# Appendix — Oxford House-C. v. City of St. Louis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1404%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1996 - **Citation:** 519 U.S. 816 ## Text =~ o | 2 | . : x \ | +. i a 3 > r ¥ 2 ~ me é MW 0 > " ¥ ie ~~ ¢ e. q Lf q = ‘ . -_ ‘ ~ 4 fio A - Y 4 S a & 6 ) «i _ 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. | ee 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 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 See 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. — 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 _