This appeal turns essentially on a single question: What does the restrictive covenant mean when it refers to a "single family"? I believe that my views on this question are consistent with the majority, and I have written separately only to clarify further how a court should determine whether a group of unrelated individuals constitutes a "single family" for purposes of a restrictive covenant.
It is popular to suggest that, in earlier times, there was more consensus about how to define a "family," but such a view is not fully supportable. As the then interim Dean of Emory Law School pointed out in a 2005 article:
In the first half of the twentieth century, "single family" had a flexible meaning depending upon the context. For many purposes the concept was interchangeable with "household," the key terminology used by the U.S. Census and social demographers from the eighteenth to mid-twentieth century. In light of the emphasis decades later on defining families as those related by "blood, marriage or adoption," it is striking that until then (and even later) there was widespread agreement that a single-family residence restriction was not violated by the presence of servants and domestics residing on the premises. A dictionary relied upon by a 1905 decision defined family as "persons collectively who live together in a house or under one head or manager; a household, including parents, children, and servants, and, as the case may be, lodgers or boarders."
Frank S. Alexander, The Housing of America's Families: Control, Exclusion, and Privilege, 54 Emory L.J. 1231, 1247 (2005)
*788(emphasis added) (quoting Robbins v. Bangor Ry. & Elec. Co., 100 Me. 496, 505-06, 62 A. 136, 140 (1905)).
Only after World War II did restrictive covenants and the courts express a preference for the "nuclear family," id. at 1250, a concept first created in 1949, id. at 1259. Yet, because a "nuclear family" is defined as consisting of a married man and woman with their offspring, id., few would contend today that a "single family" should be defined to mean only a "nuclear family." Such an approach would exclude extended families, including elderly parents; domestic partnerships; or families caring for foster children.
Because this appeal involves a restrictive covenant, the task for the trial court and this Court is to determine what was intended by "single family" when the restrictive covenant was drafted. Plaintiffs do not urge an overly narrow construction, but rather suggest that "single family" should allow occupancy by one person; by more than one person if related by blood, marriage, or adoption; or by "a group that is structured substantively like a family (i.e., an `integrated unit')." The "integrated unit" test is drawn from J.T. Hobby & Son, Inc. v. Family Homes of Wake County, Inc., 302 N.C. 64, 274 S.E.2d 174 (1981), in which our Supreme Court held, with respect to a group home:
While we deem it unnecessary to reach the question of whether the individuals living at the home constitute a family, we are compelled to observe that the surrogate parents and the adults subject to their supervision function as an integrated unit rather than independent persons who share only the place where they sleep and take their meals as would boarders in a boarding house.
Id. at 73, 274 S.E.2d at 180 (emphasis added). Defendants also point to Hobby and advocate for an "integrated unit" test, arguing that the students meet that test.
Hobby does not specifically explain what would be considered "an integrated unit," apart from stating that it does not include people operating independently and only sleeping and eating together. The Supreme Court, however, immediately after this discussion of "family," cited Crowley v. Knapp, 94 Wis.2d 421, 288 N.W.2d 815 (1980), as support for the Court's analysis. Crowley considered whether a group home for mentally retarded adults violated a restrictive covenant limiting the property's use to a single family dwelling for residential purposes only. Id. at 424, 288 N.W.2d at 817. In the portion of the opinion distinguishing a group home from a boarding house, the Wisconsin Supreme Court stressed: "[T]he [group home] residents regard the home as their permanent residence. This is not a boarding house; the same eight people have resided at the home since it opened, and the record clearly indicates that they planned to remain there permanently." Id. at 439, 288 N.W.2d at 824.
I believe, consistent with Crowley, that an important component of Hobby's "integrated unit" test is a requirement that the group of unrelated persons are not transient - as is true with a boarding house - but rather intend to reside as a stable unit for an indefinite period of time. To hold, as defendants urge, that the test is met simply by jointly doing the housekeeping and paying the bills would place little limitation at all on the use of the home. It essentially equates a restriction regarding "single family use" to a restriction requiring only "residential use," even though the "single family" provision necessarily intends to impose a narrower restriction than just "residential use." There must be something more for the restrictive covenant to have any meaning.
Other courts, including the cases predominately relied upon by defendants, have likewise concluded that the intended stability and permanency of the group is relevant to determining whether the group is structured like a family. The New York Court of Appeals, in considering whether a group constituted a "single family" for purposes of a zoning ordinance, noted: "It is significant that the group home is structured as a single housekeeping unit and is, to all outward appearances, a relatively normal, stable, and permanent family unit, with which the community is properly concerned." City of White Plains v. Ferraioli, 34 N.Y.2d 300, 304, 313 N.E.2d 756, 758, 357 N.Y.S.2d 449, 452 (1974). The court ultimately concluded that "[s]o long as the group home bears the generic character of a family unit as a relatively *789permanent household, and is not a framework for transients or transient living, it conforms to the purpose of the ordinance [limiting residence to a single family.]" Id. at 305-06, 313 N.E.2d at 758, 357 N.Y.S.2d at 453. As an example of a group of people who would not comply with the ordinance, the court pointed to "a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school." Id. at 304-05, 313 N.E.2d at 758, 357 N.Y.S.2d at 452. The court explained: "Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes." Id. at 305, 313 N.E.2d at 758, 357 N.Y.S.2d at 452.
Similarly, in Albert v. Zoning Hearing Bd. of North Abington Twp., 578 Pa. 439, 452-53, 854 A.2d 401, 409 (2004), the Pennsylvania Supreme Court observed that "it is undeniable that inherent in the concept of `family' and, in turn, in the concept of a `single-family dwelling,' is a certain expectation of relative stability and permanence in the composition of the familial unit." The court, therefore, "conclude[d] that in order to qualify as a `single housekeeping unit,' a group of individuals in a single household must not only function as a family within that household, but in addition, the composition of the group must be sufficiently stable and permanent so as not to be fairly characterized as purely transient." Id. at 453, 854 A.2d at 410. See also Commonwealth v. Jaffe, 398 Mass. 50, 57, 494 N.E.2d 1342, 1346-47 (1986) (holding that "the tenants' living arrangement simply did not achieve the permanency and cohesiveness inherent in the notion of a single housekeeping unit"); Hill v. Cmty. of Damien of Molokai, 121 N.M. 353, 361, 911 P.2d 861, 869 (1996) (holding that group home did not violate restrictive covenant limiting property to single family use when group home exhibited stability, permanency, and functional lifestyle equivalent to that of traditional family unit).
Defendants point to Borough of Glassboro v. Vallorosi, 117 N.J. 421, 568 A.2d 888 (1990), and McMinn v. Town of Oyster Bay, 105 A.D.2d 46, 482 N.Y.S.2d 773 (1984), aff'd, 66 N.Y.2d 544, 488 N.E.2d 1240, 498 N.Y.S.2d 128 (1985), as supporting their contention that the students constituted a single housekeeping unit and, therefore, a family. Both of those decisions, however, recognize the same principles set forth above: that a single housekeeping unit must not only function as a unit, but also have a certain degree of stability and permanence.
In Vallorosi, the New Jersey Supreme Court quoted with approval from Open Door Alcoholism Program, Inc. v. Bd. of Adjustment of New Brunswick, 200 N.J.Super. 191, 491 A.2d 17 (App.Div.1985):
"It is thus evident that in order for a group of unrelated persons living together as a single housekeeping unit to constitute a single family in terms of a zoning regulation, they must exhibit a kind of stability, permanency and functional lifestyle which is equivalent to that of the traditional family unit. In our view, the residents of plaintiff's proposed halfway house, although comprising a single housekeeping unit, would not bear these generic characteristics of a single family. While the residents would share in the household responsibilities and dine together, their affiliation with one another would be no different than if they were fellow residents of a boarding house. Clearly, their living arrangements would not be the functional equivalent of a family unit. The individual lifestyles of the residents and the transient nature of their residencies would not permit the group to possess the elements of stability and permanency which have long been associated with single-family occupancy."
Vallorosi, 117 N.J. at 431, 568 A.2d at 893-94 (quoting Open Door Alcoholism Program, 200 N.J.Super. at 199-200, 491 A.2d at 22).
The New Jersey Supreme Court then held that the evidence in Vallorosi, involving students renting a house purchased by relatives of one of the students, presented "unusual circumstances" that substantially complied with the requirement of a stable and permanent living unit. Id. at 432, 568 A.2d at 894. The court observed in passing, however, that "[i]t is a matter of common experience that the costs of college and the variables characteristic of college life and student relationships *790do not readily lead to the formation of a household as stable and potentially durable as the one described in this record." Id., 117 N.J. at 432, 568 A.2d at 894-95. See also Open Door Alcoholism Program, 200 N.J.Super. at 197, 491 A.2d at 21 ("The controlling factor in considering whether a group of unrelated individuals living together as a single housekeeping unit constitutes a family, for purposes of compliance with a single-family zoning restriction, is whether the residents bear the generic character of a relatively permanent functioning family unit.").
Defendants also point to the New York intermediate appellate court decision in McMinn, in which the owners rented their house to four unrelated young men who were friends and coworkers. In holding that these four men functioned as "a single housekeeping unit" and, therefore, qualified as a "single family," the court stressed that, consistent with the New York Court of Appeals' opinion in Ferraioli, the group was "a normal, stable and permanent unit" that made the group's use of the house "compatible with the residential neighborhood in which it [was] located." 105 A.D.2d at 58, 482 N.Y.S.2d at 782.
Based upon the reasoning of courts across the country confronted with the issue present in this case, I believe that a "single family" can be defined as a "single housekeeping unit" or, alternatively, as in Winding Ridge Homeowners Ass'n, Inc. v. Joffe, ___ N.C.App. ___, ___, ___ S.E.2d ___, ___, 2007 WL 2032736 (2007), as a group "substantively structured as an integrated family unit." Other jurisdictions have made clear that a group does not meet the "single housekeeping unit" test unless the members show both (1) that they function as a family within the house and (2) that the composition of the group is relatively stable and permanent.
I believe the combination of these two factors is sufficient to establish that a group of unrelated individuals constitutes a "single housekeeping unit" or is "substantively structured as an integrated family unit," such that the group is a "single family" for purposes of a restrictive covenant. Without the requirement of stability and permanence, it would be difficult to distinguish a group living together in a house - sleeping, eating, and enjoying entertainment together - from a boarding house. I believe that Hobby's analysis of "family," including its citation to Crowley, requires such a two-factor approach.
In this case, defendants have offered evidence of the first factor, involving a family-type lifestyle, by showing that the baseball players share the chores and bills and engage in other activities together. Defendants have not, however, demonstrated that this group of ball players is a relatively permanent and stable group. Only three of the seven tenants filed affidavits, and they stated only that they intended to stay in the house for another year and a half. The record contains no evidence suggesting that the identity of the seven tenants would remain the same during that year and a half.
I do not believe that a group - the identity of whose members could change - that only intends to live together for a limited period of time during the school year and while attending college has the permanence and stability necessary to be considered a "single family." The New York Court of Appeals' observation bears repeating: "Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes." Ferraioli, 34 N.Y.2d at 305, 313 N.E.2d at 758, 357 N.Y.S.2d at 452.