Sharing a House but Not a Household: Extended Families and Exclusionary Zoning Forty Years After Moore
Sharing a House but Not a Household: Extended Families and Exclusionar y Zoning Forty Years Aft er Moore
Solangel Maldonado 0 1
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1 Seton Hall University School of Law
Recommended Citation Solangel Maldonado, Sharing a House but Not a Household: Extended Families and Exclusionary Zoning Forty Years After Moore, 85 Fordham L. Rev. 2641 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol85/iss6/10
Moore v. City of East Cleveland1 is undeniably a victory for extended
families that do not conform to the nuclear family form because the state
can no longer prevent them from living together in one household. In
particular, it is a victory for families of color, immigrants, and economically
vulnerable families who are more likely to reside with extended family
members for cultural and economic reasons. Justice Lewis Powell, writing
for the plurality, recognized the American tradition of extended family
members living in one household,2 and Justice William Brennan (joined by
Justice Thurgood Marshall) further noted that the extended family “remains
not merely still a pervasive living pattern, but under the goad of brutal
economic necessity, a prominent pattern—virtually a means of survival—
for large numbers of the poor and deprived minorities of our society.”3
Like most decisions, however, Moore is not without its critics. As my
students point out each year, the Court’s distinction between the City of
East Cleveland’s narrow definition of a family and ordinances that allow
anyone who is related by blood, marriage, or adoption to live together in a
single-family household4 suggests that the Moore Court would exclude de
facto parents, cohabiting partners, or close friends sharing a home from its
definition of family. A definition of family that requires blood, marriage, or
adoption is unnecessarily narrow and is not consistent with modern
conceptions of family.
* Professor of Law, Seton Hall University School of Law. I am grateful to Clare
Huntington, Robin Lenhardt, Rose Cuison Villazor, and the participants in the Fordham Law
Review Family Law Symposium entitled Moore Kinship held at Fordham University School
of Law. For an overview of the symposium, see R.A. Lenhardt & Clare Huntington,
Foreword: Moore Kinship, 85 FORDHAM L. REV. 2551 (2017). Thanks to Danielle Craft
and Julian Williams for excellent research assistance.
1. 431 U.S. 494 (1977).
2. See id. at 505 (stating that “[o]ut of choice, necessity, or a sense of family
responsibility, it has been common for close relatives to draw together and participate in the
duties and the satisfactions of a common home”).
3. Id. at 508 (Brennan, J., concurring).
4. See id. at 498 (plurality opinion) (distinguishing East Cleveland’s ordinance from the
ordinance at issue in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)); see also infra note
42 and accompanying text (discussing the language of East Cleveland’s ordinance).
Moore also failed to protect families from the economic burdens some
municipalities place on extended family members who share a house but
not a household. While some extended family members live together in a
single household (such as an apartment or single-family house), others live
in two-family homes with parents, children, grandchildren, aunts, uncles,
and cousins.5 Two-family homes allow extended families to pool resources
and obtain the economic, social, and emotional support that, as Moore
recognized, extended family members living in a single household have
traditionally relied upon.6 Two-family homes also reduce the likelihood of
overcrowding and lack of privacy that may result when large extended
families share a single-family home. Inez Moore lived in such a home. She
owned (or was a partial owner of) a two-family home and occupied one unit
with her adult son, his son, and another grandson (the son of another one of
Moore’s children). The other unit was occupied by Moore’s daughter Carol
and Carol’s son.7
Despite the benefits that two-family homes may provide to extended
families, many towns’ zoning ordinances exclude two-family homes from
the most desirable blocks, instead zoning them for single-family homes
only. This Article argues that despite Moore’s recognition of the
constitutional right to reside with extended family members, zoning laws
penalize individuals who reside with extended family members in
twofamily homes. As Justice Brennan recognized, the “‘extended’ [family]
form is especially familiar among black families” who would be
economically disadvantaged if zoning laws required them to live in nuclear
families.8 African Americans, Latinos, Asian Americans, and
immigrants—all groups that are more likely than whites to live with
extended family members9—are disadvantaged by zoning laws that exclude
two-family homes from the most desirable neighborhoods or blocks.
This Article proceeds in three parts. Part I briefly recounts the evolution
of zoning laws and their effect on racial minorities. Next, Part II
demonstrates how single-family zoning laws disproportionately exclude
racial minorities from the most desirable blocks. Part II also examines how
these laws economically and socially disadvantage minorities and hinder
efforts to integrate neighborhoods and schools. Then, Part III uses Moore
to explore potential solutions and concludes that, at minimum, zoning laws
cannot exclude two-family homes that are occupied by extended family
members. It also shows how Moore may support a more inclusionary
approach to zoning.
I. THE EVOLUTION OF EXCLUSIONARY ZONING
Family law scholars and land use scholars do not often meet. They rarely
attend the same conferences or collaborate on joint projects. Moore
demonstrates that they probably should. Zoning laws have always affected
families. They may define who is a family member, and by determining
where families can live, zoning laws influence who children will meet, go
to school with, and ultimately date and choose as a life partner.
The first zoning laws at the beginning of the twentieth century sought to
protect residential areas from pollution, unsanitary conditions, and
industrial nuisances.10 However, zoning soon became a “mechanism for
protecting property values and excluding the undesirables,” specifically
“immigrants and African-Americans.”11 Explicitly race-based zoning laws
were used to enforce Jim Crow laws until 1917 when the U.S. Supreme
Court ruled these laws unconstitutional in Buchanan v. Warley.12 Although
after Buchanan zoning laws could not explicitly segregate by race, facially
neutral laws had the same effect. These laws set forth minimum
requirements for “width of lots, front, side and rear yards”13 and separated
single-family homes from two-family homes and apartment buildings.
These requirements, in practice, excluded low- and moderate-income
families, who are disproportionately racial minorities, from the most
desirable residential blocks.14 These laws were enacted not only in the
southern states that had used zoning laws to expressly exclude African
Americans, but all across the country.15
Just nine years after striking down racial zoning laws as unconstitutional
in Buchanan, the Supreme Court upheld a comprehensive zoning plan. In
Village of Euclid v. Ambler Realty Co.,16 the Court upheld a zoning plan
that divided the Village of Euclid (a suburb of Cleveland) into
singlefamily, two-family, and multifamily zones (including apartment buildings),
as well as commercial and industrial zones.17 In upholding the ordinance,
the Court accepted the Village’s argument that apartments should be
separated from houses:
With particular reference to apartment houses, it is pointed out that the
development of detached house sections is greatly retarded by the coming
of apartment houses, . . . that in such sections very often the apartment
house is a mere parasite, constructed in order to take advantage of the
open spaces and attractive surroundings created by the residential
character of the district. Moreover, the coming of one apartment house is
followed by others, interfering by their height and bulk with the free
circulation of air and monopolizing the rays of the sun which otherwise
would fall upon the smaller homes, and bringing, as their necessary
accompaniments, the disturbing noises incident to increased traffic and
business, and the occupation, by means of moving and parked
automobiles, of larger portions of the streets, thus detracting from their
safety and depriving children of the privilege of quiet and open spaces for
play, enjoyed by those in more favored localities—until, finally, the
residential character of the neighborhood and its desirability as a place of
detached residences are utterly destroyed.18
The Court concluded that the reasons for the ordinance were “sufficiently
cogent to preclude us from saying . . . that such provisions are clearly
arbitrary and unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.”19
Since Euclid, municipalities have enacted zoning ordinances that
designate certain residential areas for single-family homes only.20 As in
Euclid, these ordinances are justified as necessary to preserve the area’s
“residential character,” to provide a suitable place for children, and to
prevent noise, traffic, and overcrowding.21 They are also justified as
necessary “to protect property values.”22
Five months before issuing its opinion in Moore, the Supreme Court
decided another zoning case, Village of Arlington Heights v. Metropolitan
Housing Development Corp.23 There, the Court rejected a Fourteenth
Amendment equal protection challenge to the Village’s refusal to rezone a
fifteen-acre parcel zoned for single-family homes to allow for construction
of low- and moderate-income multifamily housing.24 In rejecting the
plaintiffs’ argument that the denial was racially discriminatory,25 the Court
concluded that despite the fact that only 27 of the Village’s 64,000 residents
were African American and the refusal to rezone would disproportionately
affect racial minorities,26 the plaintiffs had not shown “that discriminatory
purpose was a motivating factor in the Village’s decision.”27 The Court
held that even if a zoning law “bear[s] more heavily on racial minorities,”
absent proof of racially discriminatory purpose, it does not violate the Equal
While the Court in Arlington Heights found no evidence of
discriminatory purpose, other zoning laws enacted before and after this
decision demonstrate intent to exclude minorities. For example, in 1997,
the Department of Justice sued the Town of Cicero, Illinois, alleging that it
had enacted a zoning ordinance with prohibitively low maximum
occupancy restrictions to exclude Latino families that tend to have more
members.29 In 2005, almost three decades after Moore, the City of
Manassas, Virginia, amended the definition of family in its housing code to
include only “immediate relatives,” a change that has been described as
making “a common Hispanic family structure illegal.”30 Although the
ordinance was repealed months later, in the short period it was in effect,
almost all of the home inspections conducted involved Latino households.31
The City of Manassas only changed its policies when it was sued, and as
part of a settlement, it agreed to hire a housing manager to address Latino
residents’ claims that they were being illegally targeted.32
26. Forty percent of Chicago area residents eligible to become tenants of the proposed
development (based on low and moderate income) were racial minorities. Id. at 259.
27. Id. at 270. Numerous scholars have been critical of the Court’s decision. See, e.g.,
DAVID DANTE TROUTT, THE PRICE OF PARADISE 81, 84–85 (2013); Elise C. Boddie, Racial
Territoriality, 58 UCLA L. REV. 401, 415–16 (2010); Richard Thompson Ford, The
Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1874
(1994); Daria Roithmayr, Locked in Segregation, 12 VA. J. SOC. POL’Y & L. 197, 240–41
28. Arlington Heights, 429 U.S. at 269. But see S. Burlington Cty. NAACP v. Township
of Mount Laurel, 336 A.2d 713, 724–25 (N.J. 1975) (striking down a zoning ordinance that
permitted only single-family homes on large lots where it had the effect of precluding
construction of low- and moderate-income housing).
29. See, e.g., Oliveri, supra note 10, at 1417–18; Daniel Eduardo Guzmán, Note, “There
Be No Shelter Here”: Anti-Immigrant Housing Ordinances and Comprehensive Reform, 20
CORNELL J.L. & PUB. POL’Y 399 (2010). Overcrowding in housing tends to be more
prevalent in Latino communities. See OFFICE OF POLICY DEV. & RESEARCH, U.S. DEP’T OF
HOUS. & URBAN DEV., MEASURING OVERCROWDING IN HOUSING 12, 15 (2007), https://
www.huduser.gov/publications/pdf/measuring_overcrowding_in_hsg.pdf (finding that
Latino households have the highest rate of overcrowding) [https://perma.cc/S6CG-YBC2];
see also Overcrowding Rate by Race/Ethnicity, DIVERSITYDATA.ORG,
http://diversitydataarchive.org/Data/Rankings/Show.aspx?ind=92 (last visited Apr. 14, 2017) [https://perma.cc/
30. Guzmán, supra note 29, at 415–16 (quoting Press Release, Equal Rights Ctr., Civil
Rights Lawsuit Filed Against the City of Manassas, VA and Its School System for
Discriminating Against Hispanic Residents (Oct. 16, 2007),
31. See id. at 415.
32. See id. at 416.
Other cities in Virginia and Georgia have similarly amended their zoning
ordinances to exclude extended family members despite Moore’s holding.33
Although officials claim that they were seeking to address overcrowding
problems, and not to exclude extended family members or target Latinos
and immigrants, the ordinances themselves demonstrated otherwise.34 For
example, towns in Virginia narrowed their definition of a family in their
zoning ordinances to “immediate relatives” even when the total number of
individuals in a household did not exceed the maximum number of
occupants permitted.35 Zoning enforcement officials received hundreds of
overcrowding complaints from residents, and one county conducted more
than 7,000 home inspections in one year.36 Interestingly, no zoning
violations were found in 80 percent of cases.37 In one county in Georgia,
95 percent of the complaints were brought by white residents against Latino
residents.38 Partly in response to these complaints, the town amended its
definition of “family” to include only parents, children, siblings,
grandparents, and grandchildren.39 Other counties in Georgia did the
The zoning ordinance in Moore was race conscious but lacked any intent
to exclude on the basis of race. To the contrary, the ordinance was enacted
to stem middle-class white flight and attract middle-class African
Americans in an effort to create a racially integrated community.41 The
ordinance defined family to include spouses and their parents and children.
It also included grandchildren but only if the grandchildren were siblings.
Specifically, the ordinance provided that “a family may include not more
than one dependent married or unmarried child of the nominal head of the
household or of the spouse of the nominal head of the household and the
spouse and dependent children of such dependent child.”42 Inez Moore’s
adult son Dale Sr., his son Dale Jr., and another grandson John Jr. (the son
of another adult son, John Sr.) lived with her, but the grandchildren were
first cousins, not siblings. As such, Moore was criminally charged and
fined for violating the ordinance and ordered to remove her grandson John
Jr., “an illegal occupant,” from the home.43 Moore challenged the
ordinance as unconstitutional, and the Court, reminding us that it “has long
recognized that freedom of personal choice in matters of marriage and
family life is one of the liberties protected by the Due Process Clause of the
33. See id. (discussing the City of Herndon and Loudon County in Virginia).
34. See id. at 416–21 (listing examples).
35. See id. at 416 (discussing the City of Herndon).
36. Id. at 417.
37. See id. at 416–17 (discussing the City of Herndon and Loudon County).
38. See id. at 420 (discussing Cobb County, Georgia).
39. See id. at 421 (discussing Cobb County, Georgia).
40. See id. (discussing Roswell, Georgia). One city’s ordinance expressly excluded
cousins from its definition of family. Id.
41. Davis, supra note 7, at 82–84. East Cleveland sought to avoid not only the problems
of overcrowding but also the perceived pathologies, as expressed in the Moynahan Report
and others, of single-parent households. See id.
42. Moore v. City of East Cleveland, 431 U.S. 494, 496 n.2 (1977).
43. Id. at 497.
Fourteenth Amendment,”44 struck down the ordinance that intruded on
Moore’s family life. The Court also expressly recognized the importance of
the extended family to our children. It noted:
Ours is by no means a tradition limited to respect for the bonds uniting the
members of the nuclear family. The tradition of uncles, aunts, cousins,
and especially grandparents sharing a household along with parents and
children has roots equally venerable and equally deserving of
constitutional recognition. Over the years millions of our citizens have
grown up in just such an environment, and most, surely, have profited
Despite Moore’s recognition of the right of extended family members to
live together, some municipalities have continued to amend their zoning
laws to the contrary.46 But even when there is no such intent, zoning laws
may disproportionately exclude racial minorities. The exclusion of
twofamily residences from single-family zoning districts illustrates the racially
disparate effect of facially neutral zoning laws.
II. THE HARMS OF SINGLE-FAMILY ZONING
Similar to the ordinance in Euclid, many municipalities make a
distinction between single-family and two-family residences for zoning
purposes. The exclusion of two-family homes from single-family zones
harms the residents of two-family homes in myriad ways. The bulk of
desirable residential areas in many suburbs are zoned for single-family
residences, thereby requiring that two-family residences be clustered into
relatively few zones.47 For example, it is not uncommon to find two-family
homes in affluent suburbs in New Jersey clustered into a few blocks.48 The
clustering of two-family homes increases the likelihood of overcrowding,
noise, lack of parking, criminal mischief, and other ills that have been cited
44. Id. at 499.
45. Id. at 504–05 (internal citations omitted).
46. See infra notes 47–49 and accompanying text.
47. For example, in Westfield, New Jersey, an affluent suburb with zoning laws similar
to that of other affluent towns in the state, seven of the thirteen residential zone districts are
for single-family residences only. Four districts allow two-family and duplex homes, and
another two districts are zoned for multifamily residences. Single-family homes are allowed
in two-family and multifamily residential zones, meaning that single-family homes are
allowed in all thirteen residential zone districts, but two-family homes are permitted in only
six districts. See WESTFIELD, N.J., THE LAND USE ORDINANCE OF THE TOWN OF WESTFIELD
art. 11 (2013); see also OAK PARK, IL., ZONING ORDINANCE art. 3 (2016) (providing for four
residential zones for single-family residences but only one residential zone for two-family
residences); SUMMIT, N.J., DEVELOPMENT REGULATIONS art. 4 (2016) (providing for five
residential zones for single-family residences only but only one residential zone for
48. See Stephen Stirling, This Map Shows the Racial Makeup of Every Block in NJ,
NJ.COM (Oct. 15, 2015), http://www.nj.com/news/index.ssf/2015/10/this_map_shows_
a_racial_breakdown_of_every_person.html [https://perma.cc/U7GW-PCV8]. In many
suburbs, African Americans and Latinos are clustered in a few blocks and the rest of the
town is white. See Matthew Block et al., Mapping Segregation, N.Y. TIMES (July 8, 2015),
as justifications for zoning regulations. Not only is the total area zoned for
two-family homes small relative to the areas zoned for single-family homes,
but in many towns, two-family-home zones also serve “as a transition zone
between the single-family residential zones and the commercial districts.”49
In other words, two-family zoning serves as a buffer between the pristine
single-family residential districts and the noise and traffic of the
commercial district. This means that residents of two-family homes
(including extended family members who live together in those homes) do
not enjoy the peace and quiet that single-family home dwellers enjoy. The
clustering and placement of two-family homes (adjacent to apartment
buildings, commercial areas, and congestion) also decreases their value and
potential for appreciation.50 As such, it contributes to the economic
inequality between owners of two-family and single-family homes.
African Americans, Latinos, and immigrants are more likely than whites
to reside in two-family homes.51 They are also more likely to reside with
extended family members.52 Consequently, although only a small
percentage of the population in most affluent suburbs is nonwhite, the
residents of two-family zoned blocks are disproportionately African
American and Latino.53 By excluding two-family homes from
single49. GARWOOD, N.J., GENERAL LEGISLATION ch. 106, art. VIII, § 106-93 (2016); see
SUMMIT, N.J., DEVELOPMENT REGULATIONS art. 4 (providing for five residential zones for
single-family residences only but only one residential zone for two-family residences,
located right next to the multifamily and business districts); see also Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 258 (1977) (noting that under the zoning
ordinance at issue, the areas zoned for multifamily dwellings were “primarily to serve as a
buffer between single-family development and land uses thought incompatible, such as
commercial or manufacturing districts”).
50. See Mark Obrinsky & Debra Stein, Overcoming Opposition to Multifamily Rental
Housing 12 (JOINT CTR. FOR HOUS. STUDIES OF HARVARD UNIV., Working Paper No.
[https://perma.cc/9M7A-T5ZQ]; Michael Estrin, Do Rentals Decrease Nearby Home
Values?, BANKRATE (Nov. 4, 2013),
51. See Matthew C. Marlay, A Dream Deferred: Residential Attainment Among
Minority and Immigrant Groups in the United States 55–56 (July 29, 2008) (unpublished
Ph.D. dissertation, The Pennsylvania State University), https://etda.libraries.psu.edu/
52. In 2014, 15 percent Americans lived in multigenerational households (i.e.,
grandparents, parents, and children) in 2014 as compared to 28 percent of Asian Americans
and 25 percent of African Americans and Latinos. See D’vera Cohn & Jeffrey S. Passel,
A Record 60.6 Million Americans Live in Multigenerational Households, PEW RES.
CTR. (Aug. 11, 2016),
Immigrants are more likely than the U.S. born to live with extended family members, which
contributes to the higher percentage of Latinos and Asian Americans who reside in
multigenerational households. Id.
53. African Americans and Latinos make up only 1.7 and 4.6 percent, respectively, of
the population in the 1,000 most affluent neighborhoods in the United States. See Richard
Florida, America’s 1000 Richest Neighborhoods, CITYLAB (Mar. 13, 2014),
[https://perma.cc/6F93-QWP5]. One study found that 377 of the 1,000 wealthiest
neighborhoods are 95 percent white. See Stephen Higley, A Racial Summary, HIGLEY 1000,
family zones, zoning laws maintain racial segregation within towns, as
families of color (who are more likely to reside with extended family
members) are restricted to blocks with disproportionately minority
residents. These blocks are then stigmatized as “minority blocks,” which
further drives down property values, as studies have repeatedly found that
whites do not wish to live in neighborhoods where African American
residents make up more than 10 percent of the population.54 Segregation by
block also hinders children’s ability to develop interracial friendships, even
if they live in the same town and attend school with children of other races.
They might also be stigmatized as the children who live on an undesirable
Moore recognized the constitutional right to live with extended family
members and the benefits that such households provide to all Americans,
especially racial minorities and immigrants.55 However, zoning laws
economically and socially burden extended families that live together in
two-family homes. The next part explores how Moore can remedy these
III. EXTENDING MOORE TO EXTENDED FAMILIES
IN TWO-FAMILY HOMES
Many scholars have demonstrated how zoning laws that prevent
construction of apartment buildings are a barrier to residential integration.56
Courts have also struck down single-family zoning ordinances that have the
effect of precluding low- and moderate-income housing.57 While some of
the objections to apartment buildings, especially low-income housing, are
54. See Michael O. Emerson et al., Does Race Matter in Residential Segregation?:
Exploring the Preferences of White Americans, 66 AM. SOC. REV. 23 (2001); see also
Dorothy Brown, How Home Ownership Keeps Blacks Poorer Than Whites, FORBES (Dec.
10, 2012, 12:28 PM),
http://www.forbes.com/sites/forbesleadershipforum/2012/12/10/howhome-ownership-keeps-blacks-poorer-than-whites/#6a9eaa1b7e57 (“Evidence indicates that
it is the presence of blacks, and not just neighborhood conditions often associated with black
neighborhoods (e.g., bad schools, high crime), that accounts for white aversion to such areas.
In one survey, whites reported that they would be unlikely to purchase a home that met their
requirements in terms of price, number of rooms, and other housing characteristics in a
neighborhood with good schools and low crime rates if there was a substantial representation
of African Americans.”) [https://perma.cc/QYG6-YGHP].
55. Moore v. City of East Cleveland, 431 U.S. 494, 508 (1977) (Brennan, J., concurring)
(“The ‘extended family’ that provided generations of early Americans with social services
and economic and emotional support in times of hardship, and was the beachhead for
successive waves of immigrants who populated our cities, remains not merely still a
pervasive living pattern, but under the goad of brutal economic necessity, a prominent
pattern virtually a means of survival for large numbers of the poor and deprived minorities of
our society. For them compelled pooling of scant resources requires compelled sharing of a
56. See, e.g., Arthur C. Nelson et al., The Effect of Urban Containment and Mandatory
Housing Elements on Racial Segregation in US Metropolitan Areas 1990–2000, 26 J. URB.
AFF. 339 (2004); Rolf Pendall, Local Land Use Regulation and the Chain of Exclusion, 66 J.
AM. PLAN. ASS’N 125 (2000); Jonathan Rothwell & Douglas S. Massey, The Effect of
Density Zoning on Racial Segregation in U.S. Urban Areas, 44 URB. AFF. REV. 779 (2009).
57. S. Burlington Cty. NAACP v. Township of Mount Laurel, 336 A.2d 713, 724–25
based on negative stereotypes about the families who would reside in them,
some of the concerns may be legitimate. One need not agree with the
Village of Euclid’s characterization of apartments as “mere parasite[s]” to
acknowledge that apartments may bring increased noise, traffic, and reduce
the spaces available to children for play.58 However, these concerns are
significantly reduced when the dwelling is a two-family home. Building
two-family homes on the same blocks as single-family homes is unlikely to
lead to crowding or increased noise, especially if they are interspersed with
single-family homes throughout the town and are not crowded into a few
blocks. So what explains the distinction between single-family and
twofamily homes for purposes of zoning? One explanation is that homeowners
do not want properties that might alter the character, including the aesthetic
feel, of their block. Single-family homeowners may not want tall structures
on their block or may not want homes that lack a front yard. Some
homeowners associations prohibit exterior home paint colors that clash with
other homes, and municipalities enforce rules requiring front lawn
maintenance for aesthetic reasons.59 These may be legitimate concerns, but
ordinances can require that two-family homes in single-family zones
comply with the same requirements as other homes to ensure that these
homes do not detract from the appeal of the block.
Most Americans prefer to live in a single-family home, but the
prevalence of these preferences varies by race. One study found that whites
have stronger preferences for single-family detached homes than other
groups, while African Americans, who are more likely to reside in
twofamily homes, are more accepting of attached townhouses or two-family
homes.60 Only 8 percent of whites, as compared to 22 percent of African
Americans and 17 percent of Latinos, described a duplex or two-family
house as ideal for their needs, even though white households tend to have
fewer members than African American or Latino households.61 While
individuals’ preference for single-family homes are often based on their
desire for peace, quiet, and open spaces associated with single-family
blocks, their preferences may be derived from biases against the residents of
two-family homes. Studies have found that individuals make negative
assumptions about families who live in two-family homes. They assume
that the residents earn low incomes and cannot afford a single-family
home.62 They also assume that the residents are renters and will not take
care of the property, because they do not own it, or they will depend on
58. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394 (1926).
59. For example, when I first moved to my suburb, I neglected to cut the front lawn for a
few weeks as I was busy unpacking and making necessary repairs inside the home. I
received a citation from the municipality requiring me to cut the lawn within five days or
else I would receive a fine. At the bottom of the citation was a reminder to keep the town “a
nice place to live.”
60. See Marlay, supra note 51, at 55–56.
62. Id.; see also Corianne Payton Scally, The Nuances of NIMBY: Context and
Perceptions of Affordable Rental Housing Development, 45 URB. AFF. REV. 718, 721 (2012).
public assistance for their support.63 These are the same reasons why
individuals object to construction of low- and moderate-income housing in
These assumptions are not valid justifications for excluding extended
family members who live together in two-family homes from a
neighborhood or block under Moore.64 Indeed, the Moore Court rejected
the City of East Cleveland’s attempts to justify its narrow definition of
family “as a means of preventing overcrowding, minimizing traffic and
parking congestion.”65 The Court concluded that the ordinance served
these goals “marginally at best,” in part because East Cleveland could
address these concerns through its maximum occupancy laws that limited
the number of individuals that could reside in a dwelling based on the
dwelling’s size.66 Given the harms of excluding two-family homes from
single-family zones, municipalities should address concerns about
overcrowding, congestion, and noise through their maximum occupancy
laws rather than through separate zoning districts.
After Moore, a municipality cannot use its zoning laws to prevent
extended family members from living together in a single household so
long as the number of members does not exceed occupancy limits. This
Article contends that a two-family home, when occupied by extended
family members, is the equivalent of a single-family home. Moore
recognized that extended family members pool resources and “participate in
the duties and the satisfactions of a common home.”67 These benefits and
duties are not eliminated when extended family members choose to live in
two units in a two-family home. The economic, social, and emotional
support that extended families have relied upon for generations are no less
important because a grandmother or a sister and her children live in the
apartment upstairs. Consequently, this Article contends that under Moore, a
town cannot constitutionally treat extended family members who occupy a
two-family home differently than extended family members who live
together in a single-family home.
Municipalities have always zoned certain categories of multigenerational
homes as single-family homes. For example, mother-daughter homes are
permitted in single-family zones, and, in recent years, home builders have
offered buyers the option of homes with separate living spaces for extended
family members such as grandparents or adult children.68 These new
multigenerational homes, known as “NextGen,” include a separate entrance,
bedroom, bathroom, living room, kitchen, and laundry facility.69 However,
they are costly to build and beyond the reach of the majority of minorities
and immigrants.70 Given the similarities between extended families that
live in a single-family household and those that live together in a
twofamily home, and taking into account municipalities’ zoning of certain
multigenerational homes as single-family, Moore requires that states permit
two-family homes occupied by extended family members to be in
I am not a land use scholar, so I am hesitant to propose recommendations
to remedy the policies that Moore would prohibit without their insight. My
goal is to start a conversation between family law scholars (like myself) and
land use scholars. These discussions might lead us to conclude that
municipalities must allow developers to build two-family homes in
singlefamily zones. Or, we might conclude that the constitutional infirmities of
current zoning laws can instead be remedied by increasing the number of
two-family zones, thereby eliminating the need for squeezing two-family
homes into a few blocks. Under this approach, some zones would remain
exclusively single-family but most would include two-family homes. This
contrasts with the current rules in many suburbs that zone the bulk of
residential blocks for single-family homes only. Finally, we might
conclude that we can address the disadvantages created by two-family
zoning and also accommodate preferences for single-family zoning by
limiting the number of two-family homes permitted in these zones to 10 or
15 percent. This approach would allow these blocks to maintain their
character while potentially increasing racial integration and allowing
residents of two-family homes to enjoy the benefits of living on a block
with mostly single-family homes.
This Article focuses on the disadvantages that single-family zoning
places on extended family members who reside together in two-family
homes. Admittedly, municipalities may not be able to feasibly zone
twofamily homes occupied by extended family members differently than those
in which the residents of each unit are not related, as this would require
constant policing. Not all two-family homes are owned or occupied by
extended family members. Some families live in one unit and rent the
second unit. Other two-family homes are not owner occupied but rather are
investment properties that the owner rents to tenants. And although racial
minorities are more likely to live with extended family members, the
majority do not.71 In these cases, Moore places no restrictions on a town’s
zoning of single- and two-family properties differently, even if such zoning
disadvantages low-income families who are disproportionately African
American and Latino. However, Moore does force us to grapple with the
burdens that two-family zoning laws may place on all families. If Moore
prohibits towns from excluding two-family homes occupied by extended
family members from the most desirable areas but towns cannot feasibly
create different zoning classifications based on who lives in a two-family
home, municipalities might find that the only practical solution is to
eliminate the distinction between single-family and two-family zoning
5. A two-family home is a house with two separate living units or apartments .
6. See Moore , 431 U.S. at 508 (Brennan, J., concurring) ( noting that the extended family “provided generations of early Americans with social services and economic and emotional support in times of hardship”); see also MICHELE ZONTA, CTR . FOR AM. PROGRESS, HOUSING THE EXTENDED FAMILY 10 ( 2016 ), https://cdn.americanprogress.org/wpcontent/uploads/2016/10/18155730/ExtendedFamilies-report. pdf (reporting that extended families are more likely to be poor than nuclear families ) [https://perma.cc/Q4FW-VBDV]; Sonia M. Gipson Rankin , Black Kinship Circles in the 21st Century: Survey of Recent Child Welfare Reforms and How It Impacts Black Kinship Care Families, 12 WHITTIER J . CHILD & FAM. ADVOC . 1 ( 2013 ).
7. See Peggy Cooper Davis , Moore v. East Cleveland: Constructing the Suburban Family , in FAMILY LAW STORIES 77 , 77 - 78 (Carol Sanger ed., 2008 ).
8. Moore , 431 U.S. at 509 (Brennan, J., concurring).
9. See ZONTA , supra note 6 , at 8-9.
10. Rigel C. Oliveri , Single-Family Zoning , Intimate Association, and the Right to Choose Household Companions, 67 FLA. L. REV. 1401 , 1406 ( 2015 ).
11. Christopher Silver , The Racial Origins of Zoning in American Cities, in URBAN PLANNING AND THE AFRICAN AMERICAN COMMUNITY IN THE SHADOWS 23 , 24 (June Manning Thomas & Marsha Ritzdorf eds., 1997 ).
12. 245 U.S. 60 ( 1917 ) ; see id. (striking down as unconstitutional an ordinance that prohibited African Americans from buying property or residing on a block where the majority of residents were white).
13. See , e.g., Village of Euclid v . Ambler Realty Co., 272 U.S. 365 , 382 ( 1926 ) (describing the zoning ordinance at issue as representative of zoning ordinances across the country ).
14. Oliveri , supra note 10, at 1433.
15. Silver , supra note 11, at 34.
16. 272 U.S. 365 ( 1926 ).
17. See id. at 384-85.
18. Id . at 394.
19. Id . at 395.
20. Frank S. Alexander , The Housing of America's Families: Control, Exclusion, and Privilege , 54 EMORY L.J. 1231 , 1257 n. 137 ( 2005 ) (“Ninety-eight percent of all cities with populations greater than ten thousand, and nearly ninety percent of suburban municipalities with populations larger than five thousand have adopted some form of zoning .”); see also Amanda C. Micklow & Mildred E. Warner , Not Your Mother's Suburb: Remaking Communities for a More Diverse Population, 46 URB . LAW. 729 , 731 ( 2014 ) (reporting that “70% of suburban housing is single-family”).
21. See Euclid, 272 U.S. at 394-95; Oliveri, supra note 10, at 1409.
22. Oliveri , supra note 10, at 1417.
23. 429 U.S. 252 ( 1977 ).
24. See id. at 254 , 264 - 65 .
25. The plaintiffs were the nonprofit developer, another nonprofit corporation, three African Americans, and one Mexican American . Id. at 258.
63. See Scally, supra note 62 , at 721.
64. We should resist these justifications, which are based on stereotypes, even if the residents are not family members . However, Moore only expressly supports the constitutional right of family members to live together, so this Article only addresses how Moore can remedy the zoning disadvantages that affect extended family members who exercise their constitutional right to live together.
65. Moore v. City of East Cleveland , 431 U.S. 494 , 499 - 500 ( 1977 ).
66. Id . at 500 n.7.
67. Id . at 505.
68. See Chris Farrell , The Sensible Resurgence of the Multigenerational Home , BLOOMBERG (Aug. 13 , 2014 ), https://www.bloomberg.com/news/articles/2014-08-13/ college-graduates -live-with-parents-why-not [https://perma.cc/7KW9-HBXA].
69. See id.
70. See Michele Lerner, Demand Rises for Properties That Can House More Than One Generation, WASH . POST (Sept. 30 , 2015 ), https://www.washingtonpost.com/ realestate/demand -rising-for-properties-that-can-house-more-than-one-generation/ 2015 /09/ 29/9d6f7042-50bd - 11e5 - 8c19 -0b6825aa4a3a_story.html?utm_term= .db99013a61ba [https:// perma.cc/AJL9-JK6K].