Is "No More Than Four" Legal?

Undergrad housing law to face court challenge
By David Golann, Correspondent
Wed Apr 02, 2008, 03:55 PM EDT
Allston-Brighton TAB

Allston-Brighton - A new restriction limiting the number of college students who can rent housing together in Boston may soon be challenged in court.

In late 2007, the Boston City Council unanimously passed an amendment to the zoning code in order to prevent groups of five or more undergraduates from living in a single rental unit. The measure, intended to stem escalating home values and prevent rowdy “animal houses,” recently received final approval from the Boston Redevelopment Authority and the Boston Zoning Commission.

Opponents of the new law now have a 30-day window in which to mount a legal challenge. Attorney Stephen Greenbaum is spearheading the main effort to prevent the law’s immediate enforcement and eventually invalidate it.

“We will be raising every single legal ground which we think is viable,” said Greenbaum. “We will seek a declaration from the court that the amendment is null and void.”

Greenbaum believes the new law violates several basic constitutional liberties, such as the rights to freedom of association and equal protection under the law. He also claims that the ordinance could not be enforced without violating students’ right to privacy.

“The city would have to ascertain students’ personal academic status in order to determine the legality of their living arrangements,” said Greenbaum. “Students are under no obligation to disclose that information.”

Many opponents of the amendment claim that it violates several specific Boston laws, including one banning rent control.

“Councilor Ross has repeatedly said that his intent is to reduce rents and reduce the value of buildings containing these units,” said Greenbaum. “So there is clearly a stated intent to create an illicit form of rent control.”

The TAB was not able to speak with parties involved in the case, and their names will not be revealed until their case is filed in court. Greenbaum did state that they constituted a “broad cross-section of people who will be affected by this change,” including student tenants, landlords and other stakeholders.

According to Skip Schloming of the Small Property Owners Association, many tenants and landlords are afraid to come forward and participate in the case. He said that Realtors and tenants participating in the lawsuit risk the loss of their livelihoods and housing if their activities are revealed to be illegal.

“No one wants to come out because everyone is afraid of being targeted,” said Schloming. “They want to use a landlord on the verge of retiring so if he gets targeted, that’s just his retirement.”

The future of this legal effort is uncertain, since most challenges to similar student housing-related laws have failed. The United States Supreme Court has repeatedly upheld occupancy restrictions on unrelated college students starting with the well-known 1974 case Belle Terre vs. Boraas. Several legal scholars agreed that this ruling is the largest obstacle to Greenbaum’s legal challenge.

“The case has been criticized, but it is still good law,” said Suffolk University Law Professor Renee Landers. “They have had opportunities to reconsider it, but they have not.”

“I feel that we are on solid legal footing,” said City Councilor Michael Ross, referring to the Belle Terre ruling. “I think that this is standard zoning, and similar zoning is in place across the country.”

“There is precedent for regulating the number of unrelated undergraduate students living together,” agreed City Councilor Mark Ciommo. “Cities like Philadelphia, Milwaukee, San Francisco, Salt Lake City and Boulder [Colorado] all have similar laws.”

Boston’s unique set of local laws leave the future of this particular case uncertain, however. One local real estate professional and lawyer, who prefers to remain anonymous, believed this law will be invalidated because it targets students more explicitly than the occupancy restrictions on the books in other college towns.

“It’s true that college students are not afforded the protections based on race and gender, but they are protected. Other similar housing laws that have been upheld do not specifically mention college students, but this one does,” said the lawyer. “I do not think the law will be upheld.”

The details of the case will become clearer when it is filed in either Suffolk Superior Court or the Massachusetts Land Court. The case will most likely be filed by a deadline in mid-April.