An antiquated, discriminatory zoning law prohibits more than two unrelated people from renting a house together.
A few months before the pandemic, we sat down with a group of friends, five in all, between our late 20s and early 40s, to talk about the possibility of renting a place together in Madison for the 2020-21 lease year. We all had different reasons for wanting to change our housing situations—anxiety about a non-renewal from a landlord, roommates who weren’t quite the right fit, breakups, locations that weren’t working for our career or personal needs—but we were all feeling the pressure of rising rents in Madison. None of us were related by blood, marriage, or even dating. It just sounded like a good way to save on rent and go into it with roommates we knew we’d like. Renting an apartment solo, or even splitting it two or three ways, is getting harder and harder to afford, as Madison confronts a housing shortage and the vast implications of outdated visions of what the city should be.
Little did we know back in 2019 that we were conspiring to violate city law. An ordinance the Madison Common Council adopted in 1966 defines a “family” as “an individual, or two (2) or more persons related by blood, marriage, domestic partnership, or legal adoption, living together as a single housekeeping unit, in a dwelling unit, including foster children,” though city ordinance does carve out some exceptions for roomers, children, group homes of people with disabilities, and so on. The implication for renters is that, depending on the zoning of an area, it might be technically illegal for more than two unrelated people to live in an apartment together. Restrictions are also tougher for renters than for people who own homes. In our scenario, if one of us had been able to buy a home, it would have been legal for us to live together, but as renters, it would be illegal in most residential districts to share a home.
A proposal working its way through the City of Madison’s planning bodies and eventually the Common Council would change this requirement, allowing five unrelated adults and their children to share a home together, and apply this standard to renter- and owner-occupied housing alike. This would give renters—who are more likely than homeowners to be low-income earners and people of color—greater flexibility to divide up burdensome housing costs, and strip from the books an archaic, backward, selectively enforced law rooted in the United States’ long and gruesome history of discriminatory housing practices. It’s a modest but necessary step forward for a city that needs to ease the untenable strain on renters and add more affordable housing.
Madison’s Plan Commission is slated to take up the proposal at a February 13 meeting, which will be held online at 5:30 p.m, and then the Common Council will address the proposal on February 28.
The (distracting) specter of students
Like the recent and related debate over transit-oriented development policy, the family definition proposal has activated the grievances of affluent homeowners and prompted them to make a lot of exaggerated, misleading claims. Chief among them, in public comment at meetings and on a sketchy anonymous website, is the notion that college students will take advantage of the proposed change by banding together to rent more houses, and that this will “displace current non-student residents” while driving up housing costs.
Opponents’ fearmongering about a student invasion is beneath serious debate, but let’s unpack it, if only to demonstrate the low quality of arguments one hears these days from Madison homeowners defending their high quality of life. For undergrads to come in and take over a current single-family home neighborhood with five-student households, they’d need a lot more than this ordinance change going for them. These properties’ current owners would need to decide to start renting them, or sell them to someone interested in doing that. The economics of these properties would have to work out such that low- or middle-income students could afford to rent them (not a guarantee, even with the benefit of splitting costs). Or they’d have to be enticing enough for students with more money to choose them over the student-oriented luxury apartments that have (unfortunately) already exploded closer to campus. Landlords and home sellers further from campus would probably have to make a conscious choice to market these homes to the student population, so that would have to be more beneficial somehow than selling or renting them to other demographics, which is hardly a guarantee. Developers and landlords closer to campus would have to fail to compete for these students’ business by offering better deals and amenities and/or offering deals on rent.
This argument is a distraction. If students benefit from the City lifting a discriminatory restriction, that’s actually great; so will other Madisonians who come up against economic barriers and racial inequity in their search for housing.
The neighborhoods with the greatest opposition to this change are already some of the most expensive in the city. Homes currently for sale in Dudgeon Monroe, Vilas, Greenbush, and Wingra Park range between $625,000 and $1.3 million for a 4 bedroom home. They’re not your typical target neighborhoods for student housing. UW-Madison undergrads are a smart bunch, but likely very few of them have the time, money, and energy to hollow out your neighborhood of expensive homes. Most of them are perfectly decent neighbors, too, by the way.
Note that the opposition to the change often scapegoats students directly, not the abjectly screwed-up housing market those students have to contend with, and not the ongoing neoliberalization of public universities like UW-Madison that makes it harder for students to meet their needs without a lot of family help. Like many a campus-area slumlord, these opponents treat college students not as neighbors worthy of respect, but as an undesirable population to be herded, exploited, and preferably kept out of sight, even as their tuition and labor helps to fuel one of the main economic engines of the city and indeed the whole state.
Inherently discriminatory
Opponents also say they invoke their concerns on behalf of all residents and claim the threat also applies to low-and middle-income residents and people of color. But in fact, the areas where the current restrictions on non-related renters apply tend to be higher-income areas of the city. Whatever the intent of a given person opposing this change, the result of the current restrictions is to uphold housing practices that protect the interests of wealthy homeowners at the expense of struggling renters (again, a far more diverse group). The discriminatory nature of the rule is reason enough to get it off the books, and fast.
The state of Wisconsin grants zoning powers to municipalities to regulate the “physical development of the city,” including building height and size, density, and uses of structures (i.e. “trade, industry, mining, residence”). Controlling who uses which residential structures was not part of the original purpose of zoning laws, but the property-owning class seems to have a way of exploiting well-intentioned laws for their self-interest, which is why exclusionary zoning practices like racial redlining and family definitions have been used to stop “undesirable” populations from moving into single-family neighborhoods. The proposed change, however, does not impact how a single-family home would be used, it simply changes who could gain access to living there.
The fact that the current ordinance doesn’t relate to use, but is more about who, is an indicator that it is designed to be discriminatory. While more explicit restrictions against poor people, young people, unmarried people, or students living in certain homes would certainly violate fair housing laws, these thinly-veiled discriminatory ordinances seem to fly under the legal radar. Still, one could argue it does violate city protections based on marital status, income, as well as student status. It actually could be cause for a lawsuit. Some municipalities’ family definitions have been struck down by courts in various locations around the US, and the Attorney General of Wisconsin in 1974 wrote an opinion that these ordinances “are of questionable constitutionality” under the Fourteenth Amendment. It’s discriminatory enough that housing is so gosh-darned expensive—do we really need unjust zoning ordinances on top of the price tag?
Public comments opposing the change seem to mostly come from homeowners on the near-west side who were lucky enough to buy a home at the right time, and can’t fathom the actual reality of the housing market today for those with low or modest incomes. One such resident who wrote to alders in opposition to transit-oriented development as well as changes to occupancy limits asserted “we bought our modest home […] in the Dudgeon Monroe neighborhood because we wanted to live in an urban neighborhood of single family homes,” and that the proposed changes would destroy the character of their neighborhood and hurt homeowners. According to public records accessible through the city’s property assessor website, they bought their “modest” home in 1992 at $89,900 ($193,208 in today’s dollars). Zillow currently estimates a potential sale price at $617,000.
Using a mortgage calculator and inflation calculator, we estimated that a family with an income of $29,897 ($64,253 in today’s dollars) could have afforded that home in 1992, with a 20% downpayment of $18,000 ($38,685 in today’s dollars). At that time, it really was a modest home, affordable to a family of four who would be considered “low income” in 1992 according to HUD. When the current owners decide to sell this home, if they sell at market rate, they will have won the housing lottery, so to speak, while someone making a modest income today will no longer be able to buy in that neighborhood.
To afford to buy this home at $617,000 today, a family would have to make at least $138,737 per year (20% above the median for a family of four) and have $123,400 laying around for a 20% down payment. Who has that kind of money? Saving $123,400 in cash is nearly impossible for the majority of people now unless it’s inherited, accumulated from property ownership, or saved over time with combined household incomes several times higher than $138,737. Of course, to bring the kind of cash to the table a home like this would require, we’re likely to see these homes bought by older, wealthier couples, who no longer have school-aged children. Should we consider occupancy minimums that stop one retired rich couple from buying a five-bedroom house and wasting extra bedrooms?
To afford buying or renting homes in a desirable city like Madison these days, most people need multiple incomes. Zoning laws restricting who is able to combine their incomes to live in a single-family home are exclusionary to low-income people and those without accumulated wealth, students or not. Reducing the legal restrictions on who can live where actually takes an expensive house that is currently only affordable to higher incomes and brings it down to a more affordable segment of the housing market, which could potentially be more impactful on rental prices throughout the city than adding high-end new units.
Restricting what’s already reality
It’s becoming fairly commonplace for adults to share housing costs, and to marry and/or have children later in life (or never). This isn’t just about undergraduates, or even undergraduates and millennials. It also impacts seniors struggling with their housing costs, and homeless people temporarily “doubling up” with friends or family (who often outnumber the more visible population of homeless people), not to mention people of all ages and circumstances struggling with increased costs and stagnant incomes. Beyond the obvious financial reasons to split housing costs among more people, the forced social construct of the nuclear family is not for everyone. Different structures of family and household, while hardly new in human history, are catching on in America. Multi-generational housing, co-housing developments, housing cooperatives (which have a long history in Madison), polycules, “chosen family,” intentional community, or just a bunch of friends splitting a house—whatever the specifics or terminology, a growing number of people find more rewarding, supportive lives in these arrangements.
Which brings us to the reality that a lot of households in Madison are likely already violating the current rules, don’t know about it, and won’t get in trouble for it. (Which is fine, considering that they are managing not to trigger all the catastrophic effects opponents of the family definition change predict.) The City only enforces these rules selectively, when someone raises a complaint about a specific tenant or property. In other words, it’s easy enough to do this anyway unless the neighborhood busybody rats you out.
This creates the clear potential for people to abuse the existing family definition, whether for blatantly discriminatory reasons or petty spite. During a February 2 City staff presentation, zoning administrator Katie Bannon described how one resident reporting a suspected family-definition violation obsessively tracked the comings and goings of their neighbors, going so far as to note when visitors showed up and left and write down license-plate numbers of all vehicles parking at the house. Bannon also pointed out that landlords have used the threat of the restrictions to discourage renters from reporting problems to local officials.
The current restrictions can also put homeowners in an absurd position, should they choose to consider factors beyond the frankly ugly war for neighborhood “character” and preservation of the divinely granted “right” to own a single-family home. Say you buy a five-bedroom house (note that this is massively theoretical for a lot of Madison residents in our age range) and live in it, then rent the bedrooms to your friends. But then if you got another property and decided to move out and let your friend-tenants stay, their housing situation would suddenly become illegal. That is, unless they get married.
Under the proposed change, some homeowners could gain some flexibility. What if you want to move away and can afford to keep that house and rent it out? Well, you’re in luck! A bunch of middle-class childless professionals will be allowed to rent it from you now. So this change is far from all bad, or even, well, just bad, for homeowners in general. And there are other tools for addressing the more reasonable concerns homeowners have brought up in their opposition, including overly loud neighbors (we have existing ordinances for this), out-of-control real-estate speculation (already happening, still going to happen whether or not this particular change passes), unscrupulous landlords (it would be nice for homeowners en masse to show an interest in that issue when they’re not trying to hinder progress toward density and affordability, wouldn’t it?), and so on.
If folks are concerned about affordability and out-of-state landlords, we’d love to see more pressure on the Mayor’s office and Council for a more comprehensive and stronger housing strategy to increase and preserve affordable housing around the City. And since your home values have gone up so much, consider selling your house (when you’re ready) under market value to the local community land trust (where, full disclosure, Olivia is executive director) to preserve its affordability for low-income homeowners in perpetuity. Zoning is a limited tool for increasing affordability, but eliminating old exclusionary zoning ordinances is still important and necessary for a more just city.
Our little group-rental experiment back in 2019 and early 2020 petered out after a few months of conversation. Life and the pandemic intervened, to say the least. The scarce number of housing units big enough for all of us to rent together (ahem) in our broad search area proved to be quite an obstacle too. Still, during those few months we scoured listings, got to know each other a little better, talked about how we might like to live, and traded notes on our past experiences with various landlords. We didn’t end up creating the little utopian household of our dreams, but if nothing else it made the apartment hunt feel less lonely and desperate for a while. Under different circumstances, we could have created a really nice living situation and reduced everyone’s financial stress. It’s not such a wild idea. There’s ultimately no good reason for City housing policy to stand in the way.
