The question Rick poses has been litigated; it routinely arose in the context of age restrictions barring occupancy by children enforced against grandparents whose grandchild moved in because of a family emergency, Rocek v. Markowitz, 492 So.2d 460 (Fla. App. 1986) or parents who unexpectedly became pregnant and bore a child, Pomerantz v. Woodlands Section 8 Ass'n Inc., 479 So.2d 794 (Fla. App. 1985), rev. denied, 491 So. 2d 280 (Fla. 1986). Congress reacted by amending the Fair Housing Act in 1988 to prohibit familial status discrimination save in subdivisions that qualify as housing for older persons (HFOP). See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472 (1th Cir. 1993), but in 1995 weakened the statutory protection for families by easing the requirements that enabled associations to qualify for the HFOP exemption. See generally 42 U.S.C. 3607 (b)(2).
Many POAs have abandoned enforceable age restrictions even though they qualify for the HFOP exemption, but their motives have had little to do with family integrity or religious freedom. Rather, they have been driven to abandon age restrictions by market forces -- older residents have died, and their adult children have discovered that the property is hard to sell and that the exclusion from the pool of potential buyers of young families looking for starter homes reduces the market value of age restricted homes by more than $25,000 in south Florida. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University (954) 262-6151 (voice) Shepard Broad Law Center (954) 262-3835 (fax) [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel On Wed, 4 Jan 2006, Rick Duncan wrote: > Here is a fun religious liberty/con law issue from my Property course > syllabus. We read Moore v. City of East Cleveland, the SDP case in which the > Court struck down a restrictive zoning ordinance that defined single family > residential use in a way which prohibited a grandmother from living with her > two grandsons (from separate branches of her family tree). You all know the > case. > > Well, suppose that instead of a restrictive zoning ordinance (which, > of course, would be unconstitutional under Moore), Mrs. Moore was sued > by a HOA to enforce a running covenant restricting her use of her own > home to single family residential purposes only (with "single family" > defined very restrictively as in Moore). Suppose futher that she took > her two grandsons into her home following the deaths of their > respective parents, and that she sincerely believes that her religious > faith requires her to raise her otherwise homeless grandchildren. > > Assume that, under the state law of covenants running with the land, > the state courts would enforce the covenant and order Mrs. Moore to > evict one of her grandsons as an "illegal occupant." > > Is there sufficient state action to trigger SDP under the 14th > Amendment? Does Shelley apply to all cases involving restrictive > covenants (including single faimly restrictions as above and > speech-restricting covenants such as those prohibiting large C-band > satellite dishes and outside antennas). > > Does RLUIPA protect her right to obey her religious conscience > against the substantial burden imposed upon her free exercise by the > law of running covenants under RLUIPA's definition of land use > regulations. > > I swear, the Property class could be taught in large part as a > religious liberty/con law class! > > Rick Duncan > > > > > > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > > "When the Round Table is broken every man must follow either Galahad or > Mordred: middle things are gone." C.S.Lewis, Grand Miracle > > "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or > numbered." --The Prisoner > > > > --------------------------------- > Yahoo! Photos > Ring in the New Year with Photo Calendars. Add photos, events, holidays, > whatever. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
