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

No9423 ||”

IN THE

Supreme Court of the United

OCTOBER TERM, 1994

CITY OF EDMONDS,

. Petitioner,

WASHINGTON STATE BUILDING CoDE COUNCIL, et al.,

and

UNITED STATES OF AMERICA,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL INSTITUTE OF MUNICIPAL LAW

OFFICERS, COUNCIL OF STATE GOVERNMENTS,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

MICHAEL J. WAHOSKE tICHARD RUDA *

DAVID Y. TREVOR Chief Counsel

DORSEY & WHITNEY LEE FENNELL

Pillsbury Center South STATE AND LOCAL LEGAL CENTER

220 South Sixth Street 444 North Capitol Street, N.W.

Minneapolis, MN 55402 Suite 345

(612) 340-2600 Washington, D.C. 20001

Of Counsel (202) 434-4850

* Counsel of Record for the

Amici Curiae

OFFICE OF THE CLERK

—

WILSON - Eras Printing Co.. inc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Whether a municipal ordinance that limits to five

the number of unrelated persons who may occupy a

single-family zoned residence constitutes a “reason-

able . . . restriction[] regarding the maximum num-

ber of occupants permitted to occupy a dwelling”

under 42 U.S.C. § 3607(b) (1).

TABLE OF CONTENTS

QUESTION PRESENTED ...

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

SUMMARY OF ARGUMENT 20000000........--ccccccccccceeeeeseees

ARGUMENT

I. THE EDMONDS ORDINANCE IS EXEMPT

FROM THE SUBSTANTIVE STANDARDS

OF THE FAIR HOUSING AMENDMENTS

ACT UNDER THE PLAIN LANGUAGE OF

42 U.S.C. § 3607(b) (1)

Il. NOTHING IN THE LEGISLATIVE HIS-

TORY OF THE FHAA REQUIRES THAT

§ 3607(b) (1) BE CONSTRUED IN A MAN-

NER CONTRARY TO ITS PLAIN LAN-

(iii)

Page

iv

10

17

iv

TABLE OF AUTHORITIES

CASES Page

Barnhill v. Johnson, 112 S. Ct. 1886 (1992)... 8

City of Cleburne v. Cleburne Living Center, 473

Wee Ge GD recente 6, 21, 28

Consumer Product Safety Comm’n v. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) ......................... 4,8

Doe v. City of Butler, 892 F.2d 315 (3d Cir.

| EE ae 15

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

cert. denied, 118 S. Ct. 8376 (1992) ....................pasetm

Landgraf v. USI Film Products, 114 8. Ct. 1483

TTT E AES tS AE TEI a 9

Moore v. City of East Cleveland, 481 U.S. 494

0g ee 5, 12

Morales v. Trans World Airlines, Inc., 112 8. Ct.

EE ET LS. bse EC ee ~

NLRB v. Health Care & Retirement Corp., 114

S, Gay Tee Ge cnteeeeeenemeeen 17

Pension Benefit Guaranty Corp. v. LTV Corp.,

ee 19

Ratzlaf v. United States, 114 S. Ct. 655 (1994) x

Schad v. Borough of Mt. Ephraim, 452 U.S. 61

ee 2, 5,13

United States v. Nordie Village, Inc., 112 S. Ct.

OL EE 12

Village of Belle Terre v. Boraas, 416 US. 1

| passim

Village of Euclid v. Ambler Realty Co., 272 US.

SD GD cecrerncnensennesenssssssanssansecssemensssescecesmseeemen 13

Warth v. Seldin, 422 U.S. 490 (1975) acciaptiaibibinatiiiaieians 18

West Virginia University Hospitals, Inc. v. —

499 U.S. 88 (1991) ~.................. 9

STATUTES AND ORDINANCES

a 7

I 7

a passim

Wash. Rev. Code § 35A.63.100(2) . 0... 18

Wash. Rev. Code § 35A.63.240 2000000020. ecceeeccecceene 13

v

TABLE OF AUTHORITIES—Continued

Page

Edmonds Community Development Code

§ 16.20.010 10

Edmonds Community Development Code

§ 21.30.010 10

OTHER AUTHORITIES

Martin A. Garrett, Jr., Land Use Regulation

A ee ne ee 2,13

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

in 1988 U.S.C.C.A.N. 21738 passim

Rutherford H. Platt, Land Use Control: Geog-

raphy, Law, and Public Policy (1991) .............. 2, 18, 15

U.S. Bureau of the Census, Statistical Abstract of

the United States 1994 (114th ed. 1994)... . 5,16

E.C. Yokley, Zoning Law and Practice (4th ed.

1978 & Supp. 1994) 13

IN THE

Supreme Court of the Uuited States

OCTOBER TERM, 1994

No. 94-23

CITY OF EDMONDS,

Vv.

WASHINGTON STATE BUILDING CoDE CoUNCIL, et al.,

and

UNITED STATES OF AMERICA,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

Petitioner,

BRIEF OF THE

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, U.S. CONFERENCE OF MAYORS,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL INSTITUTE OF MUNICIPAL LAW

OFFICERS, COUNCIL OF STATE GOVERNMENTS,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials

throughout the United States, have a compelling in-

terest in legal issues that affect state and local gov-

2

ernments. Land-use zoning is an important state

function, which “has been specifically delegated to

local governments by state legislatures through en-

abling acts in every state.” Rutherford H. Platt,

Land Use Control: Geography, Law, and Public Pol-

icy 178 (1991). Local governments’ use of zoning to

protect and enhance quality of life is longstanding

and ubiquitous. “[L]and-use zoning is the most wide-

spread local land-use control tool, in use in every

major U.S. city (except the famous holdout, Houston,

Texas) and many thousand smaller communities and

counties.” Jd. at 166; see Martin A. Garrett, Jr.,

Land Use Regulation 3 (1987) (“By 1968, over 9,000

local governments exercised zoning powers, including

97 percent of all cities with over 5,000 population.”).

As this Court has recognized, “[t]he power of local

governments to zone and control land use is un-

doubtedly broad and its proper exercise is an essential

aspect of achieving a satisfactory quality of life in

both urban and rural communities.” Schad v.

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

Zoning “may indeed be the most essential function

performed by local government, for it is one of the

primary means by which we protect that sometimes

difficult to define concept of quality of life.” Village

of Belle Terre v. Boraas, 416 U.S. 1, 18 (1974)

(Marshall, J., dissenting).

One traditional use of zoning which has been recog-

nized by the Court as legitimate is the zoning of areas

for single-family residential use. See, e.g., Belle

Terre, 416 U.S. at 8-9. The City of Edmonds, like

many other municipalities, has made the reasonable

legislative judgment that an occupancy limit on the

number of unrelated persons permitted to reside in a

single-family zoned residence is necessary to make the

3

single-family zoning designation meaningful. Such

zoning choices fall squarely within the reasonable

occupancy limitation exception to the Fair Housing

Amendments Act, 42 U.S.C. § 3607(b) (1).

Amici also note that the City of Edmonds does not

seek to exclude group homes for recovering drug

addicts and alcoholics from the City. Group homes

with up to five persons are permitted in single family

zones, Pet. 8, and group homes are subject to no

numerical limits in other parts of the City, where

there is considerable rental housing stock available.

See id. at 15.

Amici believe that the court of appeals erred in

holding that the City of Edmonds’ zoning ordinance

is subject to invalidation under the substantive provi-

sions of the Fair Housing Amendments Act. Because

of the importance of this issue to amici and their

members, amici submit this brief to assist the Court

in its resolution of this case."

SUMMARY OF ARGUMENT

The Edmonds ordinance, which sets a maximum

occupancy limit for single-family zoned dwellings oc-

cupied by groups of unrelated persons, falls squarely

within the Fair Housing Amendment Act’s exemption

for “reasonable local, State, or Federal restrictions

regarding the maximum number of occupants per-

mitted to occupy a dwelling.” 42 U.S.C. § 3607(b) (1).

Consequently, it is not to be scrutinized under the

substantive provisions of the FHAA. The court of

appeals’ holding to the contrary conflicts with the

'The parties have consented to the filing of this brief

amicus curiae. Letters indicating their consent have been

filed with the Clerk of the Court.

4

plain language of the statutory exemption, and finds

no support in the legislative history.

1. As this Court has emphasized, “the starting

point for interpreting a statute is the language of the

statute itself.” Consumer Product Safety Comm'n v.

GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The

language of the FHAA exemption is clear and unam-

biguous: the terms of the FHAA have no applicability

to any “reasonable” government restriction “regard-

ing the maximum number of occupants permitted to

occupy a dwelling.” 42 U.S.C. § 3607(b)(1). By its

terms, the exemption is triggered when two require-

ments are met: (1) the restriction in question must

“regard[] the maximum number of occupants per-

mitted to occupy a dwelling”; and, (2) the restriction

must be “reasonable.” The Edmonds zoning ordi-

nance meets both of these requirements.

On its face, the Edmonds zoning ordinance is a re-

striction “regarding the maximum number of occu-

pants permitted to occupy a dwelling,” 42 U.S.C.

§ 3607(b) (1), since it sets an occupancy limit of five

for all single-family zoned dwellings occupied by un-

related persons. The court of appeals and the United

States attempt to avoid the exemption’s obvious ap-

plicability to the Edmonds ordinance by reading addi-

tional limitations into the statutory language. But,

contrary to their suggestions, nothing in the broad

language of the statutory exemption limits its scope

to occupancy limits calculated by reference to mini-

mum square footage per person or indicates that a

cap on the absolute number of persons permitted in

a particular type of dwelling would fall outside the

exemption. Nor does the statutory exemption exclude

from its broad coverage occupancy limits, like the one

at issue here, that exept groups of related persons.

5

The Edmonds zoning ordinance is also “reason-

able.” As this Court has recognized, “[t]he power of

local governments to zone and control land use is un-

doubtedly broad and its proper exercise is an essential

aspect of achieving a satisfactory quality of life in

both urban and rural communities.” Schad v. Borough

of Mt. Ephraim, 452. U.S. 61, 68 (1981). Moreover,

single-family zoning has been identified by the Court

as a legitimate exercise of that broad power. See,

e.g., Village of Belle Terre v. Boraas, 416 U.S. 1

(1974).

The Edmonds ordinance represents a reasonable

legislative judgment as to the maximum number of

unrelated persons that can feasibly reside in a dwell-

ing in a single-family residential zone in a manner

consistent with the goals and purposes of single-family

zoning. Indeed, it provides more latitude to non-

traditional “family” groups made up of unrelated

persons than did the zoning ordinance upheld in Belle

Terre, which permitted no more than two unrelated

persons to share a single-family zoned dwelling. See

416 U.S. at 2. The fact that the occupancy limit

applies only to unrelated persons does not make it

unreasonable, especially given that the Court, in

Moore v. City of East Cleveland, 431 U.S. 494 (1977),

indicated that zoning ordinances restricting the abil-

ity of related persons to reside together are constitu-

tionally suspect.

Nor is there any question that the occupancy limit |

chosen—five persons—is reasonable. This limit far

exceeds the size of the average household both na-

tionally and within the City of Edmonds. See U.S.

Bureau of the Census, Statistical Abstract of the

United States 1994 59 (114th ed. 1994) (2.63 persons

6.

r U.S. household in 1993) ; Pet. Br. 29 (2.41 persons

a household in the City of Edmonds in 1990). The

fact that the City could have chosen a different cut-

off point does not diminish the reasonableness of its

legislative judgment. See Belle Terre, 416 U.S. at 8.

2. Even if the Court finds it necessary to look

beyond the statutory exemption’s plain language to

its legislative history, no different result obtains.

Nothing in the legislative history indicates that Con-

gress intended to exclude reasonable occupancy re-

strictions like the one at issue here from the statutory

exemption. Instead, the legislative history suggests

only an observation by the Committee that facially dis-

criminatory measures, such as the law struck down in

Cleburne v. Cleburne Living Center, 473 US. 432

(1985), would remain impermissible notwithstanding

the statutory exemption. See H.R. Rep. No. 711,

100th Cong., 2d Sess., reprinted in 1988 US.C.C.A.N,

2173, 2185, 2192. The legislative history certainly

cannot be read to make the applicability of the exemp-

tion turn on whether the occupancy limit at issue

meets the substantive requirements of the FHAA;

such a reading would make the exemption mean-

ingless.

7

ARGUMENT

I. THE EDMONDS ORDINANCE IS EXEMPT FROM

THE SUBSTANTIVE STANDARDS OF THE FAIR

HOUSING AMENDMENTS ACT UNDER THE

PLAIN LANGUAGE OF 42 U.S.C. § 3607(b)(1)

The Fair Housing Amendments Act of 1988

(“FHAA”), Pub. L. No. 100-430, 102 Stat. 1619,

makes it unlawful to discriminate against persons

with disabilities in the rental or sale of a dwelling.

See 42 U.S.C. § 3604(f) (2). Discrimination includes

“a refusal to make reasonable accommodations” in

rules and practices, where “such accommodations

may be necessary to afford” persons with disabilities

“equal opportunity to use and enjoy a dwelling.” 42

U.S.C. § 3604(f)(3)(B). Certain regulations, how-

ever, are exempt from the substantive standards of

the FHAA. Under 42 U.S.C. § 3607(b) (1), for ex-

ample, “[n]Jothing in this subchapter limits the ap-

plicability of any reasonable local, State, or Federal

restrictions regarding the maximum number of oc-

cupants permitted to occupy a dwelling.”

The district court determined that the zoning ordi-

nance of the City of Edmonds fell within the plain

language of §3607(b)(1) and granted summary

judgment to the City. See Pet. App. 5a.2 In reversing

the district court and holding that the Edmonds zon-

ing ordinance is subject to the substantive provisions

of the FHAA, the court of appeals relied primarily

on its interpretation of the legislative history and

purposes of the FHAA rather than on the plain lan-

guage of the statute. See Pet. App. 18a-25a. The

? In referring to the Petition Appendix, amici use the same

consecutive pagination system as the United States. See U.S.

Br. in Opp. 2 n.1.

court of appeals’ reliance on these legislative mate-

rials was inappropriate and unnecessary because, as

the district court recognized, the plain language of

§ 3607(b) (1) clearly covers the zoning ordinance at

issue here.

It is axiomatic that “the starting point for inter-

preting a statute is the language of the statute itself.”

Consumer Product Safety Comm’n v. GTE Sylvania,

Inc., 447 U.S. 102, 108 (1980). Moreover, where the

language of a statute is clear and unambiguous, no

further “interpretation” is necessary; a clearly

phrased statutory directive means what it says. See,

e.g., Ratzlaf v. United States, 114 S. Ct. 655, 662

(1994) (despite “contrary indications” in legislative

history, “we do not resort to legislative history to

cloud a statutory text that is clear”); Morales v.

Trans World Airlines, Inc., 112 S. Ct. 2031, 2038 n.2

(1992) (“Suffice it to say that legislative history

need not confirm the details of changes in the law

effected by statutory language before we will inter-

pret that language according to its natural mean-

ing.”). See also Barnhill v. Johnson, 112 S. Ct. 1386,

1391 (1992) (“appeals to statutory history are well-

taken only to resolve ‘statutory ambiguity’”) (cita-

tion omitted).

Similarly, interpretations informed primarily by a

court’s sense of the broader purposes of a remedial

statute (whether or not those purposes are expressed

in the legislative history) are unsound if they ignore

plain statutory language. The “purpose” of a com-

plex piece of remedial legislation such as the FHAA

is never a simple matter, and this Court has often

recognized that the purpose of a statute is that which

is expressed in its language:

9

[T]he purpose of a statute includes not only

what it sets out to change, but also what it re-

solves to leave alone. The best evidence of that

purpose is the statutory text adopted by both

Houses of Congress and submitted to the Presi-

dent. Where that contains a phrase that is un-

ambiguous—that has a clearly accepted meaning

in both legislative and judicial practice—we do

not permit it to be expanded or contracted by the

statements of individual legislators or committees

during the course of the enactment process.

West Virginia Hospitals, Inc. v. Casey, 499 U.S. 83,

98-99 (1991) (citations omitted). See also Landgraf

v. USI Film Products, 114 S. Ct. 1488, 1508 (1994)

(“Statutes are seldom crafted to pursue a single goal,

and compromises necessary to their enactment may

require adopting means other than those that would

most effectively pursue the main goal.’’).

On its face, § 3607(b) (1) establishes only two re-

quirements for its exemption to be triggered: (1)

the restriction in question must “regard[] the maxi-

mum number of occupants permitted to occupy a

dwelling”; and, (2) the restriction must be “reason-

able.” The language of the statute requires nothing

more than these two elements; if a local, State, or

Federal statute, regulation, or ordinance meets these

requirements, its application is not limited by the

FHAA.* The Edmonds zoning ordinance meets both

of these requirements.

* As discussed below in more detail, much of the court of

appeals’ analysis is based on the notion that Congress simply

could not have meant to draft an exemption to the FHAA as

broad as the plain language of § 3607(b) (1), and that there-

fore additional requirements must be read into the statute to

make it more consistent with the purposes of the FHAA gen-

10

A. The Edmonds Ordinance Is A Restriction “Regard-

ing The Maximum Number Of Occupants Permitted

To Occupy A Dwelling”

The Edmonds ordinance is a restriction “regarding

the maximum number of occupants permitted to

occupy a dwelling.” 42 U.S.C. §3607(b)(1). It

limits to five the number of individuals who can

occupy a dwelling in the area of Edmonds zoned

single-family residential, with an exception provided

for families (i.e., “persons related by genetics, adop-

tion, or marriage”). See Edmonds Community De-

velopment Code (“ECDC”) §§ 16.20.010, 21.30.010.*

Because the ordinance limits the number of individ-

uals who can occupy a dwelling (albeit with an ex-

ception for families), it is a restriction “regarding”

maximum occupancy.

Nothing in the language of § 3607(b) (1) limits its

force to particular types of restrictions on maximum

erally and the court of appeals’ reading of the legislative

history. Such judicial revision of statutes is precisely what

the plain language doctrine is designed to prevent.

* ECDC § 16.20.010 allows “single-family dwelling units” as

the only permitted “primary use” in a single-family residen-

tial zone. ECDC § 21.30.010 provides that “[f]lamily 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 and none of

whom are wards of the court unless such wards are related

by genetics, adoption, or marriage to all other members of

such group living together in a dwelling unit.”

Thus, together the provisions stipulate that no more than

five persons may occupy a dwelling unit in a single-family

residential zone, unless those persons are related by genetics,

adoption, or marriage.

11

occupancy. Indeed, the exemption itself emphasizes

its breadth, inasmuch as it applies to “any” restric-

tion regarding maximum occupancy, not merely to

certain types of occupancy restrictions or to restric-

tions that calculate maximum occupancy by certain

methods. The only limitation imposed by the statute

on the types of occupancy restrictions that are exempt

is that the restrictions be “reasonable.”

In particular, there is nothing in the language of

the statute to support the court of appeals’ and the

United States’ proposed distinction between “use” and

“occupancy” restrictions. See Pet. App. 17a-24a; U.S.

Br. in Opp. 13-14, 14 n.9. Relying on this distinction,

the court of appeals framed this case as a choice be-

tween a “broad” reading of § 3607(b)(1) that in-

cludes “use” restrictions and a “narrow” reading that

includes only “occupancy” restrictions. Pet. App. 17a-

18a n.3.° This choice is a false one. The language

of the statute makes no distinction between restric-

tions that limit dwelling occupancy absolutely, by

number of individuals per dwelling, and restrictions

that regulate occupancy relatively, by number of in-

dividuals per square foot of living area; instead,

§ 3607(b) (1) exempts “any” restriction “regarding”

the maximum number of persons “permitted to occupy

a dwelling,” without reference to the manner in which

at number is calculated.

5’ As an example of an “occupancy” restriction, the court

of appeals cited §503(b) of the Uniform Housing Code,

which provides: “Every dwelling unit shall have at least one

room which shall have not less than 120 square feet of floor

area. Other habitable rooms, except kitchens, shall have an

area of not less than 70 square feet. Where more than two

persons occupy a room for sleeping purposes, the required

floor area shall be increased at the rate of 50 square feet for

each occupant in excess of two.” See Pet. App. 20a-2la & n.4.

12

Nor is the Edmonds ordinance any less a restric-

tion “regarding” maximum occupancy because it pro-

vides a specific exception for families. The plain lan-

guage of §3607(b)(1) exempts “any” restriction

regarding maximum oceupancy, not merely those that

have no exceptions. ‘The s, aside from the question of

whether a specific exception for families like that pro-

vided in the Edmonds ordinance is constitutionally

required under this Court’s decisions in Village of

Belle Terre v. Boraas, 416 U.S. 1 (1974), and Moore

v. City of East Cleveland, 431 U.S. 494 (1977), the

presence of an exception for families in the Edmonds

occupancy ordinance does not vitiate its status as a

restriction “regarding the maximum number of occu-

pants permitted to occupy a dwelling.”

Moreover, any limitation of the exemption to regu-

lations that have universal application would effec-

tively read the exemption out of the statute. The class

of occupancy restrictions that have no exceptions

under any circumstances would be small, if not non-

existent. Had Congress intended to limit the scope of

$ 3607(b) (1) to such a narrow category of occupancy

restrictions, it would not have used the inherently

broad term “any” in describing that category. See

United States v. Nordic Village, Inc., 112 S. Ct. 1011,

1015 (1992) (“statute must, if possible, be construed

in such a fashion that every word has some operative

effect”’).

B. The Edmonds Ordinance Is “Reasonable”

The Edmonds ordinance is also “reasonable” within

the meaning of the statute. 42 U.S.C. § 3607(b) (1).

It reflects a considered legislative judgment concern-

ing the maximum number of unrelated persons that

ean feasibly reside in a dwelling in a single-family

13

residential zone in a manner consistent with the goals

and purposes of single-family zoning.*

As this Court has recognized, “[t]he power of local

governments to zone and control land use is undoubt-

edly broad and its proper exercise is an essential

aspect of achieving a satisfactory quality of life in

both urban and rural communities.” Schad v. Bor-

ough of Mt. Ephraim, 452 U.S. 61, 68 (1981). Single-

family zoning is a longstanding and ubiquitous exer-

cise of the police power. See, e.g., Garrett, Land Use

Regulation at 3; E.C. Yokley, 6 Zoning Law and

Practice § 35-64, at 177-79 (4th ed. 1978 & Supp.

1994). The legitimacy of preserving zones for single-

family residential purposes has long been recognized

by this Court. See, e.g., Village of Euclid v. Ambler

ew 4 Co., 272 U.S. 365 (1926); Belle Terre, 416

S. 1.

*To say that the City of Edmonds has made a reasonable

legislative choice is not, of course, to say that its choice is

the only reasonable choice that could have been made. Munici-

palities have adopted a wide variety of approaches to zoning

issues, reflecting differing judgments as to the proper manner

in which to balance relevant factors. For example, Houston,

Texas (unlike every other major city in the country) has no

zoning at all. See Platt, Land Use Control at 166. Moreover,

municipalities may exercise choice in zoning matters only

within the bounds set out by the State, from whom zoning

power is delegated in the first instance. Jd. at 178; see, e.g.,

Wash. Rev. Code § 35A.63.100(2). Hence, state laws and con-

stitutions may constrain the exercise of zoning authority by

local governments. Cf. Wash. Rev. Code § 35A.63.240. In any

case, zoning judgments are fundamentally legislative ones

that are to be made by the State or by the local government

to whom power has been delegated. See Warth v. Seldin,

422 U.S. 490, 508 n.18 (1975) (“[ZJoning laws and their pro-

visions, long considered essential to effective urban planning,

are peculiarly within the province of state and local legisla-

tive authorities.”).

14

Permitting five unrelated persons to reside together

in single-family zones, as the City of Edmonds has

done, is plainly a reasonable legislative resolution of

the community’s desire to permit nontraditional “fam-

ily” groups within single-family zones, while avoid-

ing the density-related problems that could result

from allowing unlimited numbers of unrelated per-

sons to live within such zones. Many other jurisdic-

tions have enacted similar occupancy limits within

their single-family zones. See Elliott v. City of Athens,

960 F.2d 975, 980 & n.6 (11th Cir.), cert. denied, 113

S. Ct. 376 (1992); see also Pet. App. 24a. In Belle

Terre, this Court upheld a single-family zoning ordi-

nance which limited to two the number of unrelated

persons who could live together, recognizing the

legitimacy of a municipality’s interest in preserving

the residential character of single-family neighbor-

hoods. In support of its holding, the Belle Terre Court

observed :

The regimes of boarding houses, fraternity

houses, and the like present urban problems.

More people occupy a given space; more cars

rather continuously pass by; more cars are

parked ; noise travels with crowds.

A quiet place where yards are wide, people

few, and motor vehicles restricted are legitimate

guidelines in a land-use project addressed to fam-

ily needs. This goal is a permissible one within

Berman v. Parker, [348 U.S. 26 (1954)]}. The

police power is not confined to elimination of

filth, stench, and unhealthy places. It is ample

to lay out zones where family values, youth val-

ues, and the blessings of quiet seclusion and clean

air make the area a sanctuary for people.

15

416 U.S. at 9." See also Elliott, 960 F.2d at 982 (up-

holding zoning ordinance permitting no more than

four unrelated persons to reside together in single-

family zone, noting the municipality’s “substantial

interests in controlling density, traffic and noise in its

single family districts and in preserving the residen-

tial character of such districts”). Indeed, the Edmonds

ordinance goes further in accommodating unrelated

persons who wish to live together in a group than

did the ordinance upheld in Belle Terre, which allowed

no more than two unrelated persons to reside together

in a single-family zone. See 416 U.S. at 2.

The fact that the occupancy requirement applies

only to unrelated persons does not make it unreason-

able, given the Court’s indication in Moore that limit-

ing the number of related persons who may live to-

gether would present grave constitutional difficulties.

See generally 431 U.S. at 498-500; see also Elliott, 960

F.2d at 980-81; Doe v. City of Butler, 892 F.2d 315,

321 (3d Cir. 1989). The City could rationally conclude

that permitting unlimited numbers of related persons

to share housing in a single-family zone is consistent

with the “single-family” use, while the use of similar

housing by unlimited numbers of unrelated persons

might be inconsistent with the single-family character

of the zone. The reasonableness of the specific policy

chosen by the City is highlighted by the fact that the

number of unrelated persons permitted to live to-

7 Although Belle Terre involved a constitutional challenge,

the same considerations should apply here in determining

whether the Edmonds ordinance is “reasonable.” Indeed, in

the zoning context, “reasonableness” has often been equated

with constitutionality. See Platt, Land Use Control at 200

(in zoning challenges, “‘[rJeasonableness’ is .. . used as a

surrogate for ‘constitutionality’ ”’).

16

gether, five, exceeds by a wide margin the size of

the average household—both nationwide and in the

City of Edmonds itself. In 1998, the average size

of all American households was 2.63 persons, the

average size of family households was 3.21 persons,

and the average size of nonfamily households was just

1.24 persons. U.S. Bureau of the Census, Statistical

Abstract of the United States 1994 59 (114th ed.

1994). More specifically, 1990 census data for the

City of Edmonds indicate an average of only 2.41

persons per household. See Pet. Br. 29.

Neither the fact that the City of Edmonds could

have chosen a different cut-off point (e.g., four or six

unrelated persons, rather than five), nor the fact that

the line drawn may be in some instances underinclu-

sive or overinclusive in achieving the City’s purposes,

diminishes the reasonableness of its judgment. In

Belle Terre, the Court rejected just such an argument:

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 might well

have been included. That exercise of discretion

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

416 U.S. at 8 (footnote omitted).

In sum, the statutory exemption does not require

that maximum occupancy requirements be perfectly

suited to their objectives or shown to be the optimal

policy choice. The requirements need only be reason-

able. The Edmonds occupancy requirement, which it

has found necessary to effectuate its single-family

zoning decisions, easily meets that test.

Because the Edmonds ordinance is a “reasonable”

restriction “regarding the maximum number of occu-

17

pants permitted to occupy a dwelling,” 42 U.S.C.

§ 3607(b) (1), the Court’s inquiry is properly at its

end. The Edmonds ordinance is exempt from the

FHAA.

Il. NOTHING IN THE LEGISLATIVE HISTORY OF

THE FHAA REQUIRES THAT § 3607(b)(1) BE

CONSTRUED IN A MANNER CONTRARY TO ITS

PLAIN LANGUAGE

Even if legislative history is considered, the statu-

tory exemption should still be held to apply to the

Edmonds ordinance. As noted earlier, the court of

appeals relied heavily on its reading of the legislative

history of the FHAA to justify its interpretation of

§ 3607(b) (1). Not only is a reading of the legislative

history unnecessary because the statutory language

of the exemption is clear, there is nothing in the legis-

lative history that would compel a result contrary to

the language of the statute.* Just last Term, in NLRB

v. Health Care & Retirement Corp., 114 S.Ct. 1778

(1994), the Court rejected as follows arguments

based on a committee report:

“(I]t is the function of the courts and not the

Legislature, much less a Committee of one House

of the Legislature, to say what an enacted statute

means.” ... [Isolated] statements [from a com-

mittee report] do not have “the force of law, for

the Constitution is quite explicit about the proce-

dure that Congress must follow in legislating.”

Id. at 1784-85 (citations omitted).

* This case should be resolved solely by reference to the

plain meaning of § 3607(b) (1). Amici discuss the legislative

history of the FHAA only because the court of appeals relied

on that history in reversing the district court, and because

amici anticipate that respondents will similarly rely on it in

this Court.

18

In reviewing the legislative history of the FHAA,

the court of appeals relied principally on a single

paragraph in a report by the House Judiciary Com-

mittee. See Pet. App. 18a-20a. The paragraph reads

in full:

[Section 3607(b) (1)] amends section 807 [of

the FHA] to make additional exemptions relat-

ing to the familial status provisions. These pro-

visions are not intended to limit the applicability

of any reasonable local, State or Federal restric-

tions on the maximum number of occupants per-

mitted to occupy a dwelling unit. 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.

Reasonable limitations by governments would be

allowed to continue, as long as they were applied

to all occupants, and did not operate to discrimi-

nate on the basis of race, color, religion, sex, na-

tional origin, handicap or familial status.

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

1988 U.S.C.C.A.N. 2173, 2192.

This paragraph from the House Committee Report

does not require this Court to ignore the plain mean-

ing of § 3607(b) (1). Indeed, the second sentence of

the paragraph fully supports the plain language read-

ing. The sentence reiterates the application of the

exemption to “any” reasonable restriction on maxi-

mum occupancy, and goes on to emphasize that the

exemption applies to restrictions that limit occupancy

by “dwelling unit.” As does the similar language of

§ 3607(b) (1), the language of this passage thus em-

phasizes the relevance of the exemption to restrictions

by dwelling unit rather than solely to “per square

foot” restrictions. Moreover, the breadth of this sen-

tence indicates that the examples of exempt restric-

19

tions set forth in the third sentence are merely that—

examples of some restrictions that might be held to

be reasonable under § 3607(b)(1). See Elliott, 960

F.2d at 980. The court of appeals nonetheless viewed

these examples of exempted restrictions as an exclu-

Sive statement of the entire reach of the exemption.

Such over-reliance on examples from legislative his-

tory was condemned by this Court in Pension Benefit

re Corp. v. LTV Corp., 496 U.S. 633, 649

Moreover, and more generally, the language of

a statute—particularly language expressly grant-

ing an agency broad authority—is not to 4

garded as modified by examples set forth in the

legislative history. An example, after all, is just

that: an illustration of a statute’s operation in

practice. It is not, as the Court of Appeals ap-

parently thought, a definitive interpretation of a

statute’s scope.

While statutes should be read carefully and with an

eye toward fine distinctions, legislative history is valu-

able primarily when it makes a clear statement of the

intended meaning of an otherwise unclear provision.

The court of appeals erred by reading legislative

history as though language in a committee report was

the statute itself, with the canons of construction to

be applied to that report, instead of being used to

illuminate the statute.

The court of appeals linked its reading of the legis-

lative history primarily to the last sentence of this

paragraph, excluding the Edmonds ordinance from

the protective force of the exemption because it does

not apply to “all occupants”. See Pet. App. 28a. In

effect, the court of appeals used this phrase to read a

type of “no exceptions” rule into the exemption,

whereby restrictions that provided special treatment

20

for any class of residents were excluded. Not only is

there no support in the language of § 3607(b) (1) for

such a reading, the clause immediately following the

phrase “all occupants” demonstrates that the concern

was not whether the restriction on maximum occu-

pancy had any exceptions, but rather whether the

restriction discriminated specifically against a pro-

tected group. Because the ordinance does not dis-

criminate against a protected group, it does not run

afoul of this passage.

In this regard, it should be noted that the refer-

ence to discrimination contained in the last sentence

of the paragraph on page 31 of the House Report,

see 1988 U.S.C.C.A.N. at 2192, cannot logically be

read to incorporate the substantive meaning given

the term “discrimination” in the FHAA itself. If

the only maximum occupancy restrictions that quali-

fied for exemption under § 3607(b)(1) were those

that passed review under the substantive provisions

of the FHAA (i.e., those that did not “discriminate”

under the FHAA), the exemption would serve no

purpose at all. A government entity seeking to defend

a maximum occupancy restriction against an FHAA

claim would have to defend that restriction as if

§ 3607(b)(1) did not even exist. Because Congress

is presumed not to draft meaningless statutes, this

reading of § 3607(b)(1) is presumptively incorrect.’

* The contrary argument was made by Judge Kravitch in

her dissent in Elliott. Judge Kravitch argued that “reason-

ableness” under § 3607(b)(1) depended upon whether the

protected individuals had been provided “reasonable accom-

modation” as that term is defined in the FHAA. Elliott, 960

F.2d at 986-88 (Kravitch, J., dissenting). In other words,

the application of the exemption was contingent on whether

a substantive standard of the FHAA had been violated. The

Elliott majority correctly pointed out the circularity of this

21

A far more plausible reading of the use of “dis-

crimination” in the last sentence in the paragraph on

page 32 of the House Report is to clarify that facially

discriminatory zoning practices like the one struck

down by this Court in City of Cleburne v. Cleburne

Living Center, 473 U.S. 435 (1985) remain imper-

missible.” A restriction like that in Cleburne, which

applied onerous permit requirements to group homes

for the disabled but did not apply those same require-

ments to group homes of similar size for non-disabled

persons, would be prohibited even if it otherwise in-

volved the maximum occupancy of a dwelling." Be-

cause the Edmonds ordinance is facially neutral,”

this concern is not applicable here.

reasoning: “[U]nder the dissent’s construction, the only time

the exemption could apply is when there is no statutory viola-

tion in the first place,” thereby rendering the exemption

a nullity. Jd. at 984 n.12.

% Thus, the reference to discrimination can be read as an

acknowledgment of the constitutional limitations that exist

independent of FHAA’s substantive provisions. By noting

these limitations, the passage reinforces that even the excep-

tion to the FHAA cannot be applied in a facially discrimina-

tory manner.

“In Cleburne, the City of Cleburne required that special

use permits be obtained for the operation of “ ‘[h]ospitals for

the insane or feeble-minded, or alcoholic [sic] or drug ad-

dicts, or penal or correctional institutions,’ ” 473 U.S. at 486

(quoting Section 16 of the Cleburne zoning ordinance), but

did not require such permits for the maintenance of boarding

houses or other types of hospitals. Jd. This Court held that

such differential treatment was not rationally related to a

legitimate governmental interest and therefore offended the

Equal Protection Clause of the Fourteenth Amendment. /d.

at 448-50.

2 Even the court of appeals recognized the facial neutrality

of the Edmonds ordinance. See Pet. App. 23a n.5. (“Ed-

22

The court of appeals also based its holding on cer-

tain broad language in the House Report that dis-

cusses the aims of the FHAA generally. See Pet.

App. 20a-24a (discussing passages from page 24 of

the House Report, 1988 U.S.C.C.A.N. at 2185). Not

only do these passages of the House Report plainly

fail to discuss the scope of § 8607(b)(1), they do

not support the proposition that the Edmonds ordi-

nance should be excluded from that scope. A careful

reading of the passages cited by the court of appeals

reveals that they merely suggest that the FHAA ap-

plies generally to zoning decisions and practices, and

affirm that discriminatory practices like those con-

demned by this Court in Cleburne are within the

scope of the statute.

Because this case poses only the question of whether

Congress specifically exempted a certain category of

zoning restrictions from FHAA review, the view that

the FHAA applies generally to zoning decisions and

practices, see H.R. Rep. No. 711, at 24, 1988

U.S.C.C.A.N. at 2185 (“[t]he Committee intends that

the prohibition against discrimination against those

with handicaps apply to zoning decisions and prac-

tices”), is not relevant. The application of the FHAA

to zoning decisions and practices is a presupposition

of this litigation, not a justification for narrowing

the plain language of the exemption. Statements in

the House Report about the general application of the

FHAA to zoning decisions and practices thus have

no bearing on this case except to highlight the reason

why the scope of the exemption contained in § 3607

(b) (1) is of significance.”

monds’ ordinance is facially neutral because it treats handi-

capped and non-handicapped persons similarly.’’).

' Lanevage indicating that the substantive provisions of

the FHAA may include claims of disparate impact, see H.R.

23

The case against the plain language of the exemp-

tion also cannot be bolstered by the statement in the

Report that the FHAA is “intended to prohibit 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 such individuals to live in the residence

of their choice in the community.” Jd. Congress

could hardly have meant that groups of handicapped

individuals have the right to live wherever they choose

under all circumstances; instead, this language merely

underscores Congress’ intention that the FHAA apply

to discriminatory restrictions like the one struck down

by this Court in Cleburne, supra.

The relationship of Cleburne to the House Report

is clear. Not only does the House Report cite Cleburne

twice in the passages discussing the general purposes

of the FHAA, see H.R. Rep. No. 711 at 24, 1988

U.S.C.C.A.N. at 2185, its description of the evil ad-

dressed by the FHAA closely tracks the facts of

Cleburne. The language quoted above is illustrative

in this respect. Similarly, the Report notes that dis-

crimination “has been accomplished by such means

as the enactment or imposition of health, safety or

Rep. No. 711, at 24, 1988 U.S.C.C.A.N. at 2185 (“{a]nother

method of making housing unavailable to people with dis-

abilities has been the application or enforcement of otherwise

neutral rules and regulations on health, safety and land-

use in a manner which discriminates against people with

disabilities”), is similarly irrelevant to the scope of

§ 3607(b) (1). The question before the Court is not whether,

as a general matter, disparate impact analysis is permissible

under the FHAA, rather it is whether the Edmonds ordi-

nance should be exempt from such analysis in the first place.

Thus, a conclusion that claims of disparate impact are gen-

erally cognizable under the FHAA says nothing about the

scope of § 3607(b) (1).

24

land-use requirements on congregate living arrange-

ments among non-related persons with disabilities.

Since these requirements are not imposed on families

and groups of similar size of other unrelated people,

these requirements have the effect of discriminating

against persons with disabilities.” Jd. These pas-

sages bear a close resemblance to the type of discrimi-

nation held unconstitutional in Cleburne and thus do

no more than affirm the general applicability of the

FHAA to intentional discrimination against the

disabled; they do nothing to limit the meaning of

the plain language of § 3607(b) (1).

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

MICHAEL J. WAHOSKE RICHARD RUDA *

DAVID Y. TREVOR Chief Counsel

DorRSEY & WHITNEY LEE FENNELL

Pillsbury Center South STATE AND LOCAL LEGAL CENTER

220 South Sixth Street 444 North Capitol Street, N.W.

Minneapolis, MN 55402 Suite 345

(612) 340-2600 Washington, D.C. 20001

Of Counsel (202) 434-4850

* Counsel of Record for the

December 15, 1994 Amici Curiae