Gen. 21] 21

CIVIL RIGHTS AND DISCRIMINATION

HOUSING )ZONING )EFFECT ON STATE AND LOCAL LAW OF CITY

OF EDMONDS V. OXFORD HOUSE, INC.

August 4, 1995

The Honorable Samuel I. Rosenberg

House of Delegates

You have requested our opinion concerning the effect of City

of Edmonds v. Oxford House, Inc., 115 S.Ct. 1776 (1995), on State

and localstatutes, ordinances, or regulations regarding the placement

of group homes for individuals with disabilities. 

In our opinion, City of Edmonds itself has no effect on any

State or local statute, ordinance, or regulation. However, the case

foreshadows the next wave of Fair Housing Act litigation, and these

future cases may well disallow efforts by local governments to

impose a fixed ceiling on the number of occupants in group homes

for individuals with disabilities.

I

City of Edmonds

A. The Edmonds Zoning Ordinance

Like many cities in Maryland and elsewhere, the City of

Edmonds, Washington, defined in its zoning code the term “family,”

for purposes of permissible occupancy of dwelling units in a

neighborhood zoned for single-family residences. Under this family

composition rule, any number of people who were related by

genetics, adoption, or marriage could live in a single-family dwelling

unit. However, under the zoning code’s definition of “family,” no

more than five unrelated people could live in a single-family

dwelling. 
22 [80 Op. Att’y

1

 The parties in the City of Edmonds stipulated that the recovering

alcoholics and drug addicts who lived in the group home were

“handicapped” individuals within the meaning of the Act. 115 S.Ct. at

1779. See 42 U.S.C. §3602(h). 

2

 The same claim was made in a separate action by the United States

Justice Department. Ultimately the claims were consolidated. See

Edmonds v. Washington State Building Code Council, 18 F.3d 802 (1994).

If this restriction were lawful, it would have the effect of

precluding large group homes from single-family residential

neighborhoods in Edmonds. One such home was operated by

Oxford House. The home housed ten to twelve adults recovering

from alcoholism and drug addiction. According to Oxford House,

the group home had to have many more than five residents if it was

to be “financially and therapeutically viable.” 115 S.Ct. at 1779. 

Edmonds’ effort to enforce the zoning restriction resulted in a

suit in federal court. The issue was whether the zoning code

restriction on unrelated people living in a single-family residence

violated the Fair Housing Act. 

B. The Fair Housing Act

The Fair Housing Act, as amended in 1968, prohibits

discrimination in housing against people with disabilities. The Act

declares it unlawful “[t]o discriminate in the sale or rental, or to

otherwise make it unavailable or deny, a dwelling to any buyer or

renter because of a handicap of ... that buyer or a renter.” 42 U.S.C.

§3604(f)(1)(A).1

 One form of discrimination prohibited by the Act

is “a refusal to make reasonable accommodations in rules, policies,

policies, practices, or services, when such accommodations may be

necessary to afford [people with disabilities] equal opportunity to

use and enjoy a dwelling.” 42 U.S.C. §3604(f)(3)(B). This

“reasonable accommodation” requirement of the Act was the heart

of Oxford House’s case: that Edmonds’ insistence on applying its

family composition rule, and its consequent failure to grant

permission for the group home, was a failure to make a “reasonable

accommodation.”2

Edmonds, seeking to defend this aspect of its zoning ordinance,

pointed to an exemption in the Act for “any reasonable, local, state,

or federal restrictions regarding the maximum number of occupants
Gen. 21] 23

permitted to occupy a dwelling.” 42 U.S.C. §3607(b)(1). Edmonds

argued that, because its definition of “family” limited to five the

number of unrelated people who live in a single-family residence,

the provision met the terms of this exemption from the Act. 

The district court agreed with Edmonds; it held that the

definition of “family” was exempt from the Fair Housing Act

because it was a “reasonable ... restrictio[n] regarding the maximum

number of occupants permitted to occupy a building.” The district

court’s holding was consistent with that of a prior decision of the

Eleventh Circuit. See Elliott v. Athens, 960 F.2d 975 (1992). 

However, the Ninth Circuit reversed. Edmonds v. Washington

State Building Code Council, 18 F.3d 802 (1994). It held that

Edmonds’ definition of “family,” and hence its restriction on

unrelated people living in single-family residences, fell outside of

the exemption for maximum occupancy restrictions. The Ninth

Circuit remanded the case to the district court for a review of the

merits ) that is, whether Edmonds’ enforcement of the restriction

would be a breach of the Act’s “reasonable accommodation”

requirement. 

C. The Supreme Court Decision

The Supreme Court affirmed the Ninth Circuit’s judgment. In

so doing, the Supreme Court did not determine that Edmonds’

restriction on the number of unrelated people who may live in a

single-family residence was a violation of the Fair Housing Act.

“Like the District Court and the Ninth Circuit, we do not decide

whether Edmonds’ zoning code provision defining ‘family,’ as the

City would apply it against Oxford House, violates the [Act’s]

prohibitions against discrimination ....” 115 S.Ct. at 1780 n.4.

Rather, the Court’s decision was limited to the single issue whether

the restriction was exempt from the Act. 

The Court drew a distinction between “land use restrictions,”

which seek to preserve the character of a given area, and “maximum

occupancy restrictions,” which are intended to “protect health and

safety by preventing dwelling overcrowding.” 115 S.Ct. at 1781.

The Court viewed the Edmonds definition of “family” as the former:

“To limit land use to single-family residences, a municipality must

define the term ‘family’; thus family composition rules are an

essential component of single-family residential use restrictions.”
24 [80 Op. Att’y

3

 The Court affirmed by a 6-3 vote. Justice Thomas wrote the

dissent for himself and Justices Scalia and Kennedy.

4

 By contrast, some zoning codes contain a definition of “family”

that does not differentiate between related and unrelated residents. See,

e.g., §270-11 of the Cecil County Code; §68-38 of the Hagerstown City

Code.

Id. The Court pointed to a different Edmonds requirement, requiring

a minimum amount of floor area for each occupant, as an example

of a maximum occupancy restriction. 115 S.Ct. at 1782. Citing the

“plain import of the statutory language,” as “reinforced” by

legislative history, the Court held that the exemption in 42 U.S.C.

§3607(b)(1) applied only to maximum occupancy restrictions like

Edmonds’ floor area requirement. “In sum,” the Court wrote, “rules

that cap the total number of occupants in order to prevent

overcrowding of a dwelling ... fall within §3607(b)(1)’s absolute

exemption from the FHA’s governance; rules designed to preserve

the family character of a neighborhood, fastening on the composition

of households rather than on the total number of occupants living

quarters can contain, do not.” 115 S.Ct. at 1782.3

II

Effect of City of Edmonds

We have not undertaken a comprehensive survey of local

zoning ordinances, so we do not know how many contain a

definition of “family” comparable to that of Edmonds. However, we

assume that such restrictions on occupancy of single-family

residences by unrelated people are not uncommon. See, e.g., §155-

12 of the Dorchester County Code; §105-5 of the Ocean City Code;

§27-107.01(a)(85)(C) of the Prince George’s County Code; §164-3

of the Westminster City Code; §ZS1-103 of the Worcester County

Code.4

City of Edmonds means that all provisions of this kind are

subject to scrutiny under the Fair Housing Act. None is exempt. 

However, such restrictions are not illegal per se under the Fair

Housing Act. The Supreme Court was careful to emphasize the

limits of its holding. Rejecting Edmonds’ contention that
Gen. 21] 25

5

 Other Fair Housing Act opinions are 78 Opinions of the Attorney

General 40 (1993); 75 Opinions of the Attorney General 291 (1990); and

74 Opinions of the Attorney General 164 (1989).

“subjecting single-family zoning to Fair Housing Act scrutiny will

... ‘destroy the effectiveness and purpose of single-family zoning,’”

the Court observed that this argument “exaggerates the force of the

Act’s antidiscrimination provisions.... [These] provisions, when

applicable, require only ‘reasonable’ accommodations to afford

persons with handicaps ‘equal opportunity to use and enjoy’

housing.” 115 S.Ct. at 1783. 

The “reasonableness” of a local government’s decision to

enforce a family composition rule will depend on particular facts.

The one case squarely on point (predating City of Edmonds) held

that a city violated the Act by insisting on enforcing its family

composition rule against a group home. Oxford House-C v. City of

St. Louis, 843 F. Supp. 1556 (E.D. Mo. 1994). The “reasonable

accommodation” aspect of the case was undoubtedly colored by

evidence of intentional discrimination. “Instead of reasonable

accommodation, ... the City responded with enforcement attempts

that demonstrated intentional discrimination.” 843 F. Supp. at 1581.

On different facts (for example, if a group home proposed to serve

an unusually high number of residents), a court conceivably might

find considerations related to traffic or parking sufficient to justify

exclusion of a large group home from a residential area. But see

Oxford House-C, 843 F. Supp. at 1570 (“[S]tudies have ... shown

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

safety, traffic, utilities, noise, or parking.”).

With but scant case law exploring the issue left open by the

Supreme Court in City of Edmonds, we will refrain from any overall

conclusion. However, one thing is certain: Antipathy toward group

homes, grounded in stereotypes about people with disabilities, will

never be a sufficient justification. See, e.g. United States v. City of

Taylor, 872 F. Supp. 423 (E.D. Mich. 1995). As we observed in one

of our several opinions on the Fair Housing Act, the Act makes

unlawful governmental requirements “that, on their face or in

practical effect, make it harder for people with disabilities to live

where they want to.” 78 Opinions of the Attorney General 48, 57

(1993).5
26 [80 Op. Att’y

6

 A “small private group home” serves between four and eight

individuals. HG §10-514(e). Since a restrictive definition of “family” in

a zoning code would ordinarily cap at four or five the number of unrelated

people in a residential dwelling, this provision already supersedes such

zoning restrictions to a significant extent.

7

 Under the Developmental Disabilities Law, a group home serves

between four and eight individuals. HG §7-101(h). An alternative living

unit serves not more than three individuals. HG §7-101(d)(1). Therefore,

alternative living units are not affected by the typical family composition

rule in a zoning ordinance.

Quite apart from Fair Housing Act considerations, local zoning

laws with restrictive family composition rules are already

unenforceable with regard to some group homes. Under the Mental

Hygiene Law, a “small private group home ... [i]s deemed

conclusively a single-family dwelling ... and ... [i]s permitted to

locate in all residential zones.” §10-518(b) of the Health-General

(“HG”) Article, Maryland Code.6 A similar, and even more

expansive, “deeming” provision appears in the Developmental

Disabilities Law: 

To avoid discrimination in housing and to

afford a natural residential setting, a group

home or an alternative living unit for

individuals with developmental disability:

(i) Is deemed conclusively a singlefamily dwelling;

(ii) Is permitted to locate in all residential

zones; and 

(iii) May not be subject to any special

exception, conditional use permit, or

procedure that differs from that required for a

single-family dwelling.

HG §7-603(b)(1).7 

Other group homes are now subject to local family

composition rules. For example, such local restrictions have been

enforced against congregate housing for the elderly, for there is no

comparable “deeming” provision in State law. To the contrary, the
Gen. 21] 27

8

 State law does not address the zoning status of these facilities.

regulations of the Office on Aging expressly require a provider of

group sheltered housing for the elderly to verify “compliance with

local zoning requirements.” COMAR 14.11.07.11. If restrictive

family composition rules were ultimately declared unlawful under

the Fair Housing Act, presumably providers of these living

arrangements for the elderly might be able to locate larger facilities

in areas zoned for single-family residences. So, too, would

providers of group homes for recovering alcoholics and drug abusers

and of some homes serving individuals in need of domiciliary care.

See COMAR 10.07.03.8 

III

Conclusion

In summary, it is our opinion that City of Edmonds v. Oxford

House itself leaves intact all existing State and local laws related to

the location of group homes. However, the case does mean that

family composition rules in local zoning ordinances must be

defended on the merits if challenged under the Fair Housing Act,

and a locality’s decision to enforce such a rule against a group home

might well be very difficult to defend successfully. 

J. Joseph Curran, Jr.

Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice