Johnson County city can restrict roommates: Judge dismisses suit over controversial law

A federal judge has sided with Shawnee, dismissing a lawsuit over the city’s controversial co-living ban, which limits how many unrelated people can live together.

David Deerson, an attorney with the Pacific Legal Foundation representing the property management company suing the city, told The Star he plans to appeal the ruling to the U.S. Court of Appeals for the 10th Circuit.

The city adopted the ordinance last year, prohibiting more than three unrelated people from living together in a single residence. The city only allows more people to live together if they are blood relatives or related by marriage, adoption or guardianship. The ordinance says if one resident is not related to anyone in their household, then the entire household is considered unrelated.

City Council members last year argued that the ordinance aimed to crack down on arrangements where co-living has turned into a commercial enterprise, with homeowners collecting rent as if their single-family homes were apartments. But the idea was met with widespread criticism, as communal living has gained popularity in recent years due to soaring rent and home prices.

Property management company HomeRoom Inc. in May filed a federal lawsuit against the city, looking to overturn the ordinance, saying it violates residents’ rights. According to its lawsuit, the company aims to provide a solution to the lack of affordable housing, connecting property owners with people seeking roommates.

HomeRoom opened two homes in Shawnee before the city adopted the co-living ban. The lawsuit claims HomeRoom was forced to evict unrelated tenants, and now only subleases homes to blood-related families.

Homeowner Val French also joined in suing the city, arguing that the ordinance rendered her living situation unlawful. Last year, French shared her home with her husband, two adult sons and a son’s girlfriend. Because the girlfriend is not related to them, the lawsuit says, the living arrangement was no longer legal.

Attorneys for HomeRoom argued that the ordinance violates residents’ constitutional rights, and that the city’s classification of who can be allowed as a “co-living group” is discriminatory and arbitrary.

But early on in litigation, U.S. District Court Judge Holly Teeter has sided with the city, granting its motion to dismiss the case.

Shawnee spokesman Doug Donahoo told The Star the city is “pleased” with the ruling.

The judge ruled that as a corporation, HomeRoom does not have standing to assert constitutional claims on behalf of its tenants. She also found that the ordinance does not violate due process and equal protection under the 14th Amendment. Much of her decision was based on a 1974 U.S. Supreme Court decision in Village of Belle Terre v. Boraas, which held that a zoning ordinance restricting the number of unrelated people from living together does not violate the Constitution.

Deerson said he expected an “uphill argument” with the court due to the Belle Terre case.

“But there have been a lot of developments in the law since then,” he said. “And that case itself is limited and has been maligned by the academic community. And there have been other developments in related areas of the law that really strongly indicate there is a fundamental right to certain kinds of private intimate associations. And the choice of your living companions is the perfect candidate for that right.”

Deerson has maintained that the Constitution protects the right of people to freely choose their living companions. And his argument has relied on more recent case law, addressing the right to intimate association.

“That Supreme Court precedent is out of date. It’s obsolete and it’s time for it to be overturned,” he said. “The district court can’t do that. The 10th Circuit can’t do it either, but when we get the 10th Circuit’s analysis, the key question is, is there a fundamental right to freely select your living companions?

“Other courts say there is. If the 10th Circuit says there is, that would be fantastic. But if it doesn’t and goes the same way as the district court, then you’ve got federal appellate courts disagreeing about this. And that’s when it’s time for the Supreme Court to come in and clarify.”

In her ruling, Teeter wrote that, “Plaintiffs have a right to argue for a change in the law, but Belle Terre remains good law and is binding authority this Court must follow.”

The judge also declined to rule on another claim from the plaintiffs, which argued that the ordinance exceeded the city’s authority in adopting zoning regulations. A matter of state law, Teeter said that issue would be best left up to a state court.