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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 725

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0599%3A17. Public record. Not legal advice.