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Municipal Technical Advisory Service (MTAS)

Original Author: Hemsley, Sid
Date of Material: 10/11/2001

Parking--Laws and regulations
Zoning--Laws and regulations

Regulating Parking Through a Zoning Ordinance

Reviewed Date: 05/06/2020
MTAS was asked whether there is a way to regulate parking through limitations on the definition of 'family' in a zoning ordinance.

October 11, 2001

Dear Director of Planning:

I am not sure there is any good way to regulate parking through limitations on the definition of “family” in your zoning ordinance. You correctly pointed to Belle Terre v. Boraas, 416 U.S. 1 (1974), as a case which upheld a limitation on the definition of “family” in the zoning context. In that case the U.S. Supreme Court upheld a zoning ordinance which limited occupancies in property zoned single family residential to persons related by blood, adoption or marriage, or to no more than two unrelated persons constituting a single housekeeping unit.
In that case, the Court specifically mentioned vehicle regulation, among other things, as a legitimate governmental interest supporting the ordinance. A number of other cases, both state and federal, have upheld similar ordinances. [See 12 ALR4th 238].

I will be glad to provide you with the definitions of “family” that have been upheld as legal in the Belle Terre context. However, if you propose to adopt a similar definition with respect to existing apartment complexes, you probably face an insurmountable legal barrier: Tennessee’s pre-existing non-conforming use law, found at Tennessee Code Annotated, § 13-7-208. While I have been unable to find any case in the United States where a zoning change defining a “family” for residential purposes was an issue in a state’s pre-existing non-conforming use law, I can think of no good reason why Tennessee’s law would not apply to such a zoning change.

The Washington Supreme Court in Rhod-A-Zalea & 35th v. Snohomish County, 959 P.2d 1024 (Wash. 1998), rejected the plaintiff’s argument that the county’s imposition of land grading regulations against his business was a violation of the state’s pre-existing non-conforming use law. The Court distinguished between the functions of that law, and the functions of a local government’s police powers. It reasoned that the pre-existing non-conforming use law only protects a business from immediate termination, and that such uses are subject to future reasonable regulations enacted for the public health, safety and welfare of the community. I have no doubt that the Tennessee courts would hold that pre-existing non-conforming uses are also subject to subsequently enacted reasonable police power regulations, but I doubt that the adoption of a Belle Terre type definition of a “family” would qualify as such a regulation. Along the same line, I also doubt they would go as far as to say that pre-existing non-conforming uses in Tennessee are protected only against immediate extinction.

But Rhod-A-Zalea & 35th does bring us to another question: Could the city license existing as well as future apartments for occupancy for a certain number of people, or for a certain number of people who meet a Belle Terre type definition of a “family” without running afoul of the pre-existing non-conforming use law?

Does this potential approach seem to you worthwhile? If so, let me know. Also, please give me some time on this question. We are extremely short-handed in the legal department at the moment, but will have that problem corrected November 1. But this question will still take some time.


Sidney D. Hemsley
Senior Law Consultant