               IN THE SUPREME COURT OF IOWA
                            No. 38 / 05-0463

                           Filed July 27, 2007

AMES RENTAL PROPERTY
ASSOCIATION,

      Appellant,

vs.

CITY OF AMES,

      Appellee.


      Appeal from the Iowa District Court for Story County, William J.

Pattinson, Judge.



      Landlord group appeals district court decision holding city’s zoning

ordinance does not violate equal protection. AFFIRMED.



      Thomas G. Fisher, Jr. of Parrish Kruidenier Moss Dunn Boles

Gribble Cook & Fisher, L.L.P., Des Moines, for appellant.



      Kirke C. Quinn of Jordan & Quinn, P.C., Boone, and John R.

Klaus, City Attorney, Ames, for appellee.
                                          2

STREIT, Justice.

       In an effort to stem the flow of students into residential areas,

Ames, the home of Iowa State University, passed a zoning ordinance

which only permits single-family dwellings in certain areas of the city.

For purposes of the ordinance, a “family” is any number of related

persons or no more than three unrelated persons. A landlord association

brought a declaratory judgment against the City claiming the ordinance

violates the equal protection clauses of the United States Constitution

and the Iowa Constitution.             The district court granted summary

judgment in favor of Ames because it found the ordinance was rationally

related to a legitimate government interest. We affirm.
       I.     Facts and Prior Proceedings

       Ames     Rental    Property    Association     (hereinafter    ARPA)     is   a

corporation comprised of people who own residential real estate within

the city limits of Ames. The members’ properties include various houses

located within areas the City has zoned for single-family dwellings. While

many of these houses are sufficiently large to comfortably accommodate

more than three people, section 29.201(62) of the Ames Municipal Code

operates to prohibit ARPA members from leasing a given house,

regardless of its size, to more than three unrelated persons.

       Chapter 29 of the Ames Municipal Code is a comprehensive and

detailed zoning ordinance enacted by the city in April 2000 to regulate

the use of real estate within the City’s boundaries.             Section 29.701(1)

restricts use of property in areas designated “residential low density”

zones to “primarily single family dwellings.” 1



       1A two-family dwelling, i.e., a building that contains two dwelling units, each

designed for separate and independent occupancy, is allowable in residential low-
                                             3

       Section 29.201(51) defines a single-family dwelling as “any building

consisting of no more than one dwelling unit, designed for and occupied

exclusively by one family.” The term “dwelling unit” is defined as “any

building or a portion thereof which contains living facilities, including

provisions for sleeping, eating, meal preparation and a bathroom.” 2

Ames Mun. Code § 29.201(54).

       The controversy in this case focuses on the definition of “family” as

provided by section 29.201(62). A “family” means:

       [A] person living alone, or any of the following groups living
       together as a single nonprofit housekeeping unit and sharing
       common living, sleeping, cooking, and eating facilities:

       (a)     Any number of people related by blood, marriage,
               adoption, guardianship or other duly-authorized
               custodial relationship;

       (b)     Three unrelated people;

       (c)     Two unrelated people and any children related to
               either of them;

               ....

(Emphasis added.)

       ARPA members have been cited with violating the zoning ordinance

for renting houses to more than three unrelated persons.                        Members’

tenants have also been cited.

       In February 2004, ARPA filed a declaratory judgment in Story

County. It requested Ames Municipal Code section 29.201(62), defining

“family” for purposes of determining the use of houses within a “single

________________________
density zones if it preexisted the enactment of chapter 29.         See Ames Mun. Code
§§ 29.201(53), .701(2).

       2Excepted   from this definition are “hotels, manufactured homes, nursing homes,
residential corrections facilities, rooming houses, sororities or fraternities, or supervised
group homes.” Ames Mun. Code § 29.201(54).
                                    4

family” zoning district, be declared in violation of the equal protection

clauses and the takings clauses of the Iowa Constitution and the United

States Constitution. Ames denied ARPA’s allegations.

      Ames filed a motion for summary judgment.        The district court

granted Ames’s motion and dismissed ARPA’s petition. ARPA appealed.

      On appeal, ARPA asserts only its equal protection claim under

both the Iowa and United States Constitutions.

      II.    Scope of Review
      Summary judgment is appropriate if there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of

law. Tetzlaff v. Camp, 715 N.W.2d 256, 258 (Iowa 2006) (citing Keokuk

Junction Ry. v. IES Indus., Inc., 618 N.W.2d 352, 355 (Iowa 2000)). ARPA

acknowledges there are no facts in dispute. Thus, on review we must

determine whether the district court correctly applied the law. Diggan v.

Cycle Sat, Inc., 576 N.W.2d 99, 102 (Iowa 1998) (citing Putensen v.

Hawkeye Bank, 564 N.W.2d 404, 407 (Iowa 1997)).               We review

constitutional claims de novo. Grovijohn v. Virjon, Inc., 643 N.W.2d 200,

202 (Iowa 2002).

      III.   Merits

      A.     Federal Constitution

      ARPA argues Ames’s zoning ordinance violates both the Iowa and

Federal Constitutions.   However, the Supreme Court has examined a

more restrictive ordinance and held it did not violate the United States

Constitution. Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S. Ct.

1536, 1541, 39 L. Ed. 2d 797, 804 (1974) (holding a zoning ordinance

limiting occupancy of single-family homes to any number of related

persons or not more than two unrelated persons does not offend the
                                          5

Equal Protection Clause of the United States Constitution). Undeterred,

ARPA argues the Supreme Court will likely overturn Belle Terre if given

the opportunity to do so. We will not be so presumptuous as to predict

how the Supreme Court would rule if presented with this case.                   Belle

Terre is still good law.      Ames’s zoning ordinance does not violate the

Equal Protection Clause of the United States Constitution.

       B.     Iowa Constitution

       Nevertheless, we must still consider the ordinance under the Iowa

Constitution.       While the Supreme Court’s judgment under the federal

Equal Protection Clause is persuasive, it is not binding on this court as

we evaluate the City’s ordinance under the Iowa Constitution.                 Racing

Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 5 (Iowa 2004).
       The Iowa Constitution guarantees “[a]ll laws of a general nature

shall have a uniform operation; the general assembly shall not grant to

any citizen, or class of citizens, privileges or immunities, which, upon the

same terms shall not equally belong to all citizens.” Iowa Const. art. 1,

§ 6.   This provision “means similarly situated persons must receive

similar treatment under the law.”             Grovijohn, 643 N.W.2d at 203-04

(citations omitted).

       The first step of an equal protection claim is to identify the classes

of similarly situated persons singled out for differential treatment. Id. at

204.   Here, the classes are related persons versus unrelated persons

living in Ames’s single-family zones.            ARPA members allege Ames’s

ordinance violates the rights of their tenants and would-be tenants to

equal protection. 3


       3Normally, a party may only assert his own rights. Krull v. Thermogas Co., 522
N.W.2d 607, 614 (Iowa 1994). However, there is an exception to this general rule where
the challenger’s interest is as great as the persons whose rights are alleged to be
                                          6

       If the claimed dissimilar treatment does not involve a suspect class

or a fundamental right, any classification made by the statute need only

have a rational basis. Id. ARPA concedes “[t]he district court properly

concluded that the rational basis test should be applied.”                 See Belle

Terre, 416 U.S. at 6–7, 94 S. Ct. at 1539–40, 39 L. Ed. 2d at 802–03

(finding zoning ordinance limiting number of unrelated persons per

household involved neither a suspect class nor a fundamental right);

State v. Seering, 701 N.W.2d 655, 664 (Iowa 2005) (stating freedom of

choice in residence “is not a fundamental interest entitled to the highest

constitutional protection”).
       Under the rational basis test, we must determine whether the

ordinance in question is rationally related to a legitimate governmental

interest.   Racing Ass’n of Cent. Iowa, 675 N.W.2d at 7–8.               Under this

deferential    standard,     the   zoning     ordinance     is   valid   unless    the

relationship between the classification and the purpose behind it is so

weak the classification must be viewed as arbitrary or capricious. Id. at

8. A statute or ordinance is presumed constitutional and the challenging

party has the burden to “negat[e] every reasonable basis that might

support the disparate treatment.”             Id.   The City is not required or

expected to produce evidence to justify its legislative action. Heller v. Doe
________________________
violated. Id. Here, ARPA members have a legitimate interest in Ames’s ordinance
because they are being fined for violating the ordinance and presumably the ordinance
makes the homes more difficult to rent. A direct economic injury through constriction
of the market and imposition of sanctions is a sufficient injury to satisfy standing.
Craig v. Boren, 429 U.S. 190, 194, 97 S. Ct. 451, 455, 50 L. Ed. 2d 397, 405 (1976)
(holding bar owner had standing to challenge state statute prohibiting males under the
age of twenty-one from buying 3.2% beer while permitting the sale to women ages
eighteen years and older because the bar owner incurred a “direct economic injury”).
Thus, ARPA members have standing in representative capacity to raise the potential
rights of unrelated persons affected by Ames’s ordinance. Krull, 522 N.W.2d at 614; see
also Sierra Club v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 1368, 31 L. Ed. 2d 636,
645 (1972) (stating an organization whose members are injured may represent those
members in a lawsuit).
                                     7

by Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 2643, 125 L. Ed. 2d 257,

271 (1993). “A legislative judgment is presumed to be supported by facts

known to the [city counsel], unless facts judicially known or proved

preclude that possibility.” Egan v. United States, 137 F.2d 369, 375 (8th

1943) (citations omitted).

      In the context of zoning, legitimate government interests include

“promoting the health, safety, morals, or the general welfare of the

community.” Iowa Code § 414.1 (2003).       Here, Ames articulated several

bases for the zoning ordinance: “promot[ing] a sense of community,

sanctity of the family, quiet and peaceful neighborhoods, low population,

limited congestion of motor vehicles and controlled transiency.” In Belle

Terre, the Supreme Court found similar interests valid:

      The police power is not confined to the elimination of filth,
      stench, and unhealthy places. It is ample to lay out zones
      where family values, youth values, and the blessings of quiet
      seclusion and clean air make the area a sanctuary for
      people.

Belle Terre, 416 U.S. at 9, 94 S. Ct. at 1541, 39 L. Ed. 2d at 804. We

agree governing bodies have a legitimate interest in promoting and

preserving neighborhoods that are conducive to families—particularly

those with young children. See Moore v. City of E. Cleveland, 431 U.S.

494, 503, 97 S. Ct. 1932, 1938, 52 L. Ed. 2d 531, 540 (1977) (noting the

Supreme Court’s prior decisions established the Federal Constitution

“protects the sanctity of the family precisely because the institution of

the family is deeply rooted in this Nation’s history and tradition”);

Callender v. Skiles, 591 N.W.2d 182, 191 (Iowa 1999) (acknowledging

“promoting the sanctity and stability of the family” is a legitimate

government interest). Quiet neighborhoods with a stable population and

low traffic are laudable goals. Ames’s objectives are therefore valid.
                                          8

       Next, we must determine whether the City’s objectives are

“rationally related” to the zoning ordinance in question. ARPA argues the

ordinance “does not address the purposes relied upon by the city.” ARPA

explains:

       [A]ny legitimate goal that the City seeks to achieve can be
       achieved by a narrower, more direct ordinance.            The
       ordinance as it is presently adopted is under-inclusive
       because it allows related individuals to live in large numbers
       in small areas and create noise, litter, and use or park an
       excessive number of cars. At the same time it is over-
       inclusive because it prohibits unrelated residents who might
       live in quite reasonable numbers for the square footage of
       the house and not create noise, litter, and may not use or
       park an excessive number of cars.

       However, under the rational basis test, we do not require the

ordinance to be narrowly tailored.             “If the classification has some

‘reasonable basis,’ it does not offend the constitution simply because the

classification ‘is not made with mathematical nicety or because in

practice it results in some inequality.’ ”         Scott County Prop. Taxpayers

Ass'n, Inc. v. Scott County, 473 N.W.2d 28, 31 (Iowa 1991) (quoting

United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 175, 101 S. Ct.

453, 459, 66 L. Ed. 2d 368, 376 (1980)). For legislation to be violative of

the Iowa Constitution under the rational basis test, the classification

must involve “extreme degrees of overinclusion and underinclusion in

relation to any particular goal.” Racing Ass’n of Cent. Iowa, 675 N.W.2d

at 10 (emphasis added).

       This requires more than imagining extreme examples of groups of

people who do or do not offend the goals of the zoning ordinance. Sure,

the ordinance would allow the Beverly Hillbillies 4 to live in a single-family

       4The  Beverly Hillbillies was a popular sitcom on CBS from 1962 through 1972.
The show’s main character was an Ozarks mountaineer who struck it rich upon the
discovery of oil on his land. Thereafter, he moved to Beverly Hills with his mother-in-
                                          9

zone while prohibiting four judges from doing so.                However, neither

hypothetical is typical of reality. 5 City counsel members are permitted to

legislate based on their observations of real life.

       In the present case, we find the relationship between the ordinance

and the City’s goals is neither arbitrary nor capricious. Quite candidly,

Ames states “[i]t cannot be ignored that Ames is a university campus city

and, therefore, experiences typical secondary effects of mass student

congestion.” 6 Based on its experience with students living off campus,

the Ames city council made a reasonable policy decision to limit to three

the number of unrelated persons who may reside in a single-family

dwelling in certain areas. It did so because groups of unrelated persons

typically have different living styles in comparison to groups of related

persons. See Dinan v. Bd. of Zoning Appeals, 595 A.2d 864, 870 (Conn.

1991) (noting a group of college students is less likely to become involved

in the neighborhood and community in comparison to a typical family

because of its short-term living arrangement).            For example, although

related persons may live together in large numbers, they normally live

together in a more permanent status and remain in one place for a longer

period of time.     In contrast, groups of unrelated persons typically live

________________________
law, his daughter, and his nephew.     High jinks ensued when the clan refused to
conform to privileged society.

       5Offeringexamples of overinclusion and underinclusion, ARPA stated “a fifteen-
member family could live in a tiny one-bedroom house with fifteen cars parked in the
streets and driveways, while four unrelated people cannot live in a fifteen bedroom
house with no cars at all.”

       6Many   of the cases addressing similar ordinances involve college towns. See
State v. Champoux, 555 N.W.2d 69 (Neb. Ct. App. 1996) (Lincoln, Nebraska, home of the
University of Nebraska); Town of Durham v. White Enters., Inc., 348 A.2d 706 (N.H.
1975) (Durham, New Hampshire, home of the University of New Hampshire); City of
Brookings v. Winker, 554 N.W.2d 827 (S.D. 1996) (Brookings, South Dakota, home of
South Dakota State University); Anderson v. Provo City Corp., 108 P.3d 701 (Utah 2005)
(Provo, Utah, home of Brigham Young University).
                                            10

together as roommates. Such arrangements are relatively short term and

normally involve young adults. These persons tend not to establish roots

in the community nor do they provide playmates for their neighbors’

children.     Moreover, large numbers of young adults living together

typically attract friends, which create additional noise and traffic.                 By

limiting the number of unrelated persons who may live together, Ames’s

ordinance      furthers     the    City’s    goal    of   creating     family-oriented

neighborhoods that are safe and quiet for young children.                     It is also

reasonable for the city council to conclude density will be lessened by the

ordinance.      Therefore, Ames’s ordinance does not violate the equal

protection clause of the Iowa Constitution. 7




       7See   Jones v. Wildgen, 320 F. Supp. 2d 1116, 1131–32 (D. Kan. 2004) (holding
statute prohibiting more than three unrelated persons from renting home in single-
family zoning district does not violate the Equal Protection Clause of the United States
Constitution); Rademan v. City & County of Denver, 526 P.2d 1325, 1327–28 (Colo.
1974) (holding ordinance restricting certain areas of the city to single-family occupancy
does not violate the Equal Protection or Due Process clauses of the Federal
Constitution); Dinan, 595 A.2d at 871 (holding ordinance which allows any number of
related persons to occupy a home and up to two roomers in addition to the family of an
occupant does not violate the equal protection or due process clauses of the
Connecticut Constitution); Hayward v. Gaston, 542 A.2d 760, 770 (Del. 1988) (holding
ordinance which prohibits more than four unrelated persons from living together in
single-family residential zone does not violate the Equal Protection Clause of the Federal
Constitution); Champoux, 555 N.W.2d at 74 (holding ordinance limiting to three the
number of unrelated persons who may live together does not violate the due process
clause of the Nebraska Constitution or the rights of association and privacy provided by
the Federal Constitution); Town of Durham, 348 A.2d at 709 (holding ordinance which
restricts the number of unrelated persons who may live in different classes of dwelling
units based on habitable square footage is constitutional); City of Brookings, 554
N.W.2d at 831–32 (holding ordinance which prohibits more than three unrelated adults
to occupy a dwelling unit does not violate either equal protection or due process clauses
of the South Dakota Constitution); see also Anderson, 108 P.3d at 710 (holding zoning
ordinance which allows property owners in some single-family zoning residential zones
near university campus to rent accessory apartments (located in basement or upper
floors) to up to four related or unrelated individuals on condition owner resides in
primary dwelling does not violate owners’ constitutional right to equal protection or
right to travel, and is not an invalid restraint on alienation).
                                           11

       Certainly this ordinance is imprecise and based on stereotypes.

Nevertheless, it is a reasonable attempt to address concerns by citizens

who fear living next door to the hubbub of an “Animal House.” 8

Significantly, the ordinance is not limited to college students nor does it

bar them from living in single-family zones.                 The City’s definition of

“family” is quite flexible and expansive enough to encompass unmarried

couples and groups of three unrelated persons.                   See Champoux, 555

N.W.2d at 74 (noting ordinance prohibiting four or more unrelated

persons from living together “is expansive enough to allow numerous

other household relationships in addition to that of the traditional

family”). Other cases striking down ordinances which limit the number

of unrelated persons who may live together have done so applying other

constitutional provisions, using a heightened level of scrutiny, or

addressing a more restrictive ordinance. 9               ARPA only challenges the

       8See  Animal House (Universal Pictures 1978) (depicting the hilarious missteps
and misdeeds of the Delta House fraternity members at Faber College). The City’s
definition of “family” specifically excludes “[a]ny society, club, fraternity, sorority,
association, lodge, . . . or like organization.” Ames Mun. Code § 29.201(62)(e)(i)(a).

       9See  City of Santa Barbara v. Adamson, 610 P.2d 436, 442 (Cal. 1980) (holding
ordinance limiting to five the number of unrelated people who may live in single-family
zones violates fundamental right to privacy under the California Constitution); College
Area Renters & Landlord Ass’n v. City of San Diego, 50 Cal. Rptr. 2d 515, 520 (Ct. App.
1996) (holding zoning ordinance which limited the number of adult occupants of a
rented one-family dwelling based on square footage of bedroom areas, the number and
size of bathrooms, and the amount of off-street parking violates the equal protection
clause of the California Constitution because the ordinance makes an irrational
distinction between tenant-occupants and owner-occupants); Charter Twp. of Delta v.
Dinolfo, 351 N.W.2d 831, 841 (Mich. 1984) (holding ordinance which limits the
occupation of a single-family residence to two unrelated persons or any number of
related persons violates the due process clause of the Michigan Constitution); State v.
Baker, 405 A.2d 368, 369–70 (N.J. 1979) (holding zoning ordinance which allows any
number of related persons to live together in a single-family home or not more than four
unrelated persons violates right to privacy and due process under the New Jersey
Constitution because the distinction between related and unrelated persons does not
bear a substantial relationship to the effectuation of the city’s goal of preserving family
character of neighborhood); McMinn v. Town of Oyster Bay, 488 N.E.2d 1240, 1243
(N.Y. 1985) (holding single-family zoning ordinance allowing any number of related
persons to live together or not more than two unrelated persons who both must be 62
years of age or older violates due process clause of the New York Constitution).
                                    12

ordinance on equal protection grounds and agrees rational basis is the

proper standard.     See Racing Ass’n of Cent. Iowa, 675 N.W.2d at 5

(applying the same analysis under the state equal protection provision as

applied under the federal equal protection clause but reserving the right

to employ a different analytical framework under state constitutional

provisions).

      ARPA may be correct that this ordinance will do little to further the

City’s goals. Nevertheless, it is the City’s prerogative to fashion remedies

to problems affecting its residents.      If the ordinance proves to be

ineffective, then the elected city counsel may change course and amend

or repeal it.     The court’s power to declare a statute or ordinance

unconstitutional is tempered by the court’s respect for the legislative

process. Under the rational basis test, we must generally defer to the

city counsel’s legislative judgment. The Supreme Court has said:

      The Constitution presumes that, absent some reason to infer
      antipathy, even improvident decisions will eventually be
      rectified by the democratic process and that judicial
      intervention is generally unwarranted no matter how
      unwisely we may think a political branch has acted. Thus,
      we will not overturn such a statute unless the varying
      treatment of different groups or persons is so unrelated to
      the achievement of any combination of legitimate purposes
      that we can only conclude that the legislature's actions were
      irrational.

Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 942–43, 59 L. Ed. 2d

171, 176 (1979); accord State v. Simmons, 714 N.W.2d 264, 277 (Iowa

2006).

      IV.      Conclusion

      We find Ames’s zoning ordinance, which allows an unlimited

number of related persons to live together while limiting to three the

number of unrelated persons in single-family zones, is rationally related
                                     13

to   the   government’s   interest   in   providing   quiet   neighborhoods.

Accordingly, it does not offend the equal protection clause of either the

Iowa Constitution or the United States Constitution.

      AFFIRMED.

      All justices concur except Wiggins, Hecht, and Appel, JJ., who

dissent.
                                     14

                 #38/05-0463, Ames Rental Property Ass’n v. City of Ames

WIGGINS, Justice (dissenting).

      I respectfully dissent.      I agree Ames Municipal Code section

29.201(62) does not violate the Equal Protection Clause of the United

States Constitution. However, I disagree with the majority’s conclusion

that the ordinance does not violate the equal protection clause of the

Iowa Constitution.

      The majority relies on Village of Belle Terre v. Boraas, 416 U.S. 1,

9, 94 S. Ct. 1536, 1541, 39 L. Ed. 2d 797, 804 (1974), to validate Ames’s

purpose behind legislating section 29.201(62).        However, it is the

exclusive prerogative of this court, not the United States Supreme Court,

to determine the constitutionality of Iowa statutes challenged under the

Iowa Constitution. Callender v. Skiles, 591 N.W.2d 182, 187 (Iowa 1999).

“[T]his court’s independent application of the rational basis test might

result in a dissimilar outcome from that reached by the Supreme Court

in considering the federal constitutional claim.”    Racing Ass’n of Cent.

Iowa v. Fitzgerald, 675 N.W.2d 1, 6 (Iowa 2004).         Even if the Iowa

Constitution and the United States Constitution are similarly or

identically   phrased   we   can   independently   consider   constitutional

arguments and decline to follow United States Supreme Court precedent.

Id. (citing William J. Brennan, Jr., State Constitutions and the Protection

of Individual Rights, 90 Harv. L. Rev. 489, 500 (1977)). “This result is

particularly possible in view of ‘the ill-defined parameters of the equal

protection clause.’ ”   Id. (quoting Miller v. Boone County Hosp., 394

N.W.2d 776, 781 (Iowa 1986)).

      In analyzing an equal protection challenge under the Iowa

Constitution we must first determine whether the Ames city council had
                                        15

a valid reason to treat related persons differently from unrelated persons

in its zoning ordinance.    Id. at 7.     In doing so, we must not only ask

whether the ordinance serves a legitimate government purpose, but also

whether the claimed state interest is realistically conceivable.              Id.

Second, we must decide whether the city’s claimed reason has a basis in

fact. Id. at 8. Lastly, we must consider whether the relationship between

the classification, i.e., the differences between related and unrelated

persons, and the purpose of the classification is so weak that the

classification must be viewed as arbitrary. Id.
      Under   the   Iowa    Constitution      we   employ    an    overinclusive-

underinclusive dichotomy analysis to determine whether legislation

survives rational basis scrutiny. Compare id. at 10 (finding the legislative

purpose behind a taxation provision cannot withstand rational basis

review   because    of    the   extreme      degrees   of   overinclusion    and

underinclusion), and Bierkamp v. Rogers, 293 N.W.2d 577, 584 (Iowa

1980) (finding a classification based on extreme degrees of overinclusion

and underinclusion cannot pass rational basis review), with Vance v.

Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 948, 59 L. Ed. 2d 171, 183

(1979) (demonstrating the United States Supreme Court’s tolerance for

laws that are overinclusive and underinclusive when conducting a

rational basis review).     If we find “a classification involves extreme

degrees of overinclusion and underinclusion in relation to any particular

goal,” then that provision fails rational basis review.           Bierkamp, 293

N.W.2d at 584; see also Racing Ass’n of Cent. Iowa, 675 N.W.2d at 10.

For reasons stated below, I find Ames’s zoning ordinance contains

extreme degrees of overinclusion and underinclusion. Accordingly, the

ordinance violates the equal protection clause of the Iowa Constitution.
                                     16

      As the majority states, Ames’s purpose in treating related persons

differently from unrelated persons is to “ ‘promot[e] a sense of

community, sanctity of the family, quiet and peaceful neighborhoods, low

population,   limited   congestion   of   motor   vehicles   and   controlled

transiency.’ ” Although Ames has a legitimate purpose in promoting the

quality and character of its neighborhoods, I cannot accept that

distinguishing between related and unrelated persons in a zoning law is

rationally related to the promotion of a sense of community, sanctity of

the family, quiet and peaceful neighborhoods, low population, limited

congestion of motor vehicles, and controlled transiency.
      Ames contends these interests will be advanced if groups of more

than three unrelated persons are not allowed to live in a home together.

However, the record is devoid of any evidence or argument that a group

of more than three related persons will portray different or desirable

behavior or living patterns than a group of more than three unrelated

persons.

      I find the ordinance regulates where no regulation is needed and

fails to regulate where regulation is needed.       The ordinance is both

overinclusive and underinclusive. Further, the degree to which this over-

and under-inclusiveness is present is extreme because it is irrational to

suppose the type of relationship persons residing in a home have to each

other has any rational bearing on the character or behavior of those

persons. See Charter Twp. of Delta v. Dinolfo, 351 N.W.2d 831, 841-42

(Mich. 1984) (holding with regard to a similar housing provision “[a]

greater example of over- and under-inclusiveness we cannot imagine”).

This irrationality and the extreme over- and under-inclusiveness of the
                                      17

ordinance is easily illustrated by examining family and societal dynamics

in the twenty-first century.
      Families today, especially ones with teenagers, are just as likely as

a group of unrelated persons to have numerous vehicles parked outside

their home.   In fact, in a college community like Ames, students, the

unrelated persons most targeted by the ordinance, are more likely to rely

on alternative means of transportation—public transportation, foot, or

bicycle—than a vehicle.        “Manifestly, restricting occupancy of single-

family housing based generally on the biological or legal relationships

between its inhabitants bears no reasonable relationship to the goals of

reducing parking and traffic problems, controlling population density

and preventing noise and disturbance.” McMinn v. Town of Oyster Bay,

488 N.E.2d 1240, 1243 (N.Y. 1985) (citing Moore v. City of East

Cleveland, 431 U.S. 494, 499-500, 97 S. Ct. 1932, 1935-36, 52 L. Ed. 2d

531, 537-38 (1977); City of Santa Barbara v. Adamson, 610 P.2d 436,

441 (Cal. 1980); State v. Baker, 405 A.2d 368, 373 (N.J. 1979)).
      Further, it is irrational to relate a peaceful neighborhood with a

neighborhood populated solely by families, or three or less unrelated

persons.   As another court has articulated under a similar ordinance,

“twenty male cousins could live together, motorcycles, noise, and all,

while three unrelated clerics could not.”       Charter Twp. of Delta, 351

N.W.2d at 841. Or, that an ordinance of this type would prohibit a group

of four unrelated “ ‘widows, widowers, older spinsters or bachelors or

even of judges’ from residing in a single unit within the municipality.”

Baker, 405 A.2d at 371 (quoting Kirsch Holding Co. v. Borough of

Manasquan, 281 A.2d 513, 517 (N.J. 1971)).
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      This ordinance also has no rational relationship to population

control. A family of any size can reside in a home in Ames, whereas only

three unrelated persons can live together. The majority does not cite to

any evidence that supports its conclusion that population “density will be

lessened by the ordinance.” Instead, it seems to this dissenter that it is

irrational and contradictory to find the ordinance, which allows one

group to house an unlimited number of related persons, would in any

way reduce the overall population density.
      Further, it is irrational to suppose this ordinance promotes a quiet

and peaceful neighborhood.       This ordinance does not distinguish

between a raucous family that plays loud music at their home, has large

parties at their home, and houses more vehicles than persons living in

their home, and a house of four single, quiet, homebodies whose only

knowledge of wild parties and loud music comes from watching

television. As another court summarizes, housing ordinances of this sort

create an irrational discrepancy in treatment because a tenant-occupied

house whose “residents happen to be the quiet, neat type who use

bicycles as their means of transportation” are subject to the ordinance;

“whereas the owner-occupied house is not subject to the ordinance, even

though its residents happen to be of a loud, litter-prone, car-collecting

sort.” Coll. Area Renters & Landlord Ass’n v. City of San Diego, 50 Cal.

Rptr. 2d 515, 521 (Cal. Ct. App. 1996).

      In today’s modern society families are more mobile, especially in a

college community, where professors, visiting professors, graduate

students, and administrators are frequently moving to new universities

to continue or further their studies and careers.       These university

families come in and out of Ames, yet under this ordinance their
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transitory nature is not a factor. See City of Des Plaines v. Trottner, 216

N.E.2d 116, 119 (Ill. 1966). The majority dismisses this fact and finds

students or other unrelated persons are the only transitory or mobile

residents in a university town.

         Instead of promoting families, this ordinance disadvantages those

most likely to live with roommates—the poor and the elderly. See Holy

Name Hosp. v. Montroy, 379 A.2d 299, 302 (N.J. 1977). The ordinance

distinguishes between acceptable and prohibited uses of property by

reference to the type of relationship a person has with those they live

with, not by the conduct of those that live in the residence.
         Ames claims it is promoting a sense of community with this

ordinance: But whose community is Ames promoting?               Is Ames only

interested in promoting traditional families or those who can afford to

live in a home without roommates—the wealthy and the upper-middle

class?     It is irrational for a city to attempt to promote a sense of

community by intruding into its citizens’ homes and differentiating,

classifying, and eventually barring its citizens from the community solely

based on the type of relationship a person has to the other persons

residing in their home.

         Although the majority may classify these examples of overinclusive

and underinclusive applications of the ordinance as extreme, they do so

in the context of social norms as they existed thirty-three years ago when

the Supreme Court decided Belle Terre. In that era the typical household

consisted of a mother, a father, and children, with one breadwinner and

one vehicle. In today’s society this is no longer the case. Today it is not

unusual to see a group of unrelated single persons living together and

sharing expenses. The simple fact is that in today’s modern society the
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overinclusive and underinclusive examples identified in this dissent and

by other courts that have found similar ordinances unconstitutional are

closer to the norms than to the extremes.

      If Ames wants to regulate population it can do so by reference to

floor space and facilities.   Noise and conduct can be controlled with

nuisance and criminal laws.     Traffic and parking can be controlled by

limiting the number of vehicles to all households or with off-street

parking regulations. See Coll. Area Renters & Landlord Ass’n, 50 Cal.

Rptr. 2d at 521.
      In sum, I find the ordinance does not reasonably and rationally

further Ames’s stated legislative goal and is therefore unconstitutional

under Iowa law.

      Hecht and Appel, JJ., join this dissent.
