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

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No. 94-23 | OFFICE

In the

Supreme Court of the United States

October Term, 1994

+

CITY OF EDMONDS,

Petitioner,

Vv.

WASHINGTON STATE BUILDING CODE COUNCIL,

et al.,

Respondents.

+

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

o—

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF

PETITIONER, CITY OF EDMONDS

+

RONALD A. ZUMBRUN

*ANTHONY T. CASO

*Counsel of Record

ALAN W. Foutz

Grecory W. MCCRACKEN

Of Counsel

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation

— << ~

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED

Par

INTEREST OF AMICUS CURIAE

OPINION BELOW

EDMONDS’ ORDINANCE LIMITING THE NUMBER

OF UNRELATED PEOPLE WHO MAY LIVE IN

SINGLE-FAMILY RESIDENTIAL DWELLINGS IS

EXEMPT FROM FHAA’S REQUIREMENTS

A. The City of Edmonds’ Single-

Family Zoning Ordinance Is Exempt

from the FHAA by the FHAA’s

Maximum Number of Individuals

Permitted To Occupy a Dwelling

2.

The Ninth Circuit’s Ruling Violates

Congressional Intent To Avoid Federal

Il. THE FAIR HOUSING AMENDMENTS ACT

3. There Is No Rational Connection

OF 1988 WOULD BE UNCONSTITUTIONAL

AS INTERPRETED ..............-e0cceee 18 Between Local Housing Laws Affecting

A. The Intent of the Ratifiers Tle ee ecco ecccceces 28

of the United States Constitution ns 29

B. The Constitutional Basis for

the Fair Housing Act of 1968's

Ban on Racial Discrimination

Cannot Apply to the FHAA’s

Ban on Discrimination Because

C. The Commerce Clause Provides No

Constitutional Basis for Congress’

Interference with Local Land Use

Decisions in the Fair Housing

Amendments Act of 1988 .............. 22

Justify Legislation,

There Must Be a Nexus

Between Interstate Commerce

and the Legislation ............... 24

iv

TABLE OF AUTHORITIES CITED

Page

CASES

Chisom v. Roemer, 501 U.S. _, 115 L. Ed.

DI <i eevdbede de eGbteceescesese 2,27

City of Memphis v. Greene, 451 U.S. 100,

reh’g denied, 452 U.S. 955 (1981) .............. 13

City of Richmond v. J. A. Croson Co.,

RE ee 2,29

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

DT ee te ebeenebescbscoocceceeds 16

Dolan v. City of Tigard, 512 U.S. __,

SO. odiee co cc cecceeceonse 2

Elliott v. Athens, 960 F.2d 975 (11th Cir.),

cert. denied, U.S. ___, 121 L. Ed. 2d

Dt Mennnéecuéodeee6asecs 5-7,9-10,12-13

Equal Employment Commission v.

Wyoming, 460 U.S. 226 (1983) ................ 24

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

St. Paul, 728 F. Supp. 1396 (D. Minn. 1990),

aff'd, 923 F.2d 91 (8th Cir. 1991) .............. 16

Gibbons v. Ogden, 22 U.S. (9 Wheat.)

DP Sheeeee ee eR EEE Roe se se ceccecceces 23

Gregory v. Ashcroft, 501 U.S. ___,

a UU ds 6 oe coceccteceseos 26

v

Page

Heart of Atlanta Motel, Inc. v. United States,

PP RED. wecceccccecedsovccess 25-26

Hodel v. Indiana, 452 U.S. 314 (1981) ............. 28

Hodel v. Virginia Surface Mining and

Reclamation Association,

TTT cde ccccescccccccccces 22,26

Jones v. Alfred H. Mayer Co., 392 U.S.

DTT weed bebeseeeeeeebecoccccccees 21

Katzenbach v. McClung, 379 U.S. 294 (1964) .......... 25

Maryland v. Wirtz, 392 U.S. 183 (1968),

overruled on other grounds by

National League of Cities v. Usery,

GE Bckcccccccccccccecss 24,27

Michigan Protection and Advocacy Service,

Inc. v. Babin, 799 F. Supp. 695

(E.D. Mich. 1992), aff'd on other grounds,

18 F.3d 337 (Gth Cir. 1994) .. 0... ccc eee nee 27

Moore v. City of East Cleveland, 431 U.S.

PTT Babee eebbeseessetsacaccecccccces 9

Morgan v. Secretary of Housing and Urban

Development, 985 F.2d 1451

DU e eee eeeeseccccoccceccceses 27

New York v. United States, 505 U.S. __,

es BN IID s cc ccecccceccccscéus 20

Nollan v. California Coastal Commission,

STD one ecebecccccccccccesces 2

vi

Page

Preseault v. Interstate Commerce Commission,

SD <n a pee nnn edlels 6b a ce weki 26

Pulcinella v. Ridley Township, 822 F. Supp.

ES TS 27

Russell v. United States, 471 U.S. 858 (1985) ......... 23

Schad v. Borough of Mount Ephraim, 452 U.S.

Dl cadae dda he ne Sees ob wees é< 6,16

Seniors Civil Liberties Association, Inc. v.

Kemp, 965 F.2d 1030 (1ith Cir. 1992) ........... 27

United States v. Bass, 404 U.S. 336 (1971) .......... 26

United States v. Darby, 312 U.S. 100 (1941) ......... 23

United States v. Mennuti, 639 F.2d 107

ee 23

Village of Belle Terre v. Boraas, 416 U.S.

J ee eer ee er 8-9,13

Warth v. Seldin, 422 U.S. 490 (1975) ............. 6,16

Wickard v. Filburn, 317 U.S. 111 (1942) .......... 24-25

STATUTES

ee oe el. cece cece dheekte 4

eee ee oe 4,7,15,17

SE eS ee ee Ee a 4

vii

Page

FHA § 801, 82 Stat., codified at 42 U.S.C.

DT Cte che dee eeebereveceescococceces 26

Be Bn OED cc ccc ccc cccccscsccssess 3

DRRRRED cccccccccccnceeecescecececes 13

DD «00 00¢06n.000000000000000080000% 4

DE hss e60h006060600000080605969% 12

DE h-oeceeccceccscescscscesevens 44

> rr sr ee ee 3,5

DRRRPEED cocccccccccccssccceses 3,5,7,10-11

Title VIII of the Fair Housing Act,

Pub. L. No. 90-284, 82 Stat. 81 (1968) ........... 21

RULE

Supreme Court Rule No. 36 .... 2.6... eee eee l

UNITED STATES CONSTITUTION

OR EOS GED cecccccccvccvesesccsecececes 21

Thirteenth Amendment ....... 2.66. ee ee eens 21

Fourteenth Amendment ...... 1... 6 eee eee eens 21

MISCELLANEOUS

Raoul Berger, Federalism: The Founders’

a i 23

viii

Page

The Compact Oxford English Dictionary

Dick consheGbbteootocesescar 23

134 Cong. Rec. $10541 (daily ed., Aug. 2, 1988) ...... 26

II The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution as Recommended by

the General Convention at Philadelphia in

1787 Gohathan Elliot ed., 2d ed. 1836) ........... 18

P< cect cheoe 00 00 6000006.09.84 20

PT +. ss ckcbceebecevesesceassas 19

Alexis de Tocqueville, Democracy in

America (Henry Reeve trans.,

Henry Steele Commager, ed. 1839).............. 20

William O. Douglas, The Court Years,

1939-1975 (1980) ..... see e eee eee eee eeees 24

Dubofsky, Fair Housing: A Legislative

History and a Perspective,

8 Washburn L. J. 149 (1969) .............554. 21

Richard A. Epstein, The Proper Scope of

the Commerce Power, 73 U. Va.

ee TEED coed ecocccccocecess 18,22,25

The Federalist No. 10 ames Madison)

(Clinton Rossiter ed., 1961) .............0005. 19

The Federalist No. 42 (James Madison)

(Cliton Rossiter ed., 1961) .... 2... 0.5 e ees 23

ix

Page

The Federalist No. 45 (James Madison)

(Cliton Rossiter ed., 1961) 2... . 0... 000 eens 19

The Federalist No. 52 (James Madison)

(Cliton Rossiter ed., 1961) 2.0... 0... ccc eee ee 19

The Federalist No. 84 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ............000005. 20

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

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

DTT cee eeebeseseoscocccocccce 10-11,16

Samuel Johnson’s Dictionary of the

English Language (3d ed. 1765) .............45. 23

George Mason, Objections to the Constitution,

reprinted in I The Debate .............050 0 eee 20

Robert G. Schwemm, Housing Discrimination:

Law and Litigation 6-1 (CBC 1994) ........... 21,27

— a ——

— -

No. 94-23

+

In the

Supreme Court of the Un__ed States

October Term, 1994

+

CITY OF EDMONDS,

Petitioner,

v.

WASHINGTON STATE BUILDING CODE COUNCIL,

et al.,

Respondents.

oe

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

+

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION IN SUPPORT OF

PETITIONER, CITY OF EDMONDS

+

INTERESTS OF AMICUS CURIAE

Pursuant to Supreme Court Rule No. 36, Pacific Legal

Foundation respectfully submits this brief amicus curiae in

support of petitioner, City of Edmonds. Consent to the filing

of this brief has been granted by counsel for all parties. The

2

letters of consent have been lodged with the clerk of this

Court.

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, many 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 arguments that will

be put forth by the parties to this action. 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. __,

129 L. Ed. 2d 304 (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, Chisom v. Roemer, 501 U.S. __, 115 L.

Ed. 2d 348 (1991).

PLF is interested in this case because of the sensitive

issues of federal intrusion into the realm of zoning and land

use regulations, an area that since the establishment of our

federal system has been the exclusive domain of local

governmental authority, that are present in this case. PLF

3

seeks to provide this Court with public policy perspectives on

the balancing of local and federal interests when a particular

zoning scheme might run afoul of the admittedly federal

interest in suppressing all forms of discrimination against the

handicapped.

7

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 held that local zoning ordinances that limit only the

number of unrelated persons who may live together are

subject to the mandates of the Fair Housing Act, 42 U.S.C.

§ 3601, et seq. (the Act), and the Fair Housing Amendments

Act 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). Edmonds, 18 F.3d

at 806-07.

This conclusion was arrived at 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.”

a

INTRODUCTION

Oxford House, Inc., sponsors halfway houses

around the country for recovering alcoholics and drug

addicts. Oxford House has determined that each recovery

facility must have six or more residents “to ensure financial

4

self-sufficiency, to provide a supportive atmosphere for

successful recovery, and to comply with federal requirements

for the receipt of state start-up loans." Edmonds, 18 F.3d

at 803. The home in which the Edmonds Oxford House

seeks to establish a recovery facility is a leased residence in

which 10 to 12 adult men will be housed at any given time.

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

residential. /d.

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, but not from multifamily

residential zones.'

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,

' Portions of the ECDC requiring a conditional use permit

for group homes for the disabled in multifamily residential

zones have been repealed, thereby enabling group homes to

operate in homes situated in multifamily residential zones as

a matter of right. Petition for writ of certiorari at 16-17.

5

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

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

§ 3604(f)(3)(B).

However, 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 court below

has recognized that the City of Edmonds has not acted with

any animus toward or intent to discriminate against the

occupants of Oxford House because of their handicap.

Edmonds, 18 F.3d at 803.

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 (llth Cir.), cert. denied, US. _,

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

6

FHAA’s exemptions are to be interpreted. This Court is

now asked to resolve the inconsistency in how zoning

ordinances limiting the number of unrelated persons living

together are to apply to FHAA.

—o__

SUMMARY OF ARGUMENT

The plain language of the Edmonds’ ordinance and the

plain language of FHAA’s exemption provisions are

sufficient to establish that the City of Edmonds need not

submit to the lengthy and expensive process of determining

whether “reasonable accommodation" has or must be made

to the Oxford House under the FHAA. See Elliott v. Athens,

960 F.2d at 979-81.

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 governmental 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 local 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).

This case also gives rise to the fundamental question

of whether applying the FHAA to local governments in the

manner presented in this case constitutes a valid exercise of

the enumerated powers which the United States Constitution

extends to Congress. Amicus will show that the framers did

not contemplate that Congress would wield such intrusive

powers and that the constitutional grant of authority upon

7

which Congress relied in adopting the FHAA does not

support application of the FHAA in a manner that subjects

the ordinance at issue in this case to federal manipulation

ARGUMENT

EDMONDS’ ORDINANCE LIMITING THE NUMBER

OF UNRELATED PEOPLE WHO MAY LIVE IN

SINGLE-FAMILY RESIDENTIAL DWELLINGS IS

EXEMPT FROM FHAA’S REQUIREMENTS

A. The City of Edmonds’ Single-

Family Zoning Ordinance 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

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 the

Edmonds’ ordinance makes a distinction between inhabitants

of a single-family dwelling who constitute a family and

inhabitants who do not fit the ECDC definition of family, 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 between related occupants and unrelated

occupants exists only to recognize the protection that the Due

Process Clause of the Fourteenth Amendment extends to the

family. This distinction, as defined by Edmonds’ definition

of “family,” follows the form which this Court approved in

Village of Belle Terre v. Boraas, 416 U.S. 1, 8-9 (1974)

(holding that a zoning ordinance limiting single-family

dwellings to a maximum of two unrelated persons without

limiting the number of related persons was rationally related

to legitimate interests relating to density, traffic, and quiet,

open spaces for families).

Although Belle Terre did not address the specific

question of whether the ordinance at issue constituted a

maximum occupancy restriction, it did uphold the underlying

constitutionality of the ordinance. The Court recognized that

the ordinance at issue, much like the Edmonds’ ordinance, is

not aimed at transients, involves no procedural disparity,

and involves no “fundamental” right. Belle Terre, 416 U.S.

at 7. Coupling these factors with the Court’s determination

that “[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” (id. at 9), the Court

concluded that these are permissible goals and that “[i}t is

ample to lay our zones where family values, youth values,

and the blessings of quiet seclusion and clean air make the

area a sanctuary for people." Jd.

9

The ordinance also 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). Moore gave rich expression to the sanctity that is to

be accorded the family and stated that the Constitution

protects the family because of the family’s deep historical

and traditional roots and its role in passing down our most

cherished moral and cultural values. Jd. at 503-04. Based

upon this recognition of the family’s importance, Moore

invalidated an ordinance which limited occupancy to

members of a single family, but that defined in a

manner that prevented a grandmother from living with her

grandson.

The Ninth Circuit’s reasoning pays no attention

whatsoever to this extremely important policy consideration

and mentions the Moore decision primarily as an example of

a use restriction similar to the one adopted in Edmonds.

Edmonds, 18 F.3d at 806. The Ninth Circuit then states that

"[a]pplying the [FHAA] exemption would insulate these

single-family residential zones from the sweep of FHAA

requirements.” Amicus fails to discern the horrible

consequences that would flow from exempting otherwise

constitutional zoning regulations from the reach of FHAA

simply because the regulation recognizes that a family, even

an extended family, is immeasurably different from a group

of unrelated individuals living together in circumstances that

often pose a significant threat to the solitude and protection

that government is legitimately charged with providing for

The Eleventh Circuit in Elliott, examined both Moore

and Belle Terre and concluded that “it is apparent that

Supreme Court precedent sanctions zoning limitations based

upon the number of unrelated persons living together"

(Ellion, 960 F.2d at 980) and that “Moore and Belle Terre,

10

read together, indicate that a reasonable method of

controlling density is to place occupancy limitations on

unrelated persons but not on related persons." Jd. at 981.

The Elliott court then correctly concluded that the zoning

restriction there at issue, which likewise limited only the

number of unrelated persons who could occupy a single-

family dwelling, was a maximum occupancy limitation. /d.

The Ninth Circuit, however, adopts a construction of

the FHAA exemption that would categorically exclude any

zoning restriction which differentiates between the number

of related versus unrelated occupants. Edmonds, 18 F.3d

at 805. In reaching this construction, the Ninth Circuit

ignored the plain language of Section 3607(b)(1) and elevated

language from a single committee report to the status of the

declaration of congressional intent. The Committee Report

relied upon below states that under the exemption found in

Section 3607(b)(1), “[rJeasonable limitations by governments

would be allowed to continue, as long as they were applied

to all occupants, and did not operate to discriminate on the

basis of race, color, religion, sex, national origin, handicap

or familial status." H.R. REP. No. 711, 100th Cong.,

2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 2173,

2192 (committee report). The reasoning that since the

zoning ordinance at issue did not apply to “all occupants”

but only to unrelated persons, it did not fit the criteria

for exemption ignores the plain language of the statute,

the purpose of FHAA and the context of the phrase “all

occupants.”

Section 3607(b)(1) applies to “any reasonable local,

State, or Federal restriction{[] regarding the maximum

number of occupants permitted to occupy a dwelling.” This

language is admittedly broad, with no indication that certain

methods of determining maximum occupancy limitations are

exempt while others are not, as long as the particular method

ll

is reasonable. Unfortunately, the Ninth Circuit was unable

to “discern from the plain language of the statute whether

Congress intended to exempt Edmonds’ zoning ordinance."

Edmonds, 18 F.3d at 804. Noting that Section 3607(b)(1)

could be :nterpreted either as only including ordinances that

restrict the number of all occupants or as including ordi-

nances that limit just the number of unrelated occupants, the

Ninth Circuit found that “neither follows directly from the

plain language.” Jd.

Amicus contends that the plain language in fact

supports the construction propounded by petitioner. The

ordinance is reasonable (see discussion, infra), and it limits

the maximum number of people who may live in a single-

family residence. The fact that this limitation is something

less than a universal limit on all categories of occupants

should not alter the fundamental nature of the limitation, as

long as the limitation is not drawn along unconstitutional

lines. Indeed, the Ninth Circuit has taken what must be

considered to be at least some form of maximum occupancy

limitation and limited its applicability under the FHAA. This

result is what Section 3607(b)(1) was expressly designed to

prevent. Because the ordinance meets the plain language of

the statute, reference to congressional intent is unnecessary.

If, however, the Court deems it appropriate to look into

Congress’ intent behind FHAA and its exemption, this Court

should recognize that the Committee Report relied upon

below represents but a thin slice of evidence of Congress’

intent on this matter. Moreover, portions of the Committee

Report that evince an intent to exclude ordinances such as the

one here at issue were ignored. A careful reading of the

Committee Report indicates an unequivocal intent to prohibit

only those laws and regulations “which discriminate against

individuals with handicaps,” or that constitute “application of

special requirements through land use regulations,” or the

12

"enforcement of otherwise neutral rules and regulations ...

in a manner which discriminates against people with dis-

abilities.” Committee Report at 2185. Thus, excluding the

Edmonds’ zoning ordinance from FHAA oversight works no

violation of FHAA’s purposes since it does not discriminate,

either directly or indirectly, against the handicapped or any

other protected group.

To the limited extent that the Committee Report can be

looked to as evidence of congressional intent, it should also

be recognized that the inclusion of "familial status” in the

list of grounds for discrimination which the FHAA was

designed to prevent in no way jeopardizes the Edmonds’

ordinance. “Familial status” refers specifically to “one or

more individuals (who have not attained the age of 18 years)

being domiciled with (1) a parent or another person having

legal custody of such individual or individuals; or (2) the

designee of such parent or persons having such custody.”

42 U.S.C. § 3602(k). No such discrimination is implicated

by Edmonds’ zoning ordinance.

Also, the committee mentions, by way of example, that

"[a] number of jurisdictions limit the number of occupants

per unit based on a minimum number of square feet in the

unit or the sleeping areas of the unit." Jd. (emphasis added).

If Congress intended such a method of limiting occupancy to

be the sole method contemplated by the FHAA exemption,

surely Congress would have done more than merely mention

it as a method employed by a number of jurisdictions.

The court in Elliott expressly stated:

We do not believe that Congress intended that the

maximum occupancy limitation exemption would

apply only to a limitation on the maximum

number of persons per square foot of dwelling

13

space. A careful reading of the legislative history

demonstrates that Congress was merely giving

examples of the type of restrictions on occupancy

that would be reasonable.

Elliott, 960 F.2d at 980 (emphasis in original).

Thus, the Edmonds’ ordinance’s constitutionally

appropriate accommodation of familial interests should not

render its remaining language any less of a restriction on

the maximum occupancy of a single-family dwelling.

2. The Ordinance Is Reasonable

_Under the FHAA, "reasonable local, State or Federal

restrictions regarding the maximum number of occupants

permitted to occupy a dwelling" are exempt from FHAA’s

purview. 42 U.S.C. § 3607(b)(1). The Edmonds’ 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, reh’g denied,

452 U.S. 955 (1981), and it may exercise its police powers

"*to lay out zones where family values, youth values, and

ee ee aerneen ane Mites iy ane So ate

a sanctuary for people.’" Id. at 127 n.43 (quoting Village

Belle Terre v. Boraas, 416 U.S. ig The a.

controls population density, traffic, and noise in single-family

residential areas while preserving the residential character of

such areas. The ordinance does not prohibit group homes,

but merely regulates the number of people who may live in

such a home.

In seeking to preserve the tranquility of single-famil

residential asens and the sense of community and common

14

values and interests that such areas provide its residents, it

is certainly reasonable to conclude that homes occupied by

more than five people who are not related--who are not a

"“family"--may pose a greater threat to the area’s tranquility

than homes occupied by families consisting of the same

number of people. The factor of whether the inhabitants of

a single-family dwelling constitute a family bears directly on

the outcome which the local government is legitimately

seeking by adopting a separate zoning designation for single-

family residences.

The City of St. Louis, in a case currently pending

before the Eighth Circuit, has examined the impact the

Oxford Houses have on single-family neighborhoods and has

found that parking difficulties are aggravated, members of

Oxford House and their visitors are coming and going at all

hours of the day and night, and Oxford House residents are

highly transient. Brief of Appellant, Oxford House v. City of

St. Louis, No. 94-160 EMSL (8th Cir.), at 23-24. The

record in that case also indicates that of the 26 people

who lived at one Oxford House between May of 1992 and

January 26, 1993, 11 relapsed or were suspected of relapsing

into drug or alcohol abuse. Id. at 24. Oxford House

admitted that alcoholics and drug addicts are extremely

dangerous when using, all Oxford House members have

histories of crime, and that Oxford House experts may not be

able to detect a relapse as soon as it happens. Jd.

As applied in this case, the ordinance admittedly

precludes unrelated groups of more than five recovering

alcoholics and drug abusers from living in a single-family

residential dwelling. However, this preclusion stems from

the fact that those recovering are not related to one another,

not because they are handicapped. The reasonableness of

such a limitation is supported by the fact that the average

size of a family in Edmonds is 2.88 persons. 1990 Census

House proposes to house 10 to 12 adults in housing stock

that the City of Edmonds generally uses to house

approximately three people per dwelling.

The Edmonds’ ordinance is therefore a reasonable and

nondiscriminatory use of the city’s police power to protect

the character of single-family residenti neighborhoods. The

nondiscriminatory nature of ECDC § 21.30.010 will be dis-

cussed in greater detail below. It is sufficient to point out

therefore constitute a family under ECDC § 21.30.010, they

will not be precluded from doing so, handicap notwith-

standing. Likewise, five or more unrelated individuals who

are not handicapped will be prevented from living in a

single-family residential dwelling on the same grounds and

for the same reasons as residents of the Oxford House are

prohibited from living together in numbers greater than five.

The ordinance’s burden on recovering alcoholics and

drug abusers is not onerous and leaves them with alter-

natives: 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.

16

B. The Ninth Circuit’s Ruling Violates

Congressional Intent To Avoid Federal

Interference in Fundamental Local

Land Use Decisions

Congress intended the FHAA to prohibit discrimination

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

Because this Court has recognized that the power of local

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

Borough of Mount Ephraim, 452 U.S. at 68, and that zoning

laws are peculiarly within the province of state and local

legislative authorities, Warth v. Seldin, 422 U.S. at 508 n.18,

the Ninth Circuit’s interpretation of the FHAA is more

invasive of the province of local government than is

warranted to accomplish Congress’ intent.

In deference to local governmental authority, the Eighth

Circuit has affirmed the 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), aff'd,

923 F.2d 91 (8th Cir. 1991). See also Doe v. City of Butler,

892 F.2d 315, 321 (3d Cir. 1989) (applying similar rea-

soning 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.

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.

17

This is particularly so where the zoning ordinance in

question is incapable of being discriminatorily applied. The

operation of the ordinance does not depend upon the result of

a discretionary review of circumstances, which discretion

might be exercised discriminatorily. Edmonds’ zoning

restriction applies where two objectively quantifiable

elements exist: (1) more than five individuals are living in

wr donee tena artrasy cose ntaage at agg. mt Thus,

where is no threat or possibility of

individuals being discriminated against eft eg zoning

ordinances imposing occupancy limits based on relatedness

does not violate either the spirit or the letter of the FHAA.

It must be pointed out that Edmonds’ restriction on the

number of unrelated persons who may live together does not

prevent Oxford House from operating in a single-family

residential dwelling. ECDC § 21.30.010 only works to

prevent more than five residents from occupying any single-

recovery facility. If Oxford House could arrange its

administrative affairs so as to be able to function with that

number of residents, there would be nothing in Edmonds’

zoning code to prevent Oxford House from operating in a

single-family residential area.

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 unrelated 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 of the FHAA exceeds the nondiscriminatory

treatment of the disabled which Congress intended.

—_*

Il

THE FAIR HOUSING

ADMENDMENTS ACT OF 1988 WOULD

BE UNCONSTITUTIONAL AS INTERPRETED

A. The Intent of the Ratifiers of the

United States Constitution Limits

Congress to Its Enumerated Powers

In 1787, the individual states of this nation were

presented with a new Constitution that provided for a federal

system in which certain enumerated powers were delegated

to the national government. Many of the ratifiers of the

Constitution, however, feared that the national government

would ignore the jurisdictional restraints imposed on it by the

proposed Constitution in the form of its few and defined

delegated powers and threaten state sovereignty and personal

- liberty. See generally Richard A. Epstein, The Proper Scope

of the Commerce Power, 73 U. VA. L. REV. 1387 (1987).

Such a government, located thousands of miles from its

constituents, could, many thought, become isolated from its

constituents, corrupt, and self-perpetuating. “After we have

given them all our money, established them in a federal

town, given them the power ... to establish their arbitrary

government, what resources do the people have left?”

Il THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON

THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOM-

MENDED BY THE GENERAL CONVENTION AT PHILADELPHIA

IN 1787 at 62 (Jonathan Elliot ed., 2d ed. 1836) (ELLIoT’s

DEBATES).

Many of the ratifiers predicted that the powers granted

to the federal government by the proposed Constitution

19

would result in the despotism of an unresponsive aristocracy

within the federal district. See generally 1V ELLIot’s

DEBATES, supra, at 313.

In an attempt to calm these fears and assure ratification,

the Federalists claimed that the structure of the Constitution

would actually protect state sovereignty and personal liberty.

THE FEDERALIST No. 10 (James Madison). Madison

described this structure in THE FEDERALIST No. 52:

In the compound republic of America, the power

surrendered by the people is first divided between

two distinct governments, and then the portion

allotted to each subdivided among distinct and

separate departments. Hence a double security

arises to the rights of the people. The different

governments will control each other, at the same

time that each will be controlled by itself.

Id. at 323 (James Madison) (Clinton Rossiter ed., 1961).

That the power was divided between the two governments is

evident in the text of the Constitution itself, with “the great

and aggregate interests being referred to the national, the

local and particular to the State legislatures." THE

FEDERALIST No. 10, at 83 (James Madison) (Clinton

Rossiter ed., 1961). "The powers reserved to the several

States will extend to all objects which, in the ordinary

course of affairs, concern the lives, liberties, and properties

of the people, and the internal order, improvement, and

prosperity of the State." THE FEDERALIST No. 45, at 292-93

(James Madison) (Clinton Rossiter ed., 1961). Certainly this

By comparison, the powers delegated to the federal

government were described as “few and defined.” THE

FEDERALIST No. 45, at 292. These few and defined powers,

20

as described by de Tocqueville, "have been confined to a

certain sphere; and although the despotism of the majority

may be galling upon one point, it cannot be said to extend to

all." Alexis de Tocqueville, DEMOCRACY IN AMERICA 170

(Henry Reeve trans., Henry Steele Commager, ed. !839).

Those who opposed the ratification of the proposed

Constitution were not convinced, however. They wanted a

Bill of Rights to assure state sovereignty and individual

liberty. In the Virginia ratification debates, for example,

George Mason wondered why, if these two items were not

"given up, where are they secured? Let the gentlemen show

that they are secured in a plain, direct, unequivocal manner.”

II] ELLIOT’s DEBATES, supra, at 266. See also George

Mason, “Objections to the Constitution,” reprinted in 1 THE

DEBATE, supra, at 345-49. After the Constitution was

ratified these two items were secured by the Bill of Rights,

which includes the Tenth Amendment's reiteration of the

textual limits on the federal government. New York v.

United States, 505 U.S. __, 120 L. Ed. 2d 120, 137-38

(1992).

It should be noted that the characterization of the

powers of the federal government as few and defined came

before the adoption of the Bill of Rights. In fact, Hamilton

predicted that the adoption of a Bill of Rights would give the

federal government the “colorable pretext” to run roughshod

over the jurisdictional restraints imposed on it in the text of

the Constitution by legislating right up to the edge of

whatever individual rights were enumerated. THE

FEDERALIST No. 84, at 513 (Alexander Hamilton)

(Clinton Rossiter ed., 1961).

21

B. The Constitutional Basis for the Fair

Housing Act of 1968’s Ban on Racial

Discrimination Cannot Apply to the FHAA’s

Ban on Discrimination Because of Handicap

At the time Congress considered passage of

Title VIII of the Fair Housing Act of 1968 (FHA), Pub. L.

rn ctener bm ya 81 (1968), the constitutional basis for

ts on racial discrimination in housing was thought to be

the Enforcement Clause of the Fourteenth, Amendment and

the Commerce Clause, U.S. Const., Art. I, § 8, Cl. 3.

Pont gry epee mereaage LAW AND

LITIGATION 1994) (citing Dubofsky, Fair Housing:

A Legislative History and a Perspective, 8 WASHBURN Ly

149, 152 n.15 (1969)). However, this Court held soon after

Title VIII's passage that the ban on pri i

discrimination was a valid exercise Sf nh

to enforce the Thirteenth Amendment. Schwemm, supra,

at 6-1 to 6-2 (citing Jones v. Alfred H. Mayer Co., 392 U.S.

409, 413, 437-44 (1968)). Since that time, lower courts

have relied on Jones and the Thirteenth Amendment to

uphold the FHA in the face of constitutional attack.

Schwemm, supra, at 6-2 (citing cases).

The Thirteenth Amendment cannot sustain Congress’

interference in this case with local zoning under the FHAA.

Pirst, Congress addressed familial status and handicap in the

PHAA, not race. Second, Edmonds’ zoning scheme does not

discriminate on the basis of handicap, as discussed above.

Rather, it operates to prevent all nonrelated persons, not just

handicapped persons, from living in groups of more than five

people in single-family neighborhoods. For example, frater-

nity members, sorority members, college students, transients,

the elderly, and people of modest means are likely to live in

congregate arrangements. All these people would be barred

from living in such an arrangement in a single-family

22

neighborhood in the City of Edmonds, not because of some

identified characteristic, but rather because Edmonds’ zoning

scheme protects the character of such neighborhoods by

precluding high density living arrangements.

Further, because Edmonds’ zoning scheme does not

discriminate against the handicapped, the Fourteenth

Amendment is not available to justify congressional action

under the FHAA in this case. Therefore, only the

Commerce Clause remains to sustain the constitutionality of

the FHAA. Amicus curiae will demonstrate that the

Commerce Clause cannot justify the FHAA in this case.

C. The Commerce Clause Provides No

Constitutional Basis for Congress’

Interference with Local Land Use

Decisions in the Fair Housing

Amendments Act of 1988

1. The Commerce Clause Should Be Interpreted

To Limit Congressional Authority To Activities

That Are Commerce Among the Several States

At the outset, it is clear that the Commerce Clause

provides Congress substantial authority to regulate activities

that directly or indirectly affect commerce. E.g., Hodel v.

Virginia Surface Mining and Reclamation Association,

452 U.S. 264, 276-77 (1981).? Even so, the original

? This is not to say that there are no serious misgivings from

legal scholars. Professor Epstein, for example, believes that

the New Deal expansion of the Commerce Clause resulted

from faith in the benevolence of the national government but

was based on questionable legal logic. See Richard A.

Epstein, The Proper Scope of the Commerce Power, 73 Va.

L. REV. at 1449-554.

ee ee

23

purpose of the Commerce Clause was to quell interstate trade

rivalries and to meet the challenges of foreign competition.

THE FEDERALIST No. 42, at 266-69 (James Madison)

(Clinton Rossiter ed., 1961). Even in Gibbons vy. Ogden,

22 U.S. (9 Wheat.) 1 (1824), which is often cited for the

broad power Congress has under the Commerce Clause, this

Court declared that federal power to regulate commerce was

“complete in itself, may be exercised to its utmost extent,

and acknowledges no limitations other than are prescribed in

the constitution." Id. at 196 (quoted in, ¢.g., United

States v. Darby, 312 U.S. 100, 114 (1941) (emphasis

added). One such limitation is that Congress can only

regulate commerce. The Ogden Court defined “commerce”

substantially unchanged to

this day: en mnee Coonan suas of Gn preteen of eaters

or at: bunt on

DICTIONARY 295 (2d ed. 1992).

Another limitation prescribed by the Commerce Clause

is that the commerce must be among the several states. "The

enumeration [of particular classes of commerce] presupposes

something not enumerated." Ogden, 22 U.S. at 195. See

also, ¢.g., Russell v. United States, 471 U.S. 858, 859 n.4

24

in Maryland v. Wirtz, 392 U.S. 183, 196 (1968), overruled

on other grounds by National League of Cities v. Usery,

426 U.S. 833 (1976), federal power is limited to

‘commerce,’ and not all commerce but commerce ... among

the several States. The expansion of enterprise has vastly

increased the interests of interstate commerce but the

constitutional differentiation still obtains." Jd. at 196. The

Constitution, read logically and with knowledge of the intent

of the ratifiers, should limit congressional authority over an

activity only if it was both “among the several States” and

“commerce.”

2. When Congress Relies on the Commerce

Clause to Justify Legislation, There

Must Be a Nexus Between Interstate

Commerce and the Legislation

Though Commerce Clause jurisprudence has adapted

through the transition from a local to a national economy,

Equal Employment Opportunity Commission v. Wyoming,

460 U.S. 226, 247 (1983) (Stevens, J., concurring), its grant

of authority, as discussed above, is not unlimited. The

Commerce Clause was given its most generous interpretation

in Wickard v. Filburn, 317 U.S. 111 (1942), a case described

by Justice Douglas as having reached the “outward limits” of

that clause. William O. Douglas, The Cowrt Years, 1939-

1975 SQ (1980). In Wickard, federal regulation of wheat

grown at home for home consumption was upheld on grounds

that it was regulating activities that affect interstate

commerce. Yet, the language of the statute at issue in

Wickard, the Agricultural Adjustment Act of 1938, expressly

addressed how “to avoid surpluses and shortages and the

consequent abnormally low or high wheat prices and

obstructions to commerce.“ 317 U.S. at 115 (emphasis

added).

25

Wickard certainly involved an extraordinary use of the

Commerce Clause. Although the wisdom of such generous

New Deal interpretation of the Commerce Clause is open to

some debate, it is the law. See Richard Epstein, The Proper

Scope of the Commerce Power, 73 Va. L. REV. 1387. How-

ever, because of the logical and political difficulties inherent

in such decisions, id. , Wickard ought to remain the outward

limit of the Commerce Clause rather than using this litigation

to expand the clause even beyond its present tortured extent.

Another seminal case in the history of Commerce

Clause interpretation is Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241 (1964), which upheld the consti-

i i of the Civil Rights Act of 1964, primarily on the

26

evidence that discrimination by hotels and motels

impedes interstate commerce.

379 U.S. at 253. These cases are not precedent to authorize

judicial findings of Commerce Clause authority where

Congress made none and where no evidence to support such

a finding is present in the congressional record.

Where the Commerce Clause has been used to justify

congressional legislation, Congress has expressly referred

to the Commerce Clause in the legislation. Nonetheless,

Congress nade no reference to the Commerce Clause in the

FHAA, 102 Stat. at 1619-36, and it made only the vague

statement in the FHA that "[ijt is the policy of the United

States to provide, within constitutional limitations, for fair

housing throughout the United States." FHA § 801, 82 Stat.

at 81, codified at 42 U.S.C. § 3601 (emphasis added).

When Congress fails to require a nexus with interstate

commerce on the face of its enactment, it demonstrates that

it did not adequately consider the intrusion it was effecting

into matters traditionally and primarily left to the states.

E.g., Gregory v. Ashcroft, 501 U.S. _, 115 L. Ed. 24 410,

426, 430 (1991), United States v. Bass, 404 U.S. 336, 350

(1971). Further, the congressional record of the debate

on the FHAA contains only a passing reference to the

Commerce Clause. Senator Specter opined that the size of

bathrooms in multiunit housing affects interstate commerce

because “the [building] materials passed in interstate

commerce.” 134 Cong. Rec. $10541 (daily ed., Aug. 2,

1988) (remarks of Sen. Specter). Although a court reviewing

legislation “must defer to a congressional finding that a

regulated activity affects interstate commerce if there is any

rational basis for such a finding,” Preseault v. Interstate

Commerce Commission, 494 U.S. 1, 17 (1990) (citing Hodel

452 U.S. at 276), these findings are too slender a reed to

support the burden of a reasonable connection between

27

interstate commerce and local zoning schemes for single-

family residential neighborhoods.

Despite the absence of any explicit reference to the

Commerce Clause in the FHA and the FHAA, some lower

federal courts have relied on the Commerce Clause to uphold

the constitutionality of the ban on discrimination on the

basis of familial status and handicap in the FHAA.

Schwemm, supra, at 6-3 n.15 (citing Seniors Civil Liberties

Association, Inc. v. Kemp, 965 F.24 1030 (11th Cir. 1992);

Morgan v. Secretary of Housing and Urban Development,

985 F.2d 1451, 1455-56 (10th Cir. 1993); Pulcinella v.

Ridley Township, 822 F. Supp. 204, 210-11 (B.D. Pa. 1993).

But see Michigan Protection and Advocacy Service, Inc. v.

Babin, 799 F. Supp. 695, 727-42 (E.D. Mich. 1992), aff'd

on other grounds, 1% F.3d 337 (6th Cir. 1994) (holding that

Congress lacks power under the Fourteenth Amendment and

the Commerce Clause to ban handicap discrimination in a

case involving a home sale by one private party to another).

Should this Court also find some sort of

congressional intent, Chisom v. Roemer, 115 L. BEd. 2d

at 378 (Scalia, J., dissenting), in the FHAA, the enumeration

of Article I powers becomes meaningless, allowing Congress

to reach into any area regardless of the nexus such conduct

may have with interstate commerce. The justification of

“commerce” cannot be bootstrapped onto every realm of

human endeavor that may affect commerce in order to justify

justify congressional use of a “relatively trivial impact

on commerce as an excuse for broad general regulation of

state or private activities.” Maryland v. Wirtz, 392 U.S.

at 196 .27. See also Laurence H. Tribe, AMERICAN

CONSTITUTIONAL LAW, 313-14 n.2 (2d ed. 1988).

28

3. There Is No Rational Connection Between

Local Housing Laws Affecting the

Handicapped and Interstate Commerce

This Court outlined the proper test for determining

whether a statute falls within the auspices of the Commerce

Clause in Hodel v. Indiana, 452 U.S. 314, 323-24 (1981):

A court may invalidate legislation enacted under

the Commerce Clause only if it is clear that there

is no rational basis for a congressional finding

that the regulated activity affects interstate

commerce, or that there is no reasonable

connection between the regulatory means selected

and the asserted ends.

Thus, there must be a nexus between the regulated activity

and interstate commerce. Under the rational basis to affect

commerce test alone, any and every activity in the universe

could be regulated because it would somehow affect

commerce. Judicial inquiry is limited to discovering whether

such a finding of nexus is rational and then to an inquiry into

whether the regulatory scheme itself is rational.

On the first point of inquiry, as discussed above, in

neither the language of the FHA nor of the FHAA did

Congress claim to be acting under the Commerce Clause to

bring local land use control within the federal ban on housing

discrimination, and Congress made no findings that local

zoning decisions affect interstate commerce. Although there

was one meager reference, set out above, to interstate

commerce in the congressional debate on the FHAA, that

reference was to the movement of building materials in

interstate commerce as a predicate for the FHAA’s

imposition of federal construction standards on multiunit

rental dwellings. This has nothing to do with Congress’

29

decision to inject the federal government into local land use

even when local zoning schemes do not discriminate against

the handicapped as such. Congress cannot find that a

particular activity affects interstate commerce, describe that

activity in excessively general terms, and then conclude that

all activities embraced by the general terms affect interstate

commerce. See City of Richmond v. J. A. Croson Company,

488 U.S. at 506 (precluding a municipality from adopting a

remedial policy in favor of minorities in general on the basis

of discrimination against African Americans in particular).

On the second point of inquiry, even if Congress stated

that it was acting under the Commerce Clause to enact the

FHAA, the FHAA remains unconstitutional in this case.

There is simply no reasonable connection between Congress’

goal of forbidding discrimination in housing on the basis of

handicap and the means it chose of interfering with the City

of Edmonds’ zoning scheme, which does not discriminate on

the basis of handicap.

—_— =

CONCLUSION

A local zoning ordinance placing occupancy restrictions

on the number of persons who may occupy a single-family

dwelling need not place limits on related persons as well as

unrelated persons in order to be exempt from the application

of FHAA’s antidiscrimination provisions. The construction

of FHAA’s exemption provision adopted by the Ninth Circuit

misinterprets Congress’ intent behind the exemption and

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.

This construction results in an unwarranted intrusion

into the local government’s ability to adopt the type of

30

nondiscriminatory occupancy limitations that it feels is most

appropriate for its circumstances. Moreover, such intrusion

is not justified under any of the enumerated powers held by

Congress. Not only did the framers of the Constitution fail

to provide Congress with such power, great care was taken

to ensure the citizenry that such intrusion would not occur.

Both the history of Congress’ use of Commerce Clause

power and specific statements made by Congress in adopting

the FHAA indicate that Congress has overstepped the bounds

of its constitutionally recognized powers by subjecting the

ordinance at issue herein to FHAA oversight. Pacific Legal

Foundation therefore urges this Court to recognize federal

_ deference to local government’s authority and autonomy and

reverse the Ninth Circuit’s decision and find that Edmonds’

zoning ordinance is either exempt from FHAA provisions or,

in the alternative, that the FHAA is unconstitutional as

applied to the facts of this case.

DATED: December, 1994.

Respectfully submitted,

RONALD A. ZUMBRUN

*ANTHONY T. CASO

*Counsel of Record

ALAN W. Foutz

GREGORY W. MCCRACKEN

Of Counsel

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amicus Curiae,

Pacific Legal Foundation