Appendix — Oxford House-C. v. City of St. Louis

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 94-1600EM

Oxford House-C, an unincorporated association; Oxford’

House, Inc., a Delaware not-for-profit corporation; Oxford

House-W, an unincorporated association; Missouri Depart-

ment of Mental Health, Division of Alcohol & Drug Abuse;

Missouri Department of Mental Health,

Plaintiffs-Appellees,

V

City of St. Louis, a Body Corporate,

Defendant-Appellant.

Missouri Municipal League; City of Columbia,

Missouri; City of Clayton, Missouri; The National Fair Hous-

ing Alliance; The Judge David L. Bazelon Center for Mental

Health Law; United States of America; American Civil

Liberties Union, of Eastern Missouri,

Amicus Curiae.

No. 94-3073EM

Oxford House-C, an unincorporated association; Oxford

House, Inc., a Delaware not-for-profit corporation; Oxford

House-W, an unincorporated association; Missouri Depart-

ment of Mental Health, Division of Alcohol & Drug Abuse;

Missouri Department of Mental Health,

Plaintiffs-Appellees,

Vv

City of St. Louis, a Body Corporate,

Defendant-Appellant.

aa, ee

Appeals from the United States District Court

for the Eastern District of Missouri.

Submitted: September 12, 1995

Filed: February 23, 1996

Before FAGG, HENLEY, and HANSEN, Circuit Judges.

FAGG, Circuit Judge.

In this handicap discrimination case, we consider whether the

City of St. Louis violated the federal Fair Housing Act and

Rehabilitation Act by enforcing the City’s zoning code to limit

the number of residents in two group homes for recovering

substance abusers. We conclude the City acted lawfully.

Oxford House-C and Oxford House-W are self-supporting,

self-governing group homes for recovering alcoholics and drug

addicts in the City of St. Louis. The Oxford Houses provide a

family-like atmosphere in which the residents support and en-

courage each other to remain clean and sober, and immediately

expel any resident who uses drugs or alcohol. The Missouri

Department of Mental Health, Division of Alcohol and Drug

Abuse (DMH/ADA), helped establish the Oxford Houses and

provides them with technical support. The houses also receive

assistance from Oxford House, Inc., a national organization of

Oxford Houses across the country.

Oxford House-C and Oxford House-W are located in St. Louis

neighborhoods zoned for single family dwellings. The city

zoning code’s definition of single family dwelling includes

group homes with eight or fewer unrelated handicapped resi-

dents. St. Louis, Mo., Rev. Code tit. 26, § 26.20.020(A)(1)

(1994). After city inspections revealed that more than eight

recovering men were living at each Oxford House, the City cited

the houses for violating the eight-person limit.

Rather than applying for a variance excepting them from the

eight-person rule, the Oxford Houses, the DMH/ADA, and

oe eae

Oxford House, Inc. (collectively Oxford House) brought this

lawsuit against the City, contending the City’s attempt to enforce

the rule violated the Fair Housing Act, as amended, 42 U.S.C. §§

3601-3631 (1988), section 504 of the Rehabilitation Act, 29

U.S.C. § 794(a) (1994), and other federal laws. The City brought

a counterclaim asking the district court to enjoin the Oxford

Houses from violating the City’s ordinances. Holding the City

had violated the Fair Housing Act and the Rehabilitation Act by

enforcing the eight-member limit against the Oxford Houses, the

district court enjoined the City from using its zoning code to

prevent the Oxford Houses from operating with their existing

number of residents, ten in Oxford House-C and twelve in

Oxford House-W. The district court also denied the City’s

counterclaim. Oxford House-C v. City of St. Louis, 843 F. Supp.

1556, 1584 (E.D. Mo. 1994). The City appeals. We reverse the

judgment for Oxford House, vacate the injunction, and remand

the -ounterclaim for further consideration.

We first review the district court’s decision that the City

violated the Fair Housing Act. Attempting to avoid the Act’s

requirements altogether, the City contends Congress exceeded

its authority under the Commerce Clause by prohibiting handi-

cap discrimination in the 1988 amendments to the Act. We

disagree. Congress had a rational basis for deciding that housing

discrimination against the handicapped, like other forms of

housing discrimination, has a substantial effect on interstate

commerce. See Morgan v. Secretary of Hous. & Urban Dev.,985

F.2d 1451, 1455 (10th Cir. 1993). We also reject the City’s

contention that under 42 U.S.C. § 3607(b)(1), the City’s limits on

the number of unrelated people who can live together in a single

family residential zone are exempt from the Act’s requirements.

The Supreme Court recently held § 3607(b)(1) only exempts

total occupancy limits intended to prevent overcrowding in

living quarters, not ordinances like the City’s that are designed

to promote the family character of a neighborhood. City of

Edmonds v. Oxford House. Inc., 115 S.Ct. 1776, 1779 (1995). In

short, the City must comply with the Act.

pany Se yee

The Act prohibits the City from making a dwelling unavail-

able to handicapped people on the basis of their handicap. 42

U.S.C. § 3604(f)(1). In fact, the Act requires the City to make

reasonable accommodations in its generally applicable zoning

ordinances when necessary to give a handicapped person “equal

opportunity to use and enjoy a dwelling.” /d. § 3604(f)(3)(B);

Smith & Lee Assocs.. Inc. v. City of Taylor, 13 F.3d 920, 924 (6th

Cir. 1993). The Act also prohibits the City from interfering with

handicapped individuals’ exercise of their equal-housing rights.

42 U.S.C. § 3617. The City does not contest the district court’s

conclusion that the Oxford House residents are handicapped

within the meaning of the Fair Housing Act because they are

recovering addicts. The issue is whether the City has uniawfully

discriminated against, failed to accommodate, and interfered

with the housing rights of these handicapped men.

Rather than discriminating against Oxford House residents,

the City’s zoning code favors them on its face. The zoning code

allows only three unrelated, nonhandicapped people to reside

together in a single family zone, but allows group homes to have

up to eight handicapped residents. St. Louis, Mo., Rev. Code. tit.

26, §§ 26.08. 160, 26.20.020(A)(1) (1994). Oxford House’s own

expert witness testified Oxford Houses with eight residents can

provide significant therapeutic benefits for their members. The

district court nevertheless found the City’s zoning ordinances

are discriminatory because the eight-person limit would destroy

the financial viability of many Oxford Houses, and recovering

addicts need this kind of group home. Even if the eight-person

rule causes some financial hardship for Oxford Houses, how-

ever, the rule does not violate the Fair Housing Act if the City had

a rational basis for enacting the rule. Familystyle of St. Paul. Inc.

v. City of St. Paul, 923 F.2d 91, 94 (8th Cir. 1991).

We conclude the eight-person rule is rational. Cities have a

legitimate interest in decreasing congestion, traffic, and noise in

residential areas, and ordinances restricting the number of unre-

— A-5

lated people who may occupy a single family residence are

reasonably related to these legitimate goals. Village of Belle

Terre v. Boraas,416 U.S. 1,9 (1974). The City does not need to

assert a specific reason for choosing eight as the cut-off point,

rather than ten or twelve. “[E]very line drawn by a legislature

leaves some out that might well have been included. That

exercise of discretion, however, is a legislative, not a judicial,

function.” /d. at 8. We conclude the City’s eight-person restric-

tion has a rational basis and thus is valid under the Fair Housing

Act. Familystyle, 923 F.2d at 94.

The district court found the City discriminated against the

Oxford Houses by singling them out for zoning inspections and

enforcement proceedings because of the residents’ handicap.

This finding is clearly erroneous because Oxford House did not

| show the City ignored zoning violations by nonhandicapped

{ people. See Fed. R. Civ. P. 52(a). Although Oxford House

presented evidence that the City did not take action against

certain groups of more than three unrelated, nonhandicapped

people residing together in single family zones, Oxford House

did not show that these other groups were not entitled to reside

in single family zones based on the zoning code’s exception for

valid pre-existing uses. See St. Louis, Mo., Rev. Code tit. 26, §§

26.16.050-.060 (1994). At any rate, Oxford House did not show

anyone in the building inspector’s office knew of the alleged

zoning violations. The parties agree the City never received

complaints about the groups Oxford House claims were violat-

ing the zoning code.

Having concluded Oxford House did not show the City treated

the Oxford Houses differently from any other group, we believe

the City’s enforcement actions were lawful regardless of whether

some City officials harbor prejudice or unfounded fears about

recovering addicts. Because the district court found the City’s

actions were motivated by bias and stereotypes, however, we

will briefly discuss the evidence of discriminatory intent. At

a + ae

trial, Oxford House presented testimony that one of the Mayor’s

assistants stated Oxford Houses might cause flight from the City.

Also, when Oxford House’s counsel asked the City’s Zoning

Administrator whether he would want to live next door to an

Oxford House, the Zoning Administrator said no and expressed

concern about transiency and property values. We do not believe

these isolated comments reveal City officials enforced the zon-

ing code against the Oxford Houses because of the residents’

handicap, especially considering the Oxford Houses were plainly

in violation of a valid zoning rule and City officials have a duty

to ensure compliance. Oxford House also presented evidence

that the inspectors who visited the Oxford Houses were aware of

community opposition to the houses and hoped to discover

zoning violations. Because the inspectors do not hold

policymaking positions, their conduct and remarks tell us little

about why City officials decided to take action against the

Oxford Houses. Anyway, the district court took the inspectors’

actions and comments out of context. Overall, we conclude the

district court committed clear error in finding the City enforced

the zoning code against the Oxford Houses because the residents

are recovering addicts. We find no unlawful discrimination

under the Fair Housing Act, either in the eight-person limit or in

the City’s enforcement activities.

Also, the City did not fail to accommodate the Oxford Houses

as the Act requires. See 42 U.S.C. § 3604(f)(3)(B). The Oxford

Houses want the City to let them operate with more than eight

residents. The City has consistently said it cannot make an

exception to the zoning code unless the Oxford Houses apply to

the City’s Board of Adjustments for a variance, see St. Louis,

Mo., Rev. Code tit. 26, § 26.84.050(D) (1994), and the Oxford

Houses refuse to apply. Their refusal is fatal to their reasonable

accommodation claim. The Oxford Houses must give the City a

chance to accommodate them through the City’s established

procedures for adjusting the zoning code. See United States v.

Village of Palatine, 37 F.3d 1230, 1233 (7th Cir. 1994); Oxford

ny. eee

House, Inc. v. City of Virginia Beach, 825 F. Supp. 1251, 1261

(E.D. Va. 1993). The Fair Housing Act does not “insulate [the

Oxford House residents] from legitimate inquiries designed to

enable local authorities to make informed decisions on zoning

issues.” City of Virginia Beach, 825 F. Supp. at 1262. Congress

did not intend for the Act to remove handicapped people from the

“normal and usual incidents of citizenship, such as participation

in the public components of zoning decisions, to the extent that

participation is required of all citizens whether or not they are

handicapped.” Jd. In our view, Congress also did not intend the

federal courts to act as zoning boards by deciding fact-intensive

accommodation issues in the first instance. Jd. at 1261.

The district court decided the Oxford Houses should not have

to apply for variances because the City is certain to deny their

applications. See Village of Palatine, 37 F.3d at 1234. Oxford

House presented evidence that some neighbors of the Oxford

Houses have concerns and complaints about the houses, and that

the alderman representing the neighborhoods where the Oxford

Houses are located does not want the houses to have more than

eight residents. The record shows the Board of Adjustments has

granted variances despite opposition from neighbors and alder-

men, however. Having carefully reviewed the record, we con-

clude the district court committed clear error in finding it would

be futile for the Oxford Houses to apply for variances. Thus, the

Oxford Houses must apply if they want the City to accommodate

them. We express no opinion about whether the Fair Housing

Act would require the City to grant variances for the Oxford

Houses if they apply.

Because the City did not unlawfully discriminate against the

Oxford House residents or refuse to accommodate them, the City

did not interfere with the residents’ equal housing rights by

enforcing the eight-person rule against them, see 42 U.S.C. §

3617. Further, because the City did not limit the number of

Oxford House residents “solely by reason of [their] disability”

lees: idl ace

and the residents did not request an exception to the eight-person

limit, the City did not violate the Rehabilitation Act. See 29

U.S.C. § 794(a); Lue v. Moore, 43 F.3d 1203, 1206 (8th Cir.

1994). Having concluded the City acted lawfully, we remand the

City’s counterclaim seeking enforcement of its ordinances for

further consideration.

In conclusion, we reverse the judgment in favor of Oxford

House on the Fair Housing Act and Rehabilitation Act claims,

vacate the injunction prohibiting the City from enforcing its

eight-person zoning restriction against the Oxford Houses, and

remand the City’s counterclaim. Because Oxford House is no

longer a prevailing party, we also reverse the award of fees and

costs to Oxford House. 42 U.S.C. § 3613(c)(2).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

|

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APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 91-2402-C(7)

(CDP)

OXFORD HOUSE-C, et al.,

Plaintiffs,

v.

CITY OF ST. LOUIS.

Defendant.

JUDGMENT AND ORDER

[Filed: Jan. 28, 1994]

In accordance with the Memorandum Opinion entered in this

case and filed contemporaneously herewith, which is incorpo-

rated by reference herein,

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that plaintiffs shall have judgment against defendant on

plaintiff’ s first amended complaint and on defendant’ s counter-

claim, and that defendant’s counterclaim is dismissed on the

merits.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that defendant The City of St. Louis is PERMA-

NENTLY ENJOINED from enforcing its zoning ordinance to

prevent plaintiff Oxford House-C from operating with ten (10)

unrelated handicapped residents at its current location or to

prevent plaintiff Oxford House-W from operating with twelve

(12) unrelated handicapped residents at its current location.

LL

———— ae

—_s

/s/ Catherine D. Perry

CATHERINE D. PERRY

UNITED STATES

MAGISTRATE JUDGE

Dated this 28th day of January, 1994.

— A-Il —

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 91-2402-C(7)

(CDP)

OXFORD HOUSE-C, et al.,

Plaintiffs,

v.

CITY OF ST. LOUIS,

Defendant.

MEMORANDUM OPINION

(Filed: Jan. 28, 1994]

Plaintiffs in this case seek an injunction and declaratory

judgment prohibiting the City of St. Louis from enforcing its

zoning and building ordinances in a manner that would prohibit

two Oxford Houses, which have ten and twelve residents, from

operating within the City’s single-family residence zoning dis-

tricts. Plaintiffs, who represent recovering alcoholics and drug

addicts, allege that the City’s enforcement of its ordinances

discriminates against them on the basis of their handicap in

violation of the Fair Housing Act, 42 U.S.C. § 3601 et Seq., as

amended by the Fair Housing Amendments Act of 1988, and

other federal laws. The matter is before the Court following a

non-jury trial. Based upon the testimony, exhibits, Stipulations

presented at trial, and pre- and post-trial briefs, the Court makes

the following findings of fact and conclusions of law.

Findings of Fact

I. The Parties

|. Plaintiffs Oxford House-C (“OH-C”) and Oxford House-

W (“OH-W”) are unincorporated associations consisting of each

— A-12 —

house’s current residenis, located in the City of St. Louis,

Missouri. Their purpose is to provide a home for recovering

(sober) alcoholics and drug addicts.

2. Plaintiff Oxford House, Inc., is a Delaware corporation

with its principal place of business in Silver Springs, Maryland.

Oxford House, Inc. advocates for and assists in providing hous-

ing for recovering alcoholics and addicts, and is a membership

organization whose members are the residents of individual

Oxford Houses across the country, including OH-C and OH-W.

Oxford House, Inc., has granted charters to plaintiffs OH-C and

OH-W and has expended substantial effort seeking to protect

their right to supportive housing in the community. Oxford

House, Inc., also has a contract with the State of Missouri for the

collection of loan repayments from and provision of other

assistance to individual Oxford Houses in Missouri.

3. Plaintiff-Intervenor the Missouri Department of Mental

Health, Division of Alcohol and Drug Abuse is a state agency

created under the Missouri Constitution, Article IV, Section

37(a) and Chapters 630 and 631,R.S.Mo. 1986, as amended. The

Department of Mental Health, Division of Alcohol and Drug

Abuse (hereinafter, “the Missouri Department”) receives $18-

22 million per year in federal alcohol and drug abuse and mental

health services block grant funds under 42 U.S.C. § 300x.

4. Defendant the City of St. Louis is a municipal corporation

existing and operating under a Charter recognized by Article VI,

§ 31 of the Constitution of Missouri. The City of St. Louis

receives federal funds, including approximately $22.6 million

for fiscal year 1991, $23.3 million for 1992, and $26 million for

1993, under the Community Development Block Grant (CDBG)

program. The City’s Department of Public Safety, which in-

cludes the Zoning Administration and the Division of Building

and Inspection, receives funding from the CDBG grant.

— A-13 —

II. The Oxford House History

5. In 1975, Paul Molloy and several other recovering alco-

holics and drug addicts formed the first Oxford House. Molloy

testified that he and the others had been residing in a halfway

house which faced closure by the county because of a lack of

funding. The residents decided, through the encouragement and

assistance of some of their compatriots and sponsors at Alcohol-

ics Anonymous, to rent and operate the house themselves, for

themselves, as none of them yet felt ready to live independently,

despite the fact that they were all well into their periods of

sobriety, and despite the fact that they had already lived for some

time in a supervised halfway house and had received treatment

for their addictions. From its inception, this first Oxford House

was run differently from a typical halfway house. No staff was

present at the house, and a resident could stay as long as he

wished, provided he remained drug- and alcohol-free and paid

his share of expenses. This model proved to be successful and

Molloy expanded the concept and assisted other groups in

starting other Oxford Houses around the country.

6. In 1988, Congress enacted and President Reagan signed

legislation to encourage expansion of the Oxford House model

for drug treatment on a nationwide scale. Pub.L. No. 100-690,

102 Stat. 4181 (November 18, 1988). As it was re-enacted in the

ADAMHA Reorganization Act of 1992, the program requires all

States receiving federal block grant funds for alcohol and drug

abuse and mental health services to establish a revolving fund of

at least $100,000.00 to make loans available to help establish

group homes for recovering alcoholics and addicts. Groups of at

least six recovering alcoholics or addicts who wish to live in a

group home based on the Oxford House model can apply for a

loan of up to $4,000.00 to cover the start-up costs of renting and

equipping the home. The loans are interest-free and must be

repaid by the residents of the home within two years. 42 U.S.C.

§ 300x-25. The statute specifically requires the homes to follow

sce Silk te

the three basic rules of absolute sobriety and automatic expul-

sion, self-governance, and financial self-sufficiency.

7. The Missouri Department, through a contract with the

Missouri Housing Development Commission, has established a

revolving fund of $100,000.00 pursuant to 42 U.S.C. § 300x-25

to provide start-up loans not to exceed $4,000.00 to Oxford

House-type residences. The Missouri Department provides staff

to locate suitable housing, arrange for the initial lease, screen and

accept the first residents, offer technical assistance to establish

the Oxford House, and give on-going assistance to residents of

the Oxford House as needed to enable the home to operate under

Oxford House principles. The Missouri Department also has a

contractual relationship with Oxford House, Inc., for the collec-

tion, quality control, reporting, and other technical assistance

associated with the loan funds awarded to Oxford House-type

recovery homes under the contract with the Missouri Housing

Development Commission.

8. All Oxford Houses share the same three basic rules: (1)

each house must be democratically self-governing; (2) each

house must be financially self-sufficient; and (3) any person

using drugs or alcohol must be immediately expelled from the

House.

Oxford Houses are not traditional half-way houses, because

they do not have any on-site staff or supervision. Oxford House,

Inc. and the Missouri Department provide assistance in setting

up individual houses and provide initial technical support. Once

established, however, individual Oxford Houses are no longer

subject to direct, ongoing control by either Oxford House, Inc.,

or the Missouri Department, but instead become self governed.

Residents make all decisions regarding management of the

house, including decisions regarding admitting and expelling

members.

ES y <<. yee

Members of each house share expenses equally, elect their

officers, and pay dues to Oxford House, Inc. Individual Oxford

Houses must support themselves, including repaying the start-

up loans. In general the houses have from 8 to 15 residents; they

are segregated as to sex but are intentionally integrated by race,

age and economic background. There are over 450 Oxford

Houses in the United States. There is no limit on the length of

time a resident may remain in the house, so long as the members

remain drug and alcohol free, pay their share of the expenses, and

are not expelled for disruptive behavior. The average length of

stay is 13 to 15 months.

9. The three basic rules of self-governance, financial self-

sufficiency, and automatic expulsion upon one use of drugs or

alcohol are all therapeutically based. Substantial evidence pre-

sented at trial showed that these rules foster important and valid

recovery aims. The rule of absolute sobriety is based on the

prevailing and well-established medical opinion that total absti-

nence is required for effective treatment of alcoholism or drug

addiction. The requirement that the members of a home auto-

matically expel any member found to have used alcohol or drugs

reinforces the recovery of the other members as it shows them,

consistent with this basic tenet of substance abuse treatment, that

there are no second chances and that one mistake will result in the

loss of the Oxford House resource in a person’s recovery. The

evidence showed that alcoholics and drug abusers frequently

have lost contact with their families or mainstream society prior

to their recovery, and may lack or have lost basic life skills such

as budgeting, arriving at work on time, maintaining employ-

ment, cooperating with family members, and managing their

own lives. The rules of democratic self-governance and financial

self-sufficiency enhance self-esteem while teaching or reteach-

ing these basic life and social skills. All members must contrib-

ute equally to the expenses of the house; this also fosters self-

esteem by requiring members to care for themselves and not rely

financially on others. The houses are intentionally mixed by

— A-16—

race, age and economic background; this reinforces the know]-

edge that drug and alcohol addiction are diseases that strike all

segments of society. Several witnesses explained the differences

in therapeutic benefit from an Oxford House type of setting as

opposed to a half-way house: in a supervised setting the residents

are both policed and cared for by the staff; in an Oxford House

setting the members must care for themselves, and must police

and provide support for one another. This dual role of mutual

support and mutual-policing is based on the success shown by

Alcoholics Anonymous and similar programs, which have con-

sistently demonstrated that persons who have suffered the same

problems are the best able to help others going through similar

recovery efforts, both by providing a supporting and understand-

ing environment, but also by knowing the temptations and signs

of relapse, and helping others avoid such failures.'

10. The Missouri Department believes that a full range of

treatment options is necessary for the treatment of drug and

alcohol abuse, and therefore supports (and funds, at varying

levels) a continuum of treatment options including inpatient

treatment, supervised half-way houses, Oxford Houses, and

outpatient treatment, including Alcoholics Anonymous and

Narcotics Anonymous. On the continuum from inpatient treat-

ment to independent living, Oxford Houses provide a final stop

for those not quite ready to face alone the risks of independent

living. In general, Oxford House residents are well along the

recovery path at the time they enter the Oxford House. They

usually have undergone one or more treatment programs and

have had some period of sobriety before entering the Oxford

House. Often they come from inpatient treatment centers or half-

way houses.

' In large part, there was no dispute at trial as to the therapeutic benefit of

the Oxford House program or the appropriate treatment modalities for drug

and alcohol addiction.

ny % : om

The evidence showed that there are almost 300,000 individu-

als in the State of Missouri who abuse alcohol and/or drugs,

including over 100,000 in the eastern region of the state and

almost 30,000 in the City of St. Louis. According to the Director

of the Missouri Division of Alcohol and Drug Abuse, there is a

tremendous need for Oxford Houses in the treatment continuum

for alcoholics and addicts in the St. Louis area and across the

State.

11. Under the Oxford House program, individual Oxford

Houses are located in clean, drug-free, residential neighbor-

hoods that will provide residents with a sense of pride and self-

worth. Although it is not possible to find neighborhoods where

there are no liquor stores or taverns, as they are everywhere, the

program seeks to find neighborhoods that are not dominated by

bars and liquor stores. It is important to locate the houses in areas

that are relatively free of drug-dealing, because of the tempta-

tions that the presence of open drug trafficking can create. The

houses should not be isolated in industrial areas away from other

neighbors, as location in good neighborhoods plays acrucial role

in an individual’s recovery and re-entry to society by promoting

self-esteem and helping to create an incentive not to relapse.

Additionally it is helpful if the houses can be located in neighbor-

hoods with good access to public transportation and AA/NA

meeting sites.

The program prefers to use larger single-family houses, as this

provides the family atmosphere desired, and because coopera-

tive living is required. The members of each house are expected

to share kitchen facilities and to share in the cleaning and upkeep

of the house and yard. In almost all Oxford Houses, including

those at issue here, the residents are required to share a bedroom,

and no locks are allowed on bedroom doors, in order to avoid the

possibility that one member could become withdrawn from the

group and face a greater risk of relapse. Apartments obviously do

not meet these goals of cooperative living and having a large

ia

aay ye

group to provide support. Smaller houses are unsatisfactory

because they cannot hold as many residents.’

12. Since 1989, the Missouri Department has helped to

establish twenty-seven Oxford Houses in Missouri, including

nineteen homes for men, six for women, and two for women with

children. In 1990 representatives of the Missouri Department

met with William Kuehling, special assistant to the Mayor of the

City of St. Louis, to discuss the Oxford House concept and to ask

for the City’s assistance in locating Oxford Houses in the City.

Mr. Kuehling expressed some skepticism about the concept,

explaining to the state officials that his job was to keep people

from leaving the City and that Oxford Houses might cause more

people to flee to the suburbs. The representatives from the

Missouri Department left this meeting believing that the City

would not provide them with any assistance, and they accord-

ingly have never notified any City official prior to the opening of

ai.’ Oxford House in the City. Six of the Missouri Oxford

Houses are located in the City of St. Louis; two are located in

suburbs in the St. Louis metropolitan area.

Ill. Oxford House-Clayton

13. In early 1991 Nkosi Halim, a housing coordinator em-

ployed by the Division of Alcohol and Drug Abuse who had

formerly been employed by Oxford House, Inc., and who is

himself a recovering alcoholic and former Oxford House resi-

dent, sought sites for an Oxford House in St. Louis. He noticed

? A significant amount of trial time was spent discussing the optimum or

necessary number of members of any particular Oxford House. Plaintiffs’

witnesses testified that the optimum number was somewhere between eight

and fifteen. The state and federal law establish six as aminimum number. The

defendant’s current ordinance would allow a maximum of eight. The national

average for all Oxford Houses is 9.7 members. Over 80% of the Oxford

Houses nationwide and in Missouri have more than eight residents. This

dispute is discussed in more detail at § VI below.

— A-19 —

that the home on Clayton Road that ultimately became OH-C

was for sale. It is located in an “A” single-family zoning district,

although a commercial area is directly across the street and the

house itself sits only a few doors from the City limit and a

commercial area in the City of Clayton, Missouri. Mr. Halim

believed the house to be suitable for an Oxford house because it

had at least five bedrooms, was located in a stable residential

neighborhood which was accessible to public transportation and

was near several hospitals where AA and NA held meetings. He

also believed that the amenities available in nearby Forest Park

would be of benefit to the residents. He therefore entered into

negotiations with the record owners of the building, the Franciscan

Sisters of Mary, a religious order. The Sisters had previously

used the residence as a home for nuns, and at least five nuns had

lived there as recently as 1990. The Sisters indicated that they did

not wish to rent the home to Oxford House, but preferred to sell

it. As Oxford Houses prefer to rent, rather than own homes, Mr.

Halim ultimately located Karen Myers, who entered into a lease-

purchase agreement with the Franciscan Sisters of Mary and then

in turn leased the property to Oxford House.

14. Onorabout February 26, 1991, OH-C received a start-up

loan of $4,000.00 from the revolving fund established by the

Missouri Department. The proceeds of that loan were used to pay

for the security deposit, first month’s rent, and beds and dressers

for the house. In March of 1991 the first residents moved into

OH-C. All were recovering alcoholics and drug addicts. Initially

eleven members lived in the home; at the time of trial the house

had ten members (the reduction was a result of building code

requirements related to the ceiling height of a basement bed-

room). OH-C functions according to the Oxford House rules.

The residents share household expenses, chores and decision

making. It has elected officers and weekly meetings where the

house’s affairs are discussed. Each resident is required to pay

rent of $60 per week. Each is required to pay one week’s rent in

advance, as a “sobriety deposit”. If the member leaves the house

— A-20 —

after notice and in good standing, the deposit is refunded. If the

member is expelled for any reason or leaves without giving

notice, the deposit is not refunded.

15. Shortly after OH-C opened, the ofiicers of a nearby

neighborhood association received questions about the house,

and one of the officers of the organization called the alderman for

the neighborhood, Daniel McGuire, who told her it was an

Oxford House. On April 22, 1991, the neighborhood association

held a meeting for the purpose of discussing the Oxford House.

OH-C was notified in advance of the meeting and Nkosi Halim,

Joe Page, and a representative from the state appeared at the

meeting and answered neighbors’ questions. Concerns expressed

at the meeting by the persons atte *ing included increased

crime, whether the residents are screened for criminal records’,

whether any convicted rapists lived in OH-C, and whether

children would continue to be safe in the neighborhood. One

person attending the meeting, who was among the most vocal,

seemed primarily concerned about the amount of rent being paid

and the sales price of the house.

Alderman McGuire received reports about the neighborhood

meeting from one or more officers of the association. The

association’s board members continued to discuss Oxford House

and contact Alderman McGuire for several months after the

special meeting. Alderman McGuire also talked to other OH-C

neighbors who expressed fears about property values, over-

crowding, and the safety of neighborhood children.

16. On April 22, 1991 (the same date as the neighborhood

meeting) the City’s Citizens Service Bureau (CSB) received a

> They are not so screened. Witnesses testified that this is because many,

if not most, recovering addicts or alcoholics have criminal records resulting

from their behavior while using alcohol and drugs. One witness testified that

part of the rationale for the lack of criminal screening is the belief that those

applicants who do not have criminal records simply never got caught, as most

abusers had, at a minimum violated laws regarding drunken driving.

— A-21 —

complaint that the building rented by OH-C had “been turned

into a halfway house” and had “not been inspected for Conser-

vation District.’”* As a result of this complaint a city inspector,

Paul Sims, went to the house and told the resident who answered

the door that he was investigating a report that the house had been

turned into an “illegal halfway house.” The resident did not let

him in, so he performed only an exterior inspection. Thereafter,

the City sent a violation letter to the Franciscan Sisters* inform-

ing them that they needed to obtain an occupancy permit,

because the building was being used for an “institutional group

use.” According to the City’s evidence, this violation notice was

“abated” because Mr. Sims later concluded (for some reason that

is not clear from the evidence), that only four people were living

in OH-C and therefore no institutional use occupancy permit was

needed. However, there is no evidence that the Franciscan

Sisters or the residents of OH-C were notified that this violation

notice had been “abated,” and, in any event, the issue was turned

over to the City’s Building Division.

17. When the Franciscan Sisters were informed that OH-C

had been cited for City ordinance violations, they notified OH-

C; Nkosi Halim then contacted the City, speaking to Walter

Murphy of the Building Division. Halim told Murphy what the

OH-C was, sent him information about Oxford Houses, and

asked that he be contacted about any further problems. Murphy,

however, did not contact Halim, but instead sent follow-up

violation notices to the record owners, the Franciscan Sisters,

informing them that OH-C was operating in violation of the

City’s zoning code. Murphy continued to investigate OH-C,

after discussing the case with his supervisors. He and inspector

* OH-C is not located in a “conservation district”, so no inspection for this

purpose was required.

* The Franciscan Sisters were still the owners of record of OH-C because

the term of the lease under the lease-purchase agreement with Karen Myers

had not yet been completed.

— A-22 —

Martin Wente went to OH-C at least four times, but only

inspected the interior on one occasion. After that inspection, the

City notified the Sisters, by letter dated July 18, 1991, of the

following claimed violations:

(1) the basement bedroom had aceiling height of less than

7’4", as required by city code ES 404.4;°

(2) the window areas in the basement bedroom were

insufficient as they must be at least 8% of the floor

area, under ES 401.2; and

(3) “Does not conform to A single-family dwelling dis-

trict use; Illegal use of premise, cease illegal use. Ord.

59979.”

Thereafter various discussions between the parties ensued, which

culminated in the City’s filing an information in the Municipal

Division of the Circuit Court of the City of St. Louis, charging

the Franciscan Sisters of Mary with the same three violations.

That information was held in abeyance pending resolution of the

instant law suit. As a result of the building code violation

citations, OH-C removed a cover over a window, resolving the

window area dispute, and ceased using the basement room as a

bedroom.’ OH-C never applied for a variance under the City’s

zoning code.

18. In pursuing the “halfway house” complaint regarding

OH-C, Mr. Murphy was aware of community opposition io the

® St. Louis has adopted the BOCA Existing Structures Code, Second

Edition, as published by the Building Officials & Code Administrators, Inc.,

as its Existing Structures Code, which will be referred to here by the City’s

“ES” citations or as “BOCA.”

’ OH-C presented evidence, by way of expert testimony, that the ceiling

height in this area could be modified to provide for a height of 6’9", which,

in the opinion of plaintiff's expert, was ample ceiling height for a bedroom,

although not in compliance with the BOCA code. OH-C actually applied for

a building permit to make this change, which was denied.

=: oe

Oxford House, from discussions he had with David Bohm,

associate city counselor, and other city officials. According to

Mr. Murphy, the neighbors did not have complaints about

specific problems, but “concern for the idea that a drug rehab

house was in their neighborhood.” Murphy also felt that there

was concern because OH-C had a “multiracial population.” The

decision to cite OH-C for violation of the zoning code was

actually made by Edward Dobbs, the City’s Zoning Administra-

tor. Murphy told Dobbs that the property was some sort of drug

rehab center and asked Dobbs “if we were heading in a right

direction if we found overcrowding, if that’s what we could use.”

During his deposition, Mr. Dobbs testified that he “wouldn’t

want them living next door to him”. His explanation for this

comment, when ordered by the Court to answer follow-up

questions, included common, stereotypical fears such as safety,

transiency, and a negative effect on property values.

IV. Oxford House-Westminster

19. On or about April 17, 1992, OH-W received a Start-up

loan of $4,000.00 from the revolving fund established by the

Missouri Department. The proceeds of that loan were used to pay

for the security deposit, first month’s rent, and beds and dressers

for the house. OH-W is located in the Central West End area of

the City of St. Louis, and is on a residential street, zoned “A”

single-family. It is located on Westminster Avenue, but is a only

few houses from Euclid Avenue, which is a restaurant and

commercial area. The house has three stories, including six

bedrooms and three bathrooms. The Missouri Department learned

of the house when someone who knew about the Oxford House

program contacted the state and indicated they had a potential

house available. The Missouri Department negotiated with the

potential owner of the building, and when an agreement on rent

was reached the person purchased the building, which had been

for sale, and then rented it to Oxford House. The three year lease

provides for rent the first year of $1250 per month, with an

escalation clause of $25 per month per year.

— et.

20. OH-W opened on May 1, 1992, the same day the lease

was signed with the new homeowner. Joe Page, an employee of

the Missouri Department who is also a former Oxford House

resident, was assigned to assist the initial residents of the home,

and lived there for several months. At approximately 10:00 a.m.

on the day the house opened, Mr. Page answered the doorbell;

two men asked him what the Oxford House was. Mr. Page spent

several minutes explaining the concept to them and provided

them with an informational pamphlet. The neighbors expressed

surprise that an Oxford House could operate in a single-family

neighborhood; one of the men indicated that he had worked in the

alcoholism treatment field and knew who would be living there;

the other stated that the area was a conservation district and that

a special permit was needed for operation in the district; one of

the men expressed concern to Joe Page about the safety of the

neighborhood and whether he could allow his daughters to play

outside if the Oxford House operated in the neighborhood

(expressed by this neighbor at trial as the “normal concerns that

any father would have”). Later that evening Mr. Page observed

a)group of six to eight people gathered outside the house across

the street from OH-W; they appeared to be gesturing toward the

house. Mr. Page found this intimidating, and left the house

through the back door.

21. The next day, May 2, 1992, the neighborhood group that

included the houses surrounding OH-W held their annual alley

clean up and picnic, at which time several residents expressed

concerns about the opening of OH-W to their alderman, Daniel

McGuire (the same alderman in whose ward OH-C is located).

McGuire sent a letter, dated May 1, 1992, to the president of the

Central West End Association citing the zoning code and state

statute, discussing the ownership of OH-W, and stating that

federal law required that OH-W must be treated as a single

family under state and federal law, so long as it had fewer than

nine residents. The letter also enclosed a copy of the original

complaint in this suit, and expressed the hope that OH-W could

— A-25 —

be added to the lawsuit. At trial Alderman McGuire denied

preparing this letter in anticipation of OH-W’s opening, and

testified that he believed he had actually mailed the letter after

the clean-up and picnic of May 2. He could not recall if he had

received advance notice of the opening of OH-W. Alderman

McGuire testified at trial that he believed, in May of 1992, that

the City Ordinance did not allow more than three unrelated

individuals to live together. He testified at his deposition that he

believed the City ordinance limiting unrelated persons to three in

single-family districts was appropriate. Alderman McGuire pro-

vided no explanation for his contrary statements regarding the

legality of the three-person restriction contained in his May |

letter.*

22. Some time after OH-W opened, a representative of Ox-

ford House, Inc. spoke with building inspector Murphy and with

City Counselor Bohm about OH-W, and asked that it be allowed

to operate with 11 or 12 residents. The City took the position that

the request should be handled as an application for a variance

under the City’s zoning ordinances; Oxford House took the

position that it should not be required to participate in variance

or conditional use applications. Although there was substantial

dispute about this at trial, the Court finds that the parties agreed

that the appropriate mechanism for dealing with the alleged

violations was for the City to inspect the premises, cite OH-W for

the zoning violations, and then OH-W would be joined in the

instant suit. That is, in fact, what occurred, and OH-W was joined

as a plaintiff by amendment of the complaint in this case. Had it

not been so joined, it is clear that the City would have proceeded

with enforcement actions regarding the zoning violations.

* The alderman’s confusion on this issue is not entirely surprising, given

the evidence that none of the City housing inspectors or building or zoning

officials who testified (and presumably none of the aldermen) have ever

received any training regarding discrimination in housing practices.

V. The City Ordinances

23. Title 26 of the Revised Code of the City of St. Louis is the

Zoning Code of the City of St. Louis, and consists of a codifica-

tion of various ordinances enacted at different times. The Zoning

Code divides the City into districts, denominated “A” through

“L”. Section 26.12.010, as amended. Like many Zoning Codes,

the St. Louis code is a pyramid-type code, with the activities

allowed in each district also being allowed in the next lower

group. For example, the “A” single-family residence district is

the most restrictive, and allows only single-family residences,

with certain exceptions, in that district. All uses allowed in “A”

districts are also allowed, however, in almost all of the remaining

districts, including B, C, D, E, F, G, H, I, K, and L. (J is an

industrial district which provides limitations on dwellings.)

24. The Zoning Code defines “family” to mean “a person, or

group of persons immediately related by blood, marriage, or

adoption living as a single housekeeping unit; also a group of not

more than three (3) persons not necessarily related by blood,

marriage, or adoption, living as a single housekeeping unit.”

Section 26. 08 .160.

25. At the time OH-C opened, the Zoning Code restricted

dwellings in the “A” single-family residence district to single-

family residences, that is, to “families” as defined in the code.

Thus, OH-C, or any group home for disabled individuals consist-

ing of more than three unrelated individuals, was not allowed as

of right in any single-family, or any other residential, district of

the City of St. Louis. Moreover, at that time, a group home for the

disabled with more than three unrelated individuals was not

listed as a conditional use in the single-family district. Such a

group home could only have been allowed as of right in the “I”

Central Business and “L” Jefferson Memorial districts.

After this suit was filed, but before OH-W opened, the City

amended its Zoning Code to comply with state law (see § 89 .020

.2R.S.Mo. ), by passing Ordinance 62588, which was approved

on April 7, 1992 . That ordinance amended § 26 . 20 . 020 to

provide that a group house in which eight or fewer unrelated

mentally or physically handicapped persons reside (which may

also include two additional persons acting as house parents or

guardians), may exist as of right in “A” single-family districts,

and in all other districts where “A” uses are also authorized.

The amended Zoning Code still provides that group homes in

which nine or more unrelated handicapped persons live are

permitted as of right only in “I” Central Business Districts, and

the “L” Jefferson Memorial District. Under the amended code

such group homes are permitted as conditional uses only in “D”

Multiple-Family Dwelling Districts, in “E” Multiple-Family

Dwelling Districts, “F” Neighborhood Commercial Districts,

“G” Local Commercial and Office District, and “H” Area

Commercial Districts. Thus a variance would still be required for

an Oxford House with more than eight persons to locate in the

“A”, single-family, “B”, two-family, or “C”, multiple-family

dwelling districts, and a conditional use permit is required for an

Oxford House with more than eight persons to operate in the “D”

through “H” districts.

Although Alderman McGuire was the sponsoring alderman of

the above-described amendment to the zoning ordinance passed

in April of 1992, he claimed at trial to have learned of it only in

January or February of 1993, and claimed that he was not aware

of it at the time he wrote his letter to the Central West End

Association regarding OH-W in May of 1992. He did recall that

he had sponsored a “bed and breakfast” ordinance that took

effect in April of 1992. In fact, the amendment at issue, Ordi-

nance 62588, also established that a bed and breakfast could be

operated as a conditional use in a single-family district, and

provided that two baby-sitting centers per block could be located

in a single-family district, as of right. Ordinance 62589, effective

the same day and also sponsored by Alderman McGuire, estab-

lished special “bed and breakfast districts.”

——————————— eee eee a a0 Eee aaa

— A-28 —

26. “Conditional uses” under the Zoning Code are not al-

lowed as of right in particular zoning districts; the Zoning Code

states that such uses may be allowed when they “may be made

compatible or appropriate by attaching certain conditions to their

development”. Section 26.80.010. According to the ordinance,

a conditional use may be granted only if the use is determined,

after public hearing, to be not detrimental to public health, safety,

morals or general welfare, not to impair property values of the

neighboring property, will contribute to, enhance and promote

the general welfare and convenience of the specific location, will

complement or be compatible with the surrounding uses, and

will conform in all other respects to the other applicable zoning

regulations.

Section 26.84.010 establishes a board of adjustment which

has jurisdiction to consider appeals from aggrieved persons and

which is empowered, “where there are practical difficulties or

unnecessary hardships in the way of carrying out the strict letter

of the Zoning Code, to vary or modify the application of any of

the regulations or provisions of such code . . . so that the spirit of

the code shall be observed, public safety and welfare secured

[and] substantial justice done.” § 26.84.050-D. In other words,

the Board of Adjustment has the power to grant variances from

the zoning code, and can consider appeals from denials of

conditional use applications.

Public notices must be given for hearings to consider either

conditional use applications or applications for variances. These

notices are required to be posted prominently on the premises as

well as in the neighborhood where the property involved is

located, and must be published in a newspaper of general

circulation. Any member of the public may attend the meetings

and be heard, and the alderman is notified of the request and is

usually asked to provide a statement of support or opposition. In

some circumstances either the alderman or other city officials

solicit statements of support or opposition from neighborhood

eeeeEEEEEEE———EEee

ent i

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a, ven

groups. Although not stated in the ordinance, a representative of

the person requesting the variance or conditional use must

appear at the hearing, although counsel is not required, nor is the

applicant required to appear personally.

Both plaintiffs and defendants presented expert witnesses

who explained both the theory of zoning ordinances, what they

were supposed to mean and how they are supposed to operate,

and also how the codes are often implemented in practice.

Additionally, several fact witnesses testified about how the St.

Louis Zoning Code variance and conditional use practice actu-

ally operates. From that testimony it is clear that the reality, at

least in the City of St. Louis, has little to do with the theory behind

zoning codes. The experts agreed that conditional uses are those

that should be allowed in a district, but may need to have

conditions imposed on them to prevent adverse impact; vari-

ances, however, should not be granted for “uses” that are not

allowed either as of right or conditionally, but should be reserved

for alleviation of hardships that would prevent otherwise ap-

proved uses taking place, such as varying the parking require-

ments, building set-back limits or building height requirements.

In other words, the credible evidence presented by the experts

showed that if a specific use (such as a group home for more than

eight residents) is not listed as a conditional use in a given

district, the variance process should not be used to allow such a

use, as this would constitute “spot zoning,” which zoning codes

are intended to prevent. The credible evidence showed that,

under zoning theory, “use variances” should not be granted,

because the legislative body, by not listing something as a

conditional use, has already determined that such a use should

not be allowed in that particular zoning district.

The St. Louis Zoning Code is clearly written with these goals

in mind, but the practice shown by the evidence is quite different.

The evidence showed that variances and conditional uses are

routinely granted or denied based almosi entirely on neighbor-

hood and alderman approval or opposition, and not on an

—

analysis of whether the legislative zoning scheme is furthered.

Where there is little opposition to a proposed use, whether it is

consistent or inconsistent with the intent and purpose of the

zoning code, either a variance or conditional use (whichever may

be needed to approve the use) will be granted. Where either the

neighborhood or the alderman opposes a variance or conditional

use, it has only a slim, albeit not impossible, chance of being

granted, again with little regard to the factors set forth in the

zoning code.

27. The zoning experts presented by the parties testified

about the impact that group homes such as the Oxford Houses at

issue here have on neighborhoods. Numerous studies have been

done on the impact éf group homes on their surrounding neigh-

borhoods, including studies of group homes occupied by more

than eight residents, group homes occupied by developmentally

disabled adults, group homes occupied by recovering alcoholics

and addicts, as well as group homes occupied by other “less

desirable” occupants such as prison pre-parolees, the seriously

mentally ill, and dangerous juveniles. Those data show that

group homes with nine or more residents do not have a negative

impact on residential character. Most of the studies have focused

on impact on property values, and have shown that there is no

impact on such values. The studies have also shown that the

presence of group homes has not had an impact on crime, safety,

traffic, utilities, noise, or parking. The experts for both sides

agreed that group homes are residential uses compatible with

residential neighborhoods.

28. The only evidence that the presence of OH-C and OH-W

had affected their respective neighborhoods was that OH-C had

requested that the City install an extra dumpster in the alley

behind that house, and that OH-W residents had been concerned

about the availability of parking. The installation of the addi-

tional dumpster alleviated any problems that may have been

caused by the presence of ten residents in OH-C. OH-W, because

it is near a popular restaurant and commercial area, is in an area

— A-31 —

with long-standing parking problems. After the parking problem

became apparent to them, the OH-W residents agreed among

themselves that no more than four members would park cars on

their street, and other members must park some distance away.

The evidence showed that this had resolved any parking prob-

lem, and, in any event, all the evidence showed that the parking

problems on the OH-W street had predated the opening of that

home.

29. St. Louis’s Existing Structures Code places certain per-

son-per-bedroom or person-per-square-foot limitations on all

residences. OH-C and OH-W at their current levels of occupancy

comply with those standards. OH-C, when it had eleven resi-

dents, including one who stayed in a basement bedroom, vio-

lated ES 404.4, the ceiling height restriction. This violation has

been cured by OH-C’s ceasing to use that area as a bedroom. The

other building code violation for which OH-C was cited, involv-

ing window areas in the basement, was cured by the simple

expediency of removing plywood covers from the basement

windows. The evidence showed that the latter was probably not

a violation of the code, as artificial light was adequate, and that

both alleged violations had been in existence when the Franciscan

Sisters occupied the property, but they had never been cited.

Both OH-C and OH-W are currently in full compliance with the

City’s building codes. The evidence also showed that the City

enforces its building code with regard to interior violations only

when it receives a complaint or is inspecting the premises for

some other reason.

VI. Financial Viability

30. As mentioned previously, a great deal of evidence at trial

was devoted to the appropriate size of an Oxford House, both

from a therapeutic and from a financial viewpoint. The City

ordinance obviously would allow either of these Oxford Houses

to continue to operate as of right so long as they had no more than

eight residents. It is the position of the plaintiffs, however, that

— A-32 —

these houses could not survive with only eight residents, and that

limiting any Oxford House to eight residents violates federal

law. The City argues that affordable housing could be found that

would allow Oxford Houses to meet their goals with only eight

members, and that OH-C and OH-W in fact are simply paying

too much rent for their properties and spending too much money

on non-necessity items. From all the evidence presented, the

undersigned finds as follows with respect to this size/financial

viability issue .

Clearly, Oxford Houses should not have fewer than six

members to provide the necessary therapeutic value, and the

optimal size is somewhere between eight and fifteen residents.

The five and six bedroom homes here were rented for $1200 and

$1250 per month, respectively. Both leases contain escalation

clauses, indicating that the rents can be expected to go up in the

future. These rents are not excessive for the size and condition of

the houses provided in the locations provided, and these houses

and locations meet the Oxford House goals of being good houses

in established, middle-class neighborhoods, near transportation

and readily accessible to AA and NA meeting sites.

The residents of OH-C and OH-W each pay $60 per week as

rent, which, of course, covers more than the rent paid to the

landlord, and includes such things as utilities, maintenance and

general household supplies. This $60 figure is the minimum

reasonably necessary to support each house if OH-C maintains

ten members and OH-W maintains twelve members. The $60

figure is also the maximum, or near the maximum, that the

typical resident of an Oxford House in the St. Louis metropolitan

area can be expected to pay.’ The evidence showed that neither

” Although several of the current residents of each house could pay more,

the evidence showed that for new residents even paying this amount is

difficult. The $60 figure is a reasonable minimum that a person entering an

Oxford House in St. Louis could be expected to pay, given the types of jobs

typically available to addicts and alcoholics at the stage of recovery of a

typical new Oxford House resident.

ee ae ee

— A-33 —

of these houses could survive financially with fewer members,

and the members could not reasonably be expected to pay

more.'° The City argues that smaller houses could be found in

acceptable locations that could be afforded by only eight resi-

dents, but this argument is not supported by the evidence

presented, which clearly established that these Oxford Houses

could not survive with eight members. The evidence did show

that there is an ample supply of five to six bedroom rental houses

available in good neighborhoods like those at issue here that rent

in the $1200 to $1300 range, and that would be appropriate for

Oxford Houses in the ten to twelve member range.

Conclusions of Law''

Plaintiffs base their claim on the federal Fair Housing Act, 42

U.S.C. §§ 3601 et seq., the Rehabilitation Act of 1973, 29 U.S.C.

§ 794, the Housing and Community Development Act of 1974,

42 U.S.C. §§ 5301 et seq., the equal protection guarantee of the

Fourteenth Amendment, and 42 U.S.C. 5 1983. The Court has

jurisdiction of this action under 28 U.S.C. §§ 1331 and 1343(3)

and (4) and 42 U.S.C. § 3613. The undersigned has authority to

decide this case by virtue of 28 U.S.C. § 636(c). Plaintiffs seek

a declaratory judgment providing that the City’s zoning and

building code enforcement with respect to the Oxford Houses

violates the plaintiffs’ rights under the statutory and constitu-

tional provisions cited above. They also seek an injunction

providing that the City be permanently enjoined from enforcing

‘© The Court rejects the City’s arguments that either house at issue here

spent its money extravagantly or on unnecessary frills. The evidence showed

that the houses spent their money on necessities and on the minimum

amenities, such as telephone service and cable television, enjoyed by most

working class or middle class families.

'' To the extent that these conclusion of law, or the earlier findings of fact,

may contain mixed findings of fact and conclusions of law, they are intended

tocomply with the requirements of Rule 52, Federal Rules of Civil Procedure.

— *

its zoning and building codes with respect to the Oxford Houses,

and seek attorneys fees and costs under the statutes."

I. Fair Housing Act

A. Standing

As an initial matter, the Court notes that defendant has

challenged the standing of Oxford House, Inc., but has not

challenged the standing of the individual Oxford Houses or their

residents. It is clear that the residents of OH-C and OH-W are

recovering alcoholics and addicts, and are therefore persons with

handicaps within the meaning of 42 U.S.C. §§ 3602 (h), 3604.

See United States v. Southern Management Corp., 955 F.2d 914

(4th Cir. 1992); Oxford House. Inc. v. Township of Cherry Hill,

799 F. Supp. 450, 459 (D.N.J. 1992); United States v. Borough

of Audubon, 797 F. Supp. 353, 358-59 (D.N.J. 1991); see also 24

C.F.R. § 100.201 (1990). The individual Oxford Houses are the

direct objects of governmental action that will injure them and

that a favorable judgment in this matter would redress, and so

they also meet the test for standing under Lujan v. Defenders of

Wildlife, 112 S.Ct. 2130, 2137 (1992).

Defendant argues that Oxford House, Inc. lacks standing to

bring the instant lawsuit. The United States Supreme Court has

given standing under the Fair Housing Act the broadest possible

definition consistent with Article III. See Havens Realty Corp. v.

Coleman, 455 U.S. 363, 372 (1982); Gladstone Realtors v.

Village of Bellwood, 441 U. S. 91, 98 (1979); Trafficante v.

Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). Commu-

nity residents and fair housing organizations are permitted to

bring suit and obtain relief . See Havens, 455 U.S. at 379 ; Growth

Horizons . Inc. v. Delaware County, 983 F.2d 1277, 1281-82

'? Plaintiff-Intervenor originally sought a slightly broader declaration and

injunction, but subsequently joined in the First Amended Complaint at issue

here, and therefore seeks the same relief sought by plaintiffs.

—< o

(3rd Cir. 1993); Hope. Inc., v. County of DuPage, 717 F.2d 1061,

1074 (7th Cir. 1983).

Oxford House, Inc. has individual Standing to bring the instant

lawsuit. The actions taken by defendant that are alleged to be

discriminatory have “perceptibly impaired” Oxford House, Inc.

from fulfilling its objectives of providing fair and equal housing

for persons recovering from alcoholism and drug addiction.

Oxford House, Inc.’s contract with the State of Missouri for

collection of start-up loan repayments and assistance to indi-

vidual Oxford Houses is directly affected by the City’s actions,

which, if upheld, could cause the failure of the Oxford Houses at

issue here and could thereby jeopardize Oxford House, Inc.’s

performance of its contract with the State. Additionally, the role

Oxford House, Inc. plays as legal advocate for recovering

addicts and alcoholics results in a substantial drain on its orga-

nizational resources. Cf. Havens, 455 U.S. at 379.

B. Constitutionality and Applicability of the Fair

Housing Act

Defendant first argues that if the provisions of § 3604 apply in

the manner urged by plaintiffs here, the statute is unconstitu-

tional. Defendant raised this issue in its motion to dismiss and to

strike plaintiff's first amended complaint, which was denied

without prejudice, and reiterated it in its post-trial brief. The

Court allowed the United States to intervene under Rule 24(a),

Fed. R. Civ. P., for the purpose of challenging this assertion of

unconstitutionality, and the United States has filed a brief in

support of the statute’s constitutionality."

The Court agrees with the United States that the constitution-

ality of the 1988 amendments to the Fair Housing Act cannot be

“ The United States was also allowed to file an amicus brief in Opposition

to the defendant's argument regarding the applicability of the “maximum

occupants” exemption in § 3607

— A-36 —

seriously questioned. Congress has broad power under the

commerce clause to regulate activities that affect interstate

commerce. See. e.g., Hodel v. Virginia Surface Mining & Rec-

lamation Ass'n, 452 U.S. 264, 276-77, 281 (1981). A court

reviewing legislation “must defer to a congressional finding that

a regulated activity affects interstate commerce if there is any

rational basis for such a finding.” Preseault v. Interstate Com-

merce Comm'n, 494 U.S. 1, 17 (1990), quoting Hodel, 452 U.S.

at 276. Here Congress determined, in 1968 when it passed the

original Fair Housing Act, that discrimination in housing af-

fected interstate commerce. When Congress passed the 1988

amendments, it did no more than extend the prior determination

of the effect of housing discrimination on interstate commerce to

other forms of housing discrimination. If housing discrimination

on the basis of race and other factors affects interstate commerce,

such discrimination on the basis of handicapped status also

clearly is within Congress’s commerce power. See Seniors Civil

Liberties Ass'n v. Kemp, 965 F.2d 1030, 1034-35 (11th Cir.

1992) (upholding constitutionality of 1988 amendment provi-

sions prohibiting discrimination based on familial status); see

also Russell v. United States, 471 U.S. 858, 862 (1985) (“the

rental of real estate is unquestionably . . . an activity” affecting

interstate commerce).

Defendant next argues that its actions are exempt from the

coverage of the Fair Housing Act by virtue of 42 U.S.C. §

3607(b)(1), which exempts “reasonable local, State or Federal

restrictions regarding the maximum number of occupants per-

mitted to occupy a dwelling.” Defendant contends that its single-

family restriction of not more than three unrelated individuals, in

the old ordinance, or not more than three unrelated individuals or

eight handicapped individuals with two unrelated caretakers, in

the new ordinance, are simply reasonable local restrictions on

the “maximum number of occupants” allowed to reside in a

dwelling in the single-family district. Neither the old nor the new

ordinance, of course, places any limit on the total number of

nF

— A-37 —

individuals who may occupy a dwelling, as a related family of six

or sixteen or twenty-six individuals would be allowed, although

only three unrelated non-handicapped or ten unrelated handi-

capped persons and their caretakers would be allowed.'*

The legislative history of the 1988 Fair Housing Act amend-

ments, which first added discrimination against the handicapped

as a prohibited form of housing discrimination, indicates that

Congress intended those amendments to:

prohibit special restrictive covenants or other terms or

conditions, or denials of service because of an individual’ s

handicap and which have the effect of excluding. for ex-

ample. congregate living arrangements for persons with

handicaps.

H.R. Rep., No. 171, 100th Cong., 2d sess. 19, reprinted in 1988

U.S. Code Cong. & Admin. News 2173, at 2184 (hereafter

referred to as “House Report”) (emphasis added). The House

Report goes on to discuss the specific § 3607 exemption raised

here as follows:

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 base of race, color, religion, sex, na-

tional origin, handicap or familial status.

Id. at 2192 (emphasis added). Thus, the legislative history on the

one hand explicitly recognized the need for congregate housing

'* Although defendant has argued this is a reasonable restriction because

of the very nature of a family, which defendant posits normally includes

parents and children, the ordinance does not so define a family. A biological

or adopted family of two married parents and eight children could live in the

A district, but a family consisting of two married parents, three biological or

adopted children, and five unadopted foster children could not.

—*

for the handicapped, and then went on to stress that reasonable

maximums could apply, so long as they applied equally to all

occupants, without discrimination on the basis of one of the

protected categories.

Exemptions to the Fair Housing Act are to be narrowly

construed, and the burden of proving that an exemption applies

rests with the party asserting the exemption. See. e.g., United

States v. Columbus Country Club, 915 F.2d 877, 882-83 (3d Cir.

1990), cert. denied, 111 S.Ct.2797 (1991). When the exemption

contained in § 3607 is narrowly construed, it simply cannot be

read to say what it does not say, and the City has not met its

burden of showing that it applies here. The City’s ordinance is a

classic unrelated person provision of the type frequently found

in zoning codes; the § 3607 exemption clearly applies not to this

type of zoning code but to building and occupancy codes

reasonably designed to prevent overcrowding of dwellings, such

as those contained in the City of St. Louis’s Existing Structures

Code. The zoning ordinance here does nothing to restrict the

maximum number of occupants in a dwelling; it simply restricts

the maximum number of certain types of occupants.

Although the City’s argument was accepted by the Eleventh

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

denied, 113 S. Ct. 376 (1992), the undersigned agrees with the

District Courts in Oxford House. Inc. v. City of Virginia Beach,

825 F. Supp. 1251 (E.D. Va. 1993), and Parish of Jefferson v.

Allied Health Care. Inc., 1992 U.S. Dist. LEXIS 9124 (E.D. La.

June 10, 1992), that the reasoning of Elliott is not persuasive.

Elliott largely based its decision on case law upholding the

constitutionality of “related persons” restrictions, but, in the

opinion of the undersigned, Elliott misinterpreted not only those

cases but also the legislative history of the 1988 amendments to

the Fair Housing Act.

In Elliott the Eleventh Circuit interpreted Moore v. City of

East Cleveland, 431 U.S. 494 (1977), as holding that all maxi-

—~<

mum Occupancy standards are unconstitutional when applied to

families. Since the Supreme Court had upheld the constitution-

ality of unrelated person ordinances in Village of Belle Torre v.

Boraas, 416 U.S. 1 (1974), Elliott read the two Cases together to

say that zoning regulations limiting the number of unrelated

persons, but not related persons, were lawful, and that Congress

must have passed the exemption with this interpretation in mind.

Elliott then reasoned that the § 3607 exemption would be a

nullity if it only applied to overcrowding regulations, since, as

the Eleventh Circuit panel read Moore, such regulation would be

invalid if applied to families. Elliott then concluded that the

exemption should instead be read to apply to unrelated person

rules such as that at issue here. The flaw in this logic, of course,

is that Moore did not hold that no occupancy limits could apply

to families. Moore merely invalidated an ordinance that pre-

ferred nuclear families over extended families in single-family

settings. The Supreme Court in Moore found that the ordinance

at issue there did not promote the stated goal of preventing

overcrowding, and “found significant” that the City already had

a maximum occupancy provision “specifically addressed to the

problem of overcrowding.” Moore, 431 U.S. at 500 n.7. The

undersigned must conclude that Elliott simply misinterpreted

Moore, and will not follow it in this case. The Court also notes

that the Eighth Circuit has not addressed this precise argument,

but has interpreted § 3607, ina slightly different context, to mean

what it says, that is, that Congress intended that a government

could place reasonable limits on the number of people occupying

a given amount of space. See United States y. Badgett, 976 F.2d

1176, 1179 (8th Cir. 1992).

Defendant also contends that it cannot be held liable because

it was neither the seller nor renter of the property. Section 3604

provides that it shall be unlawful:

(f)(1) To discriminate in the sale or rental, or to otherwise

make unavailable or deny, a dwelling to any buyer or renter

because of a handicap . . .

—— ee _

we ne ee eee ee

:

ee |

ee ee er ee

ee en ee ee

ee a re ee ee ee

an fuel cen

(2) To discriminate against any person in the terms,

conditions or privileges of sale or rental of a dwelling, or in

the provision of services or facilities in connection with

such dwelling, because of a handicap .. .

(3) For purposes of this subsection, discrimination in-

cludes...

(B) a refusal to make reasonable accommodations

in rules, policies, practices, or services, when such

accommodations may be necessary to allow such

person equal opportunity to use and enjoy a dwelling

42 U.S.C. § 3604(f). Section 3604(f)(1)’s use of the phrase

“otherwise make unavailable or deny,” as well as the legislative

history, makes clear that the section applies not only to sellers or

landlords, but also to more sophisticated methods of denying

housing such as enforcing zoning or other land use laws which

have the effect of denying housing. See House Report, at 2185

(“The Committee intends that the prohibition against discrimi-

nation against those with handicaps to apply to zoning decisions

and practices”); see also United States v. City of Black Jack, 508

F.2d 1179, 1183-84 (8th Cir. 1974), cert. denied, 442 U.S. 1042

(1975); In re Malone, 592 F. Supp. 1135 (E.D. Mo. 1984), aff'd

without op. 794 F.2d 680 (8th Cir. 1986). Clearly the Fair

Housing Act and its Amendments apply to the zoning enforce-

ment decision at issue here.

C. The § 3604 Claims As to the Zoning Ordinance

Plaintiffs urge that they have shown both intentional discrimi-

nation and discriminatory effect in the application of defendant’ s

zoning ordinances. Plaintiffs also urge that they have shown that

defendant failed to reasonably accommodate their handicap. A

plaintiff may prove a violation of the Fair Housing Act by

showing either intentional discrimination or discriminatory ef-

fect in the enforcement of the City’s zoning codes, see Hunting-

ay

ton Branch, NAACP v. Town of Huntington, 844 F.2d 926, 933

(2d Cir.) aff'd, 488 U.S. 15 (1988) (per curiam); City of Black

Jack, 508 F.2d at 1185 (“effect, and not motivation, is the

touchstone “of a Fair Housing Act claim); see also Familystyle

of St. Paul. Inc. v. City of St. Paul, 923 F.2d91,94 (8th Cir. 1991).

A violation may also be proven by showing that the City refused

to make reasonable accommodations necessary to afford per-

sons with disabilities equal housing opportunities. See 42 U.S.C.

§ 3604(f)(3)(B); Oxford House, Inc. v. Township of Cherry Hill,

799 F. Supp. at 461-63; Stewart B. McKinney Foundation. Inc.

v. Town Plan and Zoning Commission, 790 F. Supp. 1197 (D.

Conn. 1992).

For the reasons that follow, the Court concludes that plaintiffs

have met their burden of showing that defendant’s enforcement

of its zoning ordinance unlawfully discriminates against them on

the basis of their handicap, under all three tests.

1. Intentional Discrimination

To prevail on a claim of intentional discrimination, plaintiff

may either present direct evidence or may attempt to prove

discrimination under the standards of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973) and Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248 (1981). The Eighth Circuit has

held “that the three-stage McDonnell Douglas/Burdine analysis

applies to Fair Housing Act cases.” Ring v. First Interstate

Mortgage, Inc., 984 F.2d 924, 926 (8th Cir. 1993), citing United

States v. Badgett, 976 F.2d 1176, 1178 (8th Cir. 1992). Even

under a McDonnell Douglas/Burdine analysis, however, the fact

finder still must determine that the challenged action was a result

of prohibited discrimination. See St. Mary's Honor Center v.

Hicks, 113 S. Ct. 2742 (1993). “Determining whether invidious

discriminatory purpose was a motivating factor demands a

sensitive inquiry into such circumstantial and direct evidence as

may be available.” Village of Arlington Heights v. Metropolitan

Housing Development Corp.,429 U.S. 252, 266( 1977). Because

en eT ; — an

‘

;

— A-42 —

plaintiffs here have provided direct evidence of discrimination,

the Court need not utilize the three stage McDonnell Douglas/

Burdine burden-shifting analysis.

Intentional discrimination can include actions motivated by

stereotypes, unfounded fears, misperceptions, and “archaic atti-

tudes”, as well as simple prejudice about people with disabilities.

See School Board of Nassau County v. Arline, 480 U.S. 273,279

(1987). To show intentional discrimination it is not necessary

that plaintiffs prove that defendant’s actions were motivated by

a malicious desire to discriminate. It is enough that the actions

were motivated by or based on consideration of the protected

status itself. See Stewart B. McKinney Foundation, 790 F. Supp.

at 1210-11.

The evidence here showed that city officials responded to the

presence of the Oxford Houses based on stereotypical fears of

recovering addicts and alcoholics, and carried out their enforce-

ment efforts in response to neighborhood and community fears

and concerns about “some sort of drug rehab” house being in the

two neighborhoods. In short, the evidence clearly showed that

defendant’s actions were motivated by consideration of plain-

tiffs’ handicapped status. The City’s reaction to the state’s

introduction of the concept was that Oxford Houses would cause

flight from the City. The City’s Zoning Administrator, who was |

its top zoning official, testified that he wouldn’t want recovering

alcoholics or addicts living next door to him. The chief building

inspector sought guidance from this same Zoning Administrator

by asking him if pursuing acomplaint of overcrowding would be

“heading in a right direction . . ., if that’s what we could use” to :

stop the operation of the Oxford House. The first city inspection

of OH-C occurred on the same day the neighborhood meeting

regarding OH-C was held, in which unfounded and stereotypical

fears about safety and property values were raised by the neigh-

bors. The evidence showed that multiple inspections were con-

ducted, and OH-C was cited for at least one non-existent (con-

— ii.

servation district) violation. After suit was filed, the City belat-

edly amended its ordinance to comply with the minimum re-

quirements of state law, but did so in a way that would still

preclude OH-C from remaining in its single-family district.

When OH-W opened, the City continued its pattern of attempt-

ing to enforce the ordinance to exclude the Oxford House and

continued its pattern of responding to unfounded and stereotypi-

cal fears of the neighbors. The City alderman was able to send a

letter to his constituents about OH-W the same day the house

opened, expressing his hopes that the house could be prevented

from operating.

Completely absent from the City’s reaction was any attempt

to assuage the fears expressed by the citizens: that is, rather than

attempting to explain the benefits of the Oxford House program

and the laws governing non-discrimination against the handi-

capped, the various city officials fanned the unfounded fears of

the residents by assuring them that they would fight the presence

of the Oxford Houses. This reaction and the City’s efforts at

enforcement, rather than accommodation, shows intentional

discrimination.'* “[A] decisionmaker has a duty not to allow

illegal prejudices of the majority to influence the decision

making process . . .” Association of Relatives and Friends of

AIDS Patients v. Regulations & Permits Admin., 740 F. Supp.

94, 104(D.P.R. 1990). The clear inference from all the evidence

presented is that if the residents of these Oxford Houses had been

'S Plaintiffs presented evidence regarding the City’s similar reaction to

other proposed facilities for handicapped individuals and to one other Oxford

House, but the undersigned finds that this evidence, although persuasive

regarding the City’s motivation in those instances, is too attenuated from the

instant situation to significantly add to the proof of intentional discrimination

in this instance . Thus, the decision rendered here is not based on any finding

that City officials have been involved in a lengthy and complex conspiracy to

prevent all handicapped persons from living in St. Louis. Rather, the decision

rendered here is based on a finding that defendant’s actions toward these

plaintiffs was motivated by stereotypical and unfounded fears related to these

plaintiffs’ handicaps.

oy eee

a desirable group of nonhandicapped persons, for example, the

nuns who lived in OH-C before in numbers exceeding the zoning

code limits or a family including unadopted foster children, the

City would not have enforced its zoning ordinance against them.

The Court recognizes that the evidence of intentional discrimi-

nation in this case is not nearly so strong as in some of the cases

relied on by plaintiffs, such as Support Ministries for Persons

with AIDS, Inc. v. Village of Waterford, 808 F. Supp. 120

(N.D.N.Y 1992), where, for example, City leaders made numer-

ous blatantly discriminatory statements at public forums and

passed new ordinances for the explicit purpose of keeping

handicapped persons out of their community. The fact that

public officials in other cities have behaved worse, however,

does not excuse the intentional discrimination shown here.

The Court is not unmindful that defendant presented signifi-

cant testimony from its various witnesses and decision makers

that they, like most members of our society, have had some

personal involvement with alcoholism or addiction, most often

through close friends or relatives who suffered from these

disabilities. These witnesses all testified that they themselves

held no animosity towards recovering alcoholics or addicts, and,

in some cases, that they had provided support and guidance when

their own loved ones were struggling with recovery. Although

the Court has no doubt as to the sincerity of this testimony, it

misses the mark as to whether defendant intentionally discrimi-

nated against plaintiffs in the enforcement of its zoning codes.

Intentional discrimination does not require personal animosity

or ill will — it is sufficient that defendant treated plaintiffs

unfavorably because of their handicap. It does not matter that

defendant’s individual witnesses feel sympathy to plaintiffs’

plight, when defendant sought to exclude plaintiffs from equal

housing opportunity because of their handicap.

The Court is also aware that the State of Missouri cannot

entirely escape criticism for its apparent concentration of the

vey oe

Oxford Houses in the City of St. Louis, rather than in the

surrounding suburban areas. From the evidence presented it

appears that this was not coincidental, and may, in fact, be based

on some unfair (but not necessarily unlawful) stereotyping

engaged in by the State officials themselves, who may believe

that City residents would be less likely to complain or to have

their complaints listened to than would their more well-to-do

suburban neighbors. The City’s fears of flight to the suburbs are

not baseless, especially in today’s political and economic cli-

mate, and the Court finds the City’s fear that it was being unduly

singled out for an over-concentration of social service institu-

tions has some basis in fact. These concerns, however, do not

justify discrimination against the handicapped. Simply put, the

complaint of “no more in my back yard” is just as unacceptable

an excuse for discrimination against the handicapped as the

discriminatory cry of “not in my back yard.” See Horizon House

Developmental Services. Inc. v. Township of Upper

Southhampton, 804 F. Supp. 683, 698 (“the FHAA rejects any

notion that a Township can somehow avoid the antidiscrimination

mandate by accepting some sort of ‘fair share’ or apportionment

of people with disabilities”), aff'd 995 F.2d 217 (3rd Cir. 1993).

2. Discriminatory Impact

Under the standards established by the Eighth Circuit, to

prevail on a discriminatory impact theory, plaintiff must first

make a prima facie showing that the challenged ordinance has a

discriminatory effect. See Familystyle, 923 F.2d at 94; City of

Black Jack, 508 F.2d at 1185. “If the law has such an effect, the

burden shifts to the governmental defendant to demonstrate that

its conduct was necessary to promote a governmental interest

commensurate with the level of scrutiny afforded the class of

people affected by the law under the equal protection clause.”

Familystyle, 923 F.2d at 94. In Familystyle the Eighth Circuit

concluded that handicapped persons are not members of a

suspect class, relying on City of Cleburne v. Cleburne Living

—*

Center. Inc., 473 U.S. 432, 446 (1985), and therefore held that

the proper level of scrutiny is whether the legislation is “ratio-

nally related to a legitimate government purpose.” /d.'°

Applying that analysis to the application of the zoning ordi-

nances here, it is clear that plaintiffs have made a prima facie

showing of discriminatory effect. First, the zoning ordinance in

effect when OH-C opened and this case was filed clearly had a

disparate impact upon handicapped persons by severely limiting

the housing available to them. That ordinance allowed no group

homes for the handicapped as of right in any residential zoning

district. At the time OH-C was cited, a group home for more than

three unrelated individuals with disabilities could not operate as

a matter of right in any zoning district in the City of St. Louis

other than the “I” Central Business District and “L” Jefferson

Memorial District. The City has argued that the ordinance was

non-discriminatory because it applied equally to handicapped

and non-handicapped unrelated persons. Although facially neu-

tral, however, the ordinance was enforced in a discriminatory

manner and had a disparate effect on handicapped persons.

Plaintiffs presented evidence that the City had not prosecuted

'° Cleburne, of course, was decided prior to the 1988 amendments at issue

here, and was an equal protection case, not a case brought under the Fair

Housing Amendments Act. Although the Eighth Circuit did not discuss this

distinction in Familystyle, it would seem that the 1988 amendments now

require a court to use a higher degree of scrutiny in Fair Housing Amendment

Act cases than that used in Cleburne. Familystyle's requirement that the

ordinance be necessary to promote the government interest may well be a tacit

reflection of this enhanced status and stricter scrutiny required by the 1988

amendments. Because the Court in Familystyle found that the state law at

issue there did not have a disparate impact on the handicapped, but instead

promoted the same goals as the FHAA, it did not actually need to go on to the

second part of the analysis.

ye fee

various religious orders who had more than three unrelated

individuals living in single-family districts."’

There can be no doubt that the effect of the City’s three-person

rule limited the ability of handicapped persons to live in the

residence of their choice in the community. The evidence at trial

showed that while groups of unrelated non-disabled people may

occasionally wish to live together in residential neighborhoods,

recovering alcoholics and addicts in the early stages of sobriety

need such housing as a result of their disability. Plaintiffs showed

that they face a substantial risk of relapse from the isolation of

living alone, the stress of living with enabling or using family

members, and the peer pressure inherent in returning to their old

neighborhoods. Because of their disability, newly recovering

alcoholics and addicts often lack the financial and personal

resources necessary to return to independent living. For their

adequate and continued recovery they need a living arrangement

in which a critical mass of recovering individuals may live

together in affordable, supportive, drug-free housing in middle-

class residential neighborhoods. By definition the Central Busi-

ness and Jefferson Memorial zoning districts are nonresidential

areas that are unsuitable for the location of an Oxford House.

Limiting the number of Oxford House residents to three or fewer

would essentially eviscerate the Oxford House program, from

both a therapeutic and financial standpoint. By so severely

limiting the numbers of Oxford House residents and the neigh-

borhoods where such houses could locate, defendant’s original

zoning ordinance essentially made appropriate housing for these

handicapped individuals impossible to secure within the City of

St. Louis. The zoning ordinance in effect at the time OH-C was

'? Defendant's argument that it never enforced the ordinance against

religious orders because no one ever complained supports the argument that

defendant enforced the ordinance only against politically unpopular groups

like the handicapped plaintiffs here.

—————— imma

a es ee

—_wS

cited had a discriminatory impact on handicapped individuals by

denying them this necessary housing option."*

Moreover, the new city ordinance allowing group homes for

up to eight handicapped residents in most of the City’s residen-

tial neighborhoods has not cured the discrimination, but has, as

enforced, continued the discrimination against the handicapped.

Because Oxford Houses typically require more than eight resi-

dents,'? the zoning scheme still prevents them from operating as

a matter of right in any residential zoning district in City, indeed,

again in any zoning district except the “I” and “L” districts.”

Plaintiffs presented substantial credible evidence showing that

more than eight residents are needed for OH-C and OH-W to

operate viably from both a financial and therapeutic viewpoint.

Limiting the number to eight would severely limit the Oxford

House program’s ability to operate successfully, and would

require these two successful houses to close.

Congress recognized, in passing the 1988 amendments, that

group homes were necessary living arrangements for some

handicapped individuals, and that facially neutral policies could

'* Defendant has argued that it had a “policy” of allowing up to eight

unrelated handicapped individuals to live in a single-family district even

under the three-person ordinance. This argument is not supported by the

evidence; if, in fact, that was defendant’s “policy” it surely would have

communicated that policy to the representatives from the Missouri Depart-

ment during one of their initial contacts which discussed Oxford Houses in

general or OH-C in particular.

'’ As stated before, 80% of all Oxford Houses have more than eight

residents.

*” They would not be allowed even as a conditional use in the single-family

neighborhoods at issue here, or even in the “B”, two-family, or “C”, multiple-

family, districts, but instead would require a variance from the zoning code

to operate in those districts. Both parties’ expert witnesses testified that “use

variances” such as this do not promote zoning policy, and that nonconforming

“uses” should not be allowed.

— A-49 —

be used to deny equal housing to handicapped persons. The

legislative history to the 1988 amendments to the Fair Housing

act noted that:

While state and local governments have authority to protect

safety and health and to regulate use of land, that authority

has sometimes been used to restrict the ability of individu-

als with handicaps to live in communities. [Citing City of

Cleburne v. Cleburne Living Center, 473 U.S. 435 (1985).]

This has been accomplished by such means as the enact-

ment of health. safety or land use requirements on congre-

gate living arrangements among non-related persons with

disabilities. Since these requirements are not imposed on

| families and groups of similar size of other unrelated

i people, these requirements have the effect of discriminat-

| ing against people with disabilities.

|

The Committee intends that the prohibition against dis-

crimination against those with handicaps apply to zoning

decisions and practices. The Act is intended to prohibit the

application of special requirements through land use regu-

lations, restrictive covenants, and conditional or special

use permits that have the effect of limiting the ability of

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

community...

Another method of making housing unavailable to people

with disabilities has been the application of enforcement of

otherwise neutral rules and regulations on health, safety

and land-use in a manner which discriminates against

people with disabilities. Such discrimination often results

from false or over-protective assumptions about the needs

of handicapped people, as well as unfounded fears about the

problems that their tenancies may pose. These and similar

practices would be prohibited.

H.R. Rep., No. 171, 100th Cong., 2d sess. 19, reprinted in 1988

U.S. Code Cong. & Admin. News 2173, at 2185.

— A-50 —

Thus, plaintiffs met their burden of showing that both the old

and the new city ordinances had a disparate impact on them

because of their handicap.”' The burden then shifts to the City to

show that its actions were necessary to promote legitimate

governmental interests. Familystyle, 923 F.2d at 94. Under

Familystyle, this is a two-part burden: the City must show that it

has a legitimate governmental interest it seeks to protect, but it

also must show that the scheme at issue was necessary to

promote that interest. The Court agrees with defendant that

zoning ordinances in general, and single-family-zoning districts

in particular, promote the legitimate governmental interest of

maintaining the residential character of a neighborhood and

segregating single families from rooming houses, multi-family

apartments, and commercial or industrial uses in that same area.

See. e.g., Village of Belle Terre v. Boraas,416 U.S. 1 (1974). The

city ordinance at issue here, however, as enforced against these

plaintiffs, does not promote those goals, and certainly is not

necessary to promote those goals.”

The evidence showed that the Oxford Houses at issue here had

not caused any adverse impact on the neighborhoods where they

are located. Both locations are quite close to non-residential

uses, so the argument that the Oxford Houses somehow destroy

the single-family residential character of the blocks makes no

sense. Doctors offices are located on the same block as OH-W.

A commercial area including a gas station and hotel is located

across the street from OH-C. Transiency must not be an issue, as

two baby-sitting centers per block are allowed as of right and Bed

and Breakfasts are conditional uses. The gross number of occu-

pants cannot be the issue, as the same number of grown siblings

or cousins would be allowed under the zoning scheme, and a total

*! Plaintiffs’ evidence meets their burden regardless of whether the so

called “immediate effects” or “ultimate effects” standards are applied.

~ Stated another way, there are other, less discriminatory ways to promote

such a goal, such as spacing requirements of the type approved in Familystyle.

Son, Pm ene rere tt me on ae

. eee

— A-51 —

of ten individuals (the number desired by OH-C) would be

allowed under the new ordinance so long as eight were handi-

capped and two were caretakers: both of these allowed situa-

tions, with ten adults, would have the same impact on the

neighborhood as the Oxford House. Both houses are well-

maintained and the residents have made every effort to be good

neighbors — in one case making sure that their garbage did not

overburden the community dumpster, and in the other case

voluntarily agreeing to limit the number of residents’ cars

parking on the street.

The evidence also showed that all scientific studies involving

group homes of nine or more demonstrate that such congregate

living arrangements have no discernible effect on property

values, safety, crime rates, or any other measurable value. From

the perspective of the interests the zoning ordinances are in-

tended to address, the presence of OH-C and OH-W with their

ten and twelve (as opposed to eight) residents simply does

nothing to undermine the City’s zoning ordinance. Stated con-

versely, enforcing the limit of eight residents does not promote

the City’s asserted governmental interest in maintaining the

residential nature of its single-family-zoning district.

The City presented no specific justification for the new

ordinance’s limit of eight persons, and stated no legitimate

interest that allowing eight Oxford House residents, but not ten

or twelve, would promote. Even the City’s own zoning expert

provided no rational explanation for a zoning scheme that would

allow eight handicapped persons as of right in the three most

restrictive districts (“A” single-family, “B” two-family, and “C”

multiple-family) but that would not allow a group home to add

even one additional handicapped resident to live in those dis-

tricts even as a “conditional use.” The ordinance is not ratior .1!

in this regard, as surely if eight handicapped persons are consis-

tent with the “residential character” of the single-family district,

nine should, at a minimum, be considered a “conditional use.”

— A-52 —

This irrationality and internal inconsistency of the ordinance

itself defeats the City’s burden of showing that its ordinance is

necessary to protect a legitimate governmental interest, at best,

and at worst could be viewed as evidence of intentional discrimi-

nation in the legislative process.

The City has argued that its limit of eight plus two caretakers

implemented a state policy limiting group homes in single-

family neighborhoods to eight residents. As the undersigned

held in denying the defendant’s earlier motion to dismiss in this

case, the state law, § 89.020.2, R.S.Mo. (1991), does not provide

a ceiling or express a State policy limiting group homes to eight

residents, but merely does what it says it does, which is require

cities, at a minimum, to treat group homes with eight or fewer

handicapped residents as single-family homes.”’

3. Reasonable Accommodation

Defendant, of course, could have alleviated the discrimina-

tory effect of even its three-person ordinance (despite its conflict

with state law), by making reasonable accommodations for the

plaintiffs here. Instead of reasonable accommodation, however,

the City responded with enforcement attempts that demonstrated

intentional discrimination. Even if, arguendo, the plaintiffs had

* In this regard the Court notes that the Western Division of the Missouri

Court of Appeals has interpreted § 89.020.2 as not applying to recovering

drug addicts or alcoholics because they are not specifically named in the

statute as “mentally or physically handicapped persons.” See City of St.

Joseph v. Preferred Family Healthcare. Inc., 859 S.W.2d 723 (Mo. Ct. App.

1993). The same court also held that preventing group homes of more than

five recovering drug abusers and alcoholics did not violate the Fair Hous:ng

Act. The undersigned disagrees with both conclusions reached by the Mis-

souri Court of Appeals. This Court is not bound, of course, by the state court's

determination of federal law, and the Missouri court's interpretation of the

State statute has no effect on the outcome of this case, since the City here has

not argued that § 89.020.2 does not apply to recovering drug and alcohol

abusers.

— A-53 —

failed to prove either intentional discrimination or disparate

impact, the Court finds that defendant’s failure to agree to

nonenforcement of the zoning ordinance for OH-C and OH-W

violated § 3604(f)(3)(B) as it was a failure to make a reasonable

accommodation necessary to afford these handicapped plaintiffs

with an equal opportunity to the housing of their choice.

Failure to make reasonable accommodations is an indepen-

dent Fair Housing Act violation, and the reasonable accommo-

dation requirement applies to zoning ordinances and their en-

forcement. See Oxford House. Inc. v. Town of Babylon, 819 F.

Supp. 1179 (E.D.N.Y. 1993). An accommodation is reasonable

if it would not require a fundamental alteration in the nature of

a program and if it would not impose undue financial or admin-

istrative burdens on the defendant. See Southeastern Community

College v. Davis, 442 U.S. 397 (1979); Nathanson v. Medical

College of Pennsylvania, 926 F.2d 1368, 1383 (3d Cir. 1991).

Plaintiffs argue that reasonable accommodations would have

required no more than non-enforcement of the zoning ordi-

nances to OH-C and OH-W. Plaintiffs requested that accommo-

dation by the communications Nkosi Halim had with City

officials shortly after the City inspectors first showed interest in

Oxford House-Clayton, and later by the letters and other com-

munications between Oxford House, Inc., and the City

Counsellor’s office. Defendant argues that these requests were

made to the wrong people, and that the only valid way for

plaintiffs to have requested any accommodation was to file a

request for a variance.

First, defendant’ s argument that the requests were not directed

to the appropriate decision makers improperly twists the evi-

dence. Halim’s requests, both oral and in writing, to Inspector

Murphy were met with Murphy’s refusal to deal with Halim, and

his citation of the record owners for the zoning and building code

violations. The City makes no attempt to explain why Murphy,

who was actively communicating with his superiors and other

any *

City officials on ways to block the Oxford Houses, could not

have either passed Halim’s request on to the appropriate offi-

cials, or have informed Halim who those officials were. Simi-

larly, the letter from Oxford House, Inc.’s lawyer to the City

Counsellor could easily have been viewed by the City as a

request for reasonable accommodation. The evidence shows that

the City was determined to consider no requests for accommo-

dation other than a formal application for a variance. As set forth

in more detail below, the Court finds the City’s insistence on

using the variance process to be misplaced. The Court finds the

argument that the reasonable accommodation request was di-

rected to the wrong authorities to be an attempt to obfuscate the

issues.

Second, the City’s insistence that the only accommodation

possible was resort to the variance procedures is not reasonable.

Although a variance, if granted, would have allowed an Oxford

House with more than eight residents to operate in zones “A”

through “C’”, and a conditional use permit could have allowed

operation in zoning districts “D” through “H”, plaintiffs cannot

lawfully be required to attempt those procedures. Requiring

compliance with those procedures in this situation would have a

discriminatory effect on plaintiffs. The procedures require a

public hearing, public advertisement of the hearing, and the

posting of a conspicuous notice on the block and on the House

itself. Plaintiffs presented credible evidence that this process

stigmatizes recovering alcoholics and addicts, perpetuates their

self-contempt, and increases the stress which can so easily

trigger relapse. Accord Stewart B. McKinney Foundation, 790 F.

Supp. at 1219-20; Ardmore. Inc. v. City of Akron, 1990 WL

385236 (N.D. Ohio August 2, 1990).

Moreover, the evidence presented showed that aldermanic

and community support or opposition have a strong impact on

the outcome of applications for conditional uses and variances,

and that these Oxford Houses would not have obtained a vari-

— A-55 —

ance had they sought one. The City’s practice is to solicit

Opposition or support from the alderman and neighborhood

organizations, and such opposition or Support usually has a

determinative effect on whether variances or conditional use

permits are approved. The clear inference from the evidence

presented was that had plaintiffs Participated in the procedures,

they not only would have found their own recovery (and thereby

their own self-worth) opened up for public debate and the

additional airing of stereotypical fears and concerns, but in doing

so they would have obtained only a denial of the requested

variance or conditional use.* The alderman had already ex-

pressed his opposition to the neighborhood groups, who had in

turn expressed their own stereotypical and unfounded fears of

persons suffering from these particular handicaps. The variance

process would have provided only a futile remedy, and going

through the process may well have caused the very risk of relapse

that Oxford House attempts to prevent. Accord, Horizon House,

804 F. Supp. at 692; Township of Cherry Hill, 799 F. Supp. at 462

n.25.

The Court further finds that the accommodation requested

here by OH-C and OH-W was reasonable. The request was

simply that the zoning ordinance not be enforced as to these two

houses. Compliance with this request for non-enforcement would

not have required any fundamental change in defendant’s zoning

policy, nor would it have imposed any financial or administra-

tive burden on the defendant. In fact, the evidence presented at

trial showed that non-enforcement of the zoning code in these

instances would have no adverse effect on the City’s zoning

scheme or on the surrounding neighborhoods. Indeed, the City

admitted that it does not enforce its related-party rule in the

absence of complaints, so nonenforcement in this Situation

** Additionally, as both experts testified, under zoning theory (as opposed

to practice) a “use variance” such as this should not normally be granted in

light of the zoning code’s legislative determination that group homes for more

than eight are not even approved conditional uses in zones “A”, “B”, and “C”.

— A-56 —

would not fundamentally change its zoning program. The City’s

refusal to comply with this request for reasonable accommoda-

tion violated the Fair Housing Act.

D. The Building and Occupancy Codes

The Court finds that the plaintiffs did not meet their burden of

showing any discrimination in the City’s enforcement of its

building and occupancy codes, nor did they show that their

requested non-enforcement of these codes was a request for

reasonable accommodation. Plaintiffs did not show that the

ceiling and window requirements enforced against OH-C were

enforced in any discriminatory manner or had a disparate impact

on handicapped individuals. Moreover, the evidence did not

show that by virtue of plaintiffs’ handicap they need non-

enforcement of these health and safety codes in order to have

equal opportunity to housing. Although plaintiffs’ expert testi-

fied that the ceiling height requirement was not a necessary

building code requirement, plaintiffs simply did not show any

intentional discrimination or disparate impact in the enforce-

ment of these codes, which are not reasonably related to a

legitimate state interest. Plaintiffs are not, simply by virtue of

their being handicapped, excused from the reasonable govern-

mental requirements that apply to other members of society. If

the City’s concern is in fact overcrowding (and not a discrimina-

tory concern about the “types” of people who live in a given

building) it certainly can enforce its reasonable building and

occupancy codes in a manner to prevent such overcrowding.

Requiring a reasonable number of square feet per occupant or

reasonable ceiling heights is well within the City’s prerogative,

and there is no evidence to justify enjoining the City from

continuing such enforcement.

E. The § 3617 Claim

Plaintiffs also claim that defendant violated § 3617 of the Fair

Housing Act, which makes it unlawful “to coerce, intimidate,

Lille tn 2 dita: Aa ON ile al se

TN Ra SU ey: i NEE Pele fe ORT SIN tae Fee. gerd Boy 7 LP x

a AGT a

threaten or interfere with,” a person’s rights protected under the

Act, or to interfere with others who aid or encourage protected

persons in the exercise of their rights. A violation of this statute

requires plaintiffs to prove four elements: (1) the occupants are

members of a protected class; (2) the protected individuals were

engaged in the exercise or enjoyment of rights to equal housing

or the housing advocate or provider was aiding or encouraging

protected individuals in the exercise of their equal housing

rights; (3) defendant was motivated by an intent to discriminate:

and (4) interference on account of the protected individuals’

having exercised their right to live in the neighborhood of their

choice. See People Helpers Foundation v. City of Richmond,781

F. Supp. 1132, 1134 (E.D. Va. 1992). Plaintiffs have met their

burden of showing each of these elements, as (1) they are

handicapped and therefore are members of a protected class; (2)

they were engaged or attempted to engage in their exercise of

equal housing rights, by attempting to live in a single-family

residential neighborhood; (3) defendant was motivated by inten-

tional discrimination, as it acted towards plaintiffs in the way it

did because of plaintiffs’ status as recovering alcoholics and

addicts; and (4) defendant, by refusing to agree to non-enforce-

ment of the zoning ordinances, interfered with plaintiffs’ equal

housing rights. See Stewart B. McKinney Foundation, supra,

790 F. Supp. at 1221; Oxford House-Evergreen v. Plainfield,

769 F. Supp. 1329, 1344 (D.N.J. 1991).

Il. The Rehabilitation Act Claim

Section 504 of the Rehabilitation Act, as it was in effect at the

time of defendant's actions here, provided that

No otherwise qualified individual with handicaps . . . shall,

solely by reason of . . . his handicap, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving

federal financial assistance.

— A-58 —

29 U.S.C. § 794(a).* A violation of this statute requires plaintiffs

to prove four elements: (1) plaintiffs are handicapped; (2) they

are otherwise qualified for participation in the program; (3) the

program receives federal financial assistance; and (4) plaintiffs

were subjected to discrimination by a program receiving federal

financial assistance. See Sullivan v. City of Pittsburg, 811 F.2d

171, 181-82 (3rd Cir. 1987). Recovering alcoholics and addicts

are handicapped within the meaning of section 504. See 24

C.F.R. § 8.3; Sullivan, 811 F.2d at 182; Gallagher v. Catto, 778

F. Supp. 570 (D.D.C. 1991), aff'd without op. 988 F.2d 1280

(1993); Anderson v. University of Wisconsin, 665 F. Supp. 1372

(W.D. Wisc. 1987) aff'd 841 F.2d 737 (7th Cir. 1988).

For the same reasons that the Court concluded that plaintiffs

had shown discriminatory intent, discriminatory impact, and

failure to reasonably accommodate under the Fair Housing Aci,

the Court finds that plaintiffs are also entitled to relief against

defendant on their Rehabilitation Act claim. Because defendant

was arecipient of federal Community Development Block Grant

funds, its zoning operations constitute a “program or activity

receiving federal financial assistance” under the Rehabilitation

Act. Since plaintiffs have proven that they were discriminated

against in the operation of such a program, they are also entitled

to relief under this act.

Ill. Equal Protection

Plaintiffs also assert that defendant’s actions violate the Four-

teenth Amendment to the United States Constitution, and that

they are entitled to recover under 42 U.S.C. § 1983 for this

deprivation of their constitutional rights. However, since this

Court finds in favor of plaintiffs on statutory grounds, it will

decline to address the constitutional claim. It is well settled that

** The language of the act was amended by Pub. L. 102-569, October 29,

1992. but those amendments have no effect on the substance of the claim

presented here or the analysis of that claim.

— A-59 —

a court should “avoid unnecessary constitutional rulings.” See,

e.g., Support Ministries for Persons with AIDS Inc., 808 F. Supp.

at 138; Association of Relatives and Friends of AIDS Patients.

740 F. Supp. at 107; Baxter v. City of Belleville, 720 F. Supp. 720,

734 (S.D. Ill. 1989).

IV. HCDA Claim

Plaintiffs also claim that they were subjected to deprivations

of their rights secured by §§ 5304(b)(2) and 5309 of Title I of the

Housing and Community Development Act (hereinafter

“HCDA”), in violation of 42 U.S.C. § 1983. Defendant argues

that there is no § 1983 right of action because Congress intended

to foreclose such a right of action under the HCDA.

The HCDA does not explicitly provide a right of action for

those who allege a violation of its terms. Whether a statutory

violation can give rise to aclaim under 42 U.S.C. § 1983 depends

on the Congressional intent, as shown under the four-part test

promulgated by the Supreme Court in Cort v. Ash, 422 U.S. 66

(1975). Under Cort a private right of action exists only if (1) the

plaintiff is part of an especial class for whose benefit the statute

was enacted; (2) the legislature intended to create a private

remedy; (3) a private remedy is consistent with the purposes of

the legislation; and (4) the cause of action is not founded on an

area “traditionally relegated to state law.” Jd. at 78.

Here the Court agrees with defendant and with the majority of

courts that have considered this issue, and finds that there is no

private right of action under the HCDA. The HCDA was not

passed for the purpose of preventing discrimination, but rather

“was passed in response to Congress’ concern for the ‘critical

social, economic and environmental’ conditions existing in the

nation’s cities. The statute’s primary objective was ‘the develop-

ment of viable urban communities.”’ Latinos Unidos De Chelsea

v. Secretary of Housing. 799 F.2d 774, 793 (ist Cir. 1986)

(quoting 42 U.S.C. §§ 5301(a) & (c). Thus, plaintiffs are not part

of an “especial class” for whose benefit the statute was intended.

—y

and no private cause of action should be implied. /d. at 794; see

also Nabke v. Department of Housing and Urban Development,

§20 F. Supp. 5 (W.D.Mich. 1981); People's Housing Develop-

ment Corp. v. City of Poughkepsi, 425 F. Supp. 482 (S.D.N.¥.

1976); but see Montgomery Improvement Ass'n v. Department

of Housing and Urban Development, 645 F.2d 291, 294-95 (Sth

Cir. 1981).

V. Defendant’s Counterclaim

Defendant filed a counterclaim seeking to have plaintiffs

enjoined from violating the zoning and building ordinances. For

the reasons set forth above, defendant is not entitled to judgment

on this counterclaim, and it will be dismissed on the merits.

VI. Conclusion

For the reasons set forth above, plaintiffs are entitled to a

declaratory judgment that defendant’s enforcement of its zoning

ordinance prohibiting more than eight unrelated handicapped

persons from living in a single-family district as applied to

Oxford House-C and Oxford House-W violates plaintiffs’ rights

under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. and the

Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiffs are also

entitled to a permanent injunction enjoining the City from

enforcing its zoning codes to prohibit OH-C and OH-W from

operating with ten and twelve members respectively. Plaintiffs

are not entitled to a broader injunction regarding all zoning or

building codes. A separate judgment in accord with this opinion

is entered this same date. Plaintiffs are directed to file any motion

for attorneys’ fees as directed by Local Rule 30.

/s/ Catherine D. Perry

CATHERINE D. PERRY

UNITED STATES

MAGISTRATE JUDGE

Dated this 28th day of January, 1994.

— A-61 —

APPENDIX D

STATUTES, RULES, AND ORDINANCES INVOLVED

STATUTES

42 U.S.C.

§ 3604. Discrimination in the sale or rental of housing and

other prohibited practices.

As made applicable by section 3603 of this title and except as

exempted by sections 3603(b) and 3607 of this title, it shall be

unlawful—

(a) To refuse to sell or rent after the making of a bona

fide offer, or to refuse to negotiate for the sale or rental of,

or otherwise make unavailable or deny, a dwelling to any

person because of race, color, religion, sex, familial status,

or national origin.

(b) To discriminate against any person in the terms,

conditions, or privileges of sale or rental of a dwelling, or

in the provision of services or facilities in connection

therewith, because of race, color, religion, sex, familial

Statues, or national origin.

(c) To make, print, or publish, or cause to be made,

printed, or published any notice, statement, or advertise-

ment, with respect to the sale or rental of a dwelling that

indicates any preference, limitation, or discrimination based

on race, color, religion, sex, handicap, familial status, or

national origin, or an intention to make any such prefer-

ence, limitation, or discrimination.

(d) To represent to any person because of race, color,

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

that any dwelling is not available for inspection, sale, or

rental when such dwelling is in fact so available.

— A-62 —

(e) Forprofit, toinduce or attempt to induce any person

to sell or rent any dwelling by representations regarding the

entry or prospective entry into the neighborhood of a person

or persons of a particular race, color, religion, sex, handi-

cap, familial status, or national origin.

(f)(1) To discriminate in the sale or rental, or to other-

wise make unavailable or deny, a dwelling to any buyer or

renter because of a handicap of—

(A) that buyer or renter,

(B) a person residing in or intending to reside in

that dwelling after it is so sold, rented, or made

available, or

(C) any person associated with that buyer or renter.

(2) To discriminate against any person in the terms,

conditions, or privileges of sale or rental of a dwelling, or

in the provision of services or facilities in connection with

such dwelling, because of a handicap of—

(A) that person; or

(B) a person residing in or intending to reside in

that dwelling after it is so sold, rented, or made

available; or

(C) any person associated with that person.

(3) For purposes of this subsection, discrimination

includes—

(A) a refusal to permit, at the expense of the

handicapped person, reasonable modifications of ex-

isting premises occupied or to be occupied by such

person if such modifications may be necessary to

afford such person full enjoyment of the premises

except that, in the case of a rental, the landlord may

where it is reasonable to do so condition permission

for a modification on the renter agreeing to restore the

interior of the premises to the condition that existed

before the modification, reasonable wear and tear

excepted.

(B) a refusal to make reasonable accommoda-

tions in rules, policies, practices, or services, when

such accommodations may be necessary to afford

such person equal opportunity to use and enjoy a

dwelling; or

(C) in connection with the design and construc-

tion of covered multifamily dwellings for first occu-

pancy after the date that is 30 months after September

13, 1988, a failure to design and construct those

dwellings in such a manner that—

(i) the public use and common use portions

of such dwellings are readily accessible to and

usable by handicapped persons;

(ii) all the doors designed to allow passage

into and within all premises within such dwell-

ings are sufficiently wide to allow passage by

handicapped persons in wheelchairs; and

(III all premises within such dwellings con-

tain the following features of adaptive design:

(I) anaccessible route into and through

the dwelling;

(II) light switches, electrical outlets,

thermostats, and other environmental con-

trols in accessible locations;

(III) reinforcements in bathroom walls

to allow later installation of grab bars; and

|

}

ej

(IV) usable kitchens and bathrooms

such that an individual in a wheelchair can

maneuver about the space.

(4) Compliance with the appropriate requirements of

the American National Standard for buildings and facilities

providing accessibility and usability for physically handi-

capped people (commonly cited as “ANSI A117.1”) suf-

fices *o satisfy the requirements of paragraph (3)(C)(iii).

(5)(A) If a State or unit of general local government

has incorporated into it laws the requirements set forth in

paragraph (3)(C), compliance with such laws shall be

deemed to satisfy the requirements of that paragraph.

(B) A State or unit of general local government may

review and approve newly constructed covered multifam-

ily dwellings for the purpose of making determinations as

to whether the design and construction requirements of

paragraph (3)(C) are met.

(C) The Secretary shall encourage, but may not re-

quire, States and units of local government to include in

their existing procedures for the review and approval of

newly constructed covered multifamily dwellings, deter-

minations as to whether the design and construction of such

dwellings are consistent with paragraph (3)(C), and shall

provide technical assistance to States and units of local

government and other persons to implement the require-

ments of paragraph (3)(C).

(D) Nothing in this subchapter shall be construed to

require the Secretary to review or approve the plans, de-

signs or construction of all covered multifamily dwellings,

to determine whether the design and construction of such

dwellings are consistent with the requirements of para-

graph 3(C).

— A-65 —

(6)(A) Nothing in paragraph (5) shall be construed to |

affect the authority and responsibility of the Secretary or a

State or local public agency certified pursuant to section

3610(f)(3) of this title to receive and process complaints or

otherwise engage in enforcement activities under this

subchapter.

(B) Determinations by a State or a unit of general local

government under paragraphs (5)(A) and (B) shall not be

conclusive in enforcement proceedings under this

subchapter.

(7) As used in this subsection, the term “covered mul-

tifamily dwellings” means—

(A) buildings consisting of 4 or more units if such

buildings have one or more elevators; and

(B) ground floor units in other buildings consist-

ing of 4 or more units.

(8) Nothing in this subchapter shall be construed to

invalidate or limit any law of a State or political subdivision

of a State, or other jurisdiction in which this subchapter

shall be effective, that requires dwellings to be designed

and constructed in a manner that affords handicapped

persons greater access than is required by this subchapter.

(9) Nothing in this subsection requires that a dwelling

be made available to an individual whose tenancy would

constitute a direct threat to the health or safety of other

individuals or whose tenancy would result in substantial

physical damage to the property of others.

, 3615. Effect on State laws

Nothing in this subchapter shall be construed to invalidate or

limit any law of a State or political subdivision of a State, or of

any other jurisdiction in which this subchapter shall be effective,

— A-66 —

that grants, guarantees, or protects the same rights as are granted

by this subchapter; but any law of a State, a political subdivision,

or other such jurisdiction that purports to require or permit any

action that would be a discriminatory housing practice under this

subchapter shall to that extent be invalid.

§ 3617. Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere

with any person in the exercise or enjoyment of, or on account of

his having exercised or enjoyed, or on account of his having

aided or encouraged any other person in the exercise or enjoy-

ment of, any right granted or protected by section 3603, 3604, or

3606 of this title.

29 U.S.C.

§ 794. Nondiscrimination under Federal grants and pro-

grams.

(a) Promulgation of rules and regulations

No otherwise qualified individual with a disability in the

United States, as defined in section 706(8) of this title, shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

‘iscr<aination under ary program or activity receiving Federal

financial assistance c: under any program or activity conducted

by any Executive uency or by the United States Postal Service.

The head of each such agency shall promulgate such regulations

as may be necessary to ‘carry out’ the amendments to this section

made by the Rehabilitation Comprehensive Services, and De-

velopmental Disabilities Act of 1978. Copies of any proposed

regulation shall be submitted to appropriate authorizing commit-

tees of the Congress, and such regulation may take effect no

earlier than the thirtieth day after the date on which such

regulation is so submitted to such committee.

— A-67 —

(b) “Program or activity” defined.

For the purposes of this section, the term “p:=gram or activity”

means all of the operations of—

(1)(A} a department, agency, speciai purpose district,

or other instrumentality of a State or of a local government;

or

(B) the entity of such State or local government that

distributes «uch assistance and each such department or

agency (anc each other State or local government entity) to

which the assistance is extended, in the case of assistance to

a State or local government;

(2)(A) a college, university, or other postsecondary

institution, or a public system of higher education; or

(B) a local educational agency (as defined in section

8801 of Title 20) system of vocational education, or other

school system;

(3)(A) an entire corporation, partnership, or other pri-

vate organization, or an entire sole proprietorship—

(i) if assistance is extended to such corporation,

partnership, private organization, or sole proprietor-

ship 2s a whole; or

»

(i) which is principally engaged in the business

of providing education, health care, housing, social

services, or parks and recreation; or

(B) the entire plant or other comparable, geographi-

cally separate facility to which Federal financial assistance

is extended, in the case of any other corporation, partner-

ship, private organization, or sole proprietorship; or

a AAG we

(4) any other entity which is established by two or

more of the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance.

(c) Significant structural alterations by small providers;

exception

Small providers are not required by subsection (a) of this

section to make significant structural alterations to their existing

facilities for the purpose of assuring program accessibility, if

alternative means of providing the services are available. The

terms used in this subsection shall be construed with reference to

the regulations existing on March 22, 1988.

(d) Standards used in determining violation of section—

The standards used to determine whether this section has been

violated in a complaint alleging employment discrimination

under this section shall be the standards applied under title I of

the Americans with Disabilities Act of 1990 (42 U.S.C. 1211 let

seq.) and the provisions of section 501 through 504, and 510, of

the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-

12204 and 12210), as such sections relate to employment.

— A-69 —

FEDERAL RULES

Rule 52. Findings by the Court; Judgment on Partial Find-

ings

(a) Effect. In all actions tried upon the facts without a jury

or with an advisory jury, the court shall find the facts specially

and state separately its conclusions of law thereon, and judgment

shall be entered pursuant to Rule 58; and in granting or refusing

interlocutory injunctions the court shall similarly set forth the

findings of fact and conclusions of law which constitute the

grounds of its action. Requests for findings are not necessary for

purposes of review. Findings of fact, whether based on oral or

documentary evidence, shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of the

trial court to judge of the credibility of the witnesses. The

findings of a master, to the extent that the court adopts them, shall

be considered as the findings of the court. It will be sufficient if

the findings of fact and conclusions of law are stated orally and

recorded in open court following the close of the evidence or

appear in an opinion or memorandum of decision filed by the

court. Findings of fact and conclusions of law are unnecessary

on decisions of motions under Rule 12 or 56 or any other motion

except as provided in subdivision (c) of this rule.

»

— A-70 —

ORDINANCES

ORDINANCE 59979

Section Three. 26.08. ZONING DEFINITIONS

26.08.025. Accessory Use — The term applied to a use

that is subordinate in physical character to the principal use,

that is clearly incidental to the principal use and that is

located on the same lot with the principal use.

26.08.115. Dwelling Unit — A room or group of rooms

with cooking and sanitary facilities, occupied or arranged

for occupancy by a single family.

26.08.120. Dwelling, Single-Family — A building con-

taining one dwelling unit.

26.08.160 Family — A person, or group of persons

immediately related by blood, marriage or adoption, living

as a single housekeeping unit; also a group of not more than

three (3) persons not necessarily related by blood, marriage

or adoption, living as a single housekeeping unit.

26.08.3300 Non-conforming use — Any building or

iand lawfully occupied by a use on May 25, 1950, or on the

effective date of any amendment to Ordinance 45309, and

which is in conflict with one or more of the regulations of

the district in which it is situated.

26.08.480 Zoning Administrator — A position created

within the Department of Public Safety and appointed by

the Building Commissioner. The position is responsible for

administering and enforcing the Zoning Code, in accor-

dance with Chapter 26.88.

ont ATE ence

Section Five. 26.16. GENERAL ZONING REGULA-

TIONS

26.16.050. Changes in non-conforming use — If no

structural alterations are made, non-conforming use of a

building may be changed to another non-conformin g use of

the same or a more restricted classification.

26.16.060. Discontinuing non-conforming use — In

the event anon-conforming use of any structure or premises

is discontinued or its normal operation stopped for a period

of | year, the use of the same thereafter shall conform to the

regulations of the district in which it is located.

Section Six. 26.20 — “A” SINGLE-FAMILY DWELL-

ING DISTRICT

26.20.010. District regulations — The regulations set

forth in this Chapter or set forth elsewhere in the Zoning

Code when referred to in this Chapter are the district

regulations in the “A” Single-Family Dwelling District.

26.20.020. Use regulations — A building or premises

shall be used only for the following purposes:

1. Single family dwellings;

2. Two-family dwellings which comply with the area

and parking regulations of the “B” Two-Family Dwelling

District where 40 percent or more of the frontage of a street

is occupied by either two-family, semi-detached two-fam-

ily or multiple-family dwellings;

3. Home occupations, subject to the provisions of

section 26.80.060;

4. Publicly owned parks, playgrounds and libraries

and privately owned parks and playgrounds wherein no

service is rendered, or activities conducted, as a business:

—

5. Accessory structures and uses customarily inciden-

tal to any of the above uses except that, if the accessory

structure is a garage, it shall only be a private garage that is

located not less than 60 feet from the front line nor less than

4 feet from any side lot line nor exceeding 12 feet in height

nor occupying more than 30 percent of a rear yard;

6. Temporary buildings for use incident to construc-

tion work, which buildings shall be removed upon the

completion or abandonment of the construction;

7. Signs — See Chapter 20.68.

26.20.025. Conditional Uses — The following condi-

tional uses may be allowed in the “A” Single-Family

Dwelling District, subject to the provisions of Section

26.80.010

1. Cemeteries;

Churches;

Farming and truck gardening;

> Ss

Governmental buildings.

5. Greenhouses providing no product is sold on the

premises;

6. Hospitals;

7. Off-street automobile parking facilities;

8. Parking facilities and open lots located between the

front yard and the structure;

9. Publicly owned museums and art galleries;

10. Schools;

11. Utility stations and utility towers.

jane , , pee

ORDINANCE 62183

SECTION TWO. A New Section Nine is hereby included

which shall read as follows:

!

SECTION NINE. 26.32 “D” MULTIPLE-FAMILY

DWELLING DISTRICT

26.32.010. District Regulation — The regulations set forth

in this Chapter or set forth elsewhere in the Zoning Code when

referred to in this Chapter are the district regulations in the “D”

Multiple-Family Dwelling District.

26.32.015. Purpose — The purpose of the “D” Multiple-

Family Dwelling District is to maintain older medium density

residential districts, to preserve older architectural styles while

encouraging a harmonious intermingling of other structures, and

to provide for an increased variety and intermixture of uses free

from other uses except those both compatible and convenient to

the residents of such district.

26.32.020. Use Regulations — A building or premises

shall be used only for the following purposes:

1. Any use permitted in the “C” Multiple-Family Dwelling

District;

2. A canopy, open at the sides, may be provided in the

required yard space of any building, for the shelter of persons

entering such building from the street or other designated point

of disembarkation from vehicles;

3. | Accessory structures and uses customarily incidental to

any of the above uses;

4. Temporary buildings for use incidental to construction

work, which buildings shall be removed upon the completion or

abandonment of the construction.

—

26.32.025. Conditiona! Uses — The following conditional

uses may be allowed in the “D” Multiple Family Dwelling

District, subject to the provisions of Section 26.80.010:

l.

Any use eligible to be a conditional use in the “C”

Multiple-Family Dwelling District;

y

The following neighborhood commercial retail uses,

provided that the use is confined to the first floor or basement of

the main building:

A.

3

4.

3.

"mon oD

Art galleries and studios;

Bakery shops;

Barber and beauty shops;

Book, magazine, and stationery stores;

Drug stores;

Dry cleaning pick-up stations (not having on-site

processing);

Financial institutions;

Florists;

Gift shops;

Hardware stores;

Greenhouses;

Hotels;

Nursing and convalescent homes, children’s homes, and

homes for the aged;

6.

Professional and general offices not exceeding 3,500

square feet;

— A-75 —

7. Rooming and boarding houses, half-way houses, and

penal institutions; including group homes and residential-custo-

dial care facilities, residential facilities for treatment of alcohol

and other drug abuse (except for current users of illegal drugs or

addicts of a controlled substance), and homes in which nine or

more (or such other lesser or greater number as state law may in

the future mandate) unrelated mentally or physically handi-

capped persons reside.

ORDINANCE 62588

SECTION TWO. Section Three. 26.08. Zoning Defi-

nitions

26.08.025. Accessory Use — The term applied to a use that

is subordinate in physical character to the principal use, that is

clearly incidental to the principal use and that is located on the

same lot with the principal use.

26.08.053. Bed and breakfast guest-house. — A dwelling

having not more than seven guestrooms where travelers for

compensation are lodged for sleeping purposes with at least a

morning meal provided. It is owner-occupied, and no more than

three (3) guestrooms shall be served by one bathroom and a

separate bathroom must be maintained for the owner occupants.

26.08.060. Boarding House — A rooming house where,

for compensation, meals are provided.

26.08.115. Dwelling Unit — A room or group of rooms

with cooking and sanitary facilities, occupied or arranged for

occupancy by a single family.

26.08.120. Dwelling, Single-Family — A building con-

taining one dwelling unit.

26.08.160. Family — A person, or group of persons !mme-

diately related by blood, marriage or adoption, living as a single

housekeeping unit; also a group of not more than three (3)

—

persons not necessarily related by blood, marriage or adoption,

living as a single housekeeping unit.

26.08.230. Guestroom — A room for lodging by no more

than four (4) persons in a bed and breakfast establishment.

26.08.260. Hotel — A building, other than a bed and break-

fast inn, used as the abiding place of more than 20 persons who

are for compensation lodged with or without meals.

26.08.330. Non-conforming use — Any building or land

lawfully occupied by a use on May 25, 1950, or on the effective

date of any amendment to Ordinance 45309, and which is in

conflict with one or more of e regulations of the district in which

it is situated.

26.08.380. Rooming house — A dwelling, other than a

hotel or bed and breakfast establishment, where, for compensa-

tion, lodging only is provided.

26.08.433. Tourist home — A bed and breakfast establish-

ment.

26.08.480. Zoning Administrator — A position created

within the Department of Public Safety and appointed by the

Building Commissioner. The position is responsible for admin-

istering and enforcing the Zoning Code, in accordance with

Chapter 26.88.

SECTIONTHREE. SectionSix. 26.20—‘“A” SINGLE

— FAMILY DWELLING DISTRICT

26.20.010. District regulations — The regulations set forth

in this Chapter are the district regulations in the “A” Single-

Family Dwelling District.

26.20.020. Use regulations — A building or premises shall

be used only for the following purposes:

ay, oom

1. Single family dwellings:

A. Any dwelling is so defined as a single family residence

because it is house in which eight or fewer unrelated mentally

or physically handicapped persons reside, and may also include

two additional persons acting as houseparents or guardians who

need not be related to each other ur to any of the mentally or

physically handicapped persons residing in the home may not be

within 1,250 feet of another such home or dwelling.

2. Two-family dwellings which comply with the area and

parking regulations of the “B” Two-Family Dwelling District

where 40 percent or more of the frontage of a street is occupied

by either two-family, semi-detached two-family or multiple-

family dwellings;

3. Home occupations, subject to the provisions of Section

26.80.060;

4. Publicly owned parks, playgrovzds and libraries and

privately owned parks and playgrounds wherein no service is

rendered, or activities conducted as a business;

5. Accessory structures and uses customarily incidental to

any of the above uses except that, if the accessory structure isa

garage, it shall only be a private garage that it [sic] located not

less than 60 feet from the front line nor less than 4 feet from any

side lot line nor exceeding 12 feet in height nor occupying more

than 30 percent of a rear yard;

6. Temporary buildings for use incident to construction

work, which building shall be removed upon the completion or

abandonment of the construction;

7. Signs — See Chapter 26.68.

8. Babysitting Center — but no more than one on either side

of the street in the same block.

ye ee

26.20.025. Conditional Uses —- The following conditional

uses may be allowed in the “A” Single-Family Dwelling District,

subject to the provisions of Section 26.80:

1. Bed and breakfast g»esthouse, subject to the additional

provisions of Chapter _<B.B.355);

2. Bed and breakfast homestay, subject to the additional

provisions of Chapter (B.B.355);

3. Cemeteries;

4. Churches;

5. Farming and truck gardening;

6. Governmental buildings.

7. Greenhouses, providing no product is sold on the pre-

8. Hospitals;

9. Off-street automobile parking facilities;

10. Parking facilities and open lots located between the front

yard and the structure;

11. Publicly owned museums and art galleries;

12. Schools;

13. Utility stations and utility towers.

— i

ORDINANCE 62589

SECTION ONE. Establishment Procedure. A bed and

breakfast district may be established and designated by ordi-

nance in any area which contains one (1) or more contiguous city

blocks, or portions of city blocks in the following manner.

SECTION THREE. Effect of District Designation.

(A) No person shall own, operate or maintain a bed and

breakfast homestay, a bed and breakfast guesthouse, or a bed and

breakfast inn within any bed and breakfast district, as set forth in

this ordinance, without first obtaining a permit from the Board of

Public Service and a graduated business license from the License

Collector; provided, however, that notwithstanding the provi-

sion of any other ordinance, no such person shall be required to

file a plat and neighborhood consent petition as a condition for

a bed and breakfast establishment permit or license.

(B) Notwithstanding the provision of any use regulations for

any zoning district, any building or premises within a bed and

breakfast district may be used for the purposes of a bed and

breakfast establishment as a use by right; provided said building

or premises meets and maintains the requirements established in

Section Three of Ordinance (B.B.355); and provided

further that no person shall own, operate, manage or maintain a

bed and breakfast establishment that violate the rules, regula-

tions and requirements of said Section Three of Ordinance

(B.B.355)