Retirement Communities: The Nature and Enforceability of Residential Segregation by Age

Although age segregation in retirement communities can be established in a variety of ways, the Article focuses primarily on age-restrictive zoning ordinances, the method most directly involving governmental action. The Article first considers those persons adversely affected by age-restrictive retirement communities and suggests that potential plaintiffs may be divided into three classes-neighboring property owners whose land values are affected by the establishment of a retirement community, those excluded from such a community solely by virtue of ·their age, and those excluded or potentially excluded because of the age of persons with whom they choose to live. Next, the constitutional arguments available to each class of plaintiffs are explored. As a product of that analysis, the Article contends that age-restrictive zoning ordinances warrant strict judicial scrutiny, not because of their economic impact or because they establish age segregation per se, but rather because they intrude on the elderly individual’s fundamental right to freedom of choice regarding family living arrangements. In line with that conclusion, the Article then suggests that the justifications that a community might offer in support of age-restrictive zoning do not withstand such scrutiny. Next, the Article considers possible arguments that the establishment of age segregation in retirement communities by means of restrictive covenants involves state action and thus is subject to constitutional attack under the fourteenth amendment. Concluding that these arguments are highly unlikely to prevail, the Article suggests that the use of restrictive covenants by retirement communities is immune from constitutional attack.