Knowledgebase-Authority of Municipalities to Enact Age-Restricted Elderly or Retirement Housing


Information Product

Title:Authority of Municipalities to Enact Age-Restricted Elderly or Retirement Housing
Summary:MTAS was asked whether the City could enact an amendment to the zoning ordinance to provide for retirement or elderly housing, and impose an age restriction on such housing.
Original Author:Shechter, Leslie
Co-Author:
Product Create Date:08/24/93
Last Reviewed on::10/28/2009
Subject:Housing; Senior citizens; Zoning--Laws and regulations
Type:Legal Opinion
Legal Opinion:

Reference Documents:

Text of Document: August 24, 1993

You have asked whether the City could enact an amendment to the zoning ordinance to provide for retirement or elderly housing, and impose an age restriction on such housing. In my opinion, the City could enact such an amendment.

Tennessee courts have yet to rule on whether municipalities have the authority to enact age restricted elderly or retirement housing. Other jurisdictions that have considered the question, however, have almost uniformly held such provisions constitutional against a variety of challenges. In discussing the validity of zoning for a specific "user" (all persons over the age of 55, for example) in addition to a specific "use" (elderly or retirement housing), the courts begin with an examination of the enabling statute that provides the authority to enact zoning regulations.

Unless a zoning ordinance is seen to further a purpose expressed or implied by the enabling statute, it will not be upheld. Anderson, American Law of Zoning (2d Ed) 7.01. Initially, the courts disallowed zoning ordinances that contained age restrictions. In Hinman v. Planning and Zoning Commission, 26 Conn. Supp. 125, 214 A.2d 131 (1965), the court was asked to consider the constitutionality of a "Senior Citizen Planned Community District" which limited occupancy to people 50 years of age or older, except for spouses and children over 18. The court observed that zoning involved regulation of buildings and land use, but:

...[n]owhere...does there appear any mention for classes of people.

As Rathkopf describes in his treatise The Law of Zoning and Planning, 17A.06:

The strict concept that zoning may regulate the use of land but not the identity of the user was substantially undercut, however, by the 1974 Supreme Court decision in Village of Belle Terre v. Boraas , 416 US 1 (1974) wherein, for the first time, there was judicial recognition that the identity of the user may be inextricably related to the character of the use. Rathkopf at 17A-86.

Immediately after this Supreme Court decision, in 1975 and 1976, three cases upholding retirement and elderly housing and senior citizen communities were decided in New York and New Jersey. Maldini v. Ambro, 36 N.Y.2d 481, 330 N.E.2d 403, 396 N.Y.S.2d 385, appeal dismissed, 423 U.S. 993 (1975) (herein Maldini); Taxpayers Asso. of Weymouth Township Inc. v. Weymouth Township (1976) 71 N.J. 249, 364 A.2d 1016, 83 A.L.R.3d 1051, cert denied and app dissmd 430 U.S. 977. (Herein "Weymouth"); and Shepard v. Woodland Township Committee and Planning Board, 71 N.J. 230, 364 A.2d 1005 (1976) (herein Shepard)

Maldini involved an ordinance that provided for a "Retirement Community District" which allowed "multiple residences designed to provide living and dining accommodations, including social, health care, or other supportive services and facilities for aged persons...". Weymouth involved a challenge to several ordinances that banned mobile home parks except where occupied by persons over 52 years of age or older. In Shepard, the ordinance at issue established, as a special-use exception, Senior Citizen Communities. The communities were limited to people 50 years of age or older except for dependents 19 or older. The ordinance permitted a mix of single-family units and attached townhouses as well as shopping and recreational facilities.

The plaintiffs in all three cases argued that age restricted zoning was not within the enabling legislation and was, in fact, "antithetical to the enabling legislation requirement that zoning be for the promotion of the general welfare of the community". Rathkopf at 17A-87. What follows is a synopsis of the answer given by the highest court of New York:

After noting that "[t]he police power which provides justification for zoning is not narrowly confined," the Maldini court observed that state and federal programs made adequate housing for the elderly a major priority. The court further noted that the needs of the elderly were also specifically given consideration in the town's comprehensive plan and that evidence presented at trial showed that the ordinance had been enacted by the town board out of genuine concern over a demonstrated shortage of specialized housing needed by a rapidly growing local population of the elderly. "Certainly, when a community is impelled ...to move to correct social and historical patterns of housing deprivation, it is acting well within its delegated general welfare power."Id. at 485-86....the Maldini court aptly pointed out that most persons will themselves eventually be elderly and therefore potential beneficiaries of such an ordinance. Rathkopf at 17A-88.

Similarly, the Weymouth Court had no trouble finding zoning for retirement housing to fall within the concept of "promoting the general welfare". It discussed at great length the changing demographics; the prediction that by the year 2000 there will be more than 29 million Americans over the age of 65 and that:

...the lack of housing specially designed to meet the needs and desires of the elderly is a matter that has generated increasing public concern at both the national and state levels.

According to Rathkopf,

[C]onsidered together, the [three cases] provide ample precedent for the assertion that zoning for retirement communities, either with or without specific age limitation, is within the zoning power of any municipality in a state whose zoning enabling act uses the standard language authorizing zoning "for the purpose of promoting the general welfare of the community". Rathkopf at 17A-90.

In Tennessee, the zoning enabling legislation is found in Tennessee Code Annotated, 13-7-201. That provision states zoning power must be exercised:

For the purpose of promoting the public health, safety, morals, convenience, order, prosperity and general welfare....[Emphasis mine].

In light of the precedent set elsewhere regarding the scope of this language and the ability to zone for elderly or retirement housing, in my opinion, municipalities in Tennessee would similarly be permitted to enact such ordinances.

Municipalities around the country have encouraged the location of residential housing for the elderly in a variety of ways. Some zoning ordinances create special residential zoning classifications exclusively for the elderly. Other communities allow such housing as a special exception or special use within specific residential classifications. McQuillen, Municipal Corporations (3d Ed.) Vol. 8, 25.131.55.

Besides the issue of whether such an ordinance is authorized by the municipality's zoning enabling legislation there remain some constitutional issues that should be addressed. Because such zoning excludes a large segment of the population there have been equal protection and due process challenges to these ordinances, most of which have not been sustained.

The Weymouth Court rejected these constitutional arguments made by the plaintiffs. First the Court observed that neither a "suspect class" (such as race), nor a "fundamental right" (such as the right to vote) was involved. Thus, the only review the Court could engage in was to determine whether treating different classes of persons differently was related to a legitimate governmental purpose, which the court had no trouble finding.

[Since this decision, the U.S. Supreme Court has considered age to be a "suspect class" under certain circumstances. However, even under a more strict standard of review, I believe a Tennessee Court would have little trouble considering an ordinance of this nature to significantly further a compelling interest of the community in providing needed housing for the elderly.]

Noting that all age cutoffs were necessarily arbitrary, excluding some who "might plausibly be admitted" and including others that "might plausibly be excluded", the court felt that such "line-drawing" should be left to the legislature "...unless it exceeds the bounds of reasonable choice". Id., at 1035. The Court considered age 52 as a cutoff to be reasonable in light of the number of people retiring and becoming grandparents in their fifties.

The most impressive challenge made by the plaintiffs in both the Weymouth and Shepard cases, however, was whether the senior citizen housing has an impermissible exclusionary effect because it discriminates against families and children. Restricting housing opportunities to those citizens that are

...net revenue producers, i.e., those whose local tax contribution exceeds their demands upon locally financed governmental services....Id., at 1038

is both tempting and strictly illegal. The Court describes:

...by zoning portions of its undeveloped land for planned communities for the aged, a municipality may prevent development of that land as housing for other, less welcome, segments of the population. Citing Schere v. Freehold Township, 119 N.J.Super. 433, 437, 292 A.2d 35 (App. Div.1971), cert. den. 62 N.J. 69, 299 A.2d 67 (1972), cert den. 410 U.S. 931 (1973). Weymouth at 1038.

In fact, Weymouth Township admitted that senior citizen developments would not further strain their already overcrowded schools. Defendants expert witness went as far as characterizing such housing as "architectural birth control". Id., at 1039.

Thus, the Weymouth court concluded that zoning for senior citizen housing would need to be part of a comprehensive land use plan that contains "...a balanced housing stock". Id., at 1040 [Emphasis mine], and, the municipality would have to substantiate a need for such housing. As the Court stated,

"...the elderly are... a segment of the population whose needs and desires are appropriate considerations for municipal land use planning. Therefore, to the extent that such needs exist, planned housing developments for the elderly may serve an inclusionary, rather than exclusionary function. Accord, Maldini v. Ambro, supra. Id., at 1040. [Emphasis mine].

Because age restrictive ordinances not only differentiate users on the basis of age but also "family status", there may be some argument that the ordinance interferes with fundamental rights of privacy and association if not worded carefully. Rathkopf at 17A-93. For example, a person that falls within the correct age category (over 52, for example) may be excluded if he or she wants to live with a younger spouse or a school-aged child. Thus, ordinances which have the effect of interfering with such relationships may be struck as unconstitutional. Since the decision of Moore v. City of East Cleveland, 431 U.S. 494 (1977), the United States Supreme Court has consistently broadened this "liberty interest" and Rathkopf suggests that these decisions may require that:

(2) Zoning ordinances cannot discriminate among family members on the basis of their degree of kinship, i.e., they cannot prefer the nuclear family pattern of living over the extended family pattern.

An ordinance that provides for senior citizen housing may also be successfully challenged if it contains restrictions that do not have a rational relationship to the purpose of providing needed housing. For example, a requirement that an elderly person must have lived within the city for a period of time before they were eligible for residency in the senior citizen community was held to violate equal protection. Allen v. Town of North Hempstead, 121 Misc 2d 795, 469 NYS2d 528, affd on other grounds 103 AD 2d 144, 478 NYS2d 923 (1984). It is also a violation of the Due Process Clause of the Fourteenth Amendment to condition the right to maintain a home for elderly persons in a residence district on the consent of nearby property owners. Washington v. Roberge, 278 U.S. 116, (1928).

Some states have specifically broadened their zoning enabling statutes specifically permit zoning which promotes housing for the elderly. Even absent such express permission, it is my opinion that the City could enact such an ordinance if:
1. the ordinance is worded carefully to avoid interfering with the family relationship;
2. there is a demonstrated need for such housing in the community; and
3. such a zoning classification is appropriately included in any comprehensive land use plan.

I apologize for the delay in getting this response to you. I hope it is helpful but, if you have any questions please feel free to call.
With kind regards,

Leslie Shechter
Legal Consultant

Please remember that these legal opinions were written based on the facts of a given city at a certain time. The laws referenced in any opinion may have changed or may not be applicable to your city or circumstances.

Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this database.