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

Supreme Court brief1995

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BUILDING CODE

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QUESTION PRESENTED

Whether a municipality’s definition of a "family" in a single-

family zoning ordinance is a restriction on "the maximum

number of occupants" exempted from the requirements of the

Fair Housing Amendments Act, even though a single-family

zoning ordinance is a use requirement with a distinct history

and purpose from the occupancy restrictions denoted by the

plain language and history of the Act.

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT ...............

I. ZONING FOR SINGLE-FAMILY USE IS

A PREVALENT MEANS OF LAND USE

PLANNING THAT, ALTHOUGH A USEFUL

AND LEGITIMATE TOOL, HAS A

RECOGNIZED HISTORY AS A MEANS OF

EXCLUDING "UNDESIRABLE" GROUPS. ... .

A. Zoning Arose as a Means For Municipalities

To Separate Disparate Uses, In Response to

Unprecedented Population Pressures. ......

B. Zoning Was Also Used To Exclude

"Undesirable" Groups, Such as Racial

and Ethnic Minorities, From New

C. Single-Family Zoning Has a Long and

Well-Recognized History as a Means

of Excluding Disabled People Who

Require Congregate Living Arrangements. . .

. PROVISIONS GOVERNING MAXIMUM

NUMBERS OF OCCUPANTS DEVELOPED

IN RESPONSE TO CONCERNS ABOUT

THE HEALTH AND SAFETY OF THOSE

ACTUALLY LIVING IN BUILDINGS

RATHER THAN CONCERNS ABOUT WHO

SHOULD LIVE IN A GIVEN COMMUNITY. . 17

. BECAUSE OF THEIR HISTORY AS A

MEANS OF EXCLUDING UNDESIRED USES,

ZONING CODES ARE MORE SUSCEPTIBLE

TO ABUSE AS TOOLS OF DISCRIMINATION

AGAINST "UNDESIRABLE" INDIVIDUALS

THAN ARE MAXIMUM OCCUPANCY

. THE PLAIN LANGUAGE OF THE FAIR

HOUSING AMENDMENT ACT, READ IN THE

CONTEXT OF THE HISTORICALLY DISTINCT

EVOLUTION OF ZONING LAWS AND

OCCUPANCY REQUIREMENTS, ESTABLISHES

THAT SINGLE-FAMILY ZONING CODES ARE

NOT RESTRICTIONS ON THE "MAXIMUM

NUMBER OF OCCUPANTS" WITHIN THE

MEANING OF THE STATUTORY EXEMPTION. 25

EE 2 00s 0c cchRieeiee ) Reese 29

TABLE OF AUTHORITIES

Cases

American Sign Corp. v. Fowler,

276 S.W.2d 651 (Ky. 1955) .............

Arthur v. City of Toledo,

782 F.2d 565 (6th Cir. 1986) ............

Association of Relatives and Friends of AIDS

Patients v. Regulations & Permits Admin. ,

740 F. Supp. 95 (D.P.R. 1990) ...........

Atkins v. Robinson,

ope 5) | o | a ee

Buchanan v. Warley,

PEED e's 0 ove bblne oe Koes wee

City of Edmonds v. Washington State Bldg. Code

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

City of Cleburne v. Cleburne Living Ctr. Inc.,

Elliott v. City of Athens,

960 F.2d 975 (11th Cir. 1992)............

Enos v. City of Brockton,

236 N.E.2d 919 (Mass. 1968) ............

Euclid v. Ambler Realty Co.,

Ye. cescotcdeeds 6, 7, 23

Garcia v. United States,

rn. eS de be 6 0s 64

Goldman v. Crowther,

147 Md. 282, 128 A. 50 (1925) ...........

Green v. Bock Laundry Machine Co.,

EL od cg dc oc we 6 6 0 ss

Hadacheck v. Sebastian,

Harris v. City of Louisville,

165 Ky. 559, 177 S.W. 472 (1915) .........

Huntington Branch, NAACP v. Town of

Huntington, 844 F.2d 926 (2d Cir.), aff'd

per curiam, 488 U.S. 15 (1988) ...........

In re Lee Sing,

GP is Bee Gees Gs ED 6 8c ccc ee.

Incorporated Village of Freeport v.

Association for the Help of Retarded

Children, 94 Misc. 2d 1048, 406 N.Y.S.2d

221 (1977), aff'd, 60 A.D.2d 644, 400

N.Y.S.2d 724 (2d Dep’t 1977) ...........

Lincoln Trust Co. v. Williams Building Corp.,

229 N.Y. 313, 128 N.E. 209 (1920) ........

Little Neck Community Association v. Working

Organization for Retarded Children, 52

A.D.2d 90, 383 N.Y.S.2d 364 (2d Dep’t

1976), leave to appeal denied, 40 N.Y .2d

803, 356 N.E.2d 482, 387 N.Y.S.2d 1030

TS ere ee PEL PTT eee eee

Monk v. City of Birmingham, 87 F. Supp. 538

(D. Ala. 1949), aff'd, 185 F.2d 859 (Sth

Cir. 1950), cert. denied, 341 U.S. 940

gE ae ee ere

Moore v. East Cleveland,

ee Ol oe ke US ks Se weld

Mulkey v. Reitman,

413 P.2d 825 (Cal. 1966), aff'd,

387 U.S. 369 (1967)..............0...

Oxford House, Inc. v. Township of Cherry Hill,

799 F. Supp. 450 (D.N.J. 1992) ..........

People v. Renaissance Project, Inc.,

36 N.Y.2d 65, 364 N.Y.S.2d 885,

eee ee

Reinman v. Little Rock,

Salt Lake County v. Kartchner,

Fe 8 ere 24

Shelley v. Kraemer,

i et. hk. eA ig gs 6s ee baw. ii

Smith v. Town of Clarkton,

682 F.2d 1055 (4th Cir. 1982) ............ 12

State v. Darnell,

er ee SED 6 os ein 6 oe ee Se wre’ i0

State v. Gurry,

i, i Ce oes eeuceeueeests 10

State v. Vadnais,

202 N.W.2d 657 (Minn. 1972) ........... 24

Toibb v. Radloff,

Ee ee ee 25

Tyler v. Harmon,

158 La. 439, 104 So. 200, 160 La. 943,

107 So. 704 (1926), rev’d per curiam, 273 U.S.

DME 2 6 vice wo eb e Ube ee depeceees 10

United States Nat’! Bank v. Indep. Ins. Agents

of America, Inc., 113 S. Ct. 2173 (1993) ..... 4

United States v. City of Birmingham,

727 F.2d 560 (6th Cir.), cert.denied, 469 U.S. 821

Ie a Ol a ed os oo 4.6 Co owt 20 0 88 12

United States v. Yonkers Bd. of Educ.,

837 F.2d 1181 (2d Cir. 1987), cert. denied, 486

Cat CGE Car ak CORE oa oes ae

Yick Wo v. Hopkins,

AI re Be Pee 24

STATUTES

42 U.S.C. §§ 3601-3619 (1988) ............. 11

42 U.S.C. § 3607(b)(1) (1988) ............. 2,4

42 U.S.C. § 3610(g)(2)(C) (1988) ............ 26

oy att. PEG b 6 vk ie baka ede eae 21

og OR A ee ee 16

1985 Tex. Sess. Law Serv. ch. 303 (Vernon) ..... 16

1990 N.Y. Laws ch. 468 §2 ............... 15

Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, 102 Stat. 4202, 42 U.S.C. 300-4xa

(1988) repealed and recodified at 42 U.S.C.

300x-25 (Supp. IV 1992) ............... 29

Ariz. Rev. Stat. Ann. §§ 36-581, 36-582 (1986) ... 16

Cal. Welf. & Inst. Code §§ 5115 - 5117 (West

SEteeryrs oc re eer ee erere 16

vi Vii

Colo. Rev. Stat. Ann. §§ 30-28-115, 31-23-303 Md. Health-Gen. Code Ann. §§ 7-101 - 7-414

(1977 & Supp. 1985) ......-.- ee eee eee: 16 co SO eee 16

Con. Gen. Stat. Ann. § 8-3e (West Supp. 1986).... 16 Me. Rev. Stat. Ann. tit. 30, § 4962-A (Supp. 1985) . 16

Del. Code Ann. tit. 9, § 4923 (Supp. 1984) ...... 16 Mich. Comp. Laws Ann. §§125.216a, 125.286a,

126.583b (West Supp. 1985) ............. 16

ECDC § 19.10.000 (1988) ..... 2... -- eee eee 22

Minn. Stat. Ann. §§245.812, 462.357

ECDC § 21.30.010 (1988) .......222eeeeeee 3 ee GE oe 16

Fla. Stat. Ann. § 163.3177(6)(f) (West Supp. 1986) . 16 Mont. Code §§ 76-2-401 - 76-2-412 (1985) ...... 16

Hawaii: Act Relating to Domiciliary Care, No. 272, 1985 N.C. Gen. Stat. §§ 168-21 - 168-23 (1982 and Supp.

Hawaii Sess. Laws 575 ......--.---005> 16 _. BEEECELO EE £0 fo a eee 16

House Report No. 711, 100th Cong., N.D. Cent. Code § 25-16-14(2) (Supp. 1985) ..... 16

RE GD. cece cncnses ste duane 28, 29

N.J. Stat. Ann. §§ 40:55D-66.1 (West Supp. 1986) . 16

The Housing Act of 1949, 63 Stat. 414,

§ 101(a) (1949) 2... eee eee 21 N.M. Stat. Ann. § 3-21-1(c) (1985) ........... 16

Idaho Code §§ 67-6530 - 67-6532 (1980) ........ 16 Neb. Rev. Stat. §§ 18-1744 - 18-1747 (1983) ..... 16

Ind. Code Ann. §§ 16-13-21 - 16-13-22 : Nev. Rev. Stat. § 278.021 (1983) ............ 16

(Burns Supp. 1985) .......--- ee ee eees 1 BPS cee aie

lowa Code Ann. §§ 358A.25, 414.22 (West Supp. 1986) 16 ee 16

La. Rev. Stat. Ann. §§ 28:475 - 28:478 Ohio Rev. Code Ann. § 5123.19 (Page Supp. 1985) . 16

en Ceres ON iis hi iis i ns ce ys 16

Viii

Or. Rev. Stat. §§ 418.950-418.970, 443.205-443.225,

SPEED cece eb ce dwle ce eews 16

Preamble, 1937 Housing Authorities

ale c's o 6 6 64.6 6 0-008 20

R.I. Gen. Laws §§ 34-4-25, 45-24-22

ID od i ene eee. 16

S.C. Code Ann. §§ 6-7-830, 44-7-510, 44-21-525

(Law Co-op & Supp. 1984) ............. 16

Tenn. Code Ann. §§ 13-24-101 - 13-24-104 (1980)... 16

Uniform Housing Code, § 503(b)............. 22

Utah Code Ann. §§ 10-9-2.5, 17-27-11.7

EE 16

Va. Code § 15.1-486.2 (1981 & Supp. 1986) ..... 16

Vt. Stat. Ann. tit. 24, § 4409(d) (Supp. 1985) ..... 16

W. Va. Code §§ 8-24-50b(a), 27-17-1 - 27-17-4

Ee ee ae 16

Wis. Stat. Ann. §§ 46.03(22), 59.97(15)

(West 1979 & Supp. 1985) .............. 16

ba et ae ae

MISCELLANEOUS

Bureau of the Census, U.S. Dep’t of Commerce,

1990 Census of Housing: General Housing

Characteristics: United States (1992) ........ 8

J.B. Cullingworth, The Political Culture of

Es is 4 5 oh be © hsiton % 0.4.0 0.9.9 21

Ernest Freund, The Police Power (1904) ........ 6

Ernest Freund, Proceedings of the Third National

Conference on City Planning (1911) ........ 6

Lawrence M. Friedman, Government and Slum Housing:

A Century of Frustration (1968) .. 18, 19, 20, 21, 27

General Accounting Office, An Analysis of

Zoning and Other Problems Affecting the

Establishment of Group Homes For the

Mentally Disabled (Aug. 17, 1983) ..... 14, 23-24

Thomas K. Gilhool, Social Aspects of Housing Code

Enforcement, 3 Urban Lawyer 546 (1971) ..... 20

Richard Hofstadter, The Age of Reform (1955) ..... 5

Hopperton, State Legislative Strategy for

Ending Exclusionary Zoning of Community

Homes, 19 Urban L. Ann. 47 (1980) ........ 17

Kenneth T. Jackson, Crabgrass Frontier: The

Suburbanization of the United States (1985) ... 8,9

Henry James, The American Scene 131 (1968) ...... 7)

R. Lubove, The Progressives and the Slums:

Tenement House Reform in New York City

DET EN cree nena wes veces 19

Daniel Mandelker, Land Use Law (3d ed. 1993).... 11

Eugene McQuillin, Municipal Corporations,

vol. 8 (3d rev’ded. 1991) ....... 8, 13, 22, 23

Note, Developments in the Law-Zoning, 91

Harv. L. Rev. 1427, 1624-1708 (1978) ...... 12

Note, Group Homes and Deinstitutionalization:

The Legislative Response to Exclusionary

Zoning, 6 Vt. L. Rev. 509 (1981) .......... 14

S. Paratt, Housing Code Administration and

Enforcement viii-xi (1970) .............. 21

Program for the Study of Corruption in Local

Government, U.S. Dep’t of Justice,

Corruption in Land Use and Building

Regulation: An Integrated Report of

I Tce ca hoses oe 0 8 8 18-19

Patrick J. Rohan, Zoning and Land Use Controls

ee. ceca aeeubeeee es veces 13, 17

Jacob Riis, How the Other Half Lives (1890) ...... 18

Frank Schnidman, et al., Handling the Land

ee ee ke wkd 6 60 4 0 0 6 0 8 22

Robert L. Schonfeld, "Five-Hundred-Year Flood Plains"

and Other Unconstitutional Challenges to the

Establishment of Community Residences for

the Mentally Retarded, 16 Fordham Urb. L.

Oe ee 14, 16

Robert Schonfeld, "Not in My Neighborhood": Legal

Challenges to the Establishment of Community

Residences for the Mentally Disabled in New York

State, 13 Fordham Urb. L. J. 281 (1985) ..... 15

Robert G. Schwemm, Housing Discrimination: Law and

pF eee ee es 11, 12, 22

Lester D. Steinman, The Impact of Zoning on Group

Homes for the Mentally Disabled: A National

Survey, 19 The Urban Lawyer 1 (1987) .... 13, 23

Seymour Toll, Zoned American (1968) .... 6,7, 8, 18

Gilda M. Tuoni, Deinstitutionalization and Community

Resistance by Zoning Restrictions, 66 Mass.

eg BR RO a ae 13

xii

Lawrence Veiller, Housing Reform (1910) ....... 19

Lawrence Veiller, A Model Housing Law (1910)... 19-20

Lawrence Veiller, A Model Tenement House

Law (190@) .. 0 0 esse ee ese) Oe 19

Sam Bass Warner, Jr., Streetcar Suburbs (1978)... . 8

Norman Williams Jr. & John M. Taylor, American

Land Planning Law (1988 rev. ed.)

wi. 8 .. eevee eecue eee 5, 8, 23

Michael Allan Wolf, The Prescience and Centrality of

Euclid v. Ambler, in Zoning and the

American Dream 252, 261-62 (C. Haar & J.

Kayden ofs., 19GB) on ccccetussses 8, 9, 23

C.D. Wright, The Slums of Baltimore, Chicago,

New York, and Philadelphia, House of

Representatives, Executive Document No.

527, 7th Special Report of the U.S. Commissioner of

Labor, 1006 0.6 ct veue vereeees Uae ee 18

E.C. Yokley, Zoning Law and Practice vol. 1

CO) 8... Peeree ere ee 23

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-23

CITY OF EDMONDS,

Petitioner,

WASHINGTON STATE BUILDING CODE

COUNCIL, ET AL.,

Resp ondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF THE NATIONAL FAIR HOUSING ALLIANCE AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

protected under the Fair Housing Act, including persons with

disabilities, by researching the nature and effects of housing

discrimination and acting as an advocate for effective programs of

fair housing enforcement and compliance. Efforts to secure housing

for persons with disabilities often face community opposition, based

on unfounded fears and negative attitudes about such individuals.

The NFHA provides advice to members who are facing opposition

to the location of group homes, and has made many referrals to the

Department of Justice regarding actions taken by municipalities and

local planning commissions to prohibit or restrict housing for

persons with disabilities. Accordingly, the issue presented in this

case — the scope of the exemption from the Fair Housing Act for

reasonable occupancy standards — is one of great importance to

NFHA and its members.

SUMMARY OF ARGUMENT

Zoning ordinances and housing codes developed as distinct

responses to different problems of population growth. As a result,

they are both historically and substantively different. In this case,

the Court must determine whether a single-family zoning ordinance

is exempt from the Fair Housing Amendments Act as a "reasonable

restrictio{n]” on the "maximum number of occupants." 42 U.S.C.

§ 3607(b)(1) (1988). An historical perspective shows that zoning

ordinances are entirely distinct from the occupancy standards

contemplated by the statutory exemption.

1. The explosion of immigration a century ago created

unprecedented urban problems. Zoning emerged as a means of

easing these pressures by separating incompatible uses. It also

became a tool for communities — particularly suburban ones — to

communities used zoning to exclude minorities. More recently,

they have used zoning to exclude the disabled. Courts and

legislatures have consistently sought to counter these improper uses

of the zoning laws. Pp. 5 to 17.

=_——lO SS

2. Housing codes, which ically include occupancy

restrictions, have a different wag ae house reform.

They are aimed at protecting the health and safety of the inhabitants

of buildings, rather than separating different uses of buildings or

land. Federal funds offered to spur urban redevelopment led cities

and towns nationwide to adopt housing codes that ordinarily

included occupancy restrictions. Pp. 17 to 21.

3. Zoning’s basic tool is exclusion or separation, and its

hallmark is the “use restriction." Occupancy codes focus on the

objective relationship between the size of a dwelling and the number

of occupants it can accommodate. Thus, zoning codes are far more

at housing codes and occupancy standards have not. Pp. 22 to

ARGUMENT

This case presents the Court with a straightforward issue of

statutory interpretation. The City of Edmonds contends that it is

entitled to exclude a group home for individuals who qualify as

handicapped under the Fair Housing Amendments Act of 1988

(“FHAA") from a neighborhood zoned for single-family use, on the

ground that the City’s definition of "family" in its single-family

zoning ordinance, ECDC § 21.30.010 (J.A. 250), is a “reasonable

- + » Festrictio[n] regarding the maximum number of occupants

permitted to occupy a dwelling" that is exempt from the

requirements of the FHAA, 42 U.S.C. § 3607(b)(1) (1988). The

Ninth Circuit has held that Edmonds’ single-family definition is not

a maximum occupancy restriction and is subject to the FHAA. City

of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802

(9th Cir. 1994). The Eleventh Circuit reached the contrary

conclusion in an earlier case. Elliott v. City of Athens, 960 F.2d

975 (ilth Cir. 1992).

In determining what the “plain language" of a statute means,

the Court looks not only to the meaning of the words in ordinary

usage but also to what meaning is “most compatible with the

surrounding body of law into which the provision must be

integrated." Green v. Bock Laundry Machine Co., 490 U.S. 504,

528 (1989) (Scalia, J., concurring). This is so because "[s)tatutory

construction ‘is a holistic endeavor’ . . . and, at a minimum, must

account for a statute’s full text, language as well as punctuation,

structure, and subject matter." United States Nat'l Bank v. Indep.

Ins. Agents of America, Inc., 113 S. Ct. 2173, 2182 (1993) (quoting

United Savings Ass’n v. Timbers of Inwood Forest Assocs., 484

U.S. 365, 371 (1988)); see also id. at 2182 ("Over and over we

have stressed that ‘[i]n expounding a statute, we must not be guided

by a single sentence or member of a sentence, but look to the

provisions of the whole law, and to its object and policy.’")

(quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113,

122 (1849)).

has a distinct history and purpose from the “occupancy restrictions"

contemplated by the FHAA’s exemption: occupancy restrictions are

addressed to concerns for the health and safety of people where they

live, and are thus qualitatively different from zoning laws, which

address concerns of separating land uses or deciding who may live

where. The Ninth Circuit’s interpretation — which recognizes that

zoning laws and occupancy restrictions are two distinct modes of

regulation, and which properly takes into account the "object and

policy" of the FHAA — is the only sensible reading of the statutory

exemption.

I. ZONING FOR SINGLE-FAMILY USE IS A PREVALENT

MEANS OF LAND USE PLANNING THAT, ALTHOUGH

A USEFUL AND LEGITIMATE TOOL, HAS A

KECOGNIZED HISTORY AS A MEANS OF EXCLUDING

"UNDESTRABLE” GROUPS.

A. Zoning Arose as a Means For Municipalities To

Separate Disparate Uses, In Response to Unprecedented

Population Pressures.

A century ago, the Nation’s cities were growing at an

unprecedented pace. The urban population of the United States

grew sevenfold from 1860 to 1910, while the rural population grew

only twofold. Chicago’s population doubled between 1880 and

1890 alone. See R. Hofstadter, The Age of Reform 173 (1955). As

cities burst their seams, early zoning efforts in the United States

tried to relieve the mounting pressure. These efforts focused on

separating incompatible uses, such as removing noxious industries

from residential areas.’ For example, this Court in 1915 upheld

an ordinance prohibiting a livery stable in a particular area, see

Reinman v. Little Rock, 237 U.S. 171 (1915), and another that

barred the operation of a brickyard or brick kiln within certain parts

of Los Angeles, Hadacheck v. Sebastian, 239 U.S. 394 (1915).

Early attempts to go beyond this sort of "nuisance control,” such as

restrictions of commercial activity in residential areas, were

es! ~ heey ay aly ey dete rate bade See

r. . Taylor, 1 American Land Plannin

§ 5.02 (1988 rev. ed.). ‘ saul

’ Indeed, American colonies began to control the location of industries

likely to create nuisances as early as the 1690s. See 8 E. McQuillan,

Municipal Corporations § 25.03, at 11 (3d rev'd ed. 1991).

The reluctance of the courts t perm zoned uses of land

however, did not alter the fundamental problem -— and cities

needed solutions. Followiag Susepean examples,“ New York City

forged ahead, passing the nation’s first comprehensive zoning pian

in 1916. Its zoning ordimance survived chatienge in the courts of

that state four years later, as “a proper exercise of the police

power." Lincoln Trust Cu. ¥. Williams Bidz. Corp., 229 N.Y. 31%,

317,128 N_E. 209, 210 (i920). When Baitwnore tried to follow

suit, on the other hand, the high court of Maryland struck down its

ordinance. Goldman v. Crowther, 147 Md. 282, 128 A. 50 (1925).

The question came before this Court only a few years later in

Euclid vy. Ambler Realty Co., 272 U.S. 365 (1926). In 1903,

Euclid was a newly incorporated agricultural village on the outskirts

of Cleveland; scarcely two decades later, Euclid saw the need to

2® Buropean cities had been subject to comprehensive planning long

before American cities. American planners were particularly influenced

by the German experience; beginning early in the nineteenth century,

Prussian initiatives in city building had, by the turn of that century, created

exemplars of zoning and planning. S. Toll, Zoned American 125-40

(1968). One influential early commentator on zoning believed that the

German model was followed without due consideration for the differences

between Germany and the United States. Ernest Freund, author of The

Police Power (1904), was in a position to know; educated in Germany, he

immigrated to this country and became a professor of law at the University

of Chicago in the field of public law. He felt that "in Germany property

is conservative, and in this country it is not. Therefore, the districting

power in Germany means that it simply registers conditions that are more

or less permanent; in this country, it would mean that the city would

impose a character upon a neighborhood which that neighborhood, in the

course of time, would throw off." S. Toll, supra, at 138 (quoting E.

Freund, Proceedings of the Third National Conference on City Planning

245 (1911)). Other planners rejected Freund’s conclusion that cities should

not be given the power to control development as too capricious to foresee;

they believed that rapid change made zoning powers all the more urgent.

Id. at 139. At the core of this debate lies an insight about zoning in the

American tradition: it is a bulwark against change, and a tool to keep out

unwanted influences.

defcad seit against the advancing city. See S. Toll, supra, at 214-

i6. It did so by zoning. As the landowner challenging the zoning

plan saw it, the ordinance "[iJn effect . . . erects a dam to hold

back the flood of industrial development and thus to preserve a rural

character in portions of the Village which, under the operation of

natural economic laws, would be devoted most profitably to

industrial undertakings." Euclid, 272 U.S. at 371.

This Court upheld the ordinance as a valid exercise of the

police power. Noting that "‘[t}he constantly increasing density of

our urban populations, the multiplying forms of industry and the

growing complexity of our civilization make it necessary for the

State . . . to limit individual activities to a greater extent than

formerly ,’" id. at 392 (quoting City of Aurora v. Burns, 319 Ill. 84,

93 (1925)), the Court concluded that the advantages of separating

residential, business, and industrial uses gave the ordinance a

substantial relation to the public health, safety, morals, and general

welfare, id. at 394-95. The Court illustrated its reasoning with the

example of an apartment building in a neighborhood of detached

houses:

[Ijn such sections very often the apartment house is a mere

parasite, constructed in order to take advantage of the

open spaces and attractive surrounding created by the

residential character of the district. Moreover, the coming

of one apartment house is followed by others, interfering

by their height and bulk with the free circulation of air and

monopolizing the rays of the sun which otherwise would

fall upon the smaller homes, and bringing, as their

to increased traffic and business, and the occupation, by

means of moving and parked automobiles, of larger

portions of the streets, thus detracting from their safety

and depriving children of the privilege of quiet and open

spaces for play, enjoyed by those in more favored

neighborhood and its desirability as a place of detached

residences are utterly destroyed.

Id. at 394. The Village of Euclid, then, was free to protect itself

against such encroachments from the outside.

The Euclid decision was a clarion call for evolving suburban

communities across the country. Despite the efforts of cities to

combat the problems of immigration, many of their citizens solved

the problem more simply: by moving to the suburbs. The suburbs

themselves were something of a new phenomenon, made possible

by short-haul passenger rail and the automobile. See K. Jackson,

Crabgrass Frontier: The Suburbanization of the United States 91-92

(1985); S. Toll, supra, at 190-94; S.B. Warner, Jr., Streetcar

Suburbs 14 (1978). As one commentator put it, Euclid "cleared the

way for similarly sited communities to limit population and ward off

the evils of urbanization... . Zoning out, or segregating, the

city’s most distasteful uses could help ensure that the escape to the

suburbs would not mean facing again the problems left behind."

M.A. Wolf, The Prescience and Centrality of Euclid v. Ambler, in

Zoning and the American Dream 252, 261-62 (C. Haar & J. Kayden

eds., 1989).

Today, almost all American cities (with the renowned exception

of Houston), incorporated towns, and many smaller communities

have zoning ordinances of some kind. 8 McQuillin, Municipal

Corporations, § 25.04 at 13 (3d rev’d ed. 1991); 1 N. Williams,

supra, § 16.01 at 434. Single-family districts — which comprise

most or all of the residential and vacant areas in many communities

— are a prominent feature of such ordinances. See 1 N. Williams,

supra, § 16.14 at 441. While there do not appear to be nationwide

Statistics on the percentage of the nation’s housing stock zoned for

single-family use, the 1990 Census reports that 59% of housing

units in the United States are detached single-family houses. Bureau

of the Census, U.S. Dep’t of Commerce, 1990 Census of Housing:

General Housing Characteristics: United States, Table 15, at 19

(1992). Many of them — like the City of Edmonds — describe

their zoning plans as "Euclidian." See Petitioners’ Brief on the

Merits at 8.

B. Zoning Was Also Used To Exclude "Undesirable"

Groups, Such as Racial and Ethnic Minorities, From

New Suburban Communities.

The urge to escape the "distasteful" aspects of city life was not

a wholly benign response to a completely objective problem. The

character of the city’s new population was an issue as well.

Southern and Eastern Europe supplied much of the vast flood of

immigration in the last decades of the nineteenth century and the

first decades of this one, and the new immigrants — linguistically,

ethnically, and religiously unlike more established inhabitants —

were not warmly welcomed. Wolf, supra, at 255-56. Henry James

expressed a common view of one such group of immigrants, in New

York:

[[}t was the sense, after all, of a great swarming, a

swarming that had begun to thicken, infinitely, as soon as

we had crossed to the East side and long before we had

got to Rutgers Street. There is no swarming like that of

Israel when once Israel has got a start, and the scene here

bristled, at every step, with the signs and sounds,

immitigable, unmistakable, of a Jewry that had burst all

bounds.

H. James, The American Scene 131 (1968). At the same time,

Southern blacks began to migrate from tenant farms to Northern

cities. White commuting to the suburbs rose. K. Jackson, supra,

at 150 (1985).

Indeed, zoning was often used directly to regulate which races

should live where. See generally 2 Williams, supra, ch. 59. Ina

particularly egregious example, San Francisco in 1890 passed an

ordinance requiring all Chinese to move from their homes

(generally, within what is now Chinatown) to a different designated

area within the city, or out of the city entirely. An American of

Chinese descent challenged the ordinance under the Constitution and

a U.S.-China treaty. A federal district judge put his holding in no

uncertain terms: "The discrimination against Chinese .. . in

violation of the constitutional, treaty, and statutory provisions cited,

are so manifest upon its face, that I am unable to comprehend how

this discrimination and inequality of operation, and the consequent

violation of the express provisions of the constitution, treaties and

statutes of the United States, can fail to be apparent to the mind of

every intelligent person, be he lawyer or layman." Jn re Lee Sing,

43 F. 359, 360 (C.C.D. Cal. 1890).

Elsewhere in the country, zoning directed against African

Americans was not always perceived so clearly. While a North

Carolina court held a racial zoning ordinance invalid as a

revolutionary public policy that would require full legislative

consideration, see State v. Darnell, 166 N.C. 300, 81 S.E. 338

(1914), such ordinances — carefully drafted to be, on their face,

equally burdensome to whites and blacks — were upheld elsewhere.

See, e.g., State vy. Gurry, 121 Md. 534, 88 A. 228 (1913); Harris

v. City of Louisville, 165 Ky. 559, 177 S.W. 472 (1915).

Reversing Harris v. City of Louisville, this Court made clear that

racial zoning was intolerable. Buchanan v. Warley, 245 U.S. 60

(1917).

More subtle approaches followed. As this Court and others

insisted that subterfuges were fully as impermissible as openly

zoning for race, see, e.g., Tyler v. Harmon, 158 La. 439, 104 So.

200 (1925), 160 La. 943, 107 So. 704 (1926), rev’d per curiam,

273 U.S. 668 (1927), segregation in housing was maintained

¥ Cities nevertheless attempted to enact various racial zoning ordinances

through the next quarter-century. The last major case on direct racial

zoning arose from a Birmingham, Alabama, ordinance that zoned 16% of

the city for occupancy by Negroes, who then constituted about 40% of the

city’s residents. See Monk v. City of Birmingham, 87 F. Supp. 538 (D.

(continued...)

‘

through private devices, such as racially restrictive covenants. See

2 N. Williams, supra, at § 59.06. In time, racially restrictive

covenants were also struck down. Shelley v. Kraemer, 334 U.S. 1

(1948).* >

As more obvious approaches to racial zoning have been

invalidated, however, localities have found that "any land use

controls which limit housing to more expensive housing types may

be an efficient means of keeping out members of . . . minorities

... . The variety of land use policies and devices which are

adaptable for this purpose is almost infinite." 2 N. Williams,

supra, § 59.06 at 750; see also D. Mandelker, Land Use Law

§ 7.01 at 317 (3d ed. 1993) ("Exclusionary suburban zoning is a

well-known and notorious phenomenon. Suburban municipalities

exclude multi-family developments, require low residential densities,

and adopt other exclusionary restrictions ... . This type of zoning

excludes low- and moderate-income groups.”")

Against this background, Congress passed the Fair Housing Act

in 1968 ("FHA"). There, Congress sought to combat the problem

of racial segregation in housing on all fronts: state policies,

municipal ordinances, and private practices alike. 42 U.S.C.

§§ 3601-3619 (1988); R. Schwemm, Housing Discrimination: Law

and Litigation at 1-1 (1994) (the passage of the FHA marked the

first time that "legal tools became available to attack all forms of

¥(...continued)

Ala. 1949), aff'd, 185 F.2d 859 (Sth Cir. 1950), cert. denied, 341 U.S.

940 (1951).

* Like the racial-zoning decisions, the holding in Shelley did not meet

with immediate acquiescence. The State of California attempted to amend

its constitution to forbid any restriction on the rights of real-property

owners to refuse to sell, lease, or rent their property to any other.

Affirming the Supreme Court of California, this Court invalidated the

provision under the equal protection clause of the Fourteenth Amendment.

Mulkey v. Reitman, 413 P.2d 825 (Cal. 1966), aff'd, 387 U.S. 369 (1967).

~ .

i ee

housing discrimination"). But local governments have continued to

use the zoning power to maintain racial segregation. R. Schwemm,

supra, § 13.4(3)(a) at 13-24.1; see also Note, Developments in the

Law--Zoning, 91 Harv. L. Rev. 1427, 1624-1708 (1978). For

example, a common means by which communities have made

“housing . . . ‘unavailable’ in violation of [the Fair Housing Act]

is [by using] their zoning or other land-use powers to block

construction of housing projects that are likely to include racial

minorities or other classes protected by Title VIII.’" R. Schwemm,

supra, § 13.5(3)(a) at 13-24.1.

Under the Fair Housing Act, courts have recognized and

refused to condone such abuses of the zoning power. See, e.g.,

United States v. Yonkers Bd. of Educ. , 837 F.2d 1181, 1216-26 (2d

Cir. 1987), cert. denied, 486 U.S. 1055 (1988); Arthur v. City of

Toledo, 782 F.2d 565, 575 n.3 (6th Cir. 1986); Atkins v. Robinson,

733 F.2d 318, 321 (4th Cir. 1984); United States v. City of

Birmingham, 727 F.2d 560, 563, 65 (6th Cir.), cert. denied, 469

U.S. 821 (1984); Smith v. Town of Clarkton, 682 F.2d 1055, 1065-

67 (4th Cir. 1982). Indeed, courts have overturned exclusionary

zoning practices even where there is no proven discriminatory intent

— but where the zoning practices would have a disproportionate

impact on a protected class and are not supported by a substantial

justification. See, e.g., Huntington Branch, NAACP v. Town of

Huntington, 844 F.2d 926, 937 (2d Cir.) ("Though a town’s

interests in zoning requirements are substantial, they cannot,

consistently with Title VIII, automatically outweigh significant

disparate effects.") (citations omitted), aff'd per curiam, 488 U.S.

15 (1988).

C. Single-Family Zoning Has a Long and Well-Recognized

History as a Means of Excluding Disabled People Who

Require Congregate Living Arrangements.

The FHA focused on discrimination against racial, ethnic, and

religious minorities. Members of these groups, however, were not

the only Americans who found themselves locked out of certain

communities in their own country. As the deinstitutionalization

movement’ struggled to integrate disabled people into

communities, frightened neighbors sought to shut them out. See G.

Tuoni, Deinstitutionalization and Community Resistance by Zoning

Restrictions, 66 Mass. L. Rev. 125 (1981). The favorite tool of

exclusion was, once again, zoning. See id.; P. Rohan, 1 Zoning

and Land Use Controls at § 3.05[7][a][i] (1994) ("Progress towards

normalization for various types of people dependent upon society

has sometimes been impeded by local zoning regulations that

exclude group homes from residential areas.").

While some communities have employed techniques aimed

directly at excluding or limiting group homes, such as bans in

certain areas or stringent requirements for conditional use permits,

communities have most commonly sought to exclude group homes

from residential districts through restrictive definitions of the word

"family." 1 Rohan, supra; see also id. n.206 (citing state court

cases concerning the application of restrictive definitions of "family"

to various facilities); 8 McQuillin, supra, at § 25.128.15.

"Typically, the local zoning ordinance will designate certain areas

of the municipality as ‘single family residential’ zones either

expressly prohibiting group homes or imposing burdensome special

conditions upon such uses. The exclusionary nature of these zones

is often premised upon restrictive definitions of ‘family’ which limit

occupancy in such zones to persons related by blood, marriage or

adoption.” L. Steinman, The Impact of Zoning on Group Homes for

the Mentally Disabled: A National Survey, 19 The Urban Lawyer

1, 2 (1987).

2% The “deinstitutionalization movement" began in response to research

by institutions, and are more likely to achieve productive lives and

therapeutic success when they live in the wider community. See generally

Brief of the American Association on Mental Retardation, ef al., as Amici

Curiae in Support of Respondents [hereinafter Brief of the AAMR].

Another commentator has remarked: "In states where statutes

do not totally pre-empt municipalities from regulating community

residences, municipalities have enacted ordinances that have the

effect of excluding some community residences from areas zoned

for single family use. These ordinances accomplish that purpose by

using a restrictive definition of the term ‘family’ for zoning

purposes." R. Schonfeld, "Five-Hundred-Year Flood Plains" and

Other Unconstitutional Challenges to the Establishment of

Community Residences for the Mentally Retarded, 16 Fordham Urb.

L.J. 1, 14 (1988) [hereinafter Schonfeld, Unconstitutional

Challenges}. See also Note, Group Homes and

Deinstitutionalization: The Legislative Response to Exclusionary

Zoning, 6 Vt. L. Rev. 509, 509-510 (1981) (single-family zoning,

"which has become known as exclusionary zoning, is the barrier

group homes most frequently confront").

Although these ploys were taking place at the local level, they

did not escape federal attention. In 1983, a few years before the

passage of the FHAA, a General Accounting Office review

identified single-family zoning as a serious obstacle to establishing

group homes for the mentally disabled. See General Accounting

Office, An Analysis of Zoning and Other Problems Affecting the

Establishment of Group Homes For the Mentally Disabled (Aug. 17,

1983). That review illustrated how zoning requirements can prevent

or add unnecessary costs to the establishment of such homes. In

one example, the sponsor of a group home near Odessa, Texas,

reported that he had located the home outside the city limits because

of the restrictive definition of "family" found in the city’s zoning

ordinance. Jd. at 14. The survey also reported the comment of the

Texas Association for Retarded Citizens that "zoning and land-use

restrictions in Texas forced group homes to locate outside city

limits, away from the community, transportation, jobs, or services,

or cluster in areas that could be called ‘mentally disabled districts,’"

and that these restrictions operated to limit "integration of the

mentally disabled into the community." Jd. at 15.

State courts and legislatures recognized and acted upon the need

for community residences for the disabled, and the intense local

resistance to such residences, well before Congress did. In 1978,

New York’s legislature found neighborhood opposition to

establishment of community residences for the mentally disabled so

severe that it enacted a statute to redress the problem. Among other

measures, the statute limits the participation of municipalities in

selecting sites for community residences, and expressly declares that

residences established according to its terms are "single-family

residences" for local zoning purposes. See 1990 N.Y. Laws ch.

468 §2; see also generally R. Schonfeld, “Not in My

Neighborhood": Legal Challenges to the Establishment of

Community Residences for the Mentally Disabled in New York State,

13 Fordham Urb. L. J. 281 (1985) (discussing statute’s impact on

the establishment of group homes). Before the statute was passed,

a number of New York courts had already declared that group

residences that functionally resembled families qualified for

inclusion in "single-family" zones. See, e.g., Little Neck

Community Ass'n v. Working Org. for Retarded Children, 52

A.D.2d 90, 383 N.Y.S.2d 364 (2d Dep’t 1976), leave to appeal

denied, 40 N.Y.2d 803, 356 N.E.2d 482, 387 N.Y.S.2d 1030

(1988); Incorporated Village of Freeport v. Association for the Help

of Retarded Children, 94 Misc. 2d 1048, 406 N.Y.S.2d 221 (1977),

aff'd, 60 A.D.2d 644, 400 N.Y.S.2d 724 (2d Dep’t 1977). But cf.

People v. Renaissance Project, Inc. 36 N.Y .2d 65, 364 N.Y.S.2d

885, 324 N.E.2d 355 (1975) (holding that a half-way house

connected with a narcotics rehabilitation program violated a zoning

maintaining a single housekeeping unit in a single-family residential

zone). Both New York’s courts and its legislature, then, expressly

recognized and responded to the use of single-family zoning

ordinances as a means of excluding disabled people in need of

By 1988, the year that the FHAA was passed into law, many

state legislatures had enacted statutes to govern the establishment of

community residences for the mentally disabled, and most of those

statutes expressly provided that such residences could be placed in

areas zoned for single-family use. See R. Schonfeld,

Unconstitutional Challenges, supra, at 10-11 (citing state

statutes).” As of 1994, thirty-four states had passed legislation

limiting or preventing the use of zoning or restrictive covenants to

exclude community group homes.?’ These statutes have differing

scopes and restrict municipalities in varying ways; for example,

many provide protection to group homes for the mentally disabled

on group homes, including limitations on the number of occupants who

may live in them. See id. at 11-15.

Y — See Ariz. Rev. Stat. Ann. §§ 36-581, 36-582 (1986); Cal. Welf. &

Inst. Code §§ 5115-5117 (West 1985); Colo. Rev. Stat. Ann. §§ 30-28-

115, 31-23-303 (1977 & Supp. 1985); Con. Gen. Stat. Ann. § 8-3e (West

Supp. 1986); Del. Code Ann. tit. 9, § 4923 (Supp. 1984); Fla. Stat. Ann.

§ 163.3177(6)(f) (West Supp. 1986); Hawaii: Act Relating to Domiciliary

Care, No. 272, 1985 Hawaii Sess. Laws 575; Idaho Code §§ 67-6530 to

6532 (1980); Ind. Code Ann. §§ 16-13-21 to 22 (Burns Supp. 1985); lowa

Code Ann. §§ 358A.25, 414.22 (West Supp. 1986); La. Rev. Stat. Ann

§§ 28:475 to 478 (West Supp. 1986); Me. Rev. Stat. Ann. tit. 30, § 4962-

A (Supp. 1985); Md. Health-Gen. Code Ann. §§ 7-101 to 414 (1982 &

Supp. 1985); Mich. Comp. Laws Ann. §§ 125.216a, 125.286a, 126.583b

(West Supp. 1985); Minn. Stat. Ann. §§ 245.812, 462.357 (West Supp.

1986); 1985 Mo. Laws 398; Mont. Code §§ 76-2-401 to 412 (1985); Neb.

Rev. Stat. §§ 18-1744 to 1747 (1983); Nev. Rev. Stat. § 278.021 (1983);

N.J. Stat. Ann. §§ 40:55D-66.1 to 66.2 (West Supp. 1986); N.M. Stat.

Ann. § 3-21-1(c) (1985); N.Y. Mental Hygiene Law § 41.34 (McKinney

Supp. 1986); N.C. Gen. Stat. § 168-21 to 23 (1982 & Supp. 1985); N.D.

Cent. Code § 25-16-14(2) (Supp. 1985); Ohio Rev. Code Ann. § 5123.19

(Page Supp. 1985); Or. Rev. Stat. §§ 418.950 to .970, 443.205 to 225,

443.580 to .600 (1985); R.1. Gen. Laws §§ 34-4-25, 45-24-22 to 23 (1980

& Supp. 1985); S.C. Code Ann. §§ 6-7-830, 44-7-510, 44-21-525 (Law

Co-op & Supp. 1984); Tenn. Code Ann. §§ 13-24-101 to 104 (1980); 1985

Tex. Sess. Law Serv. ch. 303 (Vernon); Utah Code Ann. §§ 10-9-2.5, 17-

27-11.7 (Supp. 1985); Vt. Stat. Ann. tit. 24, § 4409(d) (Supp. 1985); Va.

Code § 15.1-486.2 (1981 & Supp. 1986); W. Va. Code §§ 8-24-S0b(a),

27-17-1 to 4 (Supp. 1985); Wis. Stat. Ann §§ 46.03(22), 59.97(15) (West

1979 & Supp. 1985).

but do not apply to self-governing homes for recovering alcoholics,

such as the Oxford House. See 1 Rohan, supra, § 3.05[7] at 3-352

to 3-355 & nn. 230-239 (discussing differences among various state

Statutes of this kind). See generally Hopperton, State Legislative

Strategy for Ending Exclusionary Zoning of Community Homes, 19

Urban L. Ann. 47 (1980). )

This Court has previously recognized that zoning ordinances

can be impermissibly deployed as a tool to exclude the disabled

from a given community. In City of Cleburne v. Cleburne Living

Ctr. Inc., 473 U.S. 432 (1985), the Court invalidated under the

Equal Protection Clause a municipal zoning ordinance prohibiting

group homes for the mentally retarded while allowing other similar

homes. It held that the difference in treatment between the two

similar Classes of homes was not rationally related to any legitimate

municipal purposes. It recognized that community opposition to

such homes was based on negative attitudes and unsubstantiated

fears, and held that such biases could not justify the ordinance. /d.

at 448-50. While the Court distinguished single-family zoning

ordinances on the ground that they are at least facially neutral, id.

at 439 n.8, Cleburne demonstrates that zoning ordinances are a

well-known means by which communities may try to exclude group

homes that they deem undesirable.

fl. PROVISIONS GOVERNING MAXIMUM NUMBERS OF

OCCUPANTS DEVELOPED IN RESPONSE TO

CONCERNS ABOUT THE HEALTH AND SAFETY OF

THOSE ACTUALLY LIVING IN BUILDINGS RATHER

ee ma

IVEN COMMUNITY.

Occupancy codes emerged in response to a different

consequence of the same ferocious urban growth that fueled the

development of zoning laws. The cities fled by new suburbanites

remained swollen with new immigrants; the condition of the slums

they lived in provoked a national outcry.” A New York legislative

report of 1857 described contemporary tenements as scenes of

hideous squalor and deadly effluvia; the dim, undrained

courts oozing with pollution; the dark, narrow stairways,

decayed with age, reeking with filth, overrun with vermin;

the rotted floors, ceilings begrimed, and often too low to

permit you to stand upright; the windows stuffed with rags

.. . the gaunt, shivering forms and wild ghastly faces, in

these black and beetling abodes.

L. M. Friedman, Government and Slum Housing: A Century of

Frustration 28 (1968); see also C.D. Wright, The Slums of

Baltimore, Chicago, New York, and Philadelphia, House of

Representatives, Executive Document No. 527, 7th Special Report

of the U.S. Commissioner of Labor, 1894. Occupancy restrictions,

along with other aspects of housing and building codes, were

attempts to alleviate these appalling conditions.

Housing codes were not an entirely new development. The

first housing codes in the United States attempted to reduce the risk

of fire — for example, a 1766 law required all dwellings in certain

densely populated areas to be made of stone or brick, and roofed

with tile or slate. Another law of the same era prohibited the

storage of hay, straw, pitch, tar and turpentine in populated areas

susceptible to fire. See L. M. Friedman, supra, at 25. Other than

such attempts to prevent fire, however, dwellings were not

regulated except to control public nuisances. See Program for the

Study of Corruption in Local Government, U.S. Dep’t of Justice,

¥ The conditions of life in the tenements was a favorite topic of

"muckraking” journalists and authors. Perhaps the finest example of such

works on tenement life is Jacob Riis’s classic How the Other Half Lives

(1890). Riis himself came to this country in steerage as a penniless Danish

carpenter, and became an influential and respected voice for social reform.

See S. Toll, supra, at 21-22.

| Corruption in Land Use and Building Regulation: An Integrated

Report of Conclusions 13 (1979).

But the great nineteenth-century explosion of immigration to

American cities made laissez-faire untenable. New York City, with

its teeming tenements and recurrent epidemics of cholera, was the

first to act. Its 1867 law governing tenement houses required them

to meet minimum standards of health and safety; it obligated them

to have fire escapes, ventilators, and adequate roofing; and it made

some attempt to address overcrowding. Laws N.Y. 1867, ch. 908,

reprinted in L. M. Friedman, supra, at 25. A number of other

State and city governments followed suit. /d. at 26.

The tenement-house laws were no match for the slums,

however. By 1901, conditions had, if anything, deteriorated.

Again, New York acted first: it formed a Metropolitan Board of

Health, and passed a new ordinance regulating tenement houses still

more strictly. See L. M. Friedman, ‘supra, at 34-36. That

building’s capacity and minimum human needs: "No room in any

tenement house shall be so overcrowded that there shall be afforded

less than four hundred cubic feet of air to each adult, and two

hundred cubic feet of air to each child under twelve years of age

...." Id. at 34 (quoting Laws N.Y. 1901, ch. 334, § 112). This

health and safety, is the ancestor of today’s occupancy codes.

The reforming impulse of the new century brought rapid

housing codes that would reach beyond tenement houses. See

generally R. Lubove, The Progressives and the Slums: Tenement

House Reform in New York City 1890-1917 (1963). A pivotal

figure was Lawrence Veiller, founder of the National Housing

Association, who publicized the horrors of the slums and the cause

of housing reform in books such as Housing Reform (1910), A

Model Tenement House Law (1910), and A Model Housing Law

20 .

(1910). By 1920, eight states and twenty cities in other states had

enacted comprehensive housing codes to deal with overcrowding

and related problems, mostly modeled on the paradigms developed

by Veiller and New York. L. M. Friedman, supra, at 39.

As housing codes developed, the problems of population

pressures and overcrowding came to be understood as a social issue

affecting entire communities. In 1937, for example, Pennsylvania

passed a comprehensive Housing Authorities Act addressing a

number of issues, including overcrowding:

In 1937, the Pennsylvania legislature found the existence

of unsafe, umsanitary, inadequate or overcrowded

dwellings, . . . [and] overcrowding . . . . to be prejudicial

to the welfare of the people because such conditions

subject the moral standards of the people to bad influences

which have permanent deleterious social affects, increase

the violation of the criminal laws of the commonwealth

and jeopardize the safety and well-being of the inhabitants,

[and] necessitate the expenditure of vast sums of public

money both by the commonwealth and local governmental

bodies for the purpose of crime prevention, punishment

and correction, fire and accident prevention, public health

service and relief.

Preamble, 1937 Housing Authorities Act of Pennsylvania, reprinted

in T. Gilhool, Social Aspects of Housing Code Enforcement, 3

Urban Lawyer 546, 546 (1971).

Housing codes became established nationwide through

intervention of the federal government. The Housing Act of 1949,

63 Stat. 414, § 101(a) (1949), provided municipalities with funds

for the redevelopment of urban areas, so long as they had

implemented "positive programs . . . for preventing the spread or

recurrence . . . of slums and blighted areas through the adoption,

improvement, and modernization of local codes and regulations

relating to land use and adequate standards of health, sanitation, and

eh ee, a ee

safety for dwelling accommodations." By 1964, the conditions for

federal funds had become still more stringent:

No workable program shall be certified . . . unless (a) the

locality has had in effect . . . a minimum standards

housing code, related but not limited to health, sanitation,

and occupancy requirements, which is deemed adequate by

the Secretary of the Department of Housing and Urban

Development, and (b) the Secretary is satisfied that the

locality is carrying out an effective program of

enforcement to achieve compliance with such housing

code.

78 Stat. 785 (1964) (emphasis added). The lure of federal funds

brought housing codes, including occupancy standards, to most

communities in the nation. L.M. Friedman, supra, at 49.

In the wake of increasing criticism regarding the federal

government's role in housing code enforcement, during the 1980s

the government eliminated or reduced many of the federal programs

that had spurred nationwide adoption of housing codes. See J.B.

Cullingworth, The Political Culture of Planning 169 (1993). State

and local governments have stepped in where the federal

government stepped out; for example, even before the cutback of

federal programs, many states began taking a more active role in

enforcing statewide housing codes. See S. Paratt, Housing Code

Administration and Enforcement viii-xi (1970). The impact of

housing codes — including occupancy requirements — has thus

taken on an increasingly local character, see id., but such codes

remain in force in most communities. The essential point remains

that such housing codes are addressed not to separating the uses of

land in particular areas but instead to basic concerns of health and

safety for those who inhabit certain buildings.

Ill. BECAUSE OF THEIR HISTORY AS A MEANS OF

EXCLUDING UNDESIRED USES, ZONING CODES ARE

MORE SUSCEPTIBLE TO ABUSE AS TOOLS OF

DISCRIMINATION AGAINST "UNDESIRABLE"

INDIVIDUALS THAN ARE MAXIMUM OCCUPANCY

RESTRICTIONS.

While zoning and occupancy codes both evolved out of

problems arising from the population explosion of the late 1800s,

they have different purposes and address distinct issues: zoning

laws are aimed at controlling land use and preventing the incursion

of unwanted influences into particular areas; while occupancy

requirements are addressed to the health and safety concerns of

ensuring minimal standards of access to space and air. Reflecting

this distinction, occupancy restrictions typically appear in housing

or building codes rather than in zoning codes. See F. Schnidman,

S. Abrams, J. Delaney, Handling the Land Use Case § 1.5.3. at 30-

31 ("Housing codes set minimum standards for the occupancy of

residential dwellings. Their purpose is to safeguard the health anc

safety of occupants.") (1984); 8 McQuillin, supra, § 25.10 at 38

(distinguishing zoning from building codes and tenement codes); R.

Schwemm, Housing Discrimination: Law and Litigation

§ 11.6(2)(b) at 11-86 (1994). Indeed, Edmonds’ own regulation of

maximum occupancy is through its adoption of the Uniform

Housing Code. ECDC 19.10.000 (J.A. 248); Uniform Housing

Code § 503(b) (J.A. 180-81).

In contrast, the “use restriction” is the hallmark of zoning. As

the Kentucky Court of Appeals has explained:

Although the noun "use" does not lend itself to the making

of nice distinctions, we think that in one of its meanings

it furnishes a basis for distinguishing between a zoning

statute and a mere building code statute. Zoning has as

one of its main purposes the regulation of the use of

property. This means regulation of the purpose or the

———

object of the use, rather than the mere conditions or

circumstances of the use.

American Sign Corp. v. Fowler, 276 S.W.2d 651, 654 (Ky. 1955)

(emphasis in original, citation omitted); see also Enos v. City of

Brockton, 236 N.E.2d 919 (Mass. 1968) (differentiating between

zoning and building codes on the ground that zoning regulates use);

| E.C. Yokley, Zoning Law and Practice § 1-3 at 4 (4th ed. 1978)

("zoning is almost exclusively concerned with use regulation"); 8

McQuillin, supra, § 25.17 at 61 ("Zoning seeks to promote the

public health, safety, morality and welfare by confining certain

classes of buildings and uses to defined areas."). Even in the time

of Euclid v. Ambler, zoning was understood as a set of use

restrictions with an exclusionary purpose. See 272 U.S. at 380-81,

388; see also M.A. Wolf, supra, at 254 ("Exclusion is the essence

of Euclidean zoning.").

Sadly, as discussed above in Part I, the definition of what and

who should be excluded has not always been legitimate. While

zoning serves important purposes, "local land use restrictions may

also serve a nonlegitimate purpose, or indeed sometimes no real

purpose at all — that is, they may be exclusionary in intent and/or

effect, or merely the product of a quite parochial vision, or

sometimes unduly harsh with little compensating public benefit —

or merely inept." 1 Williams, supra, § 5.05 at 111.

The discretionary nature of zoning enforcement also lends itself

to illegitimate exclusion. Communities often rely on complaints

from neighbors to enforce zoning codes; and, as in this case,

neighbors complain when they feel that their new neighbors are

"undesirable." In particular, group homes for disabled people are

likely to be singled out for enforcement of zoning codes: “From

the local government perspective . . . the community residence or

group home in a residential area is an anathema. Residents fear that

these homes will depress property values and destroy neighborhood

tranquility." Steinman, supra, at 2; see also General Accounting

Office, An Analysis of Zoning and Other Problems Affecting the

Establishment of Group Homes for the Mentally Disabled App. | at

10 (Aug. 17, 1983) (listing concerns raised by neighbors of

proposed group homes at public hearings).2 It has long been

established that facially neutral zoning codes can be enforced in a

discriminatory and therefore improper manner. See, e.g., Yick Wo

v. Hopkins, 118 U.S. 356, 374 (1886); State v. Vadnais, 202

N.W.2d 657 (Minn. 1972); Salt Lake County v. Kartchner, 552

P.2d 136 (Utah 1976).

Occupancy codes, on the other hand, have not been subject to

such criticism. Indeed, Justice Stevens, concurring in Moore v.

East Cleveland, contrasted the potential for abuse inherent in

"family "-based zoning codes with objective occupancy codes that do

not depend on the family relationships of the occupants regulated.

431 U.S. 494, 521 & n.16 (1977). This is true, in part, simply

because occupancy codes are inherently less malleable than use

restrictions; they are defined in terms of numerical, objective

criteria. More fundamentally, occupancy codes are not — as

zoning codes are — based on principles of exclusion.

* — The source of the illegitimate animosity is of no consequence. If

public officials perform an official act “simply in order to appease the

discriminatory viewpoints of private parties, that act itself becomes tainted

with discriminatory intent even if the decisionmaker personally has no

strong views on the matter." Association of Relatives and Friends of AIDS

Patients v. Regulations & Permits Admin. , 740 F. Supp. 95, 104 (D.P.R.

1990).

IV. THE PLAIN LANGUAGE OF THE FAIR HOUSING

AMENDMENT ACT, READ IN THE CONTEXT OF THE

HISTORICALLY DISTINCT EVOLUTION OF ZONING

LAWS AND OCCUPANCY REQUIREMENTS,

ESTABLISHES THAT SINGLE-FAMILY ZONING

CODES ARE NOT RESTRICTIONS ON THE

"MAXIMUM NUMBER OF OCCUPANTS" WITHIN THE

MEANING OF THE STATUTORY EXEMPTION.

The historical evolution of zoning laws and occupancy

requirements set forth above establishes three fundamental

propositions: (a) zoning laws evolved out of a desire to exclude

uses and insulate communities from outside influences; (b)

occupancy requirements developed along with other housing code

principles out of the separate desire to ensure the health and safety

of residents of any given city or community, rather than to control

land use in any given area; and (c) zoning laws have been

frequently misused for illegitimate or discriminatory purposes, while

housing codes, including occupancy requirements, have not.

Viewed in the context of this historical background and the

distinct evolution of occupancy requirements versus zoning laws,

the language of the FHAA exemption can have only one meaning.

The exemption for restrictions on "the maximum number of

occupants" is undoubtedly a reference to the near-century of

housing code law addressing occupancy requirements — and not to

zoning laws that might for one reason or another have some impact

on occupancy. The plain language of the statutory exemption refers

to occupancy restrictions — not zoning codes — and given the clear

should be given effect. Indeed, this distinction is reflected in

the fact that the FHAA explicitly applies to zoning practices. See

42 U.S.C. § 3610(g)(2)(C).

See Toibb v. Radloff, 501 U.S. 157, 160 (1991) (statutory

interpretation begins with the plain language of the text).

When Congress exempted "restrictions . . . on occupants," it

did so within the context of a longstanding recognition of the

legitimate need for health and safety regulations concerning

occupancy. And it acted against a background of stubbornly

persistent discrimination arising out of community zoning laws (Part

III, above) — problems that had simply not been presented by

reasonable housing code provisions on occupancy. Thus, Congress

chose a term that, as set forth above, has a meaning and historical

context entirely distinct from the zoning requirements at issue in this

case.’ Occupancy requirements have always been understood as

being different from single-family zoning codes.

The statute’s reference to occupany requirements, particularly

considering the long-standing meaning and usage of that term, has

nothing to do with whether or not the persons living in a dwelling

are related. It is, instead, a recognition of the need for health and

safety restrictions related to occupancy, not use. The exemption is

written in terms of "restrictions" on the "maximum number" of

persons in a dwelling — yet zoning requirements such as those at

issue here impose no such "restriction" and would in fact permit an

unlimited number of family members to live together in a single

dwelling.

Of course, a single-family zoning requirement could, in the

most indirect sense, have an impact on occupancy by tending to

limit the number of people living in any one residence. But that

cannot convert a single-family zoning requirement into an

"occupancy" restriction. Most obviously, the Edmonds restriction

only describes who may live in a house together, not how many may

live there. That is not an occupancy requirement.

This conclusion finds clear support in the historical thrust of

occupancy restrictions. Because many new immigrants were called

Ws See Green, 490 U.S. at 528 (statutory interpretation must make

reference to “the surrounding body of law into which the provision must

be integrated”).

upon to house their relatives who followed them to the United

States, occupancy restrictions have never had any regard for family

ties. L.M. Friedman, supra, at 45. An overcrowded dwelling is

a threat to health and safety, regardless of whether it is

overcrowded with family members or the unrelated.

Edmonds contends, however, that its zoning ordinance should

be considered a "reasonable" restriction on "occupancy" because it

is constitutional. See, e.g., Petitioners’ Brief on the Merits at 11.

But that would read the adjective "reasonable" out of all proportion:

if a single-family zoning code is not an “occupancy restriction" at

all, it cannot be called a "reasonable" restriction simply because it

is constitutional. The statutory reading does not depend on

whether, as a matter of constitutional law, Edmonds was permitted

to implement this zoning ordinance. The far more straightforward

reading of the term "reasonable" is that Congress intended to permit

those maximum occupancy standards that were reasonably related

to legitimate health and safety concerns. Any zoning or use

restriction, as here, might have some indirect impact on

"occupancy" — but that does not make a zoning law into a

"reasonable" occupancy restriction.

The plain language of the FHAA, particularly when read in

light of the clear historical distinctions between occupancy

requirements and zoning laws, necessarily resolves the issue before

the Court. And, if more is needed, that conclusion finds

overwhelming support in the legislative history and underlying

purposes of the FHAA.

The Committee reports accompanying the FHAA show an

unequivocal intent to attack zoning practices inconsistent with its

remedial goals. The House Report stated: "The Committee

See Garcia v. United States, 469 U.S. 70, 76 (1984) (Rehnquist, J.)

(Committee reports are the authoritative source for the legislature’s intent)

(quoting Zuber v. Allen, 396 U.S. 168, 186 (1969)).

intends that the prohibition against discrimination against those with

handicaps apply to zoning decisions and practices, including

"otherwise neutral rules" enforced in a way that "discriminates

against people with disabilities." House Report No. 711, 100th

Cong., 2d Sess. (1988) at 24, J.A. 148. With respect to the

exemption for maximum occupancy restrictions, the Report refers

directly to restrictions of the traditional kind:

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 discriminate on the basis of race, color,

religion, sex, national origin, handicap or familial status.

H.R. 100-711, supra, at 31, J.A. 155. With this clearly expressed

purpose, and given the longstanding distinction between maximum

occupancy codes and zoning restrictions, Congress could not have

intended to exempt the latter from the FHAA. This would be

contrary to the statutory language, and to the underlying purpose of

preventing illegitimate or discriminatory zoning practices.

Reading the statute in the way that Edmonds suggests would

lead to a nonsensical result that Congress could not have intended:

it would permit the exclusion of group residences like the Oxford

House from the very communities best suited for them. At the

outset, to receive federal funds, group homes for recovering

substance abusers must have six or more residents who agree to

observe by the Oxford House rules (no use of drugs or alcohol, no

disruptive behavior, and regular payment of rent). See 42 U.S.C.

300x-25 (Supp. IV 1992). The entire predicate of the group

iY The cited statute is the current version of the Anti-Drug Abuse Act

of 1988, Pub. L. No. 100-690, 102 Stat. 4202, 42 U.S.C. 300-4xa

(repealed and recodified at 42 U.S.C. 300x-25). Enacted in the same year

(continued...)

home is to provide collective support: “After completion of a

rehabilitation program, it is crucial for recovering alcoholics and

substance abusers to have a supportive, drug and alcohol-free living

environment. The support obtained by being in a group of other

recovering addicts substantially increases an individual's chances for

recovery." Oxford House, Inc. v. Township of Cherry Hill, 799 F.

Supp. 450, 456 (D.N.J. 1992) (granting a preliminary injunction

against enforcement of single-family zoning ordinance against

residents of an Oxford House). To be effective, such group homes

must be located in a stable, residential neighborhood — the very

neighborhoods most likely to be zoned single-family residential.

See generally Brief of the AAMR. Group homes, then, would be

government’s lower limits, and the basic requirements of their

mission: they would be forced to compromise their goals in order

to exist. This is not a result consonant with a statute aimed at doing

away with "land-use regulations . . . that have the effect of limiting

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

in the community." H.R. 100-711, supra, at 24, J.A. 148.

CONCLUSION

Zoning codes and occupancy restrictions have distinct histories

and purposes. Zoning restricts uses, and while it has many

important and legitimate goals, it has a long history of

are more objective standards; they are aimed at health and safety

concerns; and they have not in the past been misused for illegitimate

purposes. In enacting the FHAA against this background, Congress

cannot possibly have intended to give municipalities uncontrolled

use of single-family zoning — a recognized tool of discrimination

2.. .continued)

as the FHAA, this Act demonstrates congressional support for group

homes for recovering substance abusers by providing federal block grants

to encourage establishment of Oxford Houses and other group homes

modeled on the same approach.

This is reflected plainly in the statutory language that exempts only

occupancy restrictions, a class of restrictions with a longstanding

place in health and safety regulation distinct from the zoning laws

that Congress sought to address in the FHAA. The statutory

exemption must be read to apply only to traditional occupancy

restrictions and not to single-family zoning provisions. The

judgment of the Court of Appeals should be affirmed.

Respectfully Submitted,

TIMOTHY C. HESTER

ROBERT A. LONG Jr.°

CHRISTINA T. UHLRICH

Covington & Burling

1201 Pennsylvania Ave., N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

January 23, 1995 “Counsel of Record

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