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

BEST AVAILABLE COPY

GRANT WOODS

Attorney General

of Arizona

WINSTON BRYANT

Attorney General

of Arkansas

ALAN G. LANCE

Attorney General

of Idaho

THOMAS J. MILLER

Attorney General

of Iowa

RICHARD P. IEYOUB

Attorney General

of Louisiana

FRANKIE SUE DEL PAPA

Attorney General

of Nevada

TOM UDALL

Attorney General

of New Mexico

CHARLES W. BURSON

Attorney General and

Reporter of Tennessee

DAN MORALES

Attorney General

of Texas

JAN GRAHAM

Attorney General

of Utah

(Additional Counsel on Inside Back Cover)

Table of Contents.

TABLE OF AUTHORITIES

STATEMENT OF INTEREST

SUMMARY OF ARGUMENT

ARGUMENT

I. THE PLAIN LANGUAGE OF SECTION

3607(b)(1) DEMONSTRATES THAT

ZONING DEFINITIONS OF “FAMILY”

ARE NOT EXEMPTED FROM THE FAIR

HOUSING AMENDMENTS ACT OF 1988.

A. Edmonds’ Definition of Family Does

Not Restrict “the Maximum Number”

of Occupants Per “Dwelling.”

B. The Edmonds Ordinance Regulates

The Character of the Area Zoned But

Does Not Restrict The Maximum

Number Of Occupants Within A

Dwelling.

11

14

16

19

C. Square Footage Requirements, at

the Local, State, and Federal

Level, Are Commonly Understood

to Define the Maximum Number of

Individuals Permitted To Reside

in a Dwelling Unit.

Il. THE LEGISLATIVE HISTORY OF THE

FHAA MAKES CLEAR THAT CONGRESS

DID NOT INTEND TO EXCLUDE FROM

REVIEW LAND-USE POLICIES AND

PRACTICES THAT MAY HAVE THE EFFECT

OF MAKING HOUSING UNAVAILABLE TO

PERSONS WITH HANDICAPS.

Il. INTERPRETING SECTION 3607(b)(1)

TO APPLY TO ZONING DEFINITIONS

OF FAMILY, SUCH AS THE EDMONDS

ORDINANCE, WOULD BE INCONSISTENT

WITH THE PURPOSE OF THE FHAA.

CONCLUSION

APPENDIX

22

24

27

Table of Authorities.

Cases.

A.H. Phillips, Inc. v. Walling, 324

U.S. 490 (1945)

City of Cleburne, Tex. v. Cleburne

Living Center, 473 U.S. 432 (1985)

City of Edmonds v. Washington State

Bldg. Code Council, 18 F.3d 802 (9CA 1994)

Commissioner of Internal Revenue v.

Clark, 489 U.S. 726 (1989)

Consumer Product Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. 102 (1980)

Elliott v.. City of Athens, 960 F.2d

975 (11CA), cert. denied, 112

S. Ct. 376 (1992)

FTC v. Fred Meyer, 390 U.S. 341 (1968)

Garcia v. United States, 469 U.S. 70

(1984)

28

10, 23

14

28

11, 15, 27

19

28, 30

13, 25

iv

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988)

Laufman v. Oakley Bldg. & Loan Co..,

408 F. Supp. 489 (S.D. Ohio 1976)

McDermott International v. Wilander,

498 U.S. 337 (1991)

Moore v. City of East Cleveland, Ohio,

431 U.S. 494 (1977)

New York State Department of

Social Services v. Dublino,

413 U.S. 405 (1973)

Nolden v. East Cleveiand City Comm’n,

12 Ohio Misc. 205, 232 N.E.2d

421 (1966)

Peyton v. Rowe, 391 U.S. 54 (1968)

Trafficante v. Metropolitan Life

Insurance Co., 409 U.S. 205 (1972)

United States v. American Institute of

Real Estate Appraisers, 442 F. Supp.

1072 (N.D. Ill. 1977)

24

29

29

12, 19, 20

22, 23

30

24

28

13, 28

28

United States v. Black Jack, Missouri, 28

508 F.2d 1179 (8CA 1974),

cert. denied, 422 U.S. 1042 (1975)

United States v. Mitchell, 580 28

F.2d 789 (SCA 1978)

Village of Belle Terre v. Boraas, 416 10, 14,

U.S. 1 (1973) 20, 21

Village of Euclid, Ohio v. Ambler 21

Realty Co., 272 U.S. 365 (1926)

Federal Statutes and Legislative Resources.

29 U.S.C. § 706(7)(6) 1

42 U.S.C. § 300x-25 b

42 U.S.C. § 3602(h) 1

42 U.S.C. § 3604(f)(1) 13, 28

42 U.S.C. § 3607(b)(1) passim

Fair Housing Amendments Act of 1988, passim

Pub. L. No. 100-430, 102 Stat. 1623

vi

Vii

Growth of Small, Residential Living 3 Rhode Island General Law 22

Programs for the Mentally Retarded and § 45-24.3-11 (1956)

Developmentally Disabled: Hearing before

the Subcomm. on Regulation, Business Utah Code Ann. § 62A-5-102(2)(c)(1988) 8

Opportunities, and Technology of the House

Comm. on Small Business, 103d Cong.., Chapter 205, Wisconsin Law x

Ist Sess. 58 (1993) of 1977

H.R. Rep. No. 711, 100th Cong., 25, 26, 27, 29 Rules and Regulations.

Ist Sess. 18 (1988),

reprinted in 1988 24 C.F.R. § 100.10 (1994) 23

U.S.C.C.A.N. 2173

104 C.M.R. § 17.13(4)-(7) 4

State Statutes.

105 C.M.R. § 400.015 22

Alaska Stat. § 47.33.005(1) (1994) u

Edmonds Community Development 20

West’s Ann. Cal. Health and 23 Code § 16.20.000

Safety Code § 17922(a)(1)

. Edmonds Community Development 19

Health-Gen. Article Ann. 9 Code § 16.20.010(A)

Code of MD § 7-102(7)

Edmonds Community Development 16

Idaho Code § 39-3304 8 Code § 16.20.010(A)(1)

N.C. Gen. Stat. § 168-20 (1981) 8 Edmonds Community Development 22

Code § 19.10.000

Ohio Revised Code Ann. 8

§ 5123.19(A)(2)(1993)

E

a

¥ <1 a

. a eee a f bus - at. ;

Viii

Edmonds Community Development

Code § 21.00.000

17

Edmonds Community Development 16, 17, 19, 20

Code § 21.30.010

Edmonds Community Development

Code § 21.90.080

Miscellaneous.

Commonwealth of Massachusetts,

Comprehensive Housing Affordability

Strategy (1993)

Commonwealth of Massachusetts Executive

Office of Health and Human Services,

A Plan for the Development of

Community-Based Housing and Programs

for the Clients of the Department of

Mental Health and Mental Retardation

(1993)

Governor’s Special Commission on Consolidation

of Health and Human Services Institutional

Facilities, Actions for Quality Care (1991)

16

4,9

T. Mangan, E. Blake, R. Prouty, K. Lakin,

Residential Service for Persons with

Mental Retardation and Related

Conditions: Status and Trends Through

1993 (1994)

E. Mood, American Public Health

Ass’n - Centers for Disease Control,

Recommended Minimum Housing Standards

(1986)

F. Randoph., P. Ridgeway, C. Sanford,

D. Simoneau & P. Carling, A National

Survey of Community Residential Programs

for Persons with Prolonged Mental

Illness, Center for Community Change

through Housing & Support, Trinity

College of Vermont (1991).

United States President’s Advisory

Committee on Government Housing

(1953)

Webster’s 3rd New International Dictionary

(unabridged) (1961)

4,5,7

12, 23

y

23

17

Statement of Interest

The amici curiae Commonwealth of Massachusetts and the

States and Territory identified on the cover of this brief,

through their attorneys general, submit this brief in support of

Respondents, urging affirmance of the court of appeals.

Amici have two compelling interests that will be addressed

in this brief and leave to the respondents a comprehensive

analysis of the issues before this Court. First, as major

providers of services to individuals with handicaps, including

a continuum of residential settings, the amici have a substantial

interest in the development of homes for these individuals.

Resolution of this case affects the states’ development of

community residences for not only persons recovering from

drug or alcohol abuse, but also persons with mental illness,

mental retardation, Alzheimer’s disease and other handicaps.’

The Fair Housing Amendments Act of 1988 (“FHAA”), Pub.

L. No. 100-430, 102 Stat. 1623, protects important rights and

has been an integral part of the effort to open to persons with

handicaps residential neighborhoods previously off-limits as a

| The FHAA defines “handicap” broadly to mean “(1) a

physical or mental impairment which substantially limits one or

more of such person’s major life activities, (2) a record of having

such an impairment, or (3) being regarded as having such an

impairment, but ... does not include current illegal use of or

addiction to a controlled substance.” 42 U.S.C. § 3602(h). This

is the same three-part definition of handicap which Congress

previously used in the Rehabilitation Act of 1973, 29 U.S.C.

§ 706(7)(6).

2

result of discriminatory land-use rules. Zoning definitions of

family, such as the one enacted by Edmonds which limit the

number of unrelated persons, but not the number of related

persons who may occupy a dwelling, are prevalent throughout

the United States and frequently invoked to prevent the

establishment of community residences. Construing 42 U.S.C.

§ 3607(b)(1) to exempt these ordinances would allow all

individuals with handicaps living in community residences to be

excluded from single-family zones without any scrutiny under

the FHAA and would impair state agencies’ efforts to provide

these homes.

Second, states have a substantial and longstanding interest

in preventing dangerous overcrowding in dwellings and

preserving the exemption from the FHAA for the public health

restrictions that combat overcrowding. The states, or in some

cases their municipalities pursuant to a grant of state authority,

restrict the maximum number of residents for a dwelling

typically by requiring a minimum square footage for each

occupant in a dwelling. Such restrictions differ in substance

from zoning definitions of family, which merely define the

types of groups permitted in the zoned area.

Historically, the states have played a major role in

providing housing and other services to persons with handicaps.

Until the 1960s, few non-institutional residential settings were

offered by the states — one study found only 40 halfway

houses operating in the entire United States in 1960. F.

Randoph, P. Ridgeway, C. Sanford, D. Simoneau & P.

Carling, A National Survey of Community Residential Programs

for Persons with Prolonged Mental Illness, Center for

Community Change through Housing & Support, Trinity

College of Vermont, 6 (1991) (“National Survey”).

3

In the decade preceding the enactment of the FHAA, there

was a substantial increase in community residential services for

persons with mental illness or mental retardation. A national

survey found that the number of mental health organizations

providing community residential services to persons with

psychiatric disabilities increased by 125% in the two years

between 1982 and 1984. National Survey, at 16. The rate of

increase in the number of “beds” during that period was even

more dramatic — from 8,515 in 1982 to 24,452 in 1984. Id.

Similarly, the number of persons with mental retardation or

developmental disabilities in homes with 15 or fewer residents

increased from 40,424 in 1977 to 131,161 in 1988. Growth of

Small, Residential Living Programs for the Mentally Retarded

and Developmentally Disabled: Hearing before the Subcomm.

on Regulation, Business Opportunities, and Technology of the

House Comm. on Small Business, 103d Cong., 1st Sess. 58, 70

(1993) (memo from Subcomm. Staff to Subcomm. Chairman)

(“House Hearing”). By 1988, the year during which Congress

enacted the FHAA, government spending for those same

facilities increased from $879 million in 1977 to $5.6 billion in

1988, $4.2 billion of which came from the states. Id. at 71.

Today, the states continue to play a major role in providing

housing and other services to a wide range of persons with

developmental disabilities, mental retardation, mental illness,

AIDS/HIV, Alzheimer’s disease, and other handicaps. The

states provide a continuum of residential settings from

supported housing” to community residences to state

2 Supported housing programs enable persons with handicaps

to live on their own or in another setting of their choice with

appropriate services provided as needed. However, not all

4

institutions. See, e.g., Commonwealth of Massachusetts

Executive Office of Health and Human Services, A Plan for the

Development of Community-Based Housing and Programs for

the Clients of the Department of Mental Health and Mental

Retardation, 11 (1993) (*EOHHS Report”).

The housing programs serving persons with mental

retardation in Massachusetts illustrate the continuum of

residential services provided by the states. Approximately

3,000 persons reside in group living situations within the

community which are staffed twenty-four hours per day. As

many as eight persons live in each of these residences with the

majority living in homes for four or fewer. Commonwealth of

Massachusetts, Comprehensive Housing Affordability Strategy,

55 (1993). The homes are located in residential neighborhoods

affording the residents access to job opportunities, public

transportation, social interaction and community services

available to all citizens. Additionally, 1,600 persons live either

alone or with another person with mental retardation in

supported housing and 2,300 more persons reside in state

institutions or schools. Jd. at 54.

Community residences are a significant component of the

continuum of services offered by the states. Nationally, in

1993, 164,353 persons with mental retardation were living in

37,358 community residences of six or fewer residents and

6,360 homes of seven to fifteen residents. T. Mangan, E.

Blake, R. Prouty, K. Lakin, Residential Service for Persons

with Mental Retardation and Related Conditions: Status and

persons with handicaps are appropriate for this type of program.

5

Trends Through 1993, 42 (1994) (“Status and Trends Through

1993”). The array of services in Wisconsin is illustrative of

community residential programs in the various states. It has

licensed 857 community residences, each with a capacity of

three to eight persons, serving a variety of populations

including persons with developmental disabilities, mental

illness, and Alzheimer’s disease. Residential settings as a

whole in Wisconsin provide homes for over 1 ,500 persons with

Alzheimer’s disease and more than 2,500 persons with

developmental disabilities. Other states provide similar

residential services to persons with handicaps.”

3 Utah operates 256 different facilities for persons with

mental retardation: 42 community residence homes for seven to

eight persons; 22 community residence homes for four to six

persons; and 192 supervised apartments for one to three persons.

Missouri operates 762 community residence homes for persons

with mental retardation or developmental disabilities which

provide homes for over 5,100 persons with an average of 6.7

residents per home. Nevada has 12 community residences for

persons with Alzheimer’s disease and 26 homes for persons with

mental retardation. Maryland has licensed 1,008 separate

residences for persons with developmental disabilities with an

average size of 3.54 persons providing homes for over 3,500

people. In addition, for persons with mental illness in Maryland

there are 686 residences providing homes for over 1,800 people

In Massachusetts, the Department of Mental Retardation has

residential programs located in 78% of the 351 cities and towns

in the Commonwealth. More than 1,800 persons with mental

retardation live in homes with four or fewer persons with 24-hour

staff support. Another 1,131 persons reside in community

6

Looking ahead, the states are continuing to create and site

new community residences. Massachusetts continues to

develop four-person staffed homes for persons with mental

retardation. Other states have similar programs: Idaho plans to

triple the number of four-person homes it operates for persons

with mental retardation; Wisconsin has seen the number of

homes licensed for persons with handicaps increase steadily

during the past several years — almost 50 homes each year for

three to eight persons since 1991. In creating housing for

persons with mental retardation, Maryland emphasizes

community residences and supported housing. In addition,

States operate loan funds under the ADAA, which provide seed

money for the creation of new Oxford Houses every year.

Thirty such homes are planned over the next three years in

Missouri alone. As noted above, federal law requires these

homes to have a minimum size of six persons. 42 U.S.C.

§ 300x-25.

The breadth of the development of community residences

is reflected by the steady decline, nationwide, in the average

residences or Intermediate Care Facilities-Mental Retardation

serving six to eight persons each. On behalf of persons with

mental illness, Massachusetts provides residential services to over

tat in community residences with average sizes of 8 or

In addition, with funds provided pursuant to the Anti-Drug

Abuse Act of 1988, 42 U.S.C. § 300x-25, (as amended 1992

36 such homes and Massachusetts has 14.

:

number of persons with mental retardation living in each

residential setting from 22.5 in 1977 to 5.1 in 1993. Status

and Trends Through 1993, at 32. Moreover, many more

persons would like to avail themselves of these residential

treatment services: Massachusetts has 2,066 names on its

waiting list for housing for persons with mental retardation;

Utah has 767 persons on its waiting list for residential

treatment services.

Fiscal constraints and integration into the community are

two of the factors motivating the states’ development of

community residences. Community residences, sometimes, are

substantially less expensive than other residential settings, in

some cases by as much as $55,000 per year per person.* In

many cases, however, fiscal considerations also constrain states

from offering residential settings smaller than three or four

persons. For example, for persons with mental retardation

requiring 24-hour support and a highly structured environment,

as many do, a residential setting for one or two people can be

prohibitively expensive because the staff serving one or two

persons can also serve another two or three people. The size

of the community residences run by the states illustrates this

point: the homes for persons with Alzheimer’s disease in

‘ Governor’s Special Commission on Consolidation of

Health and Human Services Institutional Facilities, Actions for

Quality Care, 9 (1991). Similarly, a study of costs related to

facilities for individuals with mental retardation found substantial

8

Nevada all have room for 6 residents; the average size of

homes for persons with developmental disabilities in Maryland

is 3.54 persons; Massachusetts prefers to create new homes for

no more than 4 persons with existing homes ranging in size up

to 8 persons; in Utah the community residences range in size

from 4 to 8 persons. Through these community residences, the

states have chosen to create homes in the community for

persons with mental retardation unable to live independently.

Community residences also provide an effective means for

integrating people into the community. They offer one way for

the states to offer support services to persons with handicaps

while they live in residential neighborhoods which afford them

access to the full range of social interactions available to

others.

When developing community residences for persons with

handicaps, the states strive to create a family-style home in the

serving specific mentally ill and developmentally or physically

disabled populations which are small in size to provide for

family and home-like arrangements.” Idaho Code § 39-3304

(emphasis added). Many other states have similar statutes.

See, e.g., Utah Code Ann. § 62A-5-102(2)(c) (1988)

(promoting “integration into community life” for persons with

disabilities); N.C. Gen. Stat. § 168-20 (1981) (describing state

policy of providing handicapped persons with “the opportunity

to live in a normal residential environment”) (emphasis

added); Ohio Revised Code Ann. § 5123.19(A)(2) (1993)

(providing for “a family setting” for community residences for

persons with mental retardation or developmental disabilities)

(emphasis added); Chapter 205, Wisconsin Laws’ 1977

(providing that “a community living arrangement should be

9

located in a residential area . . . residents of the facilities

should be able to live in a manner similar to the other residents

of the area”) (emphasis added); Health-Gen. Article Ann. Code

of MD § 7-102(7) (describing state policy that people with

developmental disabilities “live in surroundings as normal as

possible”); Alaska Stat. § 47.33.005(1) (1994) (encouraging

homes “that provide a home-like environment for . . . persons

with a mental or physical disability”) (emphasis added).

The states’ emphasis on a family-like home is illustrated by

the community housing Massachusetts continues to develop.

For persons with mental retardation, Massachusetts creates a

“home [for] those served, rather than a setting for treatment,

programming or any other professional activity.” EOHHS

Report at 35. Massachusetts implements this objective in a

number of ways. It promotes resident involvement in the

location of the home and selection of the staff. Jd. In addition,

the homes are organized so that the residents may live together

in a family style — sharing meals, for instance. Similarly, as

Massachusetts creates housing for persons with mental illness,

it seeks to provide “normal, natural homes integrated into their

community surroundings.” EOHHS Report at 5. Although the

average size of these homes may vary from 3 to 8 persons and

the level of support services may vary from minimal to intense,

the governing regulations in all cases provide for a “family-

style” model in a “normal home” environment. 104 C.M.R.

§ 17.13(4)-(7).

One of the homes developed in Massachusetts is located on

a tree-lined street in a family neighborhood in a suburb north

of Boston. In the home, six men and women with mental

illness, between the ages of 35 and 69, live together as a

10

family. Like many families, these six people are engaged in

their own full or part-time activities outside the home during

the day. Again like a family, they share meals, household

chores and social activities as they have throughout the two and

one-half years they have lived together.

In siting community residences, the states often find that

zoning ordinances, including those defining family as Edmonds

has done, are invoked in an attempt to exclude a group of

persons with handicaps from living in a single-family

neighborhood. Unlike the residents of fraternity houses and

boarding homes at whom these rules aim, Village of Belle Terre

v. Boraas, 416 U.S. 1, 9 (1973), however, many of the

handicapped persons living in a group home cannot live in a

single-family neighborhood except in a community residence,

a fact recognized by this Court. City of Cleburne, Tex. v.

Cleburne Living Center, 473 U.S. 432, 438, n. 6 (1985)

(noting the district court’s unchallenged finding that “‘[g]roup

homes currently are the principal community living alternatives

for persons who are mentally retarded.’”) Furthermore, the

residents of group homes, in contrast to the residents of a

fraternity or boarding house, live together in a manner akin to

a family; hence the states endeavor to locate these homes in

single-family neighborhoods and ‘ntegrate the homes into these

neighborhoods.°

The FHAA protects important rights of individuals with

handicaps. Exempting from review under the FHAA the

; In any event, the application of unrelated person rules to

those not protected by the FHAA’s substantive provisions is not

subject to review under the FHAA.

tie as

ll

Edmonds ordinance and the similar ordinances of other

municipalities would impair the efforts of state agencies to

develop community residences and cause the exemption in 42

U.S.C. § 3607(b)(1) to eviscerate the statute as applied to

community residences. Amici therefore urge this Court to

affirm the decision below.

Summary of Argument

The Edmonds ordinance defining “Family” falls outside of

the plain meaning of the FHAA exemption for “any reasonable

local, State, or Federal restriction regarding the maximum

number of occupants permitted to occupy a dwelling.” 42

U.S.C. § 3607(b)(1). The legislative history of the FHAA

confirms this plain meaning of § 3607(b)(1), and any other

result would defeat the purpose of the Act. Accordingly, the

decision below should be affirmed.

1. Efforts to construe § 3607(b)(1) should begin with the

plain and unambiguous language of the exemption. Consumer

Product Safety Comm’n v. G7E Sylvania, Inc., 447 U.S. 102,

108 (1980). By using the terms “the maximum number” of

occupants in “a dwelling,” § 3607(b)(1) exempts only

restrictions identifying the highest or greatest number of

persons who may reside in a particular dwelling. Use of the

word “the” indicates further that there can be one, and only

one, such maximum per dwelling. The Edmonds ordinance has

an entirely different purpose; it defines, with reference to the

term “Family,” the types of groups that may reside in a single-

family district.

This definition of family authorizes an unlimited number

of related individuals to occupy “a dwelling.” It imposes no

12

numerical limitation whatsoever and certainly not “the

maximum” restriction on the number of occupants per

“dwelling.” The five-person rule for unrelated persons

included within Edmonds’ definition of family, moreover,

always can be exceeded by the unlimited number of related

persons permitted in a dwelling. The Edmonds ordinance thus

does not qualify as a restriction on “the maximum number” of

occupants permitted in “a dwelling.”

In addition, the Edmonds definition of family plainly limits

not the “number” of occupants per “dwelling” but the types of

groups defined as a family and the types of uses permitted in

the area zoned. See Moore v. City of East Cleveland, Ohio,

431 U.S. 494, 498 (1977) (stating zoning definitions of family

“impose limits on types of groups that could occupy a

dwelling unit”). Another type of rule, on the other hand —

public health regulations limiting the number of occupants in

relation to the per square feet of floor space — has been

recognized as restricting the maximum number of occupants per

dwelling. See Moore, 431 U.S. at 500 n. 7; id. at 520 n. 16

(Stevens, J. concurring). Such per-square-footage requirements

are included in several model housing codes, including that

promulgated in 1986 by the American Public Health

Association and Center for Disease Control, which uses

language strikingly similar to the plain language of the

exemption. E. Mood, American Public Health Ass’n - Centers

for Disease Control, Recommended Minimum Housing

Standards (1986) (“APHA-CDC”). Compare § 3607(b)(1)

(exempting restrictions regarding “the maximum number of

occupants permitted to occupy a dwelling”) with § 2.51 of the

APHA-CDC code (defining “[p]Jermissible occupancy” as “the

13

maximum number of individuals permitted to reside in a

dwelling unit. . . ”). In using the phrase “the maximum

number” of occupants per “dwelling,” therefore, Congress

meant to exempt and did exempt restrictions like the per-

square-footage requirements, but not zoning definitions of

“Family” like the Edmonds ordinance.

2. Although the plain meaning of § 3607(b)(1) is clear,

insofar as there is any ambiguity, consulting the legislative

history is appropriate, Garcia v. United States, 469 U.S. 70,

75 (1984), and here confirms the plain meaning. The

legislative history makes clear that Congress intended to subject

to review under the FHAA not only rules imposing

requirements on persons with handicaps without imposing them

on others, but also otherwise neutral rules and regulations, such

as the Edmonds’ ordinance, that make housing unavailable to

individuals with handicaps. Moreover, the legislative history

of § 3607(b)(1) in particular explains that restrictions upon

occupancy fall within the exemption only when they apply to

all occupants. The five-person rule in the Edmonds’ ordinance

applies only to unrelated occupants, and thus falls outside the

scope of § 3607(b)(1).

3. The purpose of the Fair Housing Act also supports the

plain meaning of § 3607(b)(1). The language of the Fair

Housing Act is “broad and inclusive,” Trafficante v.

Metropolitan Life Insurance Co., 409 U.S. 205, 209 (1972).

Because it is a remedial statute, its exemptions should be

construed narrowly. The FHAA makes it “unlawful . . . to

discriminate [on the basis of handicap] . . . or to otherwise

make [housing] unavailable,” a term of art with broad

application. 42 U.S.C. § 3604(f)(1) (emphasis added).

14

Shielding the Edmonds ordinance and similar zoning definitions

of family, as a matter of law, from any review on the merits

under the FHAA would defeat the goal of having the Act’s

substantive provisions apply to otherwise neutral zoning

policies and practices which make housing unavailable on the

basis of handicap.

Argument

I. THE PLAIN LANGUAGE OF SECTION

3607(B)(1) DEMONSTRATES THAT ZONING

DEFINITIONS OF “FAMILY” ARE NOT

EXEMPTED FROM THE FAIR HOUSING

AMENDMENTS ACT OF 1988.

The narrow issue decided below by the district court and

the court of appeals was whether, pursuant to 42 U.S.C.

§ 3607(b)(1), the Edmonds zoning ordinance defining “Family”

for purposes of its single-family zone is exempt from the

substantive provisions of the Fair Housing Amendments Act of

1988. City of Edmonds v. Washington State Bldg. Code

Council, 18 F.3d 802, 803 (9CA 1994).° Under § 3607

(b)(1), “reasonable local, State, or Federal restrictions

® Contrary to the argument in petitioner’s brief at 11, a

holding affirming the decision below will not “overturn Euclidian

zoning and thereby the definition of family” upheld in Village of

Belle Terre v. Boraas, 416 U.S. 1 (1973). The court of appeals

expressly declined to consider the merits of whether the

ordinance violates the FHAA. City of Edmonds, 18 F.3d at 807.

The court of appeals thus reversed and remanded the case to the

district court for further findings. Id.

15

regarding the maximum number of occupants permitted to

occupy a dwelling” are exempt from review under the FHAA.

Consideration of whether the Edmonds definition of “Family”

is an occupancy restriction within the scope of 42 U.S.C.

§ 3607(b)(1) must begin with the plain meaning of the

exemption. Consumer Product Safety Commission v. GTE

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

By its terms, § 3607(b)(1) exempts only those restrictions

which identify the highest or greatest number of persons who

may reside in “a dwelling” (i.e. “the maximum” number of

occupants per “dwelling”) and which are otherwise reasonable.

The Edmonds ordinance has an entirely different purpose; it

defines, with reference to the term “Family,” who may reside

in a single family district and is therefore clearly outside the

exemption. As discussed below, when Congress enacted

§ 3607(b)(1), it did not exempt zoning regulations generally.

Rather, it exempted rules designed to protect the public health

by preventing overcrowding in a dwelling, such as per-square-

footage requirements, which often mirror the plain language of

§ 3607(b)(1).’

q Compare Section 3607(b)(1) (exempting restrictions

regarding “the maximum number of occupants permitted to

occupy a dwelling”) with the model housing code of the

American Public Health Association and Center for Disease

Control which defines “[pJermissible occupancy” to mean “the

maximum number of individuals permitted to reside in a dwelling

iia”

16

A. Edmonds’ Definition of Family Does Not

Restrict “the Maximum Number” of

Occupants Per “Dwelling.”

The only permitted primary uses in single-family residential

zones in Edmonds are “single-family dwelling units.”

Edmonds Community Development Code (“ECDC”)

§ 16.20.010(A)(1). <A “single-family dwelling unit” is a

“detached building used by one family, limited to one per lot.”

ECDC § 21.90.080. The ordinance at issue in this case is the

section of the Edmonds Community Development Code which

defines the term “Family:”

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

ECDC § 21.30.010. Petitioners contend that this provision is

within the exemption as imposing “a limit” on occupancy

because it effectively precludes more than five unrelated

persons from residing together in a single-family district.

Petitioner’s Brief at 11, 12, 14, 15.8 However, the plain

language of § 3607(b)(1) defines a far narrower exemption than

would reach the Edmonds ordinance.

By its terms, § 3607(b)(1) exempts only restrictions which

5 As set forth in section 1(B) infra, the definition of family

in the Edmonds ordinance does not directly restrict the number

of occupants permitted in a dwelling, it merely describes the

types of groups permitted to reside in the single-family zone.

17

establish a single maximum number of occupants permitted to

occupy a dwelling. “Maximum” is defined as the “greatest in

quantity or highest in degree attainable or attained.” Webster’s

3rd New International Dictionary 1396 (unabridged) (1961).

Significantly, “maximum” is preceded in § 3607(b)(1) by

“the,” which is “used as a function word to indicate that a

following noun or noun equivalent refers to someone or

something that is unique or is thought of as unique or exists as

only one at a time.” Jd. at 2368. Thus, in § 3607(b)(1), “the

maximum number” refers to one, and only one, “highest” or

“greatest” number of occupants permitted to occupy a

particular dwelling.

ECDC § 21.30.010 clearly is not such an occupancy

restriction. It merely defines “Family” in the “normal and

customary meaning[]” of the term, ECDC § 21.00.000,

primarily as an unlimited number of related persons who

occupy a dwelling, or a modest number (here, five) of

individuals who are not related and are not wards of the state.

With regard to related persons, the Edmonds ordinance imposes

no limitation whatsoever on the number of persons who may

occupy a dwelling in a single-family district.

Moreover, ECDC § 21.30.010 does not restrict “the

maximum number” for “a dwelling” merely because it imposes

a limit on a subgroup of occupants permitted to reside in the

single-family zone — those who are not related and are not

wards of the state. This purported “limit” on unrelated persons

may be and often is less than the total number of related

persons who occupy a dwelling in the single-family zone.

Petitioner’s brief illustrates how it is the per-square-footage

requirement in the Uniform Housing Code (“UHC”), and not

ECDC § 21.30.010, which establishes “the maximum number”

18

for “a dwelling:”

For example, assume a single-family house in

Edmonds has square footage that would allow a

total of eight adults under the UHC. Any

number of related family members could reside

there, up to eight. If a family decided to let

rooms, a permitted use, the total number of

residents would again be limited to five.

Petitioner’s Brief at 14 (citation omitted and emphasis added).

In Petitioner's example, the five-person limit for unrelated

persons obviously is not “the maximum number” of persons

permitted to occupy “a dwelling” in an Edmonds single-family

zoning district. At most, the Edmonds ordinance may impose

a limitation on certain types of people under certain

circumstances, which can be exceeded by other limitations on

other types of people under other circumstances. Such a

purported “limit” certainly does not qualify as “the maxisnum

number” of occupants permitted for “a dwelling” under

§ 3607(b)(1).”

* For the same reasons, there is no merit to the argument

that Edmonds’ definition of family falls within § 3607(b)(1)

because it speaks in terms of “any” restrictions “regarding”

maximum occupancy. The potential breadth of the terms “any”

and “regarding” does not change the plain language of the

unique and limiting phrase they modify, “the maximum number”

19

B. The Edmonds Ordinance Regulates The

Character of the Area Zoned But Does Not

Restrict the Maximum Number of Occupants

Within a Dwelling.

Edmonds’ definition of “Family” in § 21.30.010 falls

within Title 21.00 of the BCDC, entitled “DEFINITIONS —

GENERAL.” Sectior 21.30.010 merely states that “Family”

means either: (1) an individual, (2) an unlimited number of

related individuals, or (3) five or fewer unrelated individuals.

This definition becomes a “restriction” only indirectly, because

the word “Family” is used in BCDC chapter 16.20, entitled

“RS - SINGLE-FAMILY RESIDENTIAL,” which lists under the

heading “Permitted Primary Uses” “1. Single-family dwelling

units.” BCDC § 16.20.010(A). The five-person figure

described by the Petitioner as an occupancy limit is simply part

of a description of one of three categories of occupants that

falls within the definition of “Family”. This section thus

merely lists the different types of groups or “uses” permitted

within the single-family zone. See Petitioner's Brief at 9.

This same characterization of the definition of family for

purposes of single-family zoning was recognized in Moore v.

City of East Cleveland, Ohio, 431 U.S. 494, 498 (1977).'°

10 Although Moore is cited in Elliot v. City of Athens, 960

F.2d 975 (11CA), cert. denied, 113 S. Ct. 376 (1992), for its

20

The Court’s analysis began with the recognition that a

definition of family for single-family zoning purposes, such as

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

merely “imposed limits on the types of groups that could

occupy a dwelling unit.” Moore, at 498. The Court went on

to reject East Cleveland’s attempt to justify its strict definition

of family for zoning purposes, inter alia, “as a means of

preventing overcrowding.” Jd. at 500. Similarly, in his

concurrence, Justice Stevens recognized that “restricting the

composition of a household is . . . not reasonably related” to

“prevention of overcrowding in residences.” Jd. at 520, n. 16

(citations omitted).

The definition of “Family” in ECDC § 21.30.010 is

similarly unrelated to limiting the number of occupants per

dwelling in single-family districts. The expressed purposes

underlying Edmonds’ residential zoning rules make no mention

of attempting to limit “the maximum number” of occupants

within “a dwelling.” Rather the zoning ordinance aims:

A. To reserve and regulate areas primarily for

family living in single-family dwellings.

B. To provide for additional non-residential

uses which complement and are compatible

BCDC § 16.20.000 (“Purposes”) (emphasis added). This

zoning provision therefore, as Petitioner concedes, is like other

zoning provisions — designed to restrict an “area” or

neighborhood to those groups or “uses” defined as “aml

living.” See Petitioner’s Brief at 9-11.

ECDC § 21.30.010 thus resembles the zoning ordinances

21

in Village of Belle Terre and Village of Euclid, Ohio v. Ambler

Realty, 272 U.S. 365 (1926), which “classi[fied] land use in

a given area into . . . categories.” Village of Belle Terre, 416

U.S. at 3 (emphasis added). An example of a “restricted-use

ordinance,” Id. at 3-4, Edmonds’ definition of family, like that

in Belle Terre, “has restricted land use to one-family

dwellings.” Jd. at 2 (emphasis added). While Belle Terre

established that such a zoning definition of family would

Amendment, it also illuminated the nature of such an ordinance

as “a land use project addressed to family needs.” Jd. at 9

dwellings, such zoning ordinances “lay out zones where family

values, youth values, and the blessings of quiet seclusion and

clean air make the area a sanctuary for people.” Jd. (emphasis

added); cf. Village of Euclid, Ohio, 272 U.S. at 388

(characterizing zoning as “power . . . to forbid the erection of

a building of a particular kind or for a particular use”).

A definition of family that restricts the types of uses

permitted in the area zoned does not regard “the maximum

number” of occupants permitted within each “dwelling” in the

area. Edmonds’ definition of family for this reason also falls

outside the plain meaning of § 3607(b)(1).

22

C. Square Footage Requirements, at the Local,

State, and Federal Level, Are Commonly

Understood to Define the Maximum Number

of Individuals Permitted to Reside in a

Dwelling Unit.

Another type of regulation, also widely enacted, does define

As noted above, the City of Edmonds incorporated into its

code the per-square-footage requirement of the Uniform

Housing Code which requires a minimum amount of floor

space for each occupant of a dwelling. BCDC § 19.10.000.

This approach to restricting the maximum number of occupants

permitted in a dwelling has been followed at the local, State,

and Federal level."

m least 100 square feet for each additional

occupamt. 105 C.M.R. § 400.015. Rhode Island requires a

minimum of 150 square feet for the first occupant and at least

23

Per-square-footage requirements restrict the number of

occupants per dwelling in a “common manner” that has been

recognized by this Court — that is, in relation to the square

footage of inhabitable space within the dwelling. Moore v.

East Cleveland, 431 U.S. 494, 500 n. 7 (1977); id. at 520 n.

16. (Stevens, J., concurring in judgment). In fact, the Court

recognized that square footage requirements establish “the

maximum permissible occupancy of a dwelling.” /d.

(emphasis added); see also id. at 520 n. 16 (Stevens, J.

concurring in judgment) (stating communities can prevent

“overcrowding” by limiting the number of occupants “in

relation to the available floor space”) ; cf. City of Cleburne,

Tex. v. Cleburne Living Center, 473 U.S. at 450 (1985)

(observing that per-square-footage requirement addresses

overcrowding). Moreover, the American Public Health

Association and Center for Disease Control (“APHA-CDC”)

1986 model housing code, § 2.51, defines “[pjermissible

occupancy” in a manner strikingly parallel to § 3607(b)(1) as

“the maximum number of individuals permitted to reside in a

dwelling unit . . .” and recommends specific square footage

minimums.'* See 42 U.S.C. § 3607(6)(1) (“the maximum

occupants. West’s Ann. Cal. Health and Safety Code

§ 17922(a)(1). At the federal level, the Department of Housing

and Urban Development (“HUD”) has adopted similar dwelling

ing restrictions for the property it owns and funds. 24

C.F.R. § 100.10 (1994).

12 As early as 1953, a Presidential Commission recognized

the predecessor to the APHA-CDC standards, promulgated only

by the APHA. 1953 United States President's Advisory

24

number of occupants permitted to occupy a dwelling”).'°

Square footage requirements, such as those promulgated by

APHA-CDC, aim to reduce public health risks that typically

accompany overcrowding, such as the increased probability of

(1) transmission of infectious diseases (tuberculosis, skin

diseases, and certain digestive system diseases); (2) stress on

plumbing, washroom and bathing facilities that could heighten

risk of transmission of disease; (3) home accidents and fire

hazards; (4) problems in social development and social

relationships among occupants; and (5) other psychological,

physiological, and sociological injuries. See, e.g., Nolden v.

East Cleveland City Comm’n, 12 Ohio Misc. 205, 210-211,

232 N.E.2d 421, 425-26 (1966). The importance of these

public health regulations explains Congress’ decision to exempt

them from the FHAA in § 3607(b)(1).

Since long before the passage of the FHAA in 1988,

therefore, square footage requirements at the local, State and

Federal level have been commonly understood to define “the

Committee on Government Housing (Dec. 1953), Ex. 5 entitled

“Analysis of Space Occupancy Standards for Dwellings as

Provided in Regulations of Certain Localities and States.”

For the full text of § 9.02 of the APHA-CDC standards, see

Appendix attached hereto.

13 In enacting § 3607(b)(1), therefore, Congress would be

presumed to be knowledgeable about the existing “local, State,

or Federal” maximum occupancy restrictions described in the

text, this Court’s discussion of such restrictions and the model

code promulgated by the Center for Disease Control. Goodyear

Atomic Corp. v. Miller, 486 U.S. 174 (1988).

25

maximum number” of individuals permitted to reside in “a

dwelling unit.” In using the phrase “reasonable local, State,

or Federal restrictions regarding the maximum number of

occupants permitted to occupy a dwelling,” therefore, Congress

meant to exempt, and did exempt in § 3607(b)(1), only

restrictions that establish the maximum number of occupants

for a particular dwelling, square footage requirements for

example, and not zoning restrictions regulating the character of

or uses permitted in an area.'*

Il. THE LEGISLATIVE HISTORY OF THE FHAA

MAKES CLEAR THAT CONGRESS DID NOT

INTEND TO EXCLUDE FROM REVIEW LAND-

USE POLICIES AND PRACTICES THAT MAY

HAVE THE EFFECT OF MAKING HOUSING

UNAVAILABLE TO PERSONS WITH HANDI-

CAPS.

As the legislative history of the FHAA makes explicit,'°

a fundamental purpose of the Act was “to end the unnecessary

exclusion of persons with handicaps from the American

mainstream.” H.R. Rep. No. 711, 100th Cong., Ist Sess. 18

(1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2179 (“House

14 Accordingly, the Court need not decide whether the

Edmonds ordinance is “reasonable” under § 3607(b)(1).

‘5 Amici contend that the plain meaning of § 3607(b)(1) is

clear as set forth supra. However, to the extent there is any

ambiguity, this Court may look to the legislative history as “an

additional tool of analysis.” Garcia v. United States, 469 U.S. 70,

75 (1984).

26

Report”). Congress understood the importance of “prohibiting

discrimination against individuals with handicaps [as] a major

step in changing the stereotypes that have served to exclude

them from American life.” Jd. Recognizing that “[t)}he right

to be free from housing discrimination is essential to the goal

of independent living,” id., the legislation “clearly prohibits

the use of stereotypes and prejudice to deny critically needed

housing to handicapped persons.” Jd.

As a result of “prejudice and aversion,” individuals with

handicaps have experienced housing discrimination. Jd. In the

specific context of “congregate living arrangements for persons

with handicaps,” id. at 23, Congress understood that the

“authority to . . . regulate use of land has sometimes been used

to restrict the ability of individuals with handicaps to live in

communities.” Jd. at 24. Congress intended the substantive

provisions of the FHAA to apply to “state or local land-use

practices or decisions which discriminate against individuals

with handicaps,” id. and, specifically, “intend[ed] that the

prohibition against discrimination against those with handicaps

apply to zoning decisions and practices.” Jd.

As the legislative history makes clear, Congress appreciated

the fact that housing is “made unavailable” in a number of

ways. While Congress was concerned about instances where

discrimination results from “the enactment or imposition of

land use requirements on congregate living arrangements

among non-related persons with disabilities . . . [that] are not

imposed on families and groups of similar size of other

unrelated persons,” id., its concern and the scope of the statute

were broader. As the legislative history explicitly states,

Congress was specifically aware of the fact that “[a]nother

27

method of making housing unavailable to people with

disabilities has been the application or enforcement of

otherwise neutral rules and regulations . . . on land use in a

manner which discriminates against people with disabilities.”

Id. (emphasis added) (footnote omitted). Housing made

unavailable through “[t}hese and similar practices would [also]

be prohibited.” Jd.

The legislative history also confirms that the exemption of

§ 3607 was not meant to remove zoning restrictions on

unrelated persons from the reach of the FHAA. As the House

Report. states, reasonable limitations by governments, such as

limits on “the number of occupants per unit based on a

minimum number of square feet in the unit” may “continue, as

long as they were applied to all occupazts.” House Report at

31 (emphasis added). In order for a numerical restriction on

occupancy to fall within the purview of § 3607, it must apply

to all occupants. Indisputably, the five-person rule in the

Edmonds ordinance does not so apply, and thus does not

qualify for the exemption in § 3607(b)(1).

TI. INTERPRETING SECTION 3607(B)(1)

TO APPLY TO ZONING DEFINITIONS

OF FAMILY, SUCH AS_ THE

EDMONDS ORDINANCE, WOULD BE

INCONSISTENT WITH THE PURPOSE

OF THE FHAA.

Although “the starting point for interpreting any statute is

the language of the statute itself,” Conswmer Product Safety

Comm’n v. GTE Sylvania, Inc. , 447 U.S. 102, 108 (1980), the

Court cannot interpret a statute in a manner that directly

conflicts with the overall purpose and goals which Congress

28

intended it to serve. FTC v. Fred Meyer, Inc., 390 U.S. 341,

349 (1968). This is particularly true where the Court interprets

remedial statutes, such as the Fair Housing Act, liberally to

accomplish their goal. Peyton v. Rowe, 391 U.S. 54, 65

(1968). This Court has held that the language of the Fair

Housing Act is “broad and inclusive,” Trafficante v.

Metropolitan Life Insurance Co., 409 U.S. 205, 209 (1972),

and should be construed generously to ensure the prompt and

effective elimination of discrimination in housing. Jd. at 211-

212. Similarly, the Court has noted that “any exemptions from

- + . femedial legislation must therefore be narrowly

construed,” A.H. Phillips, Inc., v. Walling, 324 U.S. 490, 493

(1945), cited with approval in Commissioner of Internal

Revenue v. Clark, 489 U.S. 726, 739 (1989).

In the 1988 amendments to the Fair Housing Act, Congress

added a new prohibition against housing discrimination on the

basis of handicap, making it “unlawful . . . to discriminate

. . . Or to otherwise make unavailable” housing based upon

handicap. 42 U.S.C. § 3604(f)(1) (emphasis added). The key

phrase, “otherwise make unavailable” is a well-established term

of art in the context of federal fair housing legislation, which

the courts have historically applied to a wide range of conduct

to prohibit “all practices which have the effect of denying

dwellings on prohibited grounds,” United States v. American

Institute of Real Estate Appraisers, 442 F. Supp. 1072, 1079

(N.D. Ill. 1977); including, for example, racially exclusionary

land-use practices by a municipality, United States v. Black

Jack, Missouri, 508 F.2d 1179, 1184 (8CA 1974), cert.

denied, 422 U.S. 1042 (1975); racial “steering,” United States

v. Mitchell, 580 F.2d 789, 791 (SCA 1978); and “redlining”

29

by financial institutions, Laufman v. Oakley Bldg. & Loan Co.,

408 F. Supp. 489, 493 (S.D. Ohio 1976). “[I}n the absence

of a contrary indication, this Court assumes that when a statute

uses terms of art, Congress intended it to have its established

meaning.” McDermott International v. Wilander, 498 U.S.

337, 342 (1991).

As an exemption to a broad remedial statute, § 3607 should

be interpreted narrowly and certainly no more broadly than

necessary to address its plain purpose and language.

Accordingly, assuming arguendo, that there is ambiguity in the

plain meaning of the section, it is the narrower interpretation

of the exemption which limits its effect on the Act’s broad

substantive non-discrimination provisions, that must prevail.

What Congress understood in 1988 to be true about the

critical need to redress land-use policies and practices which

have a discriminatory effect on individuals with handicaps is

just as true in 1995. In their efforts to develop and establish

such residences as part of their continuum of housing

opportunities in the community, the states continue to encounter

barriers that result from the application or enforcement of

neutral zoning rules and regulations.

Consistent with the clear congressional pronouncement to

address housing discrimination against persons with handicaps

and to remove those barriers resulting from “zoning decisions

and practices. . . that have the effect of limiting the ability of

such individuals to live in the residence of their choice in the

community,” House Report at 24, the states have continued to

move forward with their efforts to establish community

housing. The FHAA is an important safeguard against

discriminatory interference with those efforts. Construing the

§ 3607 exemption broadly to encompass zoning definitions of

30

family thus would directly conflict with the overall purpose and

goals which Congress intended the FHAA to serve, FTC v.

Fred Meyer, Inc., 390 U.S. at 349, and would negate its

general purposes. New York State Department of Social

Services v. Dublino, 413 U.S. 405, 419-420 (1973). In

addition, such a broad construction would deprive the states of

an important tool for addressing barriers to the establishment

of community living opportunities for their citizens with

handicaps.

Conclusion

For the foregoing reasons, this Court should affirm the

decision of the United States Court of Appeals for the Ninth

Circuit.

SCOTT HARSHBARGER

Attorney General

of Massachusetts

STANLEY J. EICHNER*

DONNA L. PALERMINO

LEO T. SOROKIN

Assistant Attorneys General

1 Ashburton Place, Room 2019

Boston, Massachusetts 02108

(617) 727-2200

*Counsel of Record

Date: January 17, 1995

Appendix

Section 9.02 of the APHA-CDC model housing code

states as follows:

9.02.01 For the first occupant

there shall be at least one

hundred fifty (150) square feet

of floor space and there shall be

at least one hundred (100)

square feet of floor space for

every additional occupant

thereof. Floor space is to be

calculated on the. basis of total

habitable room area.

9.02.02 In every dwelling and

dwelling unit of two (2) or more

rooms, every room occupied for

sleeping purposes by one

occupant shall contain at least

seventy (70) square feet of floor

space and every room occupied

for sleeping purposes by more

than one occupant shall contain

at least (50) square feet of floor

space for each occupant thereof.

DARRELL V. MCGRAW, JR.

Attorney General

of West Virginia

ROSALIE SIMMONDS BALLANTINE

Attorney General of the ~

Virgin Islands

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