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

Rorrema Court, US

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«i «Ah 25 894

as

No. 94-23

——

In The

Supreme Court of the United States

October Term, 1994

+

CITY OF EDMONDS,

Petitioner,

WASHINGTON STATE

BUILDING CODE COUNCIL, ET AL.,

Respondents.

AND

UNITED STATES OF AMERICA

>

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF TOWNSHIP OF UPPER ST. CLAIR AS

AMICUS CURIAE IN SUPPORT OF PETITION

¢

Counsel to Amicus Curiae

Rosert N. Hackett*

Mark J. CHRISTMAN

Rosert N. Hackett & Associates

1105 Boyce Road

Pittsburgh, PA 15241

(412) 941-3331

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

put

ae

TABLE OF CONTENTS

Page

Se ee SEE eevee cccccccescessccccens ii

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

REASONS FOR GRANTING THE PETITION....... 6

I. The Question Presented Affects Thousands Of

Municipalities Across The Country That Utilize

Single Family Zoning As The Basic Building

Block For Their Zoning Schemes.............. 6

II. The Decision Represents A Major Departure

From Related Precedent From This Court And

Other Circuits Supporting The Right To Estab-

lish Such Highly Restricted Districts .......... 7

Ill. The Court Of Appeals’ Interpretation Of 42

U.S.C. Section 36071b)(1) Directly Conflicts With

The Eleventh Circuit’s Interpretation .......... 9

SRTRIU oo bs es crcdivcedosscasecccocesocccece 10

FPP OO a oS ec iddvsedeceveccesscccscesseces App. 1

il

TABLE OF AUTHORITIES

Cases

Berman v. Parker, 348 U.S. 26 (1954) ........ cece eee eee 8

City of Cleburne, Texas v. Cleburne Living Center,

Inc., 473 U.S. 432 (1965)... vccccsccvccescscssssess 8

City of Edmonds v. Washington State Building Code

Council, et al., 18 F.3d 802 (9th Cir. 1994) ..5, 8, 9, 10

Cox et al. v. Township of Upper St. Clair, C.A. No.

93-1443 (E.D.Pa. May 18, 1994) ............. 2, 3, 4, 5

Doe v. City of Butler, 892 F.2d 315 (3rd Cir. 1989) ...8, 9

Elliott v. City of Athens, Ga., 960 F.2d 975 (11th Cir.

1992), cert. denied, ___ U.S. ___, 113 S.Ct. 376, 121

L.Ed.2d 287 (1992)... .ccdccoccesevcccusssesuas ao9

Familystyle of St. Paul, Inc. v. City of St. Paul, Minn.,

728 F.Supp. 1396 (D.Minn. 1990), affd. 923 F.2d

91 (Oth Cie. 1991).....ccccconssccsscscesseueneennee 9

Moore v. City of East Cleveland, Ohio, 413 U.S. 494

(1977) ...vccccccccseccccccesses6eun enn naan 7

Oxford House-C v. City of St. Louis, 843 FSupp.

1556 (E.D.Mo. 1994) .....ccccccsccscssessssssseeses 5

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)..... 7,8

Village of Euclid v. Ambler Realty Co., 262 U.S. 365

(TISB) . . cvccccccvcscccecvcessssseseene ene een enn 6

STATUTES AND RULES

42 USC. § S6GN-OEBR......0.00000005005unneeeeee a3

42 US.C. § S6G7GMD). .. ccccccvvscceususneseunee 2 5 9

Federal Rule of Civil Procedure 12(b)(6).............. 3

iii

TABLE OF AUTHORITIES - Continued

ee GUO GRD BPD on cc sccccsscevecscccceccess 1

Township of Upper St. Clair Code Section 130.3.80..... 3

Township of Upper St. Clair Code Section 130.3.84..... 4

Township of Upper St. Clair Code Section 130.9...... 3

MisceLLANEOUS

D. Burch and S. Ryals, Land use Controls: Requiem

for Zoning and Other Musings on the Year 1982, 15

a ons cc cccccee re

R. Anderson, American Law of om s 9.30

DPUEEEURUGESCESSSSSevecccceccececescececes: Tre

In The

Supreme Court of the United States

October Term, 1994

°

CITY OF EDMONDS,

Petitioner,

WASHINGTON STATE

BUILDING CODE COUNCIL, ET AL.,

Respondents.

AND

UNITED STATES OF AMERICA

ee

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

w we

BRIEF OF TOWNSHIP OF UPPER ST. CLAIR AS

AMICUS CURIAE IN SUPPORT OF PETITION

" - @ — -

INTEREST OF AMICUS CURIAE

Amicus curiae respectfully submits the within brief

in support of the petition for a writ of certiorari. The

Township of Upper St. Clair (“Township”) is a political

subdivision of the Commonwealth of Pennsylvania.

Counsel to Amicus curiae is the authorized law officer of

the Township. Therefore, consent to the filing of this brief

is not necessary. Supreme Court Rule 37.5.

The Township is concerned because the Township,

like thousands of political subdivisions across the coun-

try, utilizes single family zoning as the basic building

block for its zoning scheme. In drafting its definition of

family, the Township believed that its definition was

within the exemption to the Fair Housing Act Amend-

ments set forth at 42 U.S.C. § 3607(b)(1) for reasonable

occupancy limitations. The decision by the Court of

Appeals for the Eleventh Circuit in Elliott v. City of

Athens, Ga., 950 F.2d 975 (11th Cir. 1992), cert. denied, 113

S.Ct. 376, 121 L.Bd.2d 287, 61 U.S.L.W. 3155 (U.S., Oct. 19,

1992) confirmed this understanding. The decision by the

Court of Appeals for the Ninth Circuit has left the Town-

ship with no idea whether its zoning ordinance violates

the Fair Housing Act Amendments, 42 U.S.C.

§§ 3601-3631.

The concern of Amicus curiae is a very realistic and

immediate one. On August 31, 1993, Southwinds, Inc.

(“Southwinds”), Residential Resources, Inc. (“Residential

Resources”) and three mentally retarded persons filed a

Complaint against Township in the United States District

Court, Western District of Pennsylvania, at Civil Action

No. 93-1443. Cox et al. v. Township of Upper St. Clair, C.A.

No. 93-1443 (E.D.Pa. May 18, 1994). Southwinds is a not-

for-profit corporation whith operates community resi-

dential programs for persons with mental retardation and

is the residential service provider for the three mentally

retarded persons. Residential Resources is a not-for-profit

corporation which purchases properties to be used by

persons with disabilities.

In their Complaint, plaintiffs alleged that the Town-

ship’s Zoning Ordinance violates the Fair Housing Act

and Fair Housing Act Amendments, 42 U.S.C.

§ 3601-3631.

On November 15, 1993, the Township filed a Motion

to Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). The United States of America filed a brief as

Amicus curiae in support of the plaintiffs.

By Memorandum Opinion and Order dated May 18,

1994, Judge Maurice B. Cohill, Jr. of the United States

District Court, Western District of Pennsylvania, denied

the Township's Motion to Dismiss with respect to the

claims under the Fair Housing Act Amendments. (See

Memorandum Opinion and Order dated May 18, 1994,

attached as Appendix A.)

The case concerns the enforcement and propriety of a

zoning ordinance enacted by the Township. (The Factual

Statements in this Brief are from the Memorandum Opin-

ion and Order.) For zoning purposes, the Township is

divided into five residential zones, delineated R-1, R-2,

R-3, R-4, and R-5. The three mentally retarded persons

reside in an R-2 Zoning district. Township Code Section

130.9 defines those uses permitted in the R-2 Single-

Family Residential District and limits permitted principal

uses by right to Single-Family Dwellings. The Township

Code defines single family dwelling in Section 130.3.80 as

“A RESIDENTIAL DWELLING containing one (1)

DWELLING UNIT occupied by one FAMILY and which is

the only PRINCIPAL BUILDING on the LOT.” On July 30,

1993, the Township issued a notice of violation to Resi-

dential Resources and Southwinds. The notice of viola-

tion charged Residential Resources and Southwinds with

violating Township Code Section 130.3.84. The Township

Zoning Code in Section 130.3.84 defines “FAMILY” as,

one (1) or more persons related by blood, mar-

riage or adoption; or a group of not more than

two (2) persons who need not be related by

blood, marriage or adoption, who are living

together in a DWELLING UNIT and maintain-

ing a common household and practicing on a

permanent basis a joint economic, social and

cultural life. If two (2) persons are living

together unrelated by blood, marriage or adop-

tion, the basis for the relationship cannot be

therapeutic or corrective or the profit motive In

addition, temporary gratuitous guests or per-

sons, such as domestic servants, employed by

the FAMILY and who report to the FAMILY for

supervision and decision making may reside

with the FAMILY. FAMILY shall not be con-

strued to include a PERSONAL CARE HOME, a

GROUP HOME, or a GROUP LIVING

ARRANGEMENT. Nothing in this definition

shall be construed to prohibit providing a home

for children under the age of eignteen (18) years

who are foster children or are living with the

FAMILY with the permission of their parent or

legal guardian.

Plaintiffs alleged that. the Township Zoning Code

violates the Fair Housing Act Amendments in that the

Code discriminates against the three mentally retarded

persons by, inter alia, prohibiting them from living in

residential zones R-1 and R-2 and failing to provide them

with reasonable accommodations, even though the Zon-

ing Code does not distinguish between disabled and non-

disabled unrelated persons. In its Motion to Dismiss, the

Township argued that the Township’s definition of family

is within the exemption set forth at 42 U.S.C. § 3607(b)(1)

for the reasonable occupancy limitations of local govern-

ment entities. Pursuant to this section of the Fair Housing

Act Amendments, the Township urged that its Code is

merely a “reasonable . . . restriction{] regarding the maxi-

mum number of occupants permitted to occupy a dwell-

ing.” In support, the Township extensively relied on

Elliott v. City of Athens, Ga., 950 F.2d 975 (11th Cir. 1992),

cert, denied, 113 S.Ct. 376, 121 L.Bd.2d 287, 61 U.S.L.W.

3155 (U.S., Oct. 19, 1992), wherein the United States Court

of Appeals for the Eleventh Circuit considered a reason-

able restriction exemption similar to the one proposed by

the Township. |

In his Memorandum Opinion, United States District

Judge Maurice B. Cohill, Jr., in holding that the plaintiffs

have stated a claim under the Fair Housing Act Amend-

ments upon which relief can be granted and denying the

Township's Motion to Dismiss the Fair Housing Act

claim, stated:

Elliott has been consistently criticized, see e.g.,

Oxford House-C v. City of St. Louis, 843 F.Supp.

1556, 1574 (E.D. Mo. 1994) (collecting cases), and

we will not repeat those criticisms here, except

to state that we too disagree with Elliott.

The conflicting decisions in Elliott v. City of Athens,

Ga., 960 F.2d 975 (11th Cir. 1992), cert. denied, U.S. 113

S.Ct. 376, 121 L.Ed.2d 287 (1992) and City of Edmonds v.

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

(9th Cir. 1994) have given the Township a Hobson's

choice. The Township now must either abandon its defi-

nition of family, despite its belief that Elliott was correctly

decided, or risk the very real possibility that it will be

found in violation of the Fair Housing Act Amendments.

e

REASONS FOR GRANTING THE PETITION

Amicus curiae joins with petitioner in urging this

Court to review the Ninth Circuit's decision because it is

in direct conflict with a decision from the Eleventh Cir-

cuit, because the decision represents a major departure

from related precedent from this Court, and because the

question presented has significant national importance.

I. The Question Presented Affects Thousands Of

Municipalities Across The Country That Utilize Sin-

gle Family Zoning As The Basic Building Block For

Their Zoning Schemes.

This is a very important issue. One-family or single-

family detached residence districts are a well-recognized

fact of use zoning regulations. As David M. Burch and

Scott M. Ryals wrote:

The single-family zoning district has become the

hallmark of modern American land use control.

Justice Sutherland’s opinion in Village of Euclid

v. Ambler Realty Co. [262 U.S. 365 (1926)], liter-

ally bristles with disdain for apartments and

those who live in them. He likens apartment

houses to “mere parasites” that feed upon the

light, fresh air, and open spaces of the single-

family district. From this exalted position, the

single-family zone and its protection have ten-

ded to dominate local land use decision-making.

D. Burch and S. Ryals, Land Use Controls: Requiem for

Zoning and Other Musings on the Year 1982, 15 Urban Law.

879, 880 (1983).

The right to establish such highly restricted districts

has been well settled for years. Village of Belle Terre v.

Boraas, 416 U.S. 1 (1974).

The definition of “family” is essential to zoning dis-

trict regulation. Many local legislatures have redefined

the term “family” to exclude groups of unrelated persons

from occupying dwellings in districts restricted to single-

family use. R. Anderson, American Law of Zoning, § 9.30

(1986).

The decision is of critical importance to our nation’s

local governments because it will drastically interfere

with their legislative function. The Ninth Circuit's deci-

sion, if not reviewed by this Court, will have a highly

detrimental impact on single family zoning. Indeed, the

decision may be the demise of single family zoning.

II. The Decision Represents A Major Departure From

Related Precedent From This Court And From

Other Circuits Supporting The Right To Establish

Such Highly Restricted Districts.

This Court has consistently acknowledged a commu-

nity’s lawful ability to regulate the number of unrelated

adults who may occupy a residence in a single family

zone, so long as groups of unrelated, disabled persons are

not treated differently under the law from other groups

of unrelated persons. See Village of Belle Terre v. Boraas, 416

U.S. 1 (1974); Moore v. City of East Cleveland, Ohio, 431 US.

494 (1977); City of Cleburne, Texas v. Cleburne Living Center,

Inc., 473 U.S. 432 (1985).

This Court resolved the constitutional issues in Belle

Terre v. Boraas, 416 U.S. 1 (1974). The Belle Terre case

resulted when six college students rented a house in a

single-family neighborhood. The ordinance limited occu-

pancy of one-family dwellings to traditional families or to

groups of not more than two unrelated persons. Mr.

Justice Douglas, speaking for a majority of the Court,

found no evidence in the record of any infringement of

constitutional rights, stating:

It is said however, that if two unmarried people

can constitute a “family” there is no reason why

three or four may not. But every line drawn by a

legislature leaves some out that may well have

been included. That exercise of discretion, how-

ever, is a legislative not a judicial function . . .

A quiet place where yards are wide, people few,

and motor vehicles restricted are legitimate

guidelines in a land use project addressed to

family needs. This goal is a permissible one

within Berman v. Parker, supra. [348 U.S. 26

(1954)]. The police power if not confined to

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 sanctu-

ary for people.

Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974).

The Township respectfully submits that the Ninth

Circuit’s decision in City of Edmonds does not accurately

set forth the state of the law and is in conflict with the

Third Circuit’s Opinion in Doe v. City of Butler, 892 F.2d

315 (3d Cir. 1989). In Doe, the Third Circuit upheld a

zoning ordinance limiting the residency of unrelated

adults when applied to a shelter for battered women.

Under similar analysis, the Eighth Circuit affirmed the

ability of local communities to apply zoning controls in

the form of distancing requirements for group homes.

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

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

1991).

III. The Court of Appeals’ Interpretation Of 42 U.S.C.

Section 3607(b)(1) Directly Conflicts With The

Eleventh Circuit’s Interpretation.

The decisions of the Ninth and Eleventh Circuits are

directly contrary to each other.

In Elliott v. City of Athens, GA, 960 F.2d 975 (11th Cir.

1992), cert. denied, ___ U.S. ___, 113 S.Ct. 376, 121 L.Ed.2d

287 (1992), the Eleventh Circuit held that a zoning ordi-

nance permitting a maximum of four unrelated individ-

uals to occupy a single family residence imposed a

“maximum occupancy limitation” within the meaning of

42 U.S.C. § 3607(b)(1), although the ordinance placed no

limit on the number of family members who could reside

together. Elliott v. City of Athens, GA, 960 F.2d 975, 979-981

(11th Cir. 1992), cert. denied, __ U.S. __, 113 S.Ct. 376,

121 L.Ed.2d 287 (1992).

The Ninth Circuit reached the contrary conclusion,

stating: “Section 3607(b)(1) only exempts. occupancy

restrictions that apply to all occupants, whether related

or not.” City of Edmonds v. Washington State Building Code

Council, et al., 18 F.3d 802, 807 (9th Cir. 1994).

10

The Ninth Circuit noted the conflict, stating, “we

disagree with Elliot, and so must reverse and remand.”

City of Edmonds v. Washington State Building Code Council,

et al., 18 F.3d 802, 803 (9th Cir. 1994).

The issue is narrow, and there is a direct conflict on

an issue of sufficient national importance to warrant

review.

CONCLUSION

For all of the foregoing reasons and for the additional

reasons set forth in the petition, the writ of certiorari

should be granted.

Respectfully submitted,

Rosert N. Hackett

Mark J. CHRISTMAN

Rosert N. Hackett & Associates

1105 Boyce Road

Pittsburgh, PA 15241

(412) 941-3331

Connsel to Amicus Curiae,

Township of Upper St. Clair

APPENDIX A

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JONATHAN COX, ANTHONY

LEGINE, CHARLES LATIMER, by

and through their next friend,

ROBERT MOCHAN;

SOUTHWINDS, INC.; and

RESIDENTIAL RESOURCES, INC.,

)

)

) Civil Action No.

)

)

)

Plaintiffs,

)

)

)

)

)

93-1443

V.

TOWNSHIP OF UPPER ST.

CLAIR,

Defendant.

MEMORANDUM OPINION

COHILL, DJ.

Before the Court is a Motion to Dismiss (Doc. 10)

filed by defendant Township of Upper St. Clair, Pennsyl-

vania (Township) in response to a complaint (Doc. 1) filed

by the plaintiffs Jonathan Cox, Anthony Legine, Charles

Latimer, Southwinds, Incorporated (Southwinds), and

Residential Resources, Incorporated (Residential

with mental retardation and is the residential service

provider for Messrs. Cox, Legine, and Latimer. /d. { 8.

Residential Resources is a not-for-profit corporation that

App. 2

purchases properties to be used by persons with disabil-

ities. ld. J 9.

In their complaint, plaintiffs allege that the defen-

dant’s zoning ordinance violates (1) Title VIII of the Civil

Rights Act, 42 U.S.C. § 3601 et seq., Compl. 1 56, (the Fair

Housing Act or FHA claim); (2) the Squal Protection and

Due Process Clauses of the Fourteenth Amendment to the

United States Constitution and 42 U.S.C. § 1983, Compl.

11 57, 58 (the Equal Protection and Due Process claims);

(3) section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, Compl. 1 59) the Rehabilitation Act claim); and (4)

Title II of the Americans with Disabilities Act (ADA), 42

U.S.C. § 12131, Compl. 7 60 (the ADA claim).

For the reasons below, we will deny the defendant's

motion to dismiss with respect to the claims under the

FHA and the Equal Protection and Due Process Clauses

and 42 U.S.C. § 1983. We will grant defendant's motion

with respect to the claims under the Rehabilitation Act

and the ADA.

I. Background

This case concerns the enforcement and propriety of

a zoning ordinance enacted by defendant Township. For

zoning purposes, the Township is divided into five resi-

dential zones, delineated R-1, R-2, R-3, R-4, and R-5.

Messrs. Cox, Legine, and Latimer reside at 224 Keifer

Drive in Upper St. Clair, which is in R-2. On July 30, 1993,

the Township issued a notice of zoning violation against

plaintiffs Residential Resources and Southwinds. The

Township charged the plaintiffs with violating the Town-

ship Code, ch. 130, § 130.3.84. Because the language of the

App. 3

code is important to the litigation, we set it out in some

detail. In § 130.3.84, “family” is defined as

One (1) or more persons related by blood, mar-

riage or adoption; or a group of not more than

two (2) persons who need not be related by

blood, marriage or adoption, who are living

together in a DWELLING UNIT and maintain-

ing a common household and practicing on a

permanent basis a joint economic, social and

cultural life. If two (2) persons are living

together unrelated by blood, marriage or adop-

tion, the basis for the relationship cannot be

therapeutic or corrective or the profit motive. In

addition, temporary gratuitous guests or per-

sons, such as domestic servants, employed by

a FAMILY and who report to the FAMILY for

supervision and decision making may reside

with the FAMILY. FAMILY shall not be con-

strued to include a PERSONAL CARE HOME, a

GROUP HOME, or a GROUP LIVING

ARRANGEMENT. Nothing in this definition

shall be construed to prohibit providing a home

for children under the age of eighteen (18) years

who are foster children or are living with the

FAMILY with the permission of their parent or

legal guardian.

Compl. { 33. And the term “group living arrangements”

is defined in the Township code as

Two or more but not more than seven (7) per-

sons . . . who need not be related by blood,

marriage or adoption who maintain a common

household and practice on a permanent basis a

joint economic, social and cultural life, provided

that the basis of the relationship is not the profit

motive or corrective. A GROUP LIVING

App. 4

ARRANGEMENT shall not be construed to

include any INSTITUTIONAL USE. A GROUP

LIVING ARRANGEMENT may include a com-

munity living arrangement for mentally

retarded or physically handicapped persons.

ld. 4 36. Plaintiffs assert that the code as written, and as

applied, discriminates against the mentally retarded and

is therefore invalid under numerous theories, as dis-

cussed below.

Il. The Fair Housing Act

The Fair Housing Act (FHA), as the name implies,

prohibits discrimination in the sale or rental of housing.

Specifically, the FHA provides that

it shall be unlawful . . . [t]o discriminate in the

sale or rental, or to otherwise make unavailable

or deny, a dwelling to any buyer or renter

because of a handicap... .

42 U.S.C. § 3604(f)(1). Plaintiffs allege that the Township

code violates the FHA in that the code discriminates

against Messrs. Cox, Lege, and Latimer by, inter alia,

prohibiting them from living in residential zones R-1 and

R-2 and failing to provide them with reasonable accom-

modations. In its motion to dismiss, the Township argues

that its code is “exempt” from the FHA, which provides:

Nothing in this subchapter limits the appli-

cability of any reasonable local, state, or federal

restrictions regarding the maximum number of

occupants permitted to occupy a dwelling.

App. 5

42 U.S.C. § 3607(b)(1). Pursuant to this section of the

FHA, the Township urges that its code is merely a “rea-

sonable . . . restriction[] regarding the maximum number

of occupants permitted to occupy a dwelling.”

In support, the Township extensively relies on Elliott

v. City of Athens, 960 F.2d 975 (11th Cir.), cert. denied, __

U.S. __, 113 S.Ct. 376 (1992), wherein the United States

Court of Appeals for the Eleventh Circuit considered a

reasonable restriction exemption similar to the one pro-

posed by the Township. Elliott has been consistently crit-

icized, see, e.g., Oxford House-C v. City of St. Louis, 843 F.

Supp. 1556, 1574 (E.D. Mo. 1994) (collecting cases), and

we will not repeat those criticisms here, except to state

that we too disagree with Filiott.

In sum, the plaintiffs have stated a claim under the

FHA upon which relief can be granted. We will therefore

deny the defendant's motic: to dismiss the FHA claim.

Ill. The Equal Protection and Due Process Clauses

The plaintiffs have likewise stated claims under the

Equal Protection and Due Process Clauses, and 42 U.S.C.

§ 1983, sufficient to survive defendant's motion to dis-

miss, which is denied with respect to those claims. See,

e.g., Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d

667, 683 (3d Cir. 1991) (noting that a substantive due

process challenge to zoning decisions requires factual

determinations on issues such as bias, improper motive,

and unlawful animus), cert. denied, _ U.S. __, 112 S.Ct.

1668 (1992).

App. 6

IV. The Rehabilitation Act

The Rehabilitation Act provides that no handicapped

individual, such as those with mental retardation, “shall,

solely by reason of his or her disability, be excluded from

participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving

Federal financial assistance.” 29 U.S.C. § 794(a) (emphasis

added).

The Township contends that its zoning operations do

not constitute a “program or activity” and that the Reha-

bilitation Act therefore does not apply. The plaintiffs,

citing another section of the statute, respond that “pro-

gram or activity” means “all of the operations” of “a

department, agency, special purpose district, or other

instrumentality of a State or local government.” 29 U.S.C.

§ 794(b)(1)(A). According to the plaintiffs, a town zoning

code is included in “all of the operations” of a local

government.

If viewed in isolation, the plaintiffs’ definition of

“program or activity” might seem plausible. But we look

to the context where the words appear. Words in a statute

are given their common meaning, and a statute is inter-

preted, in the first instance, by its words and their con-

text. We find that the plain meaning of § 794(a) does not

support the interpretation urged by the plaintiffs. As is

made clear by the context in which “program or activity”

appears, these words refer to discrete, unique initiatives

undertaken by an entity receiving federal funds. Enact-

ment and enforcement of a zoning code are neither pro-

grams nor activities as contemplated by the

App. 7

Rehabilitation Act; rather, they are fundamental under-

takings of government. We are unwilling to stretch the

definition of “program or activity” beyond that permitted

by common sense or common understanding.

We will therefore grant defendant's motion to dis-

miss with respect to the plaintiffs’ Rehabilitation Act

claim,

V. The Americans with Disabilities Act

The disputed language in the Americans with Dis-

abilities Act (ADA) is similar to that disputed in the

Rehabilitation Act, with one exception: the ADA provides

that no disabled individual shall “be excluded from par-

ticipation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132

(emphasis added). The Township argues that the ADA

does not apply to its zoning operations because such

operations are not “services, programs, or activities.” The

plaintiffs respond that even if zoning is not a service,

program, or activity, they are being “subjected to discrim-

ination” by the Township’s zoning.

We again look to the context in which the “subjected

to” language appears. The words immediately preceding

“subjected to” refer to affirmative acts by a public entity

in providing services, programs, or activities. We can

only conclude that the ADA prohibits discrimination by

public entities in how those entities administer their ser-

vices, programs, or activities. As discussed above in Part

IV, we find that zoning is not a service, program, or

activity as contemplated by the ADA. Accord Moyer v.

App. 8

Lower Oxford Township, No. 92-3348, 1993 U.S. Dist. LEXIS

144, at *4-"5 (E.D. Pa. Jan. 6, 1993); Burnham v. City of

Rohnert Park, No. C 92-1439SC, 1992 U.S. Dist. LEXIS

8540, at *10 n.9 (N.D. Cal. May 18, 1992).

With some trepidation, we reviewed the legislative

history of the ADA, which supports our conclusion that

Congress did not intend the ADA to cover the type of

discrimination alleged by the plaintiffs. The House

Report accompanying the ADA mentions that

Last year, Congress amended the Fair Housing Act

to prohibit discrimination against people with dis-

abilities in the sale and rental of private housing.

However, there are still no protections against

discrimination by employers in the private sec-

tor, by places of public accommodation, by State

and local government agencies that do not

receive Federal aid, and with respect to the pro-

visions of telecommunication services.

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 47

(1990), reprinted in 1990 U.S.C.C.A.N. 267, 329 (emphasis

added). We infer from the highlighted portion of this

report that Congress did not intend the ADA to cover

discrimination in the sale or rental of private housing, but

rather intended the FHA to address such discrimination.

The Senate Report, moreover, lists the two purposes

of the ADA: (1) to make the provisions of the Rehabilita-

tion Act applicable to all public entities, regardless of

whether they receive federal funding, and (2) to clarify

the Rehabilitation Act with respect to public transporta-

tion. S. Rep. 116, 101st Cong., 2d Sess., at 12 (1989). Thus

the ADA expanded the class of public entities that are

covered under the act to those that do not receive federal

App. 9

funds; and ADA did not expand the type of conduct

covered.

Because the ADA does not apply to the type of

discrimination alleged by plaintiffs, we will grant defen-

dant’s motion to dismiss with respect to the ADA claim.

An appropriate order follows.

/s/ Maurice B. Cohill, Jr.

Maurice B. Cohill, Jr.

Judge

App. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JONATHAN COX, ANTHONY )

LEGINE, CHARLES LATIMER, by)

and through their next friend, )

ROBERT MOCHAN; )

SOUTHWINDS, INC.; and ) Civil Action No.

RESIDENTIAL RESOURCES, INC.,) 93-1443

Plaintiffs, .

Vv. )

TOWNSHIP OF UPPER ST. )

CLAIR, )

Defendant. .

ORDER

AND NOW, to-wit, this 18th day of May 1994, for the

foregoing reasons, it is hereby ORDERED, ADJUDGED,

and DECREED that defendant Township of Upper St.

Clair’s Motion to Dismiss (Doc. 10) be and hereby is

1. GRANTED with respect to plaintiffs’ claims

under the Rehabilitation Act and the Americans with

Disabilities Act; and

2. DENIED with respect to plaintiffs’ claims under

the Fair Housing Act, the Equal Protection and Due Pro-

cess Clauses of the Fourteenth Amendment to the United

States Constitution, and 42 U.S.C. § 1983.

/s/ Maurice B. Cohill, Jr.

Maurice B. Cohill, Jr.

U.S. District Judge

ce:

App. 11

Mark J. Murphy, Esq.

Pamela E. Berger, Esq.

Disabilities Law Project

1429 Fourth Avenue

1708 Law & Finance Building

Pittsburgh, PA 15210

Alan G. Blandino, Esq.

Horgan & Blandino

1040 Fifth Avenue

Pittsburgh, PA 15219

William R. Sittig, Jr., Esq.

909 Frick Building

Pittsburgh, PA 15219

James W. Harvey, Esq.

Israel & Wood

501 Grant Building

Pittsburgh, PA 15219

Robert N. Hackett, Esq.

Mark J. Christman, Esq.

Robert N. Hackett & Associates

1105 Boyce Road

Pittsburgh, PA 15241

Amy Reynolds Hay

Asst. United States Attorney

Isabelle M. Thabault, Esq.

Housing & Civil Enforcement Section

U.S. Department of Justice

P.O. Box 65998

Civil Rights Department

Washington, D.C. 20035-5998

Harvey L. Handley, III, Esq.

U.S. Department of Justice

P.O. Box 65998

Civil Rights Division

Washington, D.C. 20035-5998