The Real World: Aftermath
On March 28, 2022, I created a Council meeting “precap” on this blog where I discussed some proposed changes to the City’s ordinances related to single family zoning districts. Since the final language was not adopted until the April 25th meeting, and I did not complete a meeting precap for that meeting, I wanted to take a few moments to explain the practical effects of the language that was eventually adopted.
As a reminder, I am a former member of the governing body. I will do my best to provide insights and clear explanations on complex topics. But, in the end, unless I am quoting someone else, any opinions expressed are my own. I welcome your feedback and questions at llb4shawnee@gmail.com
BIG DISCLAIMER: I am a practicing regulatory attorney but I am only licensed in Missouri. The following should not be considered legal advice! Also, this is LONG because I am trying to explain complex municipal codes in a way that is accessible for everyone.
Why Did the Council Make this Change?
You may recall that my previous blog described the impetus for the Council’s actions. Specifically, there was an out-of-town company that bought a single family home in Shawnee, rehabbed it to include more bedrooms, and then rented the bedrooms to individuals with varying lease terms. At the time, I said this arrangement was concerning to me, but I didn’t expound on my reasons. My concerns relate to renter safety. What this company has done is essentially built a multi-family home without having to follow the multi-family building codes, including life safety codes. There are also no requirements for parking or anything else that would have been required under the apartment codes.
In this particular case, the company did NOT PULL ANY PERMITS for their rehab work and certainly did not fill me with confidence that they actually cared whether their renters would be able to escape from a fire. As a result of the permit issue, the City had no trouble shutting the building down, but they became aware that more were planned.
Ordinance Evolution
The issue was first discussed at the 2/28/22 Council Committee meeting where the Council directed staff to draft an ordinance to ban this type of housing in any area that is zoned “single family.”
For our reference, Single Family residential zoning includes:
AG-Agricultural district
Planned Single Family (age restricted) and Planned Single Family
R-1-Single family
Residential Suburban
Residential Estate/ Country Estate
The staff may draft ordinances such as these, but they are not permitted to be passed by the Council alone. Instead, the language must first go to the Planning Commission (“PC”). Once approved by the PC, zoning ordinances come back to the Council.
The PC reviewed the city’s proposed ordinances on 3/7/22. During their discussion, the PC proposed that the best solution to the problem is to require unrelated people to be subject to one lease per household, or to restrict subleases within single family homes. Honestly, I think this was a good idea as it directly addressed the issue without causing unanticipated downstream effects. However, the City’s representatives said that this “is a legally gray area, and would be very challenging to track and enforce. Staff believes this sort of requirement could be easily evaded by property owners and property managers. Instead of imposing a lease requirement to discourage transience, staff suggested defining ‘single housekeeping unit’ to preclude transient residents.” (Staff memo to the Council recapping the PC discussion on 3/28/2022).
The recommendation from the PC was to move forward with amendments that were brought back to them at the 3/21/2022 meeting for final review. The following amendments were approved by the Planning Commission:
Amend the definition of family:
Amend the definition of “family” for residential zoning district as follows:
Family means:
A. A group of one (1) or more related persons living together
B. A group of not more than three (3) unrelated persons living together as a single housekeeping unit; or
C. A mixed group of related and unrelated persons living together as a single housekeeping unit who together constitute no more than a cumulative total of three (3) persons.
Related Persons means:
A. Persons related by blood, marriage, adoption, or guardianship; or
B. A person having legal custody of a minor or the designee of a parent or other person having legal custody of a minor.
2. Define Shared Home Group and Single Housekeeping Unit
17.04.331. Shared Home Group means:
A group of four (4) or more unrelated persons living together in a dwelling unit, except where it is a group home as defined by 1.04.163(B).
17.04.332. Single housekeeping unit means: a group of non-transient persons that occupies a dwelling with common kitchen facilities and shares household activities or responsibilities.
3. Amend the Table of Uses
Amend the Table of uses to show that any living arrangement that meets the definition for “Shared Home Group” is not allowed within a residential zoning district.
At the 3/28/2022 meeting, the Council received the PC recommendations and tabled the amendment discussion because they wanted further refinement. Specifically, the Council requested the following change and clarifications.
Find a new name to replace “shared home group.”
Add language to each residential zoning district that states “co-living groups and rooming houses are prohibited.”
Add the term “co-living group” to the zoning matrix so that it is clearly prohibited in 17.51 also.
Staff made the requested changes and, in their 4/25 memo, stated that the new ordinance will:
-Revise the definition of “family” for R-1 single family residential districts (ordinances 17.04.120) to include: (1) any number of related persons living together; or (2) not more than 3 unrelated adults living as a single housekeeping unit. Any minor related to a person covered by the definition of family is included in that family, including foster children and other legal custody arrangements for minors
-Define “single housekeeping unit” as a “group of non-transient persons that occupies a dwelling with common kitchen facilities and shares household activities and responsibilities. Thus, three unrelated adults living together would need to live like a household in a R-1 zone.
-Preserve the option for a family to house 1 boarder as a home occupation (ordinance 17.66.020).
-Define “co-living group” as four or more unrelated adult living together. This definition doe not affect Group Homes for individuals with disabilities.
-Prohibit co-living groups and rooming houses in all residential districts.
HERE’S WHERE THINGS GET STICKY
Although not mentioned in the staff memo, the ordinance language voted on during the April 25th meeting has a significant change to how you define groups of unrelated individuals in the definition of family. Specifically, the new ordinance read as follows:
17.04. Family
Family means:
A. A group of one (1) or more related persons living together; or
B. A group of not more than three (3) unrelated persons age eighteen (18) or older living together as a single housekeeping unit, together with any minors related to at least one of those persons, provided that if any one of the adults is unrelated to another adult in the group, the entire group shall be classified as unrelated. (Emphasis added)
Again, the proposed ordinance went FROM:
March 28th
Family means
…
B. A group of not more than three (3) unrelated persons living together as a single housekeeping unit; or
C. A mixed group of unrelated persons living together as a single housekeeping unit who together constitute no more than a cumulative total of three (3) persons.
-TO-
April 25th
B. A group of not more than three (3) unrelated persons age eighteen (18) or older living together as a single housekeeping unit, together with any minors related to at least one of those persons, provided that if any one of the adults is unrelated to another adult in the group, the entire group shall be classified as unrelated. (Emphasis added)
My interpretation
When I wrote my blog on March 28th, I interpreted the language as permitting any number of related family members PLUS 3 unrelated people. So, although I used The Golden Girls as an analogy, I was merely trying to illustrate how non-family relationships are just as valid as family relationships. I didn’t believe the Golden Girls living arrangement was actually banned under the new ordinance. BUT, the new language has changed the way I view the analogy. On it’s surface, the new regulation WOULD ban the Golden Girls, despite Dorothy and Sophia’s relationship.
That brings us to the next important point. A single boarder is still permitted by right in single family zoning. So, if you had 3 unrelated people operating as a single family unit, they would still be permitted to have a boarder. So, the Golden Girls might arguably be ok. But, I can think of lots of examples of living arrangements that would not be ok.
What does this really apply to?
Let’s take a step back and do some level setting. It is important to understand that by changing the definition of “family,” the ordinance poses a fundamental interference in the number and relationship of people that live in a home. This is true REGARDLESS of whether they are renting or are there for a short or a long term. The definition of family is not new. The major change the council made was to decrease the number of unrelated individuals who could fit in the definition of a family from four (4) to three (3). There was no discussion about the additional change that was adopted on 4/25 clarifying how to count the number of unrelated and related individuals in a mixed group. I am curious whether the council agreed with the change and did not believe any additional discussion was necessary, OR if they missed the change because it was not included in the memo or presented by staff.
Some other things to keep in mind are that these changes ONLY apply to single family zoned districts. So, this has nothing to do with what happens in multi-family homes such as apartments or townhouses. It also has nothing to do with state-defined “group homes,” which will continue to be allowed in single family zoning districts by state and federal law.
These limits also apply regardless of the size of the house. I live in western Shawnee and we have many large homes that could have as many as 10 bedrooms on a large piece of land. These homes are also subject to these restrictions on unrelated individuals.
Finally, the limits pretty much don’t apply to kids under 18 at all (with some persnickety legal caveats that would be unusual and I won’t go into here).
Newly Prohibited Living Arrangements in Single Family Zoning Districts
Here are some things property owners will not be permitted to do in their homes because of the new ordinance. Again, this is regardless of whether there is a rental agreement in place:
Assuming two home-owning parents live in the home, two adult children may not both bring their significant others to live with their parents in a single family district. This was not an uncommon relationship during the COVID lockdowns.
An owner who occupies their house would not be permitted to take in a whole, unrelated family if the numbers don’t work. For example, if you had 2 empty nesters who are married, they would not be permitted to take in more than two people who are unrelated. The married couple and one of the unrelated people could still qualify as a single family, and the 4th could be the boarder. But, you better hope that family does not have more than two people over 18. Taking in a whole family is not an uncommon occurrence currently, as it could happen if a family wanted to help another family whose house was burned down, or perhaps they want to take in a refugee family.
An unmarried couple with more than two adult children between them all living at home does not work.
4 single moms buy a home together to raise their children. This would absolutely be prohibited once any of the children turn 18. It does not matter whether the mom’s all have an equal ownership interest in the home. https://www.today.com/parents/moms/single-moms-buy-house-rcna19604
Unmarried couple with three children between them. This would be fine until the kids are grown up. https://www.aclu-mo.org/en/node/126#:~:text=This%20lawsuit%2CLoving%20v.,discrimination%20under%20fair%20housing%20laws.
MTV’s The Real World—This 100% would not be allowed. https://en.m.wikipedia.org/wiki/The_Real_World_(TV_series)
What if my current living arrangement is in violation of the ordinance?
The city stated that current living arrangements will be grandfathered in. So, homeowners currently out of compliance will be permitted to continue their existing living arrangement.
How are the ordinances enforced and what are the potential penalties?
Violations to the ordinance will be addressed via complaint based enforcement. That is, the City is not going to go looking for violations, but if they become aware of one through a complaint, they will investigate and enforce through the Codes department. But, what does that mean? In this case, if a violation is discovered, section 17.98.010 of the city code states:
A. Violation of Title. Any owner, lessee or tenant of land who shall construct, reconstruct, alter, relocate or maintain any building or other structure or use such land in violation of any of the provisions of this title is hereby declared to be a public offense and, pursuant to the authority of K.S.A. 12-761, shall be guilty of a misdemeanor.
For our reference, a misdemeanor is any crime whose punishment can be up to $500 in fines or up to 6 months in jail. In addition, K.S.A. 12-761 explicitly states that cities may enforce their zoning ordinances using other remedies such as injunctions, mandamus, or other appropriate action or proceeding to prevent such unlawful use. This means that legal fees and potential jail time may not be limited to just the $500/6 months in jail as stated above.
Lisa, why do you disagree with ordinances like these?
What I said in my previous blog is still true. This is now a FUNDAMENTAL interference with the number and relationships of people who may live in ANY single family home in the city. Family is a deeply personal construct, and I, like many of you, have blood relatives who I would NEVER want living with my family. But, I would immediately take in my closest friends if they were in need. From the perspective of adjacent homeowners, the problems that can occur with a household of mixed relations are the same problems that can occur with a similarly sized household with related family members.
Next Steps
So, where does this leave us? It is possible that my interpretation of the ordinance language is incorrect. But, if that is the case, and the Council intends a different interpretation, they need to go on record to clarify, and modify the ordinance accordingly. I think the best next step is to ask the Council to reconsider the changes to the language, particularly the piece that reads “provided that if any one of the adults is unrelated to another adult in the group, the entire group shall be classified as unrelated.” They can do this by adding the ordinance to a future agenda. They cannot engage in any substantive discussion of the ordinance without notifying the public via a future council agenda.
I also would push back on the notion that the original idea to limit the number of leases on a house is a legal gray area. That statement was made without any supporting evidence. It was a much more direct solution to the issue the city is trying to address and did not require a change in the definition of “family.” Again, this could not be discussed short of adding it to a future Council agenda.
Thank you all for reading this blog. If you have opinions about any of the above, I encourage you to share with the Council. You may contact the entire governing body by e-mail, an individual council member by e-mail, or by phone at the numbers posted on the city website. You may also speak during “Business from the Floor” at an upcoming Council meeting. Since this is not an agenda item at this time, you will not be able to make an official written public comment, nor will you be able to sign up in advance to speak about it. You may e-mail the full governing body at governingbody@cityofshawnee.org. E-mails do not become part of the public record.