds requirements that individuals residing in
a single-family zoning district be related. McMinn v.
Town of Oyster Bay, N.E.2d , N.Y.LJ., De-
cember 26, 1984, p. 1, col. 4 (Sup.Ct., App. Div., 2nd
Dept. 1984); Charter Township of Delta v. Dinolfo, 419
Mich. 258, 351 N.W.2d 831 (1984); City of Santa Bar-
bara v. Adamson, 164 Cal.Rptr. 539, 610 P.2d 436
(1980) ; State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979) ;
Holy Name Hospital v. Montroy, 153 N.J. Super. 181, 379
A.2d 299 (1977). While these cases seem to meet the
“plain statement” requirement of Michigan v. Long, 463
U.S. 1032 (1983), and hence in an abstract, jurispruden-
tial sense decide no federal constitutional question, the
conclusions and analysis of these cases are irreconcilable
with the decision below, and it seems plain that, were
these state courts to reach the federal constitutional
question presented in this case, they would resolve it in
a way which conflicts with the decision below. Indeed, in
Charter Township of Delta v. Dinolfo, supra, the Su-
preme Court of Michigan expressly recognized that the
rational relationship test it was applying under the state
constitution was the same test required by the Constitu-
tion of the United States, and that the state test had its
roots in federal constitutional law. 351 N.W.2d at 843
n.7. Similarly, in State v. Baker, supra, and Holy Name
Hospital v. Montroy, supra, the court struck down zoning
ordinances applying the same substantive test which is
applicable to a federal constitutional! challenge.‘
4 This Court has recently encouraged state courts to rest their
judgments on state grounds. E.g., Michigan v. Long, 463 U.S. 1032
12
The conflict in decisions on the questions presented by
this case is just one manifestation of the lower courts’
difficulty in reconciling this Court’s decisions in Village of
Belle Terre v. Boraas, 416 U.S. 1 (1974), and Moore v.
City of East Cleveland, 481 U.S. 494 (1977). See gen-
erally Annot., 12 A.L.R.4th 238 (1983). Indeed, Belle
Terre has been widely criticized by the commentators,”
and courts and commentators alike question whether
Belle Terre still does declare federal law after this
Court’s decision in Moore. Uncertainty on this issue
abounds. See, e.g., City of Santa Barbara v. Adamson,
supra, 610 P.2d at 440 n.3; State v. Baker, supra, 405
A.2d at 374; L. Tribe, American Constitutional Law, Sec-
(1983) ; Massachusetts v. Upton, 104 S. Ct. 2085 (1984) (Stevens,
J., concurring in the judgment); see generally Brennan, State
Constitutions in the Protection of Individual Rights, 90 Harv. L.
Rev. 498 (1977). The cases cited in the text demonstrate that
the state courts are responding to this encouragement. This devel-
opment, however, necessarily means that there will be fewer state
court judgments on the merits of federal constitutional issues, and
hence it will be increasingly difficult to demonstrate a conflict in
the decisions of the state courts on federal constitutional issues of
the same scope which may have been required in the past. See
Supreme Court Rule 17.1(b). Accordingly, this Court should ex-
amine state court decisions resting on parallel state constitutional
provisions in ascertaining the scope of a conflict on an important
question of corresponding federal constitutional law, particularly
where, as in this case, the state courts are applying the same sub-
stantive test which would be required on the federal constitutional
question. The fact that this Court lacks jurisdiction to review
those state court judgments does not preclude this sort of con-
sideration. Failure to consider such state court decisions in ascer-
taining the scope of conflict would insulate many questions from
review where the absence of a conflict, or the apparent limited
nature of a conflict, is wholly illusory.
5 See, e.g., Williams and Doughty, Studies in Legal Realism:
Mount Laurel, Belle Terre, and Berman, 29 Rutgers L. Rev. 73,
76-82 (1975); Hartman, Village of Belle Terre v. Boraas: Belle
Terre is a Nice Place to Visit—But Only ‘Families’ May Live There,
8 Urb. L. Ann. 193 (1974); Note, Village of Belle Terre v. Boraas:
A Sanctuary for People, 9 U.S.F.L. Rev. 391 (1974).
13
tion 15-18, at 974, Section 15-21, at 989 (1978); Carlin,
Moore v. City of East Cleveland: Freedom of Personal
Choice for the Extended Family, 10 Sw. U. L. Rev. 651
(1978); Perry, Modern Equal Protection: a conceptual-
ization and appraisal, 79 Colum. L. Rev. 1023, 1073
(1979); Comment, 91 Harv. L. Rev. 1427, 1576-78
(1978).°
As will be demonstrated below, the decision of the di-
vided panel of the Court of Appeals of Indiana in this
case is inconsistent with the constitutional teachings of
the applicable decisions of this Court. This case presents
important questions which have not been, but which
should be, resolved by this Court.
B. A ZONING ORDINANCE PROHIBITING A
FOSTER FAMILY FROM RESIDING TOGETHER
AS A SINGLE HOUSEKEEPING UNIT IN AN
AREA ZONED FOR ONE-FAMILY DWELLINGS
CONSTITUTES A DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS OF LAW
While the power of local governments to control land
use is broad, “the zoning power is not infinite and un-
challengeable; it ‘must be exercised within constitutional
limits.’ ”’ Schad v. Borough of Mt. Ephraim, 452 U.S. 61,
67 (1981) (citation omitted) .’
* The widespread uncertainty with respect to the federal consti-
tutional doctrine applicable to exertions of the zoning power in a
fashion which limits the compositions of households appears to
be another reason why state courts are resting their judgments on
state constitutional grounds.
7 The Court of Appeals’ decision in this case fails to recognize
this unassailable proposition, essentially concluding that because an
exercise of the zoning power is involved, no constitutional question
is presented. See App. 3a. This basic error in reasoning by the
Court of Appeals of Indiana may not warrant this Court’s review,
but the substantive arguments which petitioner raised below, which
were never addressed by the Court of Appeals, plainly do merit
review by this Court.
14
In this Court’s seminal decision analyzing the limita-
tions placed upon the exercise of zoning powers by the
Due Process Clause of the Fourteenth Amendment, the
Court recognized that the “line which in this field sep-
arates the legitimate from the illegitimate assumption of
power is not capable of precise delimitation. It varies
with circumstances and conditions.” Village of Euclid v.
Ambler Realty Co., 272 U.S. 365, 387 (1926). Borrow-
ing from the law of nuisance, the Court reasoned that the
question of whether zoning power could be legitimately
used to forbid a particular use of property is to be deter-
mined not by abstract consideration of the use, “but by
considering it in connection with the circumstances and
locality,” noting that a “nuisance may be merely a right
thing in the wrong place, like a pig in the parlor instead
of the barnyard.” Id,
Euclid established that a zoning restriction constitutes
a deprivation of property without due process of law
where the distinction drawn by the ordinance between
the prohibited use and the permitted use is “clearly arbi-
trary and unreasonable, having no substantial relation to
the public health, safety, morals or general welfare.” Jd.
at 395. Euclid also recognized that such a determination
must be made in light of contemporary society. In noting
that regulations which would have been rejected as arbi-
trary and oppressive in a previous time were then being
universally sustained, the Court observed that:
While the meaning of constitutional guarantees never
varies, the scope of their application must expand or
contract to meet the new and different conditions
which are constantly coming within the field of their
operation. In a changing world, it is impossible that
it should be otherwise.
Id. at 387.
The basic test established by Euclid to determine the
validity of zoning ordinances affecting property interests
é
;
:
BID AO Ted
15
remains the controlling standard today. E.g., Schad v,
Borough of Mt. Ephraim, supra, 452 U.S. at 67; Agins v.
City of Tiburon, 447 U.S. 255, 260 (1980). The content
of any such genera] test, however, “is not revealed sim-
ply by its literal text, but rather is given meaning
through the evolutionary process of common law adjudi-
cation. . . .”. Bose Corp. v. Consumers Union of United
States, Inc., 104 S. Ct. 1949, 1960 (1984).*
This Court provided just such additional content to the
Euclid ruie in Village of Belle Terre v. Boraas, 416 U.S.
1 (1974), a case dealing with the collective housing of
college students. In upholding against a facial attack the
constitutionality of a single-family zoning ordinance
which required the occupants of the dwellings in the dis-
trict to be related, the Court observed that the ordinance
established ‘“‘zones where family values, use values, and
the blessings of quiet seclusion and clean air make the
area a sanctuary for people.” Jd. at 9.
By way of contrast, the Court noted that Washington
ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116
(1928), struck down a zoning ordinance prohibiting a
philanthropic “home for children or old people” in a resi-
dential district unless the surrounding property owners
consented to the use. The Court in Belle Terre observed
that the Roberge Court “concluded that the . . . ordinance
was invalid since the proposed home for the aged was
not shown by its maintenance and construction ‘to work
8 While cases which merely involve the application of settled
principles of constitutional law to the fects of a particular case
often do not warrant this Court’s review, in a case such as this—
where the content of the rule gains true meaning only through
case-by-case adjudication—review is warranted where either (a)
the factual setting is a common one spawning significant litigation
and conflicting decisions, or (b) application of the rule in the
particular factual setting significantly clarifies the fundamental
questions posed by the rule or sheds new light on additional factors
implicated by the rule. As demonstrated in the text, this case meets
both of these requirements.
16
any injury, inconvenience or annoyance to the commu-
nity, the district or any person’ 278 U.S., at 122.” 416
U.S. at 7.°
The case at bar, unlike Belle Terre, involves an as-
applied challenge to a zoning ordinance such as that in-
volved in Nectow v. City of Cambridge, 277 U.S. 183
® Roberge is generally cited as ho!ding the ordinance unconstitu-
tional on the ground that the surrounding owners could withhold
consent for arbitrary reasons. See, e.g., City of Zastlake v. Forest
City Enterprises, Inc., 426 U.S. 668, 677-78 (1976). That certainiy is
the express holding of the case, see Washington ex rel. Seattle Title
Trust Co. v. Roberge, supra, 278 U.S. at 118, and the Court in Belle
Terre recognized that holding, see 416 U.S. at 6-7. As indicated in
the quotation in the text, the Roberge Court indeed did conclude
that it had not been shown that the home for the aged poor would
work any inconvenience or annoyance to the community, but
Roberge made this statement in noting that the proposed home
would not be a nuisance. Washington ex rel. Seattle Title Trust
Co. v. Roberge, supra, 278 U.S. at 122. The Roberge Court, how-
ever, further expressly stated that it ‘need not decide whether,
consistently with the Fourteenth Amendment, it is within the
power of the state or municipality by a general zoning law to ex-
clude the proposed new home from a district defined” as was the
district in the ordinance under consideration. Jd. at 123.
It would thus appear that the Belle Terre Court’s statement that
the Roberge Court concluded that the ordinance in Roberge was
“invalid” because it was not shown to constitute a nuisance is some-
what of an overstatement. For this reason, petitioner does not
directly rely upon Roberge as controlling authority on the due
process question presented by this case. Petitioner does maintain,
however, that if the Roberge Court had reached the due process
question, it would have reached the conclusion attributed to it by
the Belle Terre Court, and held the ordinance invalid as applied
even if the surrounding owners consent provision had not been
present in the ordinance. Indeed, in Women’s Kansas City St.
Andrew Society v. Kansas City, Mo., 58 F.2d 593 (8th Cir. 1932),
the court decided the question expressly reserved in Roberge, and
held that the exclusion of a philanthropic “old lady’s home” from
a residential district constituted a deprivation of property without
due process of law because of the absence of a showing of any
relationship between the proposed home and the public health,
safety, morals and general welfare of the public.
= ey
17
(1927).2° Moreover, in this case, unlike Belle Terre, the
legitimacy of the basic governmental interest served by a
single-family residency requirement is not challenged.
Rather, the question in this case is whether the proposed
foster family use of the property “is so different in char-
acter from concededly legitimate uses as to bring it within
the scope of the police power of the municipality.” Vil-
lage of University Heights v. Cleveland Jewish Orphans’
Home, 20 F.2d 743, 745 (6th Cir.), cert. denied, 275 U.S.
569 (1927). This Court has rendered few decisions elu-
cidating this aspect of the Euclid test, but yet the con-
tinuing vitality of the test depends upon consistent and
principled application of this component. The case at bar
presents a classic opportunity for this Court to give
needed constitutional guidance to relieve the uncertainty,
confusion and conflict which currently permeates land use
legislation and related court decisions excluding some per-
sons from living in residential areas.
In Moore v. City of East Cleveland, 431 U.S. 494
(1977), the Court had the opportunity to expound fur-
ther upon the basic Euclid test, but the plurality, recog-
nizing that fundamental liberty interests were at stake in
that case, and further recognizing that the standard of
review is determined by the nature of the right assert-
edly threatened or violated, rather than the power being
1° The fact that this case involves an as-applied challenge does
not render the petition fact-bound. This Court routinely reviews
as-applied challenges to statutes. Indeed, such challenges are the
preferred constitutional adjudication under the Ashwander rules.
See generally Ashwander v. Tennessee Valley Authority, 297 U.S.
288, 346 (1936) (Brandeis, J., concurring). Moreover, review in
this case is warranted given the failure of lowet courts to distin-
guish between general challenges to the overall validity of a zoning
ordinance and as-applied challenges. The decision of the court
below is one manifestation of this problem. Finally, a decision on
an as-applied challenge is naturally binding precedent in any sub-
sequent case that is analytically undistinguishable from it and
hence is an enduring contribution to the law.
€
18
exercised or the specific limitation imposed, e.g., Schad v.
Borough of Mt. Ephraim, supra, 452 U.S. at 67; Thomas
v. Collins, 323 U.S. 516, 529-30 (1944), applied a more
demanding standard of review to the zoning ordinance at
issue. In Moore, a single-family zoning ordinance defined
family in a manner that prevented more distant rela-
tives from living together. The plurality concluded that
the ordinance impermissibly infringed upon fundamental
liberty interests. 431 U.S. at 499.1 Justice Stevens, how-
ever, concurring in the judgment, concluded that the or-
dinance was unconstitutional as applied, because the pro-
hibition against certain relatives occupying a single-
family dwelling had no substantial relation to the public
health, safety, morals, or general welfare and hence con-
stituted a deprivation of property without due process of
law under Euclid. 431 U.S. at 515-18."
Justice Stevens explicitly endorsed the reasoning and
conclusions of a number of lower court opinions, City of
Des Plaines v. Trottner, 34 Ill.2d 432, 216 N.E.2d 116
(1966); City of White Plaines v. Ferraioli, 34 N.Y.2d
300, 3138 N.E.2d 756 (1974); Kirsch Holding Co. v.
Borough of Manasquan, 59 N.J. 241, 281 A.2d 513
(1971); Village of University Heights v. Cleveland Jew-
ish Orphans’ Home, 20 F.2d 743 (6th Cir. 1927), cert.
denied, 275 U.S. 569 (1927), permitting unrelated per-
sons to occupy single-family residences notwithstanding
an ordinance prohibiting, either expressly or implicitly,
such occupancy. 431 U.S. at 516-18."
11 These same fundamental liberty interests are also at stake in
the instant case. See infra at 23-29.
12 Significantly, it was observed that litigation involving single-
family zoning ordinances is common, 431 U.S. at 515, and that the
case-by-case development of the constitutional limits on the zoning
power had largely taken place in the lower courts, id. at 514.
13 Justice Stewart argued that the state cases relied upon by
Justice Stevens for the most part dealt with state law issues con-
rcs Mi a ba
oat od tae bes aS iO OR Ne be tartan
eT
19
In the instant case, the application of a single-family
zoning ordinance to exclude a foster family from the sin-
gle-family district is “clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety,
morals, or public welfare.” .Village of Euclid v. Ambler
Realty Co., supra, 272 U.S. at 395. Considering peti-
tioner’s proposed use “in connection with the circum-
stances and the locality” id. at 388, a foster family con-
sisting of a married couple and a reasonable number of
foster children which resides in a single-family residen-
tial district cannot be deemed a “right thing in the wrong
place,” id., but instead is a right thing in the right place
—the very place where it must be if this family and the
persons of which it consists are to thrive as the basic
element of our society. The trial court’s unchallenged
findings in this case permit no other conclusion."* Indeed,
the trial court recognized, as have other courts, that a
foster family “might actually support and further those
values even more effectively than certain natural fami-
lies.” App. 27a; Group House of Port Washington v.
cerning the proper statutory construction of the term family, but
did not establish that narrow definitions of the term family were
unconstitutional. 431 U.S. at 540, n.10. As explained, supra, at
10-11, even those state cases which expressly analyzed the question
in terms of statutory construction support the substantive constitu-
tional argument that a more restrictive definition of the term fam-
ily would be arbitrary. The basic point is that in construing the
statutory term, the courts ascertained the legitimate state interests
and then concluded that the occupancy by the particular unrelated
individuals in the cases before them could not rationally be viewed
to violate those interests. Hence, the courts concluded that the
legislature rationally would not have intended to exclude such in-
dividuals from the area. Such an analysis, while framed in the
language of statutory construction, is of course precisely the sub-
stantive due process test mandated by Euclid.
14Tt must once again be emphasized that this petition is not
fact-bound. The facts as found by the trial court in this case would
necessarily be true of any foster family consisting of a married
couple and children permanently residing in a home as a single-
housekeeping unit.
20
Board of Zoning and Appeals of the Town of North
Hempstead, 45 N.Y.2d 266, 380 N.E.2d 207 (1978).*°
The Villages purchased a home in a neighborhood zoned
as a sanctuary for families with children and has devoted
sole use of that residence to serve as a sanctuary for a
family with children. The fact that the health, safety,
convenience, and general welfare of the inhabitants of
that neighborhood would not be promoted by the exclusion
of the foster home “is determinative of the case.” Nectow
v. City of Cambridge, supra, 277 U.S. at 448. The Vil-
lages’ foster home is simply not “a pig in the parlor.’
Village of Euclid v. Ambler Realty Co., supra, 272 USS.
at 338.
C. EXCLUSION OF A FOSTER FAMILY FROM A
ONE-FAMILY DWELLING DISTRICT VIOLATES
THE EQUAL PROTECTION OF THE LAWS
The fundamental command of the Equal Protection
Clause is that “the rights of all persons must rest upon
the same rule under similar circumstances .. .” Louis-
ville Gas & Electric Co. v. Coleman, State Auditor, 277
U.S. 32, 37 (1927) (citations omitted). The foregoing
analysis, demonstrating a violation of due process under
the Euclid test, also demonstrates a violation of the Equal
Protection Clause under a rational basis test. E.g., Moore
15 The case at bar does not involve an institutional facility, or a
group home established for housing adjudicated delinquents, see
generally Lakeside Youth Service v. Zoning Hearing Board of
Upper Moreland Township, 51 Pa. Commw. 485, 414 A.2d 1115
(1980) ; Wengert v. Zoning Hearing Board of Upper Merion Town-
ship, 51 Pa. Commw. 79, 414 A.2d 148 (1980), though it has been
held that even an institutionally structured group home for children
may not be excluded from a residential neighborhood consistent
with due process. See Village of University Heights v. Cleveland
Jewish Orphans’ Home, supra; cf. Women’s Kansas City St. Andrew
Society v. Kansas City, Mo., supra. In the instant case the home is
a classic single housekeeping unit, i.e., it has all of the characteris-
tics and manifestations of the traditional family home, as expressly
found by the trial court.
21
v. City of East Cleveland, supra, 431 U.S. at 540 n.10
(Stewart, J., dissenting). The distinction between foster
families and families of related individuals made by the
ordinance, as construed by the Court of Appeals of In-
diana, is not rationally related to a legitimate govern-
mental interest.
In United States Departmeni of Agriculture v. Moreno,
413 U.S. 528, 534 (1973), this Court struck down just
such an irrational classification. In Mereno, a provision
of the Food Stamp Act excluded from participation any
household containing an individual unrelated to another
member of the household. Examining the purposes of the
Food Stamp Act—to safeguard the health and well-being
of low-income households—the Court recognized that the
classification was clearly irrelevant to the purposes of the
Act. Id. at 533-34.
The purpose of the zoning ordinance at bar is to create
single-family neighborhoods, and the distinction imposed
by the ordinance between foster families and families of
related individuals is clearly irrelevant to the purpose of
the ordinance. Similarly, any possible desire to further
disadvantage hapless foster children, displaced from their
natural families and pure victims of circumstance, would
constitute an illegitimate governmental interest, even
though such children may not constitute a suspect class.
Any equal protection analysis of the foster family home
in the case at bar must recognize the pending case of City
of Cleburne v. Cleburne Living Center, 726 F.2d 191 (5th
Cir. 1984), cert. granted, 105 S. Ct. 427 (1984) (No. 84-
468). Cleburne is factually far more difficult than the
instant case, because it deals with a home for retarded
persons in an essentially institutionalized setting. The
parties in Cleburne have argued by briefs filed with the
Court whether a quasi-suspect classification is correct and
whether the rational basis test permits exclusion of re-
tarded persons under Village of Euclid v. Ambler Realty
Co., and Village of Belle Terre v. Boraas, supra. Brief
22
for Petitioners, at 23-36, City of Cleburne v. Cleburne
Living Center, supra; Brief for Respondents, at 9-25, 2d.
The present status of Cleburne forces the conclusion that,
if the Court does not grant certiorari in the instant case,
then it should hold the instant petition pending decision
in Cleburne, because the latter case may well give needed
guidance on the limits of state power to exclude non-
related persons from single-family zoning districts. This
potential for guidance and the relatedness of the cases are
nicely emphasized by the following quote from the amicus
curiae brief filed in Cleburne by the United States:
we readily concede that, if this case is remanded to
the court of appeals for further consideration under
what we urge is the appropriate constitutional stand-
ard [rational basis], that court may well supportably
conclude that the denial of a special-use permit in
this case was so wanting in rationality as to fail to
pass muster under the Equal Protection Clause of
the Fourteenth Amendment.
Brief for the United States as Amicus Curiae Supporting
Reversal, at 6, id. If the Solicitor General suggests in
Cleburne that no rational basis can support the exclusion
from a residential area of a group of retarded persons in
an institutional setting, surely the teachings of that case
may well bear on the instant case which deals with the
exclusion of foster children living in a home as a single
housekeeping unit.
Finally, even if fundamental liberty interests were not
implicated in this case, see infra at 23-29, at the very
least an intermediate level of scrutiny is demanded. The
interests of the foster children in this case, which peti-
tioner clearly has standing to assert, e.g., Smith v. Or-
ganization of Foster Families for Equality and Reform,
431 U.S. 816, 841 n.44 (1977); Pierce v. Society of Sis-
ters, 268 U.S. 510, 535-536 (1925) ; see also Secretary of
State of Maryland v. Joseph H. Munson, Co., Inc., 104
S. Ct. 2889, 2846-48 (1984), are serious ones, and the
state’s justification for excluding them from an environ-
x idle... ;
ise deta al dR Ba catty nl Pe)
aa, tunity é
ec inte
sich wl Bi tb nial Ci ME A Att ie na
23
ment which will contribute immeasurably to their cul-
tural, spiritual, and educational well-being, certainly must
be greater than the burden the state must shoulder to
justify a building height limitation or setback regulation.
By distinguishing between foster children and those
children fortunate enough to reside with their natural
parents, the classification in this case “imposes a lifetime
hardship on a discrete class of children not accountable
for their disabling status.” Plyler v. Doe, 457 U.S. 202,
102 S. Ct. 23882 (1982). “If the state is to deny a dis-
crete group of innocent children” the sanctuary of an
area dedicated to family values and youth values which
“it offers to other children residing within its border,
that denial must be justified by showing that it furthers
some substantial state interest.” Jd., 102 S. Ct. at 2402.
No such showing was made in this case.'®
D. EXCLUSION OF A FOSTER FAMILY FROM A
ONE-FAMILY DWELLING DISTRICT INFRINGES
UPON FUNDAMENTAL RIGHTS OF ASSOCIA-
TION, PRIVACY, AND FAMILY INTEGRITY
This Court has “long recognized that, because the Bill
of Rights is designed to secure individual liberty, it must
afford the formation and preservation of certain kinds
of highly personal relationships a substantial measure of
sanctuary from unjustified interference by the State.”
Roberts v. United States Jaycees, 104 S. Ct. 3244, 3250
(1984). Freedom of personal choice in matters of family
life has long been held a fundamental liberty protected by
the Fourteenth Amendment. E.g., Roberts v. United
States Jaycees, supra, 104 S. Ct. at 3250; Santosky v.
16 The Villages’ standing to assert the interests of tne children,
is clear. See text, p. 22, swpra. Morever, since the trial court
adjudicated the merits of this constitutional argument, holding
that a restrictive interpretation of the ordinance would violate the
foster family’s fundamental rights, there is no prudential reason
for this Court not to review this question.
24
Kramer, 455 U.S. 745, 753 (1982); Zablocki v. Redhail,
434 U.S. 374, 383-86 (1978) ; Moore v. City of East Cleve-
land, 431 U.S. 494, 499 (1977) (plurality opinion) ;
Cleveland Board of Education v. LaFleur, 414 U.S. 682,
639-40 (1974); Stanley v. Illinois, 405 U.S. 645, 651
(1972); Loving v. Virginia, 388 U.S. 1, 12 (1967);
Griswold v. Connecticut, 381 U.S. 479, 433-86 (1965) ;
May v. Anderson, 345 U.S. 528, 533 (1953), Prince v.
Massachusetts, 321 U.S. 158, 166 (1944); Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42
(1942); Pierce v. Society of Sisters, 268 U.S. 510, 534-
35 (1925); Meyer v. Nebraska, 262 U.S. 390, 939
(1923).
The right to “establish a home,” Meyer v. Nebraska,
262 U.S. 390, 399 (1923), is at stake in this case. To be
sure, the husband and wife, as foster parents, are not
biologically related to the foster children, but the personal
bonds they seek to establish are no less deserving of sub-
stantive protection. It is the “unique role in our society
of the family, the institution by which ‘we inculcate and
pass down many of our most cherished values, moral and
cultural,’ Moore v. City of East Cleveland, 481 U.S. 494,
503-504”, which accounts in large part for the special
protection the institution of the family is accorded. In-
deed, “the mere existence of a biological link” does not
merit protection as a full-fledged liberty interest. Lehr
v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 2993 (1983).
“(T]he importance of the familial relationship, to the
individuals involved and to the society, stems from the
emotional attachments that derive from the intimacy of
daily association, and from the role it plays in ‘promot-
fing] a way of life’ through the instruction of children as
well as from the fact of blood relationship.” Smith v.
Organization of Foster Families for Equality and Re-
form, 431 U.S. 816, 844 (1977) (quoting Wisconsin v.
Yoder, 406 U.S. 205, 231-33 (1972)), quoted with ap-
proval in Lehr v. Robertson, supra, 103 S. Ct. at 2993.
Pe ee es
25
The “freedom of association” is an “intrinsic element
of personal liberty” and applies to a “broad range of
human relationships that may make greater or lesser
claims to constitutional protection from particular incur-
sions by the State.” Roberts v. United States Jaycees,
supra, 104 S. Ct. at 3251. In cases establishing funda-
mental constitutional protection for certain formal family
relationships, “the court has emphasized the paramount
interest in the welfare of children. ...” Lehr v. Robert-
son, supra, 103 S. Ct. at 2991. In this case, those inter-
ests of parents caring for children are just as implicated
as they were in Moore v. City of East Cleveland, supra.
Those interests are of a fundamental nature, and hence
the attempted assertion of state power in this case must
be justified by a compelling governmental interest.
Zablocki v. Redhail, supra, 434 U.S. at 388.
In Smith v. Organization of Foster Families for
Equality and Reform, 431 U.S. 816 (1977), this Court
expressly recognized that the foster family relationship
may merit fundamental constitutional protection. Zd. at
842-847. The Court observed that biological relationships
are not exclusively determinative of the existence of a
family, id. at 843, and stated “we cannot dismiss the
foster family as a mere collection of unrelated individuals.
Cf. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).”
431 U.S. at 844-45. Moreover, the Court noted that the
“legal status of families has never been regarded as con-
trolling: ‘Nor has the [Constitution] refused to recog-
nize those family relationships unlegitimized by a mar-
riage ceremony.’ Stanley v. Illinois, 405 U.S., at 651.”
431 U.S. at 845 n.53.
In Smith, however, the Court was confronted with a
procedural due process challenge. Foster parents were
asserting a liberty interest in a continued relationship
with the foster children, even though they undertook the
care for the children for only a limited period of time.
In this context, the Court suggested that the foster par-
ents could at most have a very limited constitutional lib-
\
26
erty interest, since any legitimate claim of entitlement to
continued guardianship was severely circumscribed by
their knowingly assumed contractual relationship with the
state. 431 U.S. at 847."
This case is distinguishable from the narrower pro-
nouncements of Smith, because a functioning family unit
claims protection against governmental interference “con-
cerning family living arrangements.” Moore v. City of
East Cleveland, supra, 431 U.S. at 499. Prior cases an-
nouncing the fundamental liberty accorded to families
“did not expressly consider the family relationship pre-
sented here ... [,] [b]ut unless we close our eyes to
basic reasons why certain rights associated with the fam-
ily have been accorded shelter under the Fourteenth
Amendment’s due process clause, we cannot avoid apply-
ing the force and rationale of these precedents to the fam-
17 See Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982); Drum-
mond v. Fulton County Department of Family and Children Serv-
ices, 547 F.2d 885 (5th Cir.), rev'd, 568 F.2d 1200 (5th Cir. 1977)
(en banc), cert. denied, 487 U.S. 910 (1978) (Brennan, J., & White,
J., noting that they would grant certiorari) ; Kyees v. County De-
partment of Public Welfare of Tippecanoe County, 600 F.2d 693
(7th Cir. 1979); Sherrard v. Owens, 644 F.2d 542 (6th Cir. 1981)
(per curiam). The decisions of the courts of appeals in these
procedural due process cases generally rejected a foster parent’s
claim to continued custody of the foster child, carefully limiting
their holding to the precise procedural due process issue and facts
presented.
However, recognition of a fundamental liberty interest in the
foster family would pose no doctrinal problem in applying tradi-
tional procedural due process analysis. Assertion of state power on
behalf of the natural parents—when in the best interests of the
child—would serve a compelling state interest and hence justify
the deprivation of the foster parent’s liberty interest. Similarly,
during the period in which a foster parent has a legitimate claim
of entitlement to continued care of the foster children, a liberty
interest may be recognized. The fact that it may have a temporal
limit, does not render it any less fundamental and it is clear that
liberty interests can be created through state law. E£.g., Wolff v.
McDonnell, 418 U.S. 539, 557 (1974).
27
ily choice involved in this case.” Jd. at 500-01."° The as-
sociation involved in this case—private citizens coming
forward to provide a home and a family for homeless
children—is itself an institution of the family “deeply
rooted in this Nation’s history and tradition.” Jd. at 503
(footnote omitted).
It is dogma that infringement of a fundamental liberty
interest may be justified only by a “compelling” govern-
mental interest. See, e.g., Zablocki v. Redhail, supra. This
case, however, may demonstrate that permitting cases to
turn on the existence vel non of a fundamental liberty
interest, together with the corresponding application of a
compelling state interest test, is ill-advised. Indeed, in
Roberts v. United States Jaycees, supra, this Court rec-
ognized that there is no bright line dividing associations
which may merit heightened protection under the due
process clause, but rather various relationships may be
placed on a continuum.
The Villages suggests that the appropriate framework
for reviewing a zoning regulation affecting the internal
composition of households is set forth in United States
v. O’Brien, 391 U.S. 367, 377 (1968) :
[A] government regulation is sufficiently justified if
it is within the constitutional power of the Govern-
ment; if it furthers an important or substantial gov-
ernmental interest; if the governmental interest is
18 Significantly, Justice White, dissenting in Moore, agreed with
the plurality that a protected liberty interest was effected in the
case. 4381 U.S. at 550. In Justice White’s view, however, a key
factor in sustaining the challenged ordinance was that it had an
extremely limited geographical scope and that the parties were
free to reside with one another in other parts of the metropolitan
area. In contrast, the zoning ordinance in the instant case ex-
cludes the foster family from living together in a residential dis-
trict anywhere in the metropolitan area. The City of Indianapolis
is coterminous with Marion County, Indiana, as one of the geo-
graphically largest and most populated cities in the nation. Statis-
tical Abstract of the United States, 29 (104th ed. 1984).
28
unrelated to the suppression of free [association] ;
and if the incidental restriction on alleged [associa-
tion] freedoms is no greater than is essential to the
furtherance of that interest.
O’Brien, of course, set forth the framework for deter-
mining the validity of a content neutral time, place, or
manner restriction on free speech. See generally Clark
v. Community for Creative Non-Violence, 104 S. Ct.
3065, 3071-72 n.8 (1984); Members of the City Council
of the City of Los Angeles v. Taxpayers for Vincent, 104
S. Ct. 2118 (1984). These cases recognize that simply
because an indisputably fundamental liberty interest is
at stake—the First Amendment protection of free expres-
sion—the compelling state interest test is not necessarily
required. Rather, certain kinds of regulations may be
justified under the less demanding O’Brien test. This
Court should recognize that, at a minimum, the same
intermediate test is applicable in cases affecting funda-
mental rights to association, privacy, and family inte-
grity. These rights stem, in part, from the First Amend-
ment and are often, as in this case, subject to regulation
which in essence is a time, place, and manner restriction
on the exercise of those rights.”
The exclusion of foster families from single-family zon-
ing districts clearly fails the O’Brien test. The zoning
ordinance as applied by the Commission does not further
19 Indeed, in Clark v. Community for Creative Non-Violence,
supra, the Court upheld a National Park Service regulation pro-
hibiting camping in certain parks against First Amendment chal-
lenge when applied to prohibit demonstrators from sleeping in a
park in connection with a demonstration intended to call attention
to the plight of the homeless. This regulation had all the attributes
of a zoning regulation, and the Court’s analysis, conducted under
the O’Brien framework, essentially involved an inquiry into the
substantiality of the relationship of the restrictions on the use of
the property in question and the legitimate governmental objectives
—precisely the key inquiry in reviewing the legitimacy of the
zoning restriction in this case.
<9
an “important” or “substantial” governmental interest.
Moreover, the restriction on free association is much
greater than essential to further the legitimate state in-
terest at stake. Analysis of the case at bar cannot over-
look that the right to exist and flourish as a family unit
including children is basic to the structure of our Nation
and is to be encouraged rather than stifled.
CONCLUSION
For the foregoing reasons, the Petition for a Writ of
Certiorari should be granted to review the judgment of
the Court of Appeals of Indiana. In the alternative, the
petition should be held pending disposition of City of
Cleburne v. Cleburne Living Center (No. 84-468).
Respectfully submiited,
WILSON S. STOBER
(Counsel of Record)
Harry F. MCNAUGHT, JR.
BAKER & DANIELS
810 Fletcher Trust Building
Indianapolis, Indiana 46204
(317) 636-4535
Counsel for Petitioner
APPENDICES
TABLE OF CONTENTS
. Opinion of the Court of Appeals of Indiana in The
Metropolitan Development Commission of Marion
County v. The Villages, Inc., rendered June 13, 1984,
and reported at 464 N.E.2d 367 ...............-------.-----------
. Findings of Fact, Conclusions of Law, Opinion and
Judgment of the Municipal Court of Marion County,
Room No. 12, in The Metropolitan Development
Commission of Marion County v. The Villages, Inc.,
rendered April 16, 10GB ...0..:.:c<:sisssenuseeeeee
. Order of the Court of Appeals of Indiana dated July
17, 1984, denying The Villages’ Petition for Re-
yea
. Order of the Supreme Court of Indiana dated No-
vember 15, 1984, denying The Villages’ Petition to
ED cece snnaoencdsosinisnedsiseiscangliniisllaaaaaae
. Relevant provisions of the Dwelling Districts Ordi-
nance of Marion County, Indiana, Code of Indian-
apolis and Marion County, Vol. III, Appendix D,
PATE 4... cccesccscwncnsessressessenssonnmaa
. Relevant portions of the following documents show-
ing that The Villages raised the federal questions
sought to be reviewed:
(1) The Villages’ Trial Brief submitted to the Mu-
nicipal Court of Marion County, Room 12, on
Maret: ©, TGC. wncncaniccnncsmassseeeeee
(2) Brief of Appellee (The Villages) filed with the
Court of Appeals of Indiana on March 5, 1984..
(3) Petition for Rehearing filed with the Court of
Appeals of Indiana on July 3, 1984.0...
(4) Appellee’s (The Villages) Petition to Transfer
filed with the Supreme Court of Indiana on
Arrgeaat 6, OGG onc ccnnsicesckicicnnusune eee
(5) Brief of Appellee, The Villages, Inc., in Support
of Petition for Transfer, filed with the Supreme
Court of Indiana on August 6, 1984 _......00.
Page
la
17a
34a
36a
5la
53a
55a
57a
la
APPENDIX A
IN THE COURT OF APPEAIS OF INDIANA
THIRD DISTRICT
No. 2-783 A 256
THE METROPOLITAN DEVELOPMENT
COMMISSION OF MARION COUNTY,
Appellant
(Plaintiff Below)
V.
THE VILLAGES, INC.,
Appellee
(Defendant Below)
[Filed June 13, 1984]
APPEAL FROM THE MUNICIPAL COURT OF MARION COUNTY
Room No. TWELVE
HONORABLE DAVID A. JESTER, JUDGE
CAUSE No. E1233-022
HOFFMAN, J.
The Metropolitan Development Commission of Marion
County filed suit against The Villages, Inc., to enforce
its zoning ordinance and enjoin use of a single-family
residence as a “foster care facility.” The trial court de-
nied the Commission’s application for preliminary in-
junction and granted The Villages’ request for judgment
on the merits. The Commission appeals that decision.
ae
2a
On January 10, 1983, The Villages purchased a single-
family residence at 61385 N. Meridian Street in Indian-
apolis for use as a group home. The group home con-
cept is relatively new, and serves the purpose of placing
abused, abandoned, and neglected children in a simulated
family environment. The Villages proposes to hire a
married couple to act as foster parents for up to ten |
foster children. Children will be placed in the group
home under separate contracts by the courts or govern-
ment agencies. For each child cared for, The Villages
will be reimbursed at the rate of $36 per day.
The property in question is zoned D-3 under the Dwell-
ing Districts Zoning Ordinance (DDZO) of Marion
County, which permits the following uses:
“1, ONE-FAMILY DWELLING, including Manu-
factured Homes as regulated in section 2.175.
2. TWO-FAMILY DWELLING, (permitted on
corner lots only).
3. GROUP HOMES, as regulated in section 2.18."
4. TEMPORARY USES, as regulated in section
2.14.
5. ACCESSORY USES, as regulated in section
2.15.
6. HOME OCCUPATIONS, as regulated in section
2.16.”
1 No one contends that The Villages proposes a “group home” as
that term is defined in the Ordinance. The Orcinance carefully
defines “group home” as caring for “developmentally disabled chil-
dren.” This group home provision of the Ordinance was added in
1981 by the City-County Council and is a narrow one applying only
to children who have developmental disabilities, as defined by IND.
CODE §§ 16-10-2.1-1 and 16-13-1-3. Thus, the Council chose a
definition of group home which all parties agree did not include
the use in the case at bar.
3a
The DDZO specifically permits foster family care of
children unrelated to residents by blood or adoption as
an Accessory Use, under the following conditions:
“Accessory Uses:
a. Shall be customarily incidental accessory and sub-
ordinate to, and commonly associated with, the
operation of the primary use of the lot.
b. Shall be operated and maintained under the same
ownership and on the same lot as the primary
use.
c. Shall be subordinate in area, extent, and purpose
to the primary use of building served... .”
In its findings of fact and conclusions of law, the trial
court specifically recognized the group home as one-
family dwelling, entitled to operate in the D-3 district
as a matter of law. The Commission now maintains that
the proposed group home does not constitute a one-family
dwelling under the provisions of the DDZO.
Local governments may reasonably restrict the use of
land into districts for the promotion of public health,
safety, morals, and welfare. Euclid v. Ambler Realty
Co., (1926) 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303.
The police power of local legislative bodies may be prop-
erly used to limit the number of non-related persons in-
habiting homes in residential districts without violating
constitutional rights.
Village of Belle Terre v. Boraas, (1974) 416 USS.
1, 94 S.Ct. 1536, 39 L.Ed.2d 797;
see also, Moore v. Cleveland, (1977) 431 U.S. 494,
97 8.Ct. 1932, 52 L.Ed.2d 531.
Thus, the issue at bar is not constitutional in nature, but
instead involves a question of statutory interpretation.
The construction of a zoning ordinance, like other
statutes, is a question of law. 101A C.J.S. Zoning and
4a
Land Planning $101. Courts may not interpret a stat-
ute or ordinance which is plain and unambiguous on its
face. Boone County State Bank v. Andrews, (1983)
Ind. App. , 446 N.E.2d 618. Where an ambiguity
does arise, the zoning ordinance involved must be con-
strued to ascertain and effectuate the intent of the local
legislative body. Bd. of Zoning v. New Testament Bible
Church, (1980) ——— Ind.App. , 411 N.E.2d 681.
The term “family” is not defined in the DDZO. Nor-
mally, terms undefined within a statute must be given
their plain, ordinary and usual meaning. Sutto v. Board
of Medical Regis. and Examination, (1962) 242 Ind. 556,
180 N.E.2d 533. However, the word family has no less
than twelve dictionary definitions and is not commonly
associated with one plain or ordinary meaning. See,
Webster’s New Universal Unabridged Dictionary, Sec-
ond Edition (1983).
In this instance, the legislative intent may be ascer-
tained through intrinsic construction of the DDZO.
Words and phrases in a single section of a statute or
ordinance must be construed consistently and logically
with other sections of the same act and with the act as
a whole. Ind. State Highway Comm. v. White, (1973)
259 Ind. 690, 291 N.E.2d 550.
In this case, the legal maxim expressio unius est ex-
clusio alterius* is particularly useful in ascertaining the
2 Black’s Law Dictionary (5th ed. 1979) defines expressio unius
est exclusio alterius as follows:
“A maxim of statutory interpretation meaning that the ex-
pression of one thing is the exclusion of another. Burgin v.
Forbes, 293 Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles,
170 Okl. 487, 40 P.2d 1097, 1100. Mention of one thing implies
exclusion of another. When certain persons or things are speci-
fied in a law, contract, or will, an intention to exclude all others
from its operation may be inferred. Under this maxim, if
statute specifies one exception to a general rule or assumes to
specify the effects of a certain provision, other exceptions or
effects are excluded.”
5a
legislative intent. In construing a statute, it is equally
important to recognize what is not said as it is to recog-
nize what is said. Van Orman v. State, (1981) ——
Ind. App. , 416 N.E.2d 1301. In drafting the DDZO,
the local legislative body promulgated separate and spe-
cific provisions for single-family dwellings and for fos-
ter care within the D-3 district. The specific provision
for foster care as an accessory use necessarily excludes
foster care from the general section authorizing single-
family dwellings. Any other construction renders this
specific regulation of foster care superfluous. Local legis-
lators would not logically provide for foster care as an
accessory use if it were also contemplated as a single-
family dwelling use. The trial court erred as a matter
of law in finding The Villages’ group home to be a single-
family dwelling.
Nor does the group home qualify as an accessory use.
Any accessory use must be subordinate in area, extent,
and purpose to the primary use of the lot. The Villages
is a corporation which intends to hire two houseparents
to provide care for ten foster children. These children
are placed in the group home under separate contracts,
and The Villages is compensated at a rate of $36 per
day per child. Obviously, foster care is not subordinate
to, but actually is the primary use of the proposed group
home. As such, the proposed group home is not per-
mitted as an accessory use, nor is it allowed under any
category within the D-3 district.*
The Villages contends that its position is supported
by the weight of authority in other jurisdictions which
have considered this question. Instead of addressing the
specific terms of the challenged ordinance, this position
relies upon the results reached in cases construing dis-
tinetly different ordinances. It is the duty of this Court
to interpret the challenged ordinance, giving force and
3 The parties have stipulated that none of the other four use
categories is applicable.
6a
effect to the language of the local legislature, without
regard to results reached in cases which they may be
clearly contrasted.
A majority of the cases cited may be distinguished
on the basis that the ordinances concerned broadly de-
fine family to encompass unrelated individuals operating
as a single-housekeeping unit.
E.g., Saunders v. Clark Cty. Zoning Dept., (1981)
66 Ohio St.2d 259, 421 N.E.2d 152.
See also, Annot., 71 A.L.R.3d 697 (1976).
Other cases have recognized that group homes are en-
titled to locate in residential areas where state statute
pre-empts local government from excluding this use.
Costley v. Caromin House, Inc., (1981) Minn., 313
N.W.2d 21;
Hessling v. Broomfield, (1977) 193 Col. 124, 563
P.2d 12.
At least one jurisdiction has recognized group homes for
foster children as a single-family use per se, regardless
of zoning prohibitions.
Group House of Port Washington v. Board of Zon-
ing, (1978) 45 N.Y.2d 266, 380 N.E.2d 207;
White Plains v. Ferraioli, (1974) 34 N.Y.2d 300,
313 N.E.2d 756.
The New York cases clearly establish a right which ex-
ceeds the constitutional requirements set forth in Belle
Terre, supra, and Moore, supra. It is not the duty of
this Court to grant extra-constitutional rights and privi-
leges. Instead, the power to enact social legislation rests
exclusively in the hands of the General Assembly or with
local legislative bodies.
While the above-cited cases are distinguishable from
this case, the Supreme Court of Ohio has handed down
Ta
a well-reasoned opinion. Carroll v. Washington Twp.
Zoning Com’n, (1980) 63 Ohio St.2d 249, 17 Ohio Op.3d
161, 408 N.E.2d 191. The Carroll court held that a
group home operated principally for the care of foster
children did not qualify as a single-family dwelling even
where the ordinance failed to define or restrict the term
family. In reaching this conclusion, the court stated
that:
[t]he term ‘family,’ when used without definition
in a residential use restriction, must be interpreted
in light of permissible zoning objectives. A political
subdivision may legitimately segregate land uses in
order to, inter alia, provide adequate fire and police
protection, decrease noise and noxious odors, control
traffic flow, limit land use intensity, and create rea-
sonably secure and stable residential neighborhoods.
The attainment of ‘[a] quiet place where yards are
wide, people few, and motor vehicles restricted .. .’
is a reasonable goal of land use legislation. Village
of Belle Terre v. Boraas (1974), 416 U.S. 1, 9, 94
S.Ct. 1536, 1541, 39 L.Ed.2d 797.
* * = a
“Local governments may, through the passage of
zoning-type legislation, reasonably restrict the use
of land into districts with the aim of promoting the
public health, safety, morals and welfare. There is
no constitutional prohibition in denying certain uses
of one’s property in a comprehensive plan for the
development of communities for the common welfare
of the community. Euclid v. Ambler Realty Co.,
supra. A comprehensive township zoning plan which
excludes a use of this type is not per se unconstitu-
tional.
“The exercise of local discretion in areas of social
and economic legislation will be approved where it
is in accordance with law and, not in conflict with
8a
general law as enacted by the General Assembly;
and where such local enactments are reasonable, not
arbitrary, and bear a reasonabie relationship to a
permissible governmenta! objective.”
408 N.E.2d at 193-194.
While the rationale set forth in Carroll is consistent with
the decision reached in the case at bar, we reach our
decision solely upon firmly established rules of statutory
interpretation. The Villages’ proposed group home does
not constitute a single-family dwelling under the DDZO.
Nor does such a group home, which operates for the
principal purpose of caring for foster children qualify as
an accessory use within the D-3 district.
The decision of the trial court is reversed.
Reversed.
NEAL, P.J., SITTING BY DESIGNATION, CONCURS;
RATLIFF, J. SITTING BY DESIGNATION, DIS-
SENTS WTH OPINION.
ee Tn a
9a
IN THE COURT OF APPEALS OF INDIANA
THIRD DISTRICT
No. 2-783 A 256
THE METROPOLITAN DEVELOPMENT
COMMISSION OF MARION COUNTY,
Plaintiff-A ppellant,
vs.
THE VILLAGES, INC.,
Defendant-A ppellee.
[Filed June 138, 1984]
APPEAL FROM THE MUNICIPAL COURT OF MARION COUNTY
Room No. TWELVE
THE HONORABLE DaAvipD A. JESTER, JUDGE
(CAUSE No. E1233-022)
RATLIFF, J., sitting by designation.
DISSENTING OPINION
I dissent. The contemplated use of the residence in
question by The Villages as a group home for abused,
abandoned, and neglected children in a simulated family
environment constitutes a single-family dwelling within
the restrictions of the zoning ordinance. Although the
courts of Indiana have not had occasion to deal with this
problem, that the proposed use meets the definition of
single-family residence is clearly established by decisions
from our sister states. Hessling v. City of Broomfield,
10a
(1977) Colo., 563 P.2d 12; Hamner v. Best, (1983) Ky.
App., 656 S.W.2d 253; Group House of Port Washington
v. Board of Zoning, (1978) 45 N.Y.2d 266, 380 N.E.2d
207; City of White Plains v. Ferraioli, (1974) 34 N.Y.2d
300, 313 N.E.2d 756; Saunders v. Clark County Zoning
Department, (1981) 66 Ohio St. 2d 259, 421 N.E.2d 152.
In fact, it has been heid that use of a residence for treat-
ment of six or fewer mentally retarded children living
with a resident foster parent was not violative of a re-
structive covenant restricting use to single-family resi-
dences. Bellarmine Hills Association v. Residential Sys-
tems Co., (1978) 84 Mich. App. 554, 269 N.W.2d 673.
In my view, an examination of these cases compels a de-
cision opposite to that reached by the majority.
Hamner is nearly identical factually to this case.
There, a non-profit entity desired to use a large older
home as a child care facility to house one married couple
and from six to eight children. The applicable zoning
ordinance restricted use of property within the area to
single-family dwellings. Like the ordinance in question,
the ordinance in Hamner did not define either “family”
or “single family”. The children would not be either ju-
venile offenders or mentally retarded requiring institu-
tional type regulation. They would attend community
schools and no professional counselors would live in the
home. The Kentucky Court of Appeals held the proposed
use was for a family residence rather than as an institu-
tion, saying:
“(T]he record contains substantial evidence that the
residents of the home would function as, and resem-
ble that of, any other single-family household. In
fact, the evidence clearly indicates that the entire
purpose of the group home is to provide a traditional
home environment for the children; ...
Clearly, the term ‘family’, as determined by our
highest court in the context of land use cases or
Pe ee eee
lla
zoning, may include unrelated individuals and has
not been construed to refer only to those related by
blood, marriage, or adoption.”
656 S.W.2d at 255-56.
In Hessling, the Colorado court upheld the use of a
residence as a live-in home for a married couple who
would act as surrogate parents and not to exceed six
mentally retarded children ranging in age from five to
nine, as constituting a family thus meeting the zoning
restriction limiting use to one family dwellings, so long as
family characteristics were maintained.
Group House of Port Washington involved a non-profit
corporation which had purchased a home for use as a
group home which would consist of two surrogate par-
ents and seven children. The home was intended as a
replacement family for victims of unhappy homes and not
as a detention center. The zoning ordinance restricted use
to one-family residences and defined a family as one or
more persons related by blood, marriage or legal adoption
residing in a single housekeeping unit and allowed not
more than two boarders all living in a common household.
The New York Court of Appeals found no zoning viola-
lation and stated:
“The surrogate family which petitioner hopes to
create is in fact a permanent family structure, and
not a temporary residence for transients... .
Finally, we would emphasize that our decision to-
day is limited to homes such as that described in this
opinion, which serve as the functional equivalent of
a family, for the exclusion of such groups would in
no way further any valid public purpose. Whether
a particular ‘group home’ comes within this descrip-
tion is essentially a factual question. Different fac-
tors would exist were petitioner to convert its group
house, for example, from the type of operation de-
scribed above into a home for delinquents or the men-
12a
tally disturbed, and we express no opinion as to the
proper result in such a case. Thus, we conclude only
that the ‘group home’ described in this opinion is a
permitted use as a one-family dwelling under the
town zoning ordinances. Should the nature of the
house change with the passage of time, however,
should it become less of a surrogate family and more
of an institution, it might then become an unpermit-
ted use. On this record, however, we must conclude
that petitioner’s ‘group home’ is indeed a family.”
45 N.Y.2d at 273-74, 380 N.E.2d at 211.
The New York Court of Appeals in Ferraioli, stated
the issue thus: |
“The issue is a narrow one: whether the ‘group
home’, consisting of a married couple and their two
children, together with 10 foster children, qualifies
as a single ‘family’ unit, under the ordinance. It is
concluded that the group home, set up in theory, size,
appearance and structure to resemble a family unit,
fits within the definitions of family for purposes of
a zoning ordinance.”
34 N.Y.2d at 300, 313 N.E.2d at 757.
In Ferraioli, a non-profit corporation licensed by the
state to care for neglected and abandoned children had a
group home consisting of the persons described in the
court’s statement of the issue. The couple was paid a
salary and all expenses were paid by the corporation.
“The children, natural and foster, live[d] together as if
they were brothers and sisters and [the couple] were
their common parents. The household [was] maintained
as a family would be in a single housekeeping unit with
kitchen facilities.” 34 N.Y.2d at 304, 313 N.E.2d at 757.
The zoning ordinance permitted single family dwellings
for one housekeeping unit only. “Family” was defined as
“one or more persons limited to the spouse, parents,
grandparents, grandchildren, sons, daughters, brothers or
oa eg tie
13a
sisters of the owner or the tenant or of the owner’s spouse
or tenant’s spouse living together as a single housekeep-
ing unit with kitchen facilities.” 34 N.Y.2d at 304, 313
N.E.2d at 758. The court held the use was within the
zoning restriction. The court stated:
“Whether a family be organized along ties of
blood or formal adoptions, or be a similarly struc-
tured group sponsored by the State, as is the group
home, should not be consequential in meeting the
test of the zoning ordinance. So long as the group
home bears the generic character of a family unit as
a relatively nermanent household, and is not a frame-
work for transients or transient living, it conforms
to the purpose of the ordinance... .
In short, an ordinance may restrict a residential
zone to occupancy by stable families occupying single-
family homes, but neither by express provision nor
construction may it limit the definition of family to
exclude a household which in every but a biological
sense is a single family. The minimal arrangement
to meet the test of a zoning ordinance, as this one,
is a group headed by a householder caring for a rea-
sonable number of children as one would be likely to
find in a biologically unitary family.”
34 N.Y.2d at 305-06, 313 N.E.2d at 758-59.
A like result was reached in Saunders. There, a min-
ister and his wife and five children lived at a large resi-
dence with as many as nine foster children. The home
was later incorporated as a non-profit corporation. A few
persons were employed to assist in caring for the chil-
dren. The zoning was for single-family detached resi-
dences and the ordinance contained the following relevant
definitions:
“4.08: Boarding or Lodging House. A building or
part thereof, other than a hotel or restaurant, where
meals and/or lodging are provided, for compensa-
tion, for five (5) or more persons not transients.
l4a
4.171: Dwelling, Single-Family. A building de-
signed for or used exclusively by one family or
housekeeping units.
4.174: Dwelling Unit. One room, or a suite of
two or more rooms, designed for or used by one fam-
ily for living and sleeping purposes and having only
one (1) kitchen or kitchenette.
4.18: Family. A person living alone, or two or
more persons living together as a single housekeep-
ing unit, in a dwelling unit, as distinguished from a
group occupying a boarding house, lodging house,
motel or hotel, fraternity or sorority house.”
66 Ohio St. 2d at 262, 421 N.E.2d at 155. The zoning
administrator issued a cease and desist order claiming
the house was a boarding house. The Ohio Supreme Court
found no violation of the ordinance. The court said:
“The definition of ‘family’ in this resolution is a
broad one. In our view, any resolution seeking to
define this term narrowly would unconstitutionally
intrude upon an individual’s right to choose the fam-
ily living arrangement best suited to him and his
loved ones. Those loved ones can just as easily be
foster children as natural children for parents with
compassion. A state or local government cannot con-
stitutionally invade the private realm of family life.
A family unit, which performs the social function of
child-rearing, regardless of its relationship or com-
position or whether it includes foster children as well
as natural children, is constitutionally protected
against governmental intrusion not supported by a
compelling governmental interest.
Therefore, .. . we hold a family based group foster
home for delinquent boys, who are unrelated by af-
finity or consanguinity to the foster parents, is a
permitted use in an ‘R-1 suburban residence dis-
l5a
trict’ where the zoning resolution defines the term
‘family’ as ‘two or more persons living together as a
single family housekeeping unit, in a dwelling unit,’
where it defines ‘dwelling unit’ as ‘one room or a
suite of two or more rooms, designed for or used by
one family for living and sleeping purposes and hay-
ing only one (1) kitchen or kitchenette,’ and where
it defines ‘single-family dwelling’ as ‘[a] building
designed for or used exclusively by one family or
housekeeping unit.’
We now interpret the term ‘family’ broadly in or-
der to permit appellees to operate a foster home in
an ‘R-1 suburban residence district.’ Such a board
definition of ‘family’ is mandated by the Clark
County Zoning Resolution, fundamental principles of
zoning law, and immutable constitutional principles
guaranteeing the right of every American to live
with his family free from official harassment. [Cita-
tions omitted; footnote omitted. ]”’
66 Ohio St. 2d at 263-65, 421 N.E.2d at 155-57.
The majority relies on an earlier Ohio case, Carroll v.
Washington Township Zoning Commission, (1980) 638
Ohio St. 2d 249, 408 N.E.2d 191, a case which is not even
mentioned in Saunders. In my view, Carroll is not a
sound decision, and I agree with the dissenting opinion of
Justice Brown that “[t]he majority’s resolution of this
ease [Carroll] is supported neither by logic nor by case
law from [that] jurisdiction or any other.” 63 Ohio St.
2d at 253, 408 N.E.2d at 194.
The majority attempts to evade the holdings in
Saunders and other cases cited herein by attempting to
distinguish them “on the basis that the ordinances con-
cerned broadly defined family to encompass unrelated in-
dividuals operating as a single-housekeeping unit.” Slip
opinion at 5. In fact, the ordinances in Saunders, Fer-
16a
raioli, and Group House of Port Washington contained
narrow definitions of family, but the courts, nevertheless,
found the homes in question were not violative of the
ordinance restricting use to single-family dwellings.
In my opinion, the group home proposed by The Vil-
lages meets the test of a single-family residence under
the authorities herein cited. I would affirm the judgment.
17a
APPENDIX B
STATE OF INDIANA )
Ss:
COUNTY OF MARION )
THE MARION COUNTY MUNICIPAL COURT
CAUSE NO. E1233-022 ROOM NO. 12
THE METROPOLITAN DEVELOPMENT
COMMISSION OF MARION COUNTY,
Plaintiff,
V.
THE VILLAGES, INC.,
Defendant.
[Filed Apr. 18, 1983]
FINDINGS OF FACT,
CONCLUSION OF LAW,
OPINION AND JUDGMENT.
This cause of action having been heard on March 9,
1983, and the Court, having received and considered evi-
dence from and on behalf of all parties, now enters its
Findings of Fact, Conclusions of Law, Opinion and
Judgment.
I. Findings of Fact
1. The Court has jurisdiction of the parties and sub-
ject matter of this cause of action.
18a
2. The Metropolitan Development Commission of
Marion County (hereinafter referred to as the “Com-
mission”) is the proper party to maintain this cause of
action pursuant to Indiana Code 36-7-4-202(c) and 36-
7-4-1014.
3. The Defendant, The Villages, Inc. (hereinafter re-
ferred to as the “Villages”’), is the owner, and the in-
tended occupier, user, and possessor of the real estate
commonly referred to as 6135 North Meridian Street,
a/d/a 6131 North Meridian Street, Indianapolis, Marion
County, Indiana, and more particularly described as fol-
lows:
Lots 5388 and 539 in Warfleigh Addition, an addi-
tion to the City of Indiananpolis, as per plat thereof,
recorded in Plat Book 15, pages 140-142 in the Office
of the Recorder of Marion County, Indiana,
(hereinafter referred to as the “Real Estate”). There-
fore, the Villages is a proper party in this action.
4. The Real Estate is zoned D-3.
5. The Dwelling Districts Zoning Ordinance of Marion
County, Indiana, as amended (hereinafter referred to as
the “DDZO”’) contains regulations and requirements per-
taining to the primary uses, accessory uses, and develop-
ment standards authorized in Dwelling Districts within
Marion County, Indiana, including real estate which is
zoned D-3.
6. The Complaint by the City against the Defendant,
The Villages, Inc., arises as a result of The Villages pur-
chase and intended use of a home located at 6135 North
Meridian Street, Indianapolis.
7. The Villages is a not-for-profit corporation organized
in the State of Kansas to help abused, abandoned and
neglected children, including orphans, throughout the
Midwest.
19a
8. The Villages proposes to operate a foster care facil-
ity staffed by two houseparents, and a set of back-up
houseparents, who will provide the care and shelter for
up to ten (10) abused, abandoned, or neglected children,
such children being wards of a court or a government
agency that pays The Villages about thirty-six ($36.00)
per day per child to provide such care and shelter.
9. This home is a one-family dwelling which was pre-
viously occupied and used by a married couple and their
eleven (11) children. It has seven bedrooms and four
and a half baths and is located on two residential lots.
10. The married couple to be employed by The Villages
will reside in the house with their natural children, if
any, as their sole residence and care for the foster chil-
dren on an around-the-clock basis.
11. No sign will be displayed by the Villages on the
real estate.
12. The Villages’ purpose in establishing such a resi-
dence is to emulate a stable family environment for chil-
dren who would otherwise not have one.
13. The house-parents and the foster children will keep
and maintain the house as a single housekeeping unit,
having one kitchen, eating together at family mealtimes,
celebrating holidays together, and enjoying vacations to-
gether.
14. Foster children will attend local schools the same as
other children in the neighborhood.
15. The foster children are referred to The Villages
principally by the county welfare department, because
their natural parents are not able to provide care for
them.
16. The children referred to The Villages are in turn
screened as to the child’s willingness, ability and com-
mitment to live in and contribute to a family environ-
20a
ment and to remain in the home through high school
graduation.
17. Use of the home will have every appearance of a
one-family dwelling.
18. The Villages operates four other similar homes in
the State of Indiana, and each is licensed as a group
home as that term is defined under regulations adminis-
tered by the Indiana Department of Public Welfare.
19. On November 19, 1982, a representative of The
Villages met with City officials to discuss its planned
operation.
20. The Indiana Director of The Villages, Robert Gil-
logly, was informed on November 19, 1982, by J. Nicholas
Shelley, then Administrator of the Division of Planning
and Zoning, Department of Metropolitan Development,
that the Proposed Use could not be established on the
Real Estate without a zoning variance or rezoning to a
Special Use VII (SU-7) District.
21. The Special Use Districts Zoning Ordinance of
Marion County, Indiana, lists a charitable and philan-
tropic institution as a use permitted in a Special Use VII
(SU-7) District.
22. Following such meeting, The Villages sought legal
counsel respecting the question of whether it needed some
special land use approval before occupying and using the
residence.
23. On December 15, 1982, counsel for The Villages
wrote the City setting forth authority and reasoning for
the proposition that The Villages required no special land
use approval.
24. On January 10, 1983, The Villages closed on its
purchase of the residence at 6135 North Meridian and
thereafter held fee simple title to the real estate.
2la
25. On January 19, 1983, the City responded to the
prior letter of December 15, 1982, stating that The Vil-
lages must rezone the property to a Special Use 7 zoning
classification or obtain a variance.
26. Upon the advice of counsel and in good faith, The
Villages determined not to seek rezoning or variance, but
informed the City of its intention to occupy and use the
home with a husband and wife caring for no more than
ten foster children.
27. The Real Estate has been and is being prepared for
the implementation of the Proposed Use on or shortly
after April 1, 1983.
II. Conclusions of Law
1. The Court has jurisdiction over the parties and the
subject matter of this controversy, pursuant to IC 33-6-1-
3-2(3) and IC 36-7-4-1014(c).
2. The Law is with The Villages and against the Com-
mission.
3. The subject real estate, 6135 North Meridian, In-
dianapolis, Indiana, is located in an area zoned D-5 un-
der the Marion County Dwelling District Ordinance.
4. The D-3 Ordinance permits one-family dwelling
units, and accessory uses, along with group homes and
other uses not pertinent to this cause.
5. The use of the subject real estate by an organiza-
tion which employs a married couple to work in said
facility on an around the clock basis to provide care and
shelter for abused, abandoned, or neglected children is a
one-family dwelling use and therefore is a permitted
primary use in a dwelling district zoned D-3 because
such use fits within the plain and ordinary meaning of
the term “family”.
Furthermore, the providing of care to foster children
is contemplated by the ordinance by virtue of the fact
22a
that foster family care is expressly permitted under Sec-
tion 2.15(10) of the Dwelling District Ordinance.
6. The home proposed by The Villages is not a group
home under Sections 2.18 and 2.19(29) of the Dwelling
District Ordinance, because the children are not develop-
mentally disabled, as defined therein.
7. The proposed home also does not constitute use by
a charitable or philantropic institution under the Special
Use Ordinance, since the house will be utilized by persons
living there as a family, as a single housekeeping unit
and as their sole personal residence.
8. To the extent that any finding of act [sic] is a con-
clusion of law or any conclusion of law is a finding of
fact, it shall be so deemed irrespective of the headings
given above.
9. The trial of this action of the merits should be ad-
vanced and consolidated with the preliminary injunction
hearing.
III. Opinion
The issues presented by this case are fairly simple: is
the proposed use a permitted use under the terms of the
existing Dwelling District Zoning Ordinance. The reso-
lution of this question involves an interpretation of the
term “family” as used in the ordinance. “Family” is not
defined within the ordinance.
This is a question of first impression in the State of
Indiana. Other states which have interpreted the term
“family” as used by zoning ordinances, have gone both
ways, by either permitting or denying a use such as pro-
posed under what is basically the same fact situation, as
will be discussed later.
Further confusion is added to the problem by the fact
that the United States Supreme Court has upheld a very
restrictive ordinance that defined the word “family” to
23a
mean one or more persons related by blood, adoption, or
marriage, or not more than two unrelated persons, living
and cooking together as a single housekeeping unit. The
court held the ordinance constitutional in that such a defi-
nition was not unreasonable or arbitrary and involved no
deprivation of “fundamental” rights. Village of Belle
Terre v. Boraas, 416 U.S. 1, 39 L.E.2d 797 (1974). This
very restrictive definition would seem to be at odds with
the more liberal definition most jurisdictions have taken,
even when denying the proposed use.
Unfortunately, our ordinance gives no definition of the
term “family”. Therefore the court is placed in the posi-
tion of defining that term by its usual and ordinary
meaning. St. Germain v. State, 267 Ind. 252, 369 N.E.2d
931 (1977); Sutto v. Board of Medical Registration and
Examination, 242 Ind. 556, 180 N.E.2d 533 (1962) [.]
Therein lies the rub. As the Michigan Court in Bel-
larmine Hills Association v. Residential Systems Co., 84
Mich. App. 554, 269 N.W.2d 673, 675 (1978), pointed
out:
“ ‘Now this word ‘family,’ contained in the statute,
is an expression of great flexibility. It is applied in
many ways. It may mean the husband and wife
having no children and living alone together, or it
may mean children, or wife and children, or blood
relatives, or any group constituting a distinct domes-
tics or social body. It is often used to denote a small
select corps attached to an army chief, and has even
been extended to whole sects, as in the case of the
Shakers.’
Our examination of subsequent cases and authority
from other jurisdictions discloses no more specific
definition of the term. Rather, the word family de-
notes a concept, the application of which is depend-
ent upon the basis of affiliation of the group being
analyzed juxtaposed with the public policies invoked
24a
by the particular circumstances of the case being re-
viewed.”
In looking to the decisions of other states, as previously
stated, the court finds very little direction. Under what
are, for all practical purposes, identical facts, the courts
have reached opposite conclusions. For example, in Sawn-
ders v. Clark City Zoning Dept., 66 Ohio St. 22d 259,
421 N.E.2d 152 (1981), under facts very similar to the
case before the court, (with the exception that in that
case the children were delinquent boys) the court per-
mitted the use.
On the other hand, in Carroll v. Washington Township
Zoning Commission, 63 Ohio St. 2d 249, 408 N.E.2d 191
(1980), the court reached an opposite conclusion, in a
case involving foster children, under an ordinance which
defined “family” less restrictively than in the Saunders
case. Interestingly enough, the Carroll case was not even
mentioned in the Saunders case.
It is, therefore, necessary to analyze the reasoning of
these cases and attempt to adopt the better rule. In that
regard the cases are very instructive, because both sides
of the issue have been thoroughly rationalized.
We start with the basic premise that the term “fam-
ily” should be interpreted in a broad way. As stated by
the court in Saunders:
“In our view, any resolution seeking to define this
term narrowly would unconstitutionally intrude upon
an individual’s right to choose the family living ar-
rangement best suited to him and his loved ones.
Moore v. East Cleveland (1977[)], 4381 U.S. 494,
499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531.”
Clearly, however, the pursuit of the goal of a“...
quiet place where yards are wide, people few, and motor
vehicles restricted .. .” is a legitimate interest of land
use regulation. Village of Belle Terre v. Boraas, 416 U.S.
25a
1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). And the term
“family” must be defined within that context.
It is the conflict between these competing interests
which makes the definition difficult. To severely restrict
the definition of a family would tend to insure the tran-
quility of the neighborhood. But to do so would extend
the function of zoning regulation beyond its legitimate
parameters. We prefer the more permissive view as taken
in the Saunders case.
The basis of affiliation of the neighborhood is the pur-
suit of the interests of “. . . a quiet place where yards
are wide, people few, and motor vehicles restricted .. .”,
as delineated in the Belle Terre case. The basis of affilia-
tion of the foster children proposed to be housed by the
use requested by the respondents in [sic] the same. It is
those characteristics that attract them there. The needs
and desires of both groups are the same—a quiet peace-
ful neighborhood.
A proper definition of family we believe permits suffi-
cient limitation to protect the single family residential
neighborhood, while restricting zoning regulations to their
legitimate interests.
The cases most directly on point, and the ones with
which the courts reasoning most closely coincides are City
of White Plains v. Ferraioli, 34 N.Y.2d 300, 313 N.E.2d
756 (1974) and Group House of Port Washington v.
Board of Zoning, 45 N.Y.2d 266, 380 N.E.2d 207 (1978).
The facts are very similar: the houses were owned by a
not-for-profit corporation, occupied by an adult couple
which was paid by the corporation to rear either seven
(7) or ten (10) foster children. The household was main-
tained as a family would be in a single housekeeping unit
with kitchen facilities. Funding was supplied primarily
by governmental sources.
As pointed out by the court in the White Plains case:
26a
“It is significant that the group home is structured
as a single housekeeping unit and is, to all outward
appearances, a relatively normal, stable, and perma-
nent family unit ... If that be true, the group
home is no less qualified to occupy the Ferraioli
house than are any of the neighboring families in
their respective homes.”
“é ”
. . *
“The group homes does not conflict with the charac-
ter and, indeed, is deliberately designed to conform
with it.”
“é 99 -
. * .
“Indeed, the purpose of the group homes is to be
quite the contrary of an institution and to be a home
like other homes.”
All of these characteristics are present in the instant
case. It is, in fact, the purpose of the proposed use to
place foster children in as near a normal family environ-
ment as possible so that they may become integrated into
the community and their “family” more so than if institu-
tionalized.
It seems axiomatic that this goal is favored by public
policy. The opportunity to live in a stable neighborhood,
with the attendant benefits of going to school there, de-
veloping friendships among one’s neighbors and school-
mates, and developing the community ties permitted by
such a manner of living, is highly desirable and must be
favored by the law.
Where certain children are deprived of this opportu-
nity, for whatever reason they have been taken from their
natural family, it seems incumbent upon society to at-
tempt to ameliorate the detrimental effects by placing
them in as natural a situation as possible. Public policy
would seem to demand that where this can be accom-
plished, in a reasonable manner, that it be done.
or ocee as ae Nach Soa
27a
Our laws in every instance that comes to mind, places
the best interest of the child above most all other consid-
erations. It is not unreasonable to conclude, therefore,
that this interest dictates that public policy favors plac-
ing them in stable neighborhoods where reasonably done.
The court can find no conflict between public policy, the
needs and desires of the neighbors to the requested use,
the children to be resident there, and the laws interest in
protecting neighborhoods as pointed out in the Villages of
Belle Terre case. Indeed, a definition of “family” which
permits the proposed use is compatible with the concept
of a residential neighborhood. As stated by the court in
the Group House of Port Washington case; “. . . peti-
tioners group home’ might actually support and further
those values even more effectively than certain natural
families.” There is nothing in the record to indicate
otherwise.
It is important in this respect to note that these are
neither disturbed, mentally retarded, nor delinquent chil-
dren. This is merely a home for children, who, because
of an unhappy home life, simply cannot thrive and grow
if they live with their natural parents. There is no rea-
son to believe that these children will be any better or
worse that [sic] the children of the family that previously
lived in the house (which actually had a larger number
of children. )
Were the children delinquent, or physically or mentally
disadvantaged, this case might be more difficult to decide.
In that instance the intrusion upon the neighborhood
would be more intense, and depending upon the facts of
the case, might lead to a different result. In this instance,
however, a reasonable definition of “family” easily in-
cludes children of the type proposed to be housed in this
residential neighborhood.
That is not to say that the concerns of the surround-
ing neighbors are not real. Obviously, ten (10) children
28a
added to the neighborhood will have an effect. But no
more than the effect of ten (10) children living with their
natural parents, which is clearly permitted.
We believe the law of this state is that the purpose of
zoning regulation is “to control types of housing and liv-
ing and not the genetic or intimate internal family rela-
tions of human beings.” City of White Plains, supra, at
758.
Likewise, we believe that the law of this state is as
summarized by Justice Brown in his dissent in the Car-
roll case, supra, as follows:
“In the instant cause I would use a definition sim-
ilar to that set out by Justice Tobriner in Brady v.
Superior Court (1962) 200 Cal.App.2d 69, 77, 19
Cal.Rptr. 242, 247, where he stated:
‘Single family dwelling’ designates the joint occu-
pancy and use of the dwelling by all of those who live
there. The word ‘single’ precludes the segregation of
certain portions or rooms for rental. It forecloses
multiple occupancy of certain portions of the unit for
rental as a segregated part, or parts, of the unit.
‘Dwelling’ means the whole of the premises used for
living purposes. It must include the use of the com-
mon rooms, such as the kitchen, dining room, living
room, if any, by all occupants. It refers to, and
reinforces, the concept of singular use, as opposed to
multiple. The “dwelling’ cannot be fragmentized
into broken bits of housing for rental return. ‘Fam-
ily’ signifies living as a family; it inhibits the break-
ing up of the premises into segregated units.’ ”’
“cc ”
“In a recent New Jersey Supreme Court case an ex-
tensive survey of the courts was made and it was
stated that:
29a
“‘The courts of this and other states have often
noted that the core concept underlying single family
living is not biological or legal relationship, but,
rather, its character as a single house-keeping unit.
Berger v. State, supra, 71 N.J. at 227, 364 A.2d 993.
see Kirsch Holding Co. v. Borough of Manasquan,
supra, 49 N.J. at 250, 281, A.2d 513; City of Des
Plaines v. Trottner, supra; Boston-Edison Protective
Ass’n v. Paulist Fathers, 306 Mich. 253, 10 N.W.2d
847 (Sup.Ct.1943) ; City of White Plains v. Ferrai-
oli, 34 N.Y.2d, 300, 305-307, 357 N.Y.S. 2d 449, 452-
454, 313 N.E.2d 756, 758-759 (Ct.App.1974). As
long as a group bears the ‘generic character of a
family unit as a relatively permanent household,’ it
should be equally as entitled to occupy a single fam-
ily dwelling as its biologically related neighbors.
City of White Plains, supra, 34 N.Y.2d at 306, 357,
N.Y.S.2d at 453, 313, N.E.2d at 758; see, e.g. Brady
v. Superior Ct. 200 Cal.App. 2d 69, 19 Cal.Rptr. 242
(Dist.Ct.App.1962); Oliver v. Zoning Comm’n of
Chester 31 Conn. Sup. 197, 326 A.2d 841 (C.P. Mid-
dlesex Cty. 1974); Carroll v. City of Miami Beach,
198 So. 2d 643 (Fla.Dist.Ct. App. 1967); Group
House of Port Washington, Inc. v. Board of Zoning,
45 N.Y.2d 266, 408 N.Y.S.2d 377, 380 N.E.2d 207
(At.App.1978) ; Little Neck Comm. Ass’n. v. Work-
ing Org. for Retarded Children, 52 A.D. 2d 90, 383
N.Y.S.2d 364 (App.Div. 1976); Missionaries of Our
Lady of LaSalette v. Village of Whitefish Bay 267
Wis. 609, 66 N.W.2d 627 (Sup. Ct. 1954).” State v.
Baker (1979), 81 N.J.99, 405 A.2d 368, at page 372.
See, also, Hessling v. Broomfield (1977), 193 Colo.
124, 563 P.2d 12.’ ”
We would add the following thoughts of Justice Clif-
ford Brown in the majority opinion in the Saunders case,
supra:
30a
“Those loved ones can just as easily be foster chil-
dren as natural children for parents with compas-
sion. A state or local government cannot constitu-
tionally invade the private realm of family life.
Wisconsin v. Yoder (1972) 406 U.S. 205, 231-233,
92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15; Prince v.
Massachusetts (1944), 321 U.S. 158, 166 64 S.Ct.
438, 442, 88 L.Ed. 645; Village of Belle Terre v.
Boraas (1974) 416 U.S. 1, 94S. Ct. 1536, 39 L.Ed.
2d 797, dissenting opinion of Marshall, J., at page 16,
94 S.Ct. at 1544. A family unit, which performs the
social function of child-rearing, regardless of its re-
lationship or composition or whether it includes fos-
ter children as well as natural children, is constitu-
tionally protected against governmental intrusion not
supported by a compelling governmental! interest.
Smith v. Organization of Foster Families (1977),
431 U.S. 816, 844-845, 97 S. Ct. 2094, 2109, 53 L.Ed.
2d 14; Wisconsin v. Yoder, supra; Meyer v. Nebraska
(1923), 262 U.S. 390, 399-401, 43 S. Ct. 625, 626-
627, 67 L.Ed. 1042; 91 Harvard L. Rev. 1427, 1571-
1574.
We can find no compelling governmental reason in de-
fining ‘“‘fainily” so as to not permit the use of the struc-
ture in question in the manner proposed.
The concept of “family” in zoning regulations must be
broad enough to permit the integration of children de-
prived of their parents into our neighborhoods. Granted,
there must logically be some limitation; but where, as
here, the primary use of the structure retains its charac-
ter as a single housekeeping unit, it should be permitted
to come within the definition of a single-family dwelling.
The annoyances, or detriments, which are inflicted
upon the neighborhood by including within the definition
of “family” a use such as proposed here, are minor com-
pared to the benefits the neighborhood will bestow upon
sla
these children. The very neighbors who are here con-
cerned (“opposed” is too strong a word) will contribute
immeasurably to the welfare of these children. The ex-
periences one collects within a neighborhood contribute in
an intangible but very real way to ones growing up. It
is these very things that cause us to protect our neighbor-
hoods. Any zoning regulation must be sufficiently tolerant
to permit those things to persons other than just those
who are blessed by living with their natural parents.
In conclusion, however, it should be established that
were the character of the use to change or expand beyond
that which is proposed, then it might become an unper-
mitted use. Should it become less of a surrogate family
and more of an institution, then an entirely different re-
sult could be expected. In that regard, therefore, the
court expressly limits its decision to the particular facts
found, as delineated in the courts findings, items 7
through 17.
Subject to this restriction, the court finds that pro-
posed use is within the terms of the D-3 Dwelling Dis-
trict Ordinance, and Petitioner’s request for an injunc-
tion should be denied.
IV. Judgment
It is therefore ORDERED, ADJUDGED AND DE-
CREED as follows:
1. The Plaintiff, having failed to prove its right to any
relief requested in this cause, the request for Preliminary
and Permanent Injunctive relief is hereby denied.
2. The trial of this action cu the merits is hereby ad-
vanced and consolidated with the Preliminary Injunction
hearing, and this Judgment constitutes the Final Judg-
ment of the Court pursuant to Trial Rule 65(A) (2).
32a
8. Costs of this action are assessed against the Plain-
tiff.
/s/ David A. Jester
DaAvip A. JESTER
Judge
Municipal Court of
Marion County
Room No. 12
Dated: April 18, 1983
Copies to:
Larry Whitham, Esq.
City-County Building
Room 1822
Indianapolis, In. 46204
Wilson S. Stober, Esq.
Harry F. McNaught, Jr., Esq.
Baker & Daniels
810 Fletcher Trust Building
Indianapolis, In. 46204
33a
APPENDIX C
[SEAL }
STATE OF INDIANA
INDIANAPOLIS, 46204
CLERK OF THE SUPREME COURT
AND COURT OF APPEALS
Marjorie H. O’Laughlin, Clerk
217 State House
Telephone 232-1930
No. 2-783 A 256
THE METROPOLITAN DEVELOPMENT
COMMISSION OF MARION COUNTY
vs.
THE VILLAGES, INC.
You are hereby notified that the Court of Appeals has on
this day DENIED PETITION FOR REHEARING.
BUCHANAN, C.J.
Please acknowledge receipt of this notice in order that
our records may show that you have been notified of this
action. |
WITNESS my name and the seal of said Court, this 17
day of July, 1984
/s/ Marjorie H. O’Laughlin
Clerk Supreme Court and
Court of Appeals
[SEAL]
34a
APPENDIX D
| SEAL]
STATE OF INDIANA
INDIANAPOLIS, 46204
CLERK OF THE SUPREME COURT
AND COURT OF APPEALS
Marjorie H. O’Laughlin, Clerk
217 State House
Telephone 232-1930
No. 2-783 A 256
THE METROPOLITAN DEVELOPMENT
COMMISSION OF MARION COUNTY
VS.
THE VILLAGES, INC.
You are hereby notified that the Supreme Court has on
this day DENIED appellees petition for transfer.
GIVAN, C.J.
GIVAN, C.J., DEBRULER AND PIVARNIK, JJ., VOTE
TO DENY TRANSFER. FRENTICE AND HUNTER,
J.J.. VOTE TO GRANT TRANSFER AND AFFIRM
THE TRIAL COURT.
Please acknowledge receipt of this notice in order that
our records may show that you have been notified of this
action.
35a
WITNESS my name and the seal of said Court, this 15
day of November, 1984
[SEAL]
/8/ Marjorie H. O’Laughlin
Clerk Supreme Court and
Court of Appeals
36a
APPENDIX E
[3507 |
APPENDIX D
Part 4
PART 4. DWELLING DISTRICTS ZONING
ORDINANCE*
Chapter I. Establishment of Dwelling Zoning Districts,
§ 1.00, [1.01]
Chapter II. Dwelling Districts Regulations, §§ 2.00-2.19
Whereas, Chapter 283 of the Acts of the Indiana Gen-
eral Assembly for 1955, as amended, establishes a single
planning and zoning authority in counties having first-
class cities, and grants certain powers relative to the zon-
ing and districting of land to the metropolitan plan com-
mission and the county council of such counties having
first-class cities, in order to unify the planning and zon-
ing functions thereof; and
Whereas, no uniform regulations for the zoning and
districting of land within the various political units
within and a part of Marion County, Indiana, had hereto-
fore existed, although the conditions relating to the use
and development of said land are in many cases identical;
and
* Editor’s note—This part is derived from Metropolitan Plan
Commission Docket No. 66-AQ-2, as adopted July 18, 1966, as con-
tained in a booklet promulgated by the department of metropolitan
development, division of planning and zoning in December, 1971.
The ordinance is set out as promulgated in the booklet with amend-
ments through 69-AO-5. Amendments sub*equent to 69-AO-5 have
been worked in by the editor, and a parenthetical reference to the
amendatory ordinance appears at the end of the amended section.
Where the editor has added clarifying words and phrases, such
words and phrases appear in brackets.
37a
Whereas, the Metropolitan Plan Commission of Marion
County, Indiana, has adopted and certified, pursuant to
Chapter 283 of the Acts of the Indiana General Assem-
bly for 1955, as amended, various segments of its Original
Comprehensive or Master Plan of Marion County, Indi-
ana, including a Land Use Map of Marion County, In-
diana, adopted by Resolution 62-CPS-R-2 on August 8,
1962, and a Comprehensive General Land Use Plan for
Marion County, Indiana, adopted by Resolution 65-CPS-
R-1 on May 12, 1965; and
[3508]
Whereas, said Chapter 283 of the Acts of the Indiana
General Assembly for 1955, as amended, empowers the
Metropolitan Plan Commission of Marion County, Indi-
ana, after such comprehensive plan certification, to recom-
mend to the county council an ordinance or ordinances
for the zoning or districting of all lands within the county
to the end that adequate light, air, convenience of access,
and safety from fire, flood and other danger may be se-
cured; that congestion in the public streets may be less-
ened or avoided; that property values may be preserved;
that the public health, safety, comfort, morals, conveni-
ence and general welfare may be promoted;
Now therefore be it ordained by the Marion County
Council of Marion County, Indiana, that Marion County
Council Ordinance No. 8-1957, adopted by the Marion
County Council on March 28, 1957, and subsequently
amended pursuant to Section 85 of Chapter 283 of the
Acts of the Indiana General Assembly for 1955, as
amended, and all zoning ordinances adopted as parts
thereof, be amended pursuant to said Chapter 283, by the
addition of the following provisions and the repeal of all
portions thereof in conflict herewith:
38a
CHAPTER I. ESTABLISHMENT OF DWELLING
ZONING DISTRICTS
Sec. 1.00. [Districts established. ]
The following primary Dwelling Zoning Districts for
Marion County, Indiana, are hereby established, and
land within said county, including the incorporated and
unincorporated portions thereof, is hereby classified, di-
vided and zoned into said districts as designated on the
Dwelling Zoning Maps, which maps are attached hereto,
incorporated herein by reference and made a part of this
ordinance :*
[3509 ]
Symbols Dwelling Zoning Districts
D-S Dwelling Suburban District
D-1 Dwelling District One
D-2 Dwelling District Two
D-3 Dwelling District Three
D-4 Dwelling District Four
D-5 Dwelling District Five
D-6 Dwelling District Six
D-6 II Dwelling District Six II
D-7 Dwelling District Seven
D-2 Dwelling District Eight
D-9 Dwelling District Nine
D-10 Dwelling District Ten
D-11 Dwelling District Eleven
D-12 Dwelling District Twelve
D-P Planned Unit Development District
* * * *
* Editor’s note—The maps referred to in this section are not set
out in this appendix, but are on file in the office of the department
of metropolitan development.
39a
[3518]
Sec. 2.04. D-3 Dwelling District Three regulations.
A. Permitted D-3 uses. The following uses shall be
permitted in the D-3 District. All uses in the D-3 Dis-
trict shall conform to the D-3 development standards (sec-
tion 2.04, B) and the Dwelling District rezulations of sec-
tion 2.00:
1. One-family dwelling, including manufactured
homes as regulated in section 2.175;
[3519]
2. Two-family dwelling (permitted on corner lots
only) ;
5. Group homes, as regulated in section 2.18;
4. Temporary uses, as regulated in section 2.14;
5. Accessory uses, as regulated in section 2.15;
6. Home occupations, as regulated in section 2.16
B. D-3 development standards.
1. Minimum lot area:
a. Minimum lot area:
One-family dwelling: Ten thousand (10,000)
square feet;
Two-family dwelling: Fifteen thousand
(15,000) square feet;
provided, however, any plat of a subdivision
consisting of five (5) lots or more submitted
for plat approval in accordance with the Sub-
division Control Ordinance of Marion County,
Indiana, subsequent to the effective date of
this ordinance [adopted July 18, 1966, to be-
come effective as provided by law], may re-
duce said minimum lot area of twenty (20)
percent of the total number of lots within
40a
said plat, to the extent of twenty (20) per-
cent below such ten thousand (10,000) square
foot requirement, provided the average size of
all lots within said approved plat shall then be
at least ten thousand (10,000) square feet.
b. An additional five thousand (5,000) square
feet of lot area shall be required for any lot
utilizing a septic tank or other individual sew-
age disposal system.
2. Minimum lot width and street frontage: Mini-
mum lot width at the setback line:
One-family dwelling: Seventy (70) feet;
Two-family dwelling: One hundred and five
(105) feet (on each street) ;
[3520]
provided, however, any plat of a subdivision con-
sisting of five (5) lots or more submitted for plat
approval in accordance with the Subdivision Con-
trol Ordinance of Marion County, Indiana, subse-
quent to the effective date of this ordinance
[adopted July 18, 1966, to become effective as
provided by law], may reduce said minimum
width of twenty (20) percent of the total num-
ber of lots within said plat, to the extent of ten
(10) percent below such seventy (70) and one
hundred and five (105) foot requirements.
Each lot shall have at least thirty-five (35)
feet of frontage on a public street, and shall gain
~aecess from said street.
3. Setback lines and minimum yards:
a. Setback line and minimum front yard: Yards,
having a minimum depth in accordance with
the setback requirements of section 2.17, A,
4la
shall be provided along all public street right-
of-way lines.
b. Minimum rear yard: Twenty (20) feet.
ce. Minimum side yards: Aggregate—Sixteen
(16) feet. Provided, however, no side yard
shall be less than six (6) feet.
4. Minimum open space: Open space (as defined in
section 2.19) shall comprise at least seventy (70)
percent of the lot area.
5. Maximum height:
a. Primary building: Thirty-five (35) feet.
b. Accessory building: Twenty (20) feet.
6. Minimum floor area: Minimum main floor area
of the primary building, exclusive of garages, car-
ports and open porches:
One-story building: Nine hundred (900) square
feet for each dwelling unit;
Building higher than one story: Six hundred
sixty (660) square feet for each dwelling unit
in the building.
[3521]
7. Off-street parking and public streets: Off-street
parking areas and public streets shall be pro-
vided in accordance with section 2.17, E and C
[respectively ].
(G.O. 41, 1981, § 1; G.O. 54, 1982, § 1)
[3560]
See. 215. Accessory uses.
A. Permitted Accessory Uses. The following accessory
uses shall be permitted in all Dwelling Districts, except
the D-11 Dwelling District, subject to the accessory use
42a
requirements of section 2.15, B, and the Dwelling District
regulations of section 2.00:
|
Accessory garages, carports, canopies, patios, out-
door fireplaces, porte cocheres, bathhouses, caba-
nas, children’s playhouses, swings and other play
_ structures or equipment, greenhouses and other
accessory buildings or structures;
Off-street motor vehicle parking areas, as regu-
lated in section 2.17, E;
3. Signs, as regulated in section 2.18;
4. Private swimming pools, as regulated in section
[3561]
9.
2.15, B, 3;
Amateur radio sending and receiving antennas,
provided the height thereof (including masts)
shall not exceed seventy-five (75) feet measured
from finished lot grade;
Management office in multiple-family districts
and other facilities normally associated with ten-
ants’ convenience, such as vending machines and
washing machines, provided, however, there is no
exterior display;
Fallout shelters (either contained in other per-
mitted structures or constructed separately), as
regulated in section 2.15, B, 4;
Residential occupancy of no more than two (2)
nontransient guests; provided that at least one
(1) off-street parking space shall be provided for
each guest bedroom, that no sign shall be dis-
played and no separate culinary facilities are
maintained in connection with such accessory
use;
Residential occupancy by domestic employees em-
ployed on the premises;
43a
10. Foster family care where children unrelated to
the residents by blood or adoption are cared for,
provided that no sign shall be displayed;
11. Day care of preschool children unrelated to the
residents by blood or adoption when no more than
five (5) such children are cared for; provided,
that at least one additional off-street parking
space shall be provided, and that no sign shall be
displayed.
B. Accessory Use Requirements. Accessory uses in all
Dwelling Districts shall comply with the following re-
quirements:
1. General accessory use requirements: Aceessory
uses :
a. Shall be customarily incidental accessory and
subordinate to, and commonly associated with,
the operation of the primary use of the lot;
b. Shall be operated and maintained under the
same ownership and on the same lot as the
primary use;
c. Shall be subordinate in area, extent and pur?
pose to the primary use of building served;
d. Unless otherwise specified in this ordinance,
accessory buildings:
(1) Shall not be located closer to any front or
side lot line than the required minimum
front and side yard distances of the
Dwelling District; and
(2) In D-S, D-1, D-2, D-8, D-4, D-5 and D-8
Dwelling Districts shall not be located
closer to any rear lot line than five (5)
feet, but in no case shall it encroach upon
any easement;
44a
e. Shall not be permitted prior to the erection of
[3562]
the primary building.
2. Appurtenances:
a. Such appurtenant features as walks, drive-
c.
ways, curbs, drainage installations, mail-
boxes, lampposts, birdbaths and structures of
like nature shall be permitted on any lot.
The growth of vegetables, grasses, fruits,
flowers, shrubs, vines and trees, provided such
operations are not for profit, shall be permit-
ted on any lot.
Fences and walls shall be permitted provided
they do not impede the view of street and/or
railroad intersections.
3. Additional requirements for accessory private
swimming pools: The following additional re-
quirements shall apply to accessory private swim-
ming pools:
a. A swimming pool shall not be located closer to
c.
any front, side or rear lot line than the re-
quired minimum front, side and rear yard
distances of the Dwelling District.
The pool area shall be enclosed by a substan-
tial protective barrier, which shall be adequate
to prevent persons, children or animals from
danger or harm, and shall be equipped with
a self-closing, self-latching back gate. Such
protective barrier shall be chain link or orna-
mental fence, solid fence or wall, and shall be
not less than five (5) feet in height.
A buffer screen shall be provided and main-
tained between the pool and the lot lines.
45a
d. No pool shall be erected or constructed until
an improvement location permit has been ob-
tained therefor.
4. Additional requirements for accessory fallout
shelters: The following additional requirements
shall apply to accessory fallout shelters:
a. A fallout shelter shall not be located closer to
any front, side or rear lot line than the re-
quired
[3563]
minimum front, side and rear yard distances
of the Dwelling District. Except, however,
subject to the following requirements, any un-
derground shelter, or portion thereof, may be
located within said minimum required yards,
but not closer than three (3) feet to any lot
line:
(1) Such shelter or portion thereof shall be
totally below ground level, with no ap-
purtenances, air circulation equipment,
vent pipes or other accessory equipment,
or part thereof, projecting above ground
level within said minimum required yards.
(2) No shelter entrance shall be located with-
in said minimum required yards.
b. No fallout shelter shall be erected or con-
structed until an improvement location permit
has been obtained therefor. (G.O. 157, 1975,
§ 1)
* * * *
[3575]
See. 219. Definitions.
1. Advertising sign: A sign which directs attention to
any business, product, activity or service; provided, how-
ever, that such sign shall not be related or make reference
to the primary use, business, activity or service conducted
on the premises.
<n
46a
2. Attached multifamily: A structure for multifamily
use, having common or party wall or walls.
3. Building area: The total ground area, within the
lot or project, covered by enclosed residential building
space plus garages, carports and other accessory build-
ings.
4. Business sign: A sign which identifies a builder or
directs attention to a business, product, activity or service
manufactured, sold or offered upon the premises as the
primary use(s) where such sign is located.
5. Car area: Open space area (uncovered and cov-
ered) use for car traffic, maneuvering and parking. In-
cluded are all parking areas, driveways, interior access
roads and right-of-way of all streets within the project,
plus the area of half of any abutting alley or street
right-of-way.
6. Covered open space: All exterior space within the
project, which is open on its sides, but not open above to
the sky. It includes roofed porches, roofed carports, cov-
ered exterior balconies and exterior spaces covered by
portions of buildings.
7. Detached single-family cluster dwelling: A struc-
ture for single-family use, having no common or party
walls; and utilizing common open space with other de-
tached
[3576]
single-family cluster dwellings arranged in close prox-
imity to one ancther.
8. Facing: The surface of the sign upon, against or
through which the message of the sign is exhibited.
9. Floor area: The sum of the horizontal areas of the
one or several floors and basements of all buildings or
portions thereof, within the project, and devoted to per-
mitted uses. Not including, however:
a. Floor or basement floor area devoted to off-street
parking or loading facilities, including aisles, ramps
and maneuvering space;
47a
b. Floor or basement floor area provided for recrea-
tional uses, available to occupants of two (2) or
more living units within the project; or
ce. Basement floor area provided for storage facilities,
allocated to serve individual living units within the
project.
10. Floor area ratio (FAR): The total floor area of
all stories of all buildings within the project divided by’
the land area.
[The next page is 3581]
[3581]
11. Incidental sign: A nameplate or sign relating to
the lot or use thereof and designating accessory uses, di-
rection, identification, information or real estate for sale,
rent or lease.
12. Land area: The total area within the project
boundaries, plus the area of half of any abutting alley or
street right-of-way plus half the area of any abutting
open space, such as a river, lake, public park, playground
or golf course, with reasonable expectance of perpetuity;
provided, however, that no portion of such open space
located more than eighty (80) feet from the project
boundaries shall be included in computing such open
space area.
13. Livability space: The open space minus the car
area within the open space.
14. Livability space ratio (LSR): The livability space
divided by the floor area.
15. Major livability space: The total area provided for
outdoor recreation, relaxation, amusement, pleasure and
for similar use within the project, which area may or
may not be improved; however, all livability space count-
able for purposes of the major livability space ratio shall
be at least twenty (20) feet away from any residential
wall containing one or more windows on the ground floor
48a
and shall have a minimum dimension averaging eighty
(80) feet, except that an area of lesser dimension is
countable if:
a. The total required major livability space is less than
six thousand four hundred (6,400) square feet; or
b. The shape or topography of the site prevents com-
pliance with the minimum dimension.
16. Major livability space ratio (MLSR): The total
major livability space of countable size, divided by the
total floor area.
17. Open space: The total horizontal area of all un-
covered open space pius one-half of the total horizontal
area of all covered open space.
18. Open space ratio (OSR): The open space divided
by the floor area.
[3582]
19. Parking space: A portion of the car area at least
nine (9) feet in width and twenty (20) feet in length,
which shall be used only for the off-street parking of a
vehicle.
20. Project: A lot or parcel of contiguous land to be
developed for a use or uses permitted in the D-6, D-6 II,
D-7, D-8, D-9, D-10 and D-11 Dwelling Districts, which
at the time of development is under one (1) ownership or
control, and subsequently may be subdivided, developed
and/or conveyed into smaller lots or parcels. For per-
mitted multifamily dwelling, detached single-family clus-
ter dwelling uses, or mobile home dwellings, such smaller
lots or parcels within the project may front upon private
interior access roads provided said project meets the min-
imum street frontage requirements of sections 2.07, B,
2; 2.075, B, 2; 2.08, B, 2; 2.09, B, 2; 2.10, B, 2; 2.11, B,
2; 2.12, B, 2; and 2.18, B, 2 of this ordinance.
49a
21. Projecting sign: A sign suspended from or sup-
ported by a building, structure or column and projecting
out therefrom more than eighteen (18) inches.
22. Sign: Any outdoor announcement, declaration, de-
vice, demonstration or insignia used for direction, infor-
mation, identification or to advertise or promote any busi-
ness, produce, activity, services or interests.
23. Sign structure: The supports, uprights, bracing
and framework for the sign. In the case of a sign struc-
ture consisting of two (2) or more sides, where the angle
formed between any of the sides (or the projection there-
of) exceeds fifteen (15) degrees, each side shall be con-
sidered a separate sign structure.
24. Sign surface: The entire area within a single,
continuous perimeter enclosing all elements of the sign
which form an integral part of the display.
25. Total car ratio (TCR): The total number of park-
ing spaces divided by the number of living units.
26. Uncovered open space:
In D-6, D-6 II, D-7, D-8, D-9, D-10 and D-11 Dis-
tricts, and D-12 District detached single-family clus-
ter dwel-
[3583] °
lings: “he land area, minus the building azza, plus
the usable roof area.
In D-S, D-1, D-2, D-3, D-4 and D-5 Districts; and
D-8 and D-12 District two-family dwellings; and D-8
single-family dwellings: The lot area, minus the
building area.
27. Usable roof area: The total roof area, within the
project, or residential buildings, garages and accessory
buildings which has been improved for outdoor uses of
occupants. Roof areas used for car storage are included.
28. Building lot: The lot or lots of contiguous owner-
ship upon which the dwelling(s) is (are) located.
50a
29. Group home: A residential facility licensed by the
development disabilities residential facilities council, or its
successor in authority in accordance with law, and de-
fined per Indiana Code Section 16-10-12.1.
30. One-family dwelling: A unit designed for occu-
pancy by one family, constructed or erected on a perma-
nent foundation as specified by the Indiana One- and Two-
Family Dwelling Code or by Chapter 8, Article III, Divi-
sion 4 of the Code of Indianapolis and Marion County,
which is either:
1. Constructed in compliance with the standards of the
Indiana One- and Two-Family Dwelling Code; or
2. A manufactured home.
31. Mobile dwelling: A unit built in a factory designed
for occupancy by one family erected or located as specified
by Chapter 8, Article III, Division 4 of the Code of In-
dianapolis and Marion County, which was either:
1. Constructed prior to June 15, 1976, and bears a
seal attached under Indiana Public Law 135, 1971,
certifying that it was built in compliance with the
standards established by the Indiana Administra-
tive Building Council; or,
2. Constructed subsequent to June 15, 1976, and bears
a seal certifying that it was built in compliance
with the federal Mobile Home Construction and
Safety Standards Law.
[3584]
32. Manufactured home: A unit built in a factory
after January 1, 1981, bearing a seal certifying that it
was built in compliance with the federal Manufactured
Housing Construction and Safety Standards Law, which
has at least nine hundred fifty (950) square feet of main
floor area (exclusive of garages, carports and open
porches), and exceeds twenty-three (23) feet in width.
(G.Q. 41, 1981, § 1; G.O. 54, 1982, § 1)
* * * *
5la
APPENDIX F (1)
[TRIAL BRIEF]
* - é *
The Supreme Court of Ohio more recently found any
zoning restriction based upon the content of a “family”
to be constitutionally flawed. The Court, in a case involv-
ing a couple, their five children and as many as nine
foster children, reasoned as follows:
“The definition of ‘family’ in this resolution [zon-
ing ordinance] is a broad one. In our view, any
resolution seeking to define this term narrowly would
unconstitutionally intrude upon an individual’s right
to choose the family living arrangement best suited
to him and his loved ones. Moore v. East Cleveland
(1977), 481 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52
L.Ed.2d 531. Those loved ones can just as easily be
foster children as natural children for parents with
compassion. A state or local government cannot con-
stitutionally invade the private realm of family life.
Wisconsin v. Yoder (1972), 406 U.S. 205, 231-233,
92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15; Prince v.
Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct.
438, 442, 88 L.Ed. 645, Village of Belle Terre v.
Boraas (1974), 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d
797, dissenting opinion of Marshall, J., at page 16,
94 S.Ct. at 1544. [Footnote omitted.] A family unit,
which performs the social function of child-rearing,
regardless of its relationship or composition or
whether it includes foster children as well as natural
children, is constitutionally protected against govern-
mental intrusion not supported by a compelling gov-
ernmental interest. Smith . Jrganization of Foster
Familities (1977), 431 U.S. 816, 844-845, 97 S.Ct.
2094, 2109, 53 L.Ed.2d 14; Wisconsin v. Yoder, su-
pra; Meyer v. Nebraska (1923), 262 U.S. 390, 399-
401, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042; 91
52a
Harvard L.Rev. 1427, 1571-1574.” Saunders v.
Clark County Zoning Dept., 421 N.E.2d 152, 155-
156 (Ohio 1981).
The Court emphasizes, quite properly, that choices made
by married couples as to the composition of their family
are cloaked with constitutional protection from enforce-
ment of any zoning restriction requiring consanquinity
among occupants of a residence.
* * * *
58a
APPENDIX F (2)
[BRIEF OF APPELLEE]
* * ee *
Ohio also has examined the same type of use as pro-
posed here by The Villages and found it to be constitu-
tionally protected. Saunders v. Clark Cty. Zoning Dept.,
(1981) 66 Ohio St. 2d 259, 421 N.E.2d 152. The constitu-
tional guarantees of “natural rights” and “due course of
law” under the Indiana Constitution, Article 1, §§ 1 and
12, respectively, and of “due process of law” and “equal
protection of the laws” under the Fourteenth Amend-
ment, and of “freedom of association” under the First
Amendment to the United States Constitution, protect the
privacy and associational interests of a foster family
against the kind of governmental instrusion [sic] sought
to be imposed here by the Commission through admin-
istrative decision. The reasoning and authorities com-
pelling application of these constitutional safeguards to
the case at bar were summarized by the Ohio Suprome
Court as follows:
The definition of “family” in this resolution [zon-
ing ordinance] is a broad one. In our view, any
resolution seeking to define this term narrowly would
unconstitutionally intrude upon an individual’s right
to choose the family living arrangement best suited
to him and his loved ones. Moore v. East Cleveland
(1977), 481 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52
L.Ed.2d 531. Those loved ones can just as easily be
foster children as natural children for parents with
compassion. A state or local government cannot con-
stitutionally invade the private realm of family life.
Wisconsin v. Yoder (1972), 406 U.S. 205, 231-233,
92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15; Prince v.
Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct.
438, 442, 88 L.Ed. 645; Village of Belle Terre v.
Boraas (1974), 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d
54a
797, dissenting opinion of Marshall, J., at page 16,
94 S.Ct. at 1544. [Footnote omitted.] A family unit,
which performs the social function of child-rearing,
regardless of its relationship or composition or
whether it includes foster children as well as nat-
ural children, is constitutionally protected against
governmental intrusion not supported by a compelling
governmental interest. Smith v. Organization of
Foster Families (1977), 481 U.S. 816, 844-845, 97
S.Ct. 2094, 2109, 53 L.Ed.2d 14; Wisconsin v. Yoder,
supra; Meyer v. Nebraska (1923), 262 U.S. 390,
399-401, 43 S.Ct. 625, 626-627, 67 L.Ed. 1042; 91
Harvard L.Rev. 1427, 1571-1574.
Saunders v. Clark Cty. Zoning Dept., (1981) 66 Ohio St.
2d 259, 421 N.E.2d 152, 155-156. Choices made by mar-
ried couples as to the composition of their family, whether
living in Ohio or Indiana, are cloaked with constitutional
protection against the enforcement of zoning restrictions
requiring consanquinity among residents of a home.
od * * *
55a
APPENDIX F (3)
PETITION FOR REHEARING
* Be * *
The question presented to this Court does have consti-
tutional dimensions, because choices made by persons as
to the composition of their family are constitutionally
protected from government intrusion or regulation. The
principal U.S. Supreme Court case relied upon by the
majority, Village of Belle Terre v. Boraas, (1974) 416
U.S. 1, 96 S.Ct. 1536, dealt only with the power of a
local government to enact a zoning ordinance regulating
the number of unrelated adults composing a household.
It was a college student housing case. It did not reach
the question of the constitutional power of local govern-
ment to regulate the internal relationship of adults and
dependent children living as a family.
The second and later case cited by the majority, Moore
v. City of East Cleveland, (1977) 481 U.S. 494, 97 S.Ct.
1932, 1944-45, is factually more akin to The Villages’
type permanent home for children living as a single
housekeeping unit. Moore illustrates and_ supports,
rather than undercuts, The Villages’ constitutional rights.
It held unconstitutional a zoning ordinance which sought
to regulate the composition of a family, and struck down
a zoning ordinance which narrowly defined the biological
relationship which must exist for children to live in a
home. The instrusion [sic] into family life was easily
recognizable in Moore. The same type of intrusion exists
here where persons choose to offer a permanent home for
foster children in a typical home setting. Moore recog-
nizes that local government does have a legitimate inter-
est in regulating the number of unrelated adults, because
of problems of parking, traffic and density. But neither
Village of Belle Terre nor Moore in any manner approves
zoning ordinances which purport to ban certain types of
families merely because blood ties do not exist.
56a
Any doubt of this conclusion is put to rest by Children’s
Home of Easton v. City of Easton, (1980) 53 Pa. Cmwith.
216, 417 A.2d 830. Faced with facts virtually identical
to the case at bar, the court in Haston concluded:
Contrary to the factual situation presented to the
United States Supreme Court in Belle Terre, where
six unrelated college students chose to live together
for a temporary period of time as a matter of con-
venience, here we are concerned with a functional
family unit which would promote the very values the
United States Supreme Court held in Belle Terre to
be worthy of preservation... .
417 A.2d at 832. Accordingly, Easton held an ordinance’s
restrictive definition of “family” to be arbitrary, unrea-
sonable, and violative of the equal protection and due
process clauses of the United States and state constitu-
tions.
e - 7 e
57a
APPENDIX F (4)
APPELLEE’S PETITION TO TRANSFER
* * * *
4. Local zoning restrictions prohibiting the occupancy
of a dwelling by a married couple and a reasonable num-
ber of foster children violate state and federal constitu-
tional guarantees. The majority opinion dismissed the
constitutional dimensions of this case by citing the US.
Supreme Court’s opinion in Village of Belle Terre v.
Boraas, (1974) 416 U.S. 1, 94 S. Ct. 1586. 464 N.E.2d
at 368. At the same point, the majority also referred to
the later case of Moore v. City of East Cleveland, (1977)
431 U.S. 494, 97 S. Ct. 1932. Belle Terre dealt only with
the power of local government to regulate the number of
unrelated adults. In contrast, Moore dealt specifically
with the question of the constitutionality of a local zoning
ordinance that purported to place limits upon arrange-
ments between adults and dependent children who reside
together as a single housekeeping unit. Belle Terre and
Moore recognized the legitimate interest of local govern-
ment in regulating the number of unrelated adults, be-
cause of problems of parking, traffic and density. But
Moore struck down the zoning ordinance in question, be-
cause it narrowly defined the biological relationship that
must exist among the adult residents and dependent chil-
dren. The intrusion into family life was easily recogniz-
able in Moore. The same type of intrusion exists here,
where persons choose to offer a permanent residence for
foster children in a traditional home setting. Belle Terre
was analyzed recently in a case factually similar to the
one at bar, Children’s Home of Easton v. City of Easton,
(1980) 53 Pa. Cmwlth. 216, 417 A.2d 830:
Contrary to the factual situation presented to the
United States Supreme Court in Belle Terre, where
six unrelated college students chose to live together
for a temporary period of time as a matter of con-
58a
venience, here we are concerned with a functional
family unit which would promote the very values the
United States Supreme Court held in Belle Terre to
ve worthy of preservation. .. .
417 A.2d at 832. Accordingly, Easton held an ordinance’s
restrictive definition of “family” to be arbitrary, unrea-
sonable, and violative of the equal protection and due
process clauses of the United States and state constitu-
tions.
* = * *
59a
APPENDIX F (5)
[BRIEF OF APPELLEE, THE VILLAGES, INC.,
IN SUPPORT OF PETITION FOR TRANSFER]
* . * *
(4) Local zoning restrictions prohibiting the occu-
pancy of a dwelling by a married couple and a reason-
able number of foster children violate state and federal
constitutional guarantees. The Villages urges that there
is no biological requirement in the Ordinance. But even
if there were, it could not pass constitutional muster.
The constitutional guarantees of “natural rights” and
“due course of law’ under the Indiana Constitution, Arti-
cle 1, $$ 1 and 12, respectively, and of ‘due process of
law” and “equal protection of the laws” under the Four-
teenth Amendment, and of “freedom of association” under
the First Amendment to the United States Constitution,
protect the privacy and associational interests of a foster
family against the kind of governmental instrusion [sic]
sought to be applied here. The Commission would restrict
and regulate The Villages by interpreting family to mean
persons related by blood and, thus, classify The Villages
as an institutional rather than residential use of real
estate. The majority opinion impiicitly rejects the Com-
mission’s interpretation, but replaces it with the equally
restrictive view that the accessory use section permitting
foster family care prohibits the permanent-family use
proposed by The Villages. Either view is equally viola-
tive of constitutional safeguards, because the effect is the
same, viz. to make consanguinity a litmus test for areas
zoned for one-family dwellings. The reasoning and au-
thorities compelling application of the above-cited consti-
tutional safeguards to The Villages’ use were cogently
summarized by the Ohio Supreme Court as follows:
The definition of “family” in this resolution
[zoning ordinance] is a broad one. In our view, any
resolution seeking to define this term narrowly would
60a
unconstitutionally intrude upon an individual’s right
to choose the family living arrangement best suited
to him and his loved ones. Moore v. East Cleveland
(1977), 481 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52
L.Ed.2d 531. Those loved ones can just as easily be
foster children as natural children for parents with
compassion. A state or local government cannot con-
stitutionally invade the private realm of family life.
Wisconsin v. Yoder (1972), 406 U.S. 205, 231-233,
92 S.Ct. 1526, 1541-1542, 32 L.Ed.2d 15; Prince v.
Massachusetts (1944), 321 U.S. 158, 166, 64 S.Ct.
438, 442, 88 L.Ed. 645; Village of Belle Terre v.
Boraas (1974), 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d
797, dissenting opinion of Marshall, J., at page 16,
94 S.Ct. at 1544. [Footnote omiited.] A family
unit, which performs the social function of child-
rearing, regardless of its relationship or composition
or whether it includes foster children as well as
natural children, is constitutionally protected against
governmental intrusion not supported by a compel-
ling governmental interest. Smith v. Organization of
Foster Families (1977), 481 U.S. 816, 844-845, 97
S.Ct. 2094, 2109, 53 L.Ed.2d 14; Wisconsin v. Yoder,
supra; Meyer v. Nebraska (1923), 262 U
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