Amicus Curiae Brief — City of Edmonds v. Oxford House, Inc.

“MOTION FILED i)

AUG 3 1 1904 ae

No. 94-23

In the

Supreme Court of the United States

October Term, 1994

—o—

CITY OF EDMONDS,

Petitioner,

Vv.

WASHINGTON STATE BUILDING CODE COUNCIL,

et al.,

Respondents.

—--

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

—_@——

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

—)— -

RONALD A. ZUMBRUN

*ANTHONY T. Caso

ALAN W. Foutz

GREGORY W. MCCRACKEN

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

No. 94-23

In the

Supreme Court of the United States

October Term, 1994

—-®

CITY OF EDMONDS,

Petitioner,

Vv.

WASHINGTON STATE BUILDING CODE COUNCIL,

et al.,

Respondents.

—"\

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

—@—

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT

OF THE PETITION FOR WRIT OF CERTIORARI

+

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation (PLF) respectfully moves this Court for leave to

file the attached amicus curiae brief in support of the petition

for writ of certiorari. Written consent to the filing of this

brief has been granted by counsel for petitioner and by

counsel for respondent United States. Said letters of consent

have been lodged with the Clerk of this Court. Counsel for

respondents Washington State Building Code Council and

2

Oxford House, Inc. , have withheld consent, necessitating the

filing of this motion.

IDENTITY AND INTEREST OF AMICUS CURIAE

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in matters

affecting the public interest. PLF has over 20,000 contri-

butors and supporters located throughout the country and

maintains its principal office in Sacramento, California. The

Foundation’s policy is set by a Board of Trustees composed

of concerned citizens, the majority of whom are attorneys.

PLF’s Board evaluates the merits of any contemplated legal

action and authorizes such action only where the

Foundation’s position has broad support within the general

community.

Amicus seeks here to augment the argument in the

petition for writ of certiorari. It is believed that PLF’s

public policy perspective and litigation experience in support

of individual rights and government accountability will

provide an additional viewpoint with respect to the

constitutional and statutory issues presented. PLF has

participated in numerous cases involving local zoning and

land use regulations: Dolan v. City of Tigard,512 U.S. ___,

62 U.S.L.W. 4576 (Jan. 21, 1994), Nollan v. California

Coastal Commission, 483 U.S. 825 (1987); cases that address

the possible discriminatory effect of local ordinances, City of

Richmond v. J. A. Croson Co., 488 U.S. 469 (1989); and

cases that address the balance between federal and local

regulatory power, Agins v. City of Tiburon, 447 U.S. 255

(1980), Chisom v. Roemer, 501 U.S. __, 115 L. Ed. 2d 348

(1991).

ee

3

The opinion below holds that a local zoning ordinance

that limits the number of nonfamily members who may reside

in a dwelling zoned single-family residential is subject to

the antidiscrimination provisions of the Fair Housing Act,

42 U.S.C. § 3601, et seq. (FHA or the Act), and the Fair

Housing Act Amendments (FHAA) of 1988. This result was

reached despite the Edmonds’ ordinance’s qualification

for exemption from FHAA mandates found at 42 U.S.C.

§ 3607(b)(1), which state that the FHAA will not “limitf]

the applicability of any reasonable local, State, or Federal

restrictions regarding the maximum number of occupants

permitted to occupy a dwelling." This ruling is in direct

contrast with an Eleventh Circuit ruling that held an almost

identical zoning ordinance was exempt from this section of

the FHAA. See Elliott v. Athens, 960 F.2d 975, 979-81

(11th Cir. 1992).

More troubling is the fact that the Ninth Circuit's

decision significantly undermines local government's ability

to enact land use regulations and represents an unwarranted

and dangerous incursion of federal power into local govern-

mental affairs. To the extent that land use and occupancy

restrictions may be imposed by governmentally wielded

police power, they ought to originate and be interpreted at

the loca! level. This Court has long recognized that land use

regulations and property law have traditionally been the

province of state authority. See Schad v. Borough of Mount

Ephraim, 452 U.S. 61, 68 (1981); Warth v. Seldin, 422 U.S.

490, 508 n.18 (1975).

By basing its ruling on the ordinance’s failure to

limit the number of family members as well as nonfamily

members that can live together (City of Edmonds vy.

Washington State Building Code Council, 18 F.3d 802, 807

(9th Cir. 1994)), the Court of Appeals in the instant case has

stretched the bounds of statutory construction to the point of

4

absurdity in order to remove Edmonds’ zoning ordinance

from FHAA exemption. This placed Edmonds, and all other

cities that have enacted similar ordinances, in the untenable

position of having to redraft their maximum occupancy

ordinances to limit the number of inhabitants to a specified

ratio of persons per square foot of habitable floor area in a

dwelling, without any reference to whether the inhabitants

are related or not. Language referring to relatedness will

remove an ordinance from the FHAA exemption, and a

simple ceiling on the number of inhabitants in a dwelling

may run afoul of the Due Process Clause of the Fourteenth

Amendment. The remaining available scheme, if imple-

mented, could substantially prejudice the City of Edmonds’

efforts to accommodate the housing needs of large single

The alternative is to relinquish a large measure of local

control over this quintessentially local determination to

federal oversight. In short, the court below has unnecessar-

ily intruded upon the local government's ability to establish

reasonable occupancy limitations while yet preserving the

ability of large families to live together.

5

For the foregoing reasons, Pacific Legal Foundation

requests that its motion to file the amicus curiae brief which

follows be granted.

DATED: August _, 1994.

Respectfully submitted,

RONALD A. ZUMBRUN

*ANTHONY T. CASO

ALAN W. FOUTZ

GREGORY W. McCRACKEN

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive,

Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

By

ANTHONY T. CASO

Pacific Legal Foundation

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED ............... iii

INTEREST OF AMICUS CURIAE ................ 1

DT’ <ceGGhaesocasécnedeecsecseeces 2

STATEMENT OF THE CASE .. wc ccc ccc ccc cece 3

REASONS FOR GRANTING THE WRIT ............ 5

I. THIS COURT SHOULD SETTLE THE

SCOPE OF THE FHAA EXEMPTION’S

APPLICABILITY TO SINGLE-FAMILY

DUTT, Gade Gbaceocsccecocccce 5

A. The City of Edmonds’ Single-

Family Zoning Ordinance, Whose

Structure Is Typical of Many

Local Zoning Schemes, Is Exempt

from the FHAA by the FHAA’s

SE GabWbbacccsécecccccecees 5

1. The Ordinance Restricts the

Maximum Number of Individuals

Permitted To Occupy a Dwelling ....... 5

2. The Ordinance Is Reasonable .......... 6

B. The Ninth Circuit's Misinterpretation

of the FHAA Exemption Extends the

FHAA’s Reach Beyond What Congress

PE ¢hGbdaeSeESebSReeeSecoeonees 7

ii

Page

C. The Ninth Circuit’s Ruling Violates

Congressional Intent To Avoid Federal

Interference in Fundamental Local

BG GP Sam beceoevcecccecces 9

D. The Ninth Circuit’s Ruling Requires

Discriminatory Treatment of the Disabled

Rather than the Nondiscrimination

Intended by the FHAA Exemption ......... 10

II. DECISIONS BY SOME UNITED STATES COURTS

OF APPEALS CONFLICT ON THE QUESTIONS OF

WHETHER THE FHAA EXEMPTS TRADITIONAL

AND PREVALENT SINGLE-FAMILY ZONING

SCHEMES FROM ITS COVERAGE ........... 11

DS ¢e4secub eee ceeadunueuawaees 12

iii

TABLE OF AUTHORITIES CITED

Page

CASES

City of Memphis v. Greene,

et TT htc peeeseesectcooeceess 6-7

Doe v. City of Butler, 892 F.2d 315

ES 11

Elliott v. Athens, 960 F.2d 975

(11th Cir.), cert. denied, _U.S.

__» 125 L. BS, 26 267 (199Z) ww eee 2,4,11

Familystyle of St. Paul, Inc. v.

City of St. Paul, 728 F. Supp.

1396 (D. Minn. 1990), aff'd,

Pe I ED occ ccwccccccesees 1}

Moore v. City of East Cleveland,

ay 6

Schad v. Borough of Mount Ephraim,

CTD FO eekbentcecesecsbocdecse 9

Village of Belle Terre v. Boraas,

DM idaddiuvudbecbvécetsoeeseres 6-7

Warth v. Seldin, 422 U.S. 490 (1975) ............... 9

STATUTES

Se ED wveveseececescoccccesdes 3

DE 6600 86 e6bd0 6 ee ndseeeeesabene 3,6

iv No. 94-23

Page —

Ge Dae Gree BOD cc tcciccccteuvcesecsse 2 In the

SOE S35 155 Cab cekadwek eae caece cas 3 | Supreme Court of the United States

Ser tor ote ep aiawe es oa on 2-3 | October Term, 1994

o-

ES 0a koh as he a a ee ae 2-4

ED od ob te mh ica On ae naan 2,4-5,11 CITY OF EDMONDS,

Petitioner,

RULES v.

Gas ee ED 5 aco ck cb wieweeecoece«s 5 WASHINGTON STATE BUILDING CODE COUNCIL,

et al.,

EE ota irs itd de med Ree eae 5 Respondents.

UNITED STATES CONSTITUTION +

Ss Go be aw ack We eae bab era eines 6 Petition for Writ of Certiorari i the

United States Court of Appeals for the Ninth Circuit

MISCELLANEOUS

=

H.R. Rep. No. 711, 100th Cong., 2d Sess.

(1988), reprinted in 1988 U.S.C.C.A.N.

oo ee 7-9 BRIEF AMICUS CURIAE OF

‘ PACIFIC LEGAL FOUNDATION IN SUPPORT

OF THE PETITION FOR WRIT OF CERTIORARI

7

INTERESTS OF AMICUS CURIAE

The interest of amicus curiae is set forth in the

preceding motion and is adopted herein.

2

OPINION BELOW

The opinion of the Ninth Circuit Court of Appeals is

reported at City of Edmonds v. Washington State Building

Code Council, 18 F.3d 802 (9th Cir. 1994). The Ninth

Circuit has created a clear and unavoidable split among

Courts of Appeals with regard to the type of local zoning

ordinances that are subject to the mandates of the Fair

Housing Act, 42 U.S.C. § 3601, et seg. (FHA or the Act),

and the Fair Housing Act Amendments of 1988 (FHAA),

which extended the Act’s antidiscrimination provisions to

the handicapped. 42 U.S.C. §§ 3604(f)(2), 3604(f)(3)(B),

3607(b)(1).

The court below ruled that a local zoning ordinance that

limits the number of nonfamily members who may reside in

a dwelling zoned single-family residential is subject to

FHAA’s antidiscrimination provisions, notwithstanding the

unambiguous exemption found at 42 U.S.C. § 3607(b)(1),

which states that the FHAA will not "limit[] the applicability

of any reasonable local, State, or Federal restrictions

regarding the maximum number of occupants permitted to

occupy a dwelling.”

This ruling is in direct contrast with an Eleventh Circuit

ruling that held an almost identical zoning ordinance was

exempt from this section of the FHAA. See Elliott v.

Athens, 960 F.2d 975, 979-81 (11th Cir.), cert. denied,

—___ U.S. __, 121 L. Ed. 2d 287 (1992). Expressly

disagreeing with the Eleventh Circuit (Edmonds, 18 F.3d

at 806), the Ninth Circuit has construed the FHAA exemp-

tion to include only those zoning ordinances that restrict

"all occupants, whether related or not." Jd. at 807.

3

—@—

STATEMENT OF THE CASE

Oxford House, Inc., sponsors halfway houses around

the country for recovering alcoholics and drug addicts. Each

house must have six or more residents in order to ensure

financial self-sufficiency. The Oxford House in Edmonds,

Washington, is a leased residence for 10 to 12 adult men.

The house is situated in an area that is zoned single-family

residential.

Edmonds issued criminal citations to the owner of the

Oxford House for violating provisions of the Edmonds

Community Development Code (ECDC) which provide that

property zoned single-family residential may only be used for

single-family dwelling units. ECDC § 16.20.010(A)(1). A

single-family dwelling unit means a detached building used

by one family, limited to one per lot. ECDC § 21.90.080.

Under ECDC § 21.30.010, a family "means an individual or

two or more persons related by genetics, adoption, or

marriage, or a group of five or fewer persons who are not

related by genetics, adoption, or marriage.” Thus, group

homes of more than five unrelated recovering alcoholics and

drug addicts are effectively excluded from single-family

residential zones in Edmonds.

Under the FHAA, it is unlawful to discriminate against

any person because of a handicap. 42 U.S.C. § 3604(f)(2).

The residents of the Oxford House are handicapped persons

under the FHAA. 42 U.S.C. § 3602(h) (stating that a person

participating in a supervised drug rehabilitation program,

coupled with nonuse, meets the definition of handicapped).

Where FHAA’s provisions apply, a finding of discrimination

may be based on “a refusal to make reasonable accommoda-

tions in rules, policies, practices, or services, when such

accommodations may be necessary to afford such person

4

equal opportunity to use and enjoy a dwelling.” 42 U.S.C.

§ 3604(f)(3)(B). Whether the City of Edmonds complied

with the substantive requirements of the FHAA is not

presently at issue.

However, certain regulations are exempt from FHAA’s

provisions. Under 42 U.S.C. § 3607(b)(1), FHAA’s

provisions do not apply to "reasonable local, State, or

Federal restrictions regarding the maximum number of

occupants permitted to occupy a dwelling.” The parties to

this case have stipulated to the fact that the zoning ordinance

here at issue was not enacted out of any animus toward or

intent to discriminate against the occupants of Oxford House

because of their handicap.

Oxford House requested the City of Edmonds to make

reasonable accommodations under Section 3604(f)(3)(B) by

letting it continue operations in the single-family residential

zone. The City of Edmonds declined and filed a declaratory

relief action seeking a ruling that its single-family residential

zoning provision was exempt from FHAA’s provisions under

Section 3607(b)(1).

The District Court held that the exemption applied,

relying on the analysis provided in Elliott v. Athens,

960 F.2d 975, an Eleventh Circuit decision that likewise

involved an attempt to establish a group recovery home in a

dwelling zoned single-family residential. However, the

Ninth Circuit disagreed with the Elliott court’s analysis and

held that the exemption did not apply and that the zoning

ordinance was in violation of the FHAA. The Ninth

Circuit’s decision therefore creates a direct and irreconcilable

split among circuits with regard to how FHAA’s exemptions

are to be interpreted.

5

ao

REASONS FOR GRANTING THE WRIT

Supreme Court Rule 10.1(a) lists among the

considerations governing review on _ ceftiorari the

circumstance when a United States Court of Appeals has

rendered a decision in conflict with the decision of another

United States Court of Appeals on the same matter.

Supreme Court Rule 10.1(c) lists the circumstance when a

United States Court of Appeals has decided an important

question of federal law which has not been, but should be,

settled by this Court. Both of these grounds for review are

present in this case.

+

I

THIS COURT SHOULD SETTLE THE SCOPE

OF THE FHAA EXEMPTION’S APPLICABILITY

TO SINGLE-FAMILY ZONING SCHEMES

A. The City of Edmonds’ Single-Family

Zoning Ordinance, Whose Structure Is

Typical of Many Local Zoning Schemes,

Is Exempt from the FHAA by the FHAA’s

Clear Language

1. The Ordinance Restricts the Maximum

Number of Individuals Permitted To

Occupy a Dwelling

The FHAA exempts some regulations from its purview,

including reasonable local restrictions on the maximum

number of occupants permitted to occupy a dwelling.

42 U.S.C. § 3607(b)(1). The City of Edmonds permits five

or fewer unrelated persons or two or more persons related as

6

specified by ordinance to live in a single-family dwelling

within its boundaries. ECDC § 21.30.010. The structure of

the City’s zoning code is common to the vast majority of

cities in the State of Washington and many communities

throughout the country. City of Edmonds v. Washington

State Building Code Council, 18 F.3d 802. Although

Edmonds’ ordinance makes a distinction on the basis of the

relatedness of the occupants of a single-family dwelling, the

ordinance nevertheless restricts the maximum number of

occupants who may occupy a dwelling and is therefore

exempt from the FHAA according to the FHAA’s plain

language.

The distinction based on relatedness exists only to

recognize the protection that the Due Process Clause of the

Fourteenth Amendment extends to the family. The definition

of relatedness in Edmonds’ ordinance follows the form which

this Court approved in Village of Belle Terre v. Boraas,

416 U.S. 1 (1974). The ordinance expressly avoids limiting

the number of members of a family in light of this Court’s

teaching in Moore v. City of East Cleveland, 431 U.S. 494

(1977), which prohibits municipalities from forcing people to

live in certain narrowly defined family patterns. The

ordinance’s constitutionally necessary accommodation of

familial interests does not render its remaining language any

less of a restriction on the maximum occupancy of a single-

family dwelling.

2. The Ordinance Is Reasonable

The ordinance is a reasonable restriction on the

maximum number of occupants who may occupy a dwelling.

The City of Edmonds has an unquestionably legitimate

interest in the tranquility of its single-family residential

areas, see City of Memphis v. Greene, 451 U.S. 100, 127

(1981), and it may exercise its police powers "‘to lay out

7

of quiet seclusion and clean air make the area a sanctuary for

people.’" Jd. at 790 n.43 (quoting Village of Belle Terre v.

Boraas, 416 U.S. at 9). The ordinance controls population

density, traffic, and noise in single-family residential areas

while preserving the residential character of such areas. The

ordinance also affects a category of people identified by their

desire to live as a large group in a single-family residence.

As applied in this case, the ordinance precludes unrelate

groups of more than five recovering alcoholics and drug

abusers from living in a single-family residential dwelling.

The ordinance’s burden on recovering alcoholics and drug

abusers is not onerous and leaves them with alternatives:

like all unrelated persons, they may live in groups of more

than five in areas of Edmonds zoned for higher density

residential habitation, or they may live in groups of five or

less in single-family areas. In view of Edmonds’ long-

standing and legitimate interest in maintaining the character

of single-family areas, the ordinance is reasonable, and as a

restriction on the maximum number of people who may

inhabit a dwelling, it is exempt from the FHAA.

B. The Ninth Circuit’s Misinterpretation of

the FHAA Exemption Extends the FHAA’s

Reach Beyond What Congress Intended

As concerns local land use laws, regulations, practices,

and decisions, Congress intended the FHAA to prohibit

discrimination against the handicapped in several manners

in which it has traditionally occurred. H.R. REP.

No. 711, 100th Cong., 2d Sess. (1988), reprinted in

1988 U.S.C.C.A.N. 2173, 2184-85 (H.R. Rep. No. 711).

The first means of discriminatory treatment specifically

prohibited is “the enactment or imposition of .. . land-use

$ on congregate living arrangements among non-

related persons with disabilities." Id. at 2185. The second

means is “the application of special requirements through

land-use regulations, restrictive covenants, and conditional or

special use permits that have the effect of limiting the ability

of [handicapped] individuals to live in the residence of their

choice in the community." id. The third means is “the

application or enforcement of otherwise neutral rules and

regulations on ... land-use in a manner which discriminates

against people with disabilities." Jd. (footnote omitted).

Although the City of Edmonds’ zoning ordinance is

exempt from these requirements as discussed above,

assuming arguendo that it is not, the ordinance still does

not discriminate against people with disabilities in violation

of the FHAA. On its face, the ordinance does not impose

special requirements on disabled persons or on groups of

disabled persons. In the application of the ordinance to

coo ast tesmaee of Gaile Guttiiiee on each but rather

because of their choice as unrelated persons to live as a

group of more than five in a single-family residential area.

Such treatment is not discrimination at all, for in this

situation, the disabled are treated in precisely the same

manner as any other unrelated persons, and this treatment

does not result from “false or over-protective assumptions

about the needs of handicapped people, [or from] unfounded

fears of difficulties about the problems” that their presence

City of Edmonds acted out of any animus against the

occupants of Oxford House on the basis of their disability.

City of Edmonds v. Washington State Building Code Council,

18 F.3d at 803.

Cc,

The decision below held that the City of Edmonds’

zoning ordinance is not exempt from the FHAA and must

therefore meet the FHAA’s requir

employed language which belittled the efforts of Edmonds

and other cities to meet the requirements of the Due Process

Clause in facially neutral zoning ordinances. Two

consequences necessarily follow the Ninth Circuit's

interpretation of the FHAA exemption.

Any city which wishes to avail itself of the exemption

must amend its occupancy restrictions so that they are

expressed in terms of a number of inhabitants per unit of

habitable floor area in a dwelling. Any attempt to

accommodate large single families will subject the zoning

scheme to federal requirements.

Congress intended the FHAA to prohibit discrimination

on the basis of handicap. H.R. Rep. No. 711 at 2184.

governments to zone and control land use is broad, Schad v.

Borough of Mount Ephraim, 452 U.S. 61, 68 (1981), and

that zoning laws are peculiarly within the province of state

and local legislative authorities, Warth v. Seldin, 422 U.S.

490, 508 n.18 (1975), the Ninth Circuit's interpretation of

ment than is warranted to accomplish Congress’ intent.

Congress cannot have intended to require numerous cities to

either rewrite their zoning ordinances or be subject to federal

control on basic land use decisions because it included a

straightforward exemption for such decisions in the FHAA.

As a result of the Ninth Circuit's decision, disabled

persons who wish to live as a group in a single-family

residential area will receive preferential treatment with

respect to local maximum occupancy ordinances that is

unwarranted by Congress’ admittedly legitimate desire to

prevent discrimination based on handicap. A city will have

to honor the wishes of group homes such as Oxford House

in accordance with federal law, notwithstanding the avail-

ability of multiple-family residential areas and in spite of the

inability of nondisabled persons to live as groups in single-

family areas or face litigation over the reasonableness of the

accommodations made in applicable rules or policies.

As discussed above, the disabled are not experiencing

discrimination because of their disabilities, but rather because

of their desire to live in a high density arrangement in a low

density neighborhood. Edmonds’ ordinance treats all unre-

lated groups evenhandedly, and the FHAA will protect the

disabled from any discrimination they may encounter when

they choose to live in smaller groups in low density

neighborhoods. In short, the Ninth Circuit's interpretation

below of the FHAA exceeds the nondiscriminatory treatment

of the disabled which Congress intended.

ll

vt

DECISIONS BY SOME UNITED STATES

COURTS OF APPEALS CONFLICT ON THE

QUESTION OF WHETHER THE FHAA

EXEMPTS TRADITIONAL AND

PREVALENT SINGLE-FAMILY ZONING

CHEMES FROM ITS COVERAGE

Some United States Courts of Appeals have rendered

conflicting decisions on the question of whether 42 U.S.C.

§ 3607(b)(1) exempts a group of similar single-family zoning

ordinances. The Eleventh Circuit, in its decision in Elliott v.

City of Athens, 960 F.2d at 984, found traditional single-

family zoning to be a type of occupancy restriction exempt

ability of local communities to apply zoning controls in the

form of distancing requirements for group homes, despite a

resulting restriction on the housing choices of the disabled.

Familystyle of St. Paul, Inc. v. City of St. Paul, 728 F.

Supp. 1396 (D. Minn. 1990), afd, 923 F.2d 91 (8th Cir.

1991). See also Doe v. City of Butler, 892 F.2d 315, 321

(3d Cir. 1989) (applying similar reasoning to uphold a zoning

ordinance limiting the residency of unrelated adults when

applied to a shelter for battered women). The decision of the

Ninth Circuit in this case explicitly rejects the reasoning

of the Eleventh Circuit, and it also conflicts with the position

of the Eighth Circuit of the United States Court of Appeals

as well.

12

CONCLUSION

By ruling that the FHAA exemption for reasonable

maximum occupancy restrictions does not apply to the

City of Edmond’s zoning ordinance, the Ninth Circuit

misinterprets Congress’ intent behind the exemption. It

thereby leaves many local governments with the choice of

either redrafting their zoning laws or having the federal

government unduly intrude into their land use decisions.

Moreover, the Ninth Circuit grants a preference to the

disabled that permits them to live as large groups in single-

family residential neighborhoods, which is a right that no

other unrelated group of people enjoys. The Ninth Circuit's

decision also conflicts with an Eleventh Circuit decision on

a virtually identical zoning ordinance, and it is inconsistent

with a decision in the Eighth Circuit.

13

To resolve this conflict and to give effect to the FHAA

exemption as Congress intended, Pacific Legal Foundation

respectfully submits that this Court should grant the petition

for writ of certiorari.

DATED: August, 1994,

Respectfully submitted,

RONALD A. ZUMBRUN

*ANTHONY T. Caso

ALAN W. Foutz

GREGORY W. MCCRACKEN

*Counsel of Record

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Pacific Legal Foundation