Gen. 21] 21 CIV IL RIGHTS AND DIS CRI MINAT ION

H OUSING

) Z ONING

) E FFECT ON S TATE AND L OCAL L AW OF C ITY OF EDMONDS V

. OXFORD H OUSE

, I NC . August 4, 1995

The Ho norable Samu el I. Rosenberg House of Delegates You have req uested ou r opinion co ncerning th e effect of City of Edmonds v. Oxford House, Inc

. , 115 S .Ct. 17 76 (1 995 ), on S tate and local statu tes, ordinance s, or regulations re garding t

he p lacemen t of g rou p ho m es fo r ind ivid uals wit h di sab ilities. In our opi nio n, City of

Edmonds its elf has no ef fect on any State or loc al statut e, ordinance, or regulation. However, the case fo re sh ad ows the next

wa ve of Fair Housing A ct litigation, and these future cases ma y w ell disallo w e fforts by local g over nm ents to impose a fi xed ceil ing on the number of oc cupa nts in group homes for individuals wit

h disabilities.

I City of Edmonds A. The Edm onds Zoning Ordinance Like ma ny citie s in M aryla nd and elsewhere, the City of Edm onds, W ash ing ton , def ined in its z oni ng c ode the te rm “fam ily,” forpurposes of

permissible oc cupanc y of dwelli ng units in a neighborhoodzoned forsingle- fam ily reside nces . Un der this fam ily compositi on rule, any number of people who wer e r elat ed by gene ti cs, adoption, or marria ge could l ive in a singl e-family dwelling unit. Ho we ver , under the zoni ng code’s def inition of “f

amily,” no mo re than fiv e unr elated peop le cou ld live in a sing le-fam ily dw ellin g.22 [80 O p. Att’y

1 The parties in the City of Edmonds stipulated that the recovering alcoholics and drugaddi cts 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 t he claim s were consolidated. See Edmonds v . Washingt

on State Bu ilding Code

Council, 18 F.3d 802 (1994 )

. If this res tri ction were lawful, it would have the eff ect of precluding large group homes from single -famil y resi dentia l neighborhoods in Edmonds. One suc h h ome was operated by Oxfo rd House. The home h oused ten t o twelve adul ts re covering from alcohol ism and drug ad dictio n. According to Oxford House, the group home had to have ma ny m ore tha n five r esiden ts if it was to b e “fin anc ially and ther ape utica lly v iable .” 11 5 S .Ct. a t 17 79. Edm onds’ effort to enf

orce the zoning res tri ction result ed in a suit in feder al court . The is sue was whether t he zoning code res tri ctionon unrelat ed people l iving in a singl e-famil y resi denc e vio lated the F air H ous ing Ac t. B. The Fair Housing Act The Fair Housing Ac t, a s am ende d in 1 968 , proh ibits discr iminati on in housi ng against people with disabi lities. The Act declar es it unl awful “[t ]o disc riminat e in the sale or rent al, or to otherwise ma ke it unavail ab le or deny, a dwelli ng to any buyer or renter bec aus e of

a ha ndi cap of ... that buye r or a r enter. ” 42 U.S .C. §3604 (f)(1)(A). 1 One form of discr iminati on prohibi ted by the Act is “a refu sal to m ake re ason able accomm odations in rules, policies, policies, practi ces, or

servi ces, when suchaccommodations may be necessary to afford [peo ple with disab ilities] e qual o ppo rtunity to use and e njo y a dw elling.” 4 2 U .S.C. § 360 4(f)(3)( B). T his “reasona ble accom mo dation” requ iremen t of the Act w as the heart of O xf or d Ho use’s c ase: tha t Edm ond s’ insisten ce on apply ing its fam ily com pos ition rule , a n d its consequent f ailur e to grant permissi on for the group home, was a failure to m ake a “reaso nable acc om m oda tion .” 2 Edm onds, seeking t o defend this aspect of its zoning ordinance, pointed to an e xem ption in the Act for “any reasona

ble, local , st ate, or federalrestrictions regardi ng the ma xim um num ber o f occu pantsGen. 21] 23 permitt ed to occupy a dw ellin g.” 4 2 U .S.C . §36 07( b)(1 ). Edmonds ar gued that, because i ts def inition of “f

amily” limited to f

ive th e number of unrel ated peopl e who live i n a singl e-famil y resi dence, the p rov ision m et the term s of th is ex em ptio n fro m the A ct. The district

court agr eed with Edm ond s; it hel d that t he defini tionof “famil y” was exempt from the Fai r Housing Act because it was a “reasonabl e .. . res tri ctio[ n] regardi ng the maximum number of

occupants pe rmitt ed to occupy a bui lding. ” The district court’s holding was c ons ist ent with t hat of a prior deci sion of t he Ele ven th C ircu it. See Elli ott v. Athens , 960 F.2 d 97 5 (1 992 ). How ever, the Nin th Cir cuit r eve rsed

. Edmonds v. Washington State Bui ldin g Cod

e Co uncil , 18 F.3d 802 (1994) . It held that Edm onds’ d efini tion of “family, ” and hence it s rest riction on unrelat ed people l iving in singl e- family resi dences, f ell out side of the exemption for

maximum occupancy res tri ctions . The Nin th Circu it remanded the cas e to the dist rict court f or a revi ew of the me rits

)that i s, whe ther Edmonds’ enforcement of the res tri ction wo uld be a brea ch o f the Act’ s “reas onable accommodation” req uire m ent. C. The Supreme Court Decision The Suprem e Cou rt affirmed the N inth Circuit’s judgm ent. In so doi ng, the Supreme Court di d notdetermine that Edmon ds’ restriction on the number of unr el ated peo ple who may live i n a single- fam ily reside nce w as a v iolation of the F air H ousin g A ct. “Like th e Di st

ri ct Cou rt an d the NinthCi rc ui t, we do not de cide whether Edmonds’ zoning code provis ion defining ‘famil y,’ as the City wo uld apply it against Oxford House, violates t he [Act’s] prohibi tions against

discr iminati on ... .” 1 15 S .C t. at 1780 n.4. Rather, the C ourt’s d ecision wa s limite d to the si ngle is sue whether the r estric tion wa s ex em pt fro m the A ct. The Court drew a dist incti on between “lan d us e res trictio ns,” which seekto preser

ve the char acter

of a given area, and “maximum occupancy restrictions, ” which are i nte nded to “prot ect heal th and safety by p reven ti ng dwelling ove rcrowding. ” 115 S.Ct. at 1781. The Cou rt viewed th e Edm onds de finition of “fam ily” as the form er: “To limit land use to single-family residences, a municipality must def ine the te rm ‘family’ ; thus family composition rul es ar e a n esse ntial com pon ent o f sing le-fa m ily re side ntial use restr ictio ns.”24 [80 O p. Att’y

3 The Court affirmed by a 6-3 vote. Justic e 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 di ffere

ntiate be tween related an

d unrela ted resi d ents. See, e.g., §270-11 of the Cecil County Code; §68-38 of the Hagerstown City Code. Id. The Court point ed to a dif ferent Edmonds requirement, requiring a mini m um am oun t of floo r area fo r each occu pant, a s an e xam ple of a maximum occupancy restri ction. 115 S.Ct. at 1782. Ci ting t he “plain import of t

he stat utory l anguag e,” a s “rei nforced” by legis lative histo ry, th e C our t held that t he e xem ptio n in 42 U .S .C

. §3607(b)(1) a pplie d only to maximum occupancy rest rictions l ike Edm onds’ floo r are a req uire m ent. “In sum,” t he Court wrote, “rules that cap the t otal number of occupants in orde r to prevent ove rcrowdi ng of a d we lling ... fall w ithin §3 607 (b)(1)’s abso lute exemption fr om the FHA’s governance; r ules des igned to pr eserve the family char act er of a neig hborhood, f astening on the composit ion of households rather t

han on the t otal number of occupants l iving quarter s can conta in, do not .” 115 S.Ct . at 1782. 3

II Effect of City of Edmonds We have not undertaken ac omprehensive sur vey of loca l zo n ing ordinance s, so we do not know how m any contai n a defini tionof “fam ily” co mp arable to that of Edmo nds . H owe ve r, we as sume that suc h restric tio ns on occu panc y of sin gle-fam ily resi dences by unr elate d pe opl e are not unc om m on. See, e.g., §155- 12 of the D orch ester C oun ty Co de; §1 05-5 of the O cean City Code; §27 -1 07. 01( a) (8 5) (C) of the Prince George’ s County Code; §164-3 of the W estm inster C ity Co de; §Z S1-1 03 o f the W orces ter Co unty Code. 4 City of Edmonds me ans th at all provisions of this kind are sub ject to scru tiny und er th e Fa ir H ous ing Ac t. No ne is exe m pt. How ever, such restrictions are not illeg al perse und er the F air Housing Act. The Supreme Court was caref ul to emphasi ze the limits of it s holdi ng. Rejecting Edmonds’ contention t hatGen. 21] 25

5 Other Fair HousingAct 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 si ngle-f

amily zoning to Fa ir Ho using Ac t scrutiny will

... ‘destroy the effectiveness and purpose of single-fam ily zoning,’” the Co urt ob serve d that th is argument “exagger ates the for ce of the Act’s antidiscrimination pro vis ions.

... [These] pr ovisi ons, when applic abl e, require only ‘rea sonable’ ac com mo dations to afford persons with handicaps ‘ equal opport unity t o use and enjoy’ hou sing .” 11 5 S .Ct. a t 17 83. The “reasonabl eness” of a localgo ve rn me nt’s de cision to en for ce a family compo siti on rule will depend on particular fact s. The on e case squar ely on point (predating City of

Edmonds ) held that a city vi olate d t he A ct by in sisting o n enforcing its fam ily compositi on rule aga inst a gro up h om e. OxfordHou se-C v. Cit y of St. Lou is , 843 F. Supp

. 155 6 (E.D . Mo . 1994 ). The “reaso nable accommodat ion” aspect of the case was undoubtedly col ored by ev idence of int entiona l dis crimination. “ Inste ad of reas onabl e accommodation,

... the City responded wit h enfor cemen t attem pts that demonstrat ed inte ntionaldiscr iminati on.” 843 F. Supp. at 1581. On diff erent f acts ( for example, if a gr oup home proposed to ser ve an unusuall y high number of re sident s), a court c onceivabl y might findconsideration s related to traffic or parking s ufficient to justify exclusi on of a large group ho me f ro m a resid entia l area

. But see OxfordHou se-C , 8 43 F . S upp . at 1 570 (“ [S ]t udi es ha ve .. . s how n th at the pr esence of gr oup homes has not had an i mpact on crime, safety, traffic, utili ties, noise, or parking.”). W ith but scant

case law exploring the issue l eft open by t he Su pr eme Court in City of Edmonds , we will refra in from any o verall conclusi on. However, one thi ng is cer tain: Antipathytoward group hom es, gro und ed in stereo types abou t peop le with disab ilities, will neverbe a suff

icien t justif

icatio n. See, e .g. Un ited Sta tes v. C ity of Taylor , 872 F. Supp. 423 (E .D

. Mich. 1995). As we observed in one of our se veral o pinion s on th e Fair H ousin g Act, the Act makes un l awful gov ernm ental re quirem ents “th at, on th eir face or in practi cal effect , make it harder f or peop le with di sabil iti es to l ive whe re they want t o.” 78 Opinions of the Attorney General

48, 57 (1993). 526 [80 O p. Att’y

6 A “small private group home” serv es betw een four and eight individua ls. HG §10-514(e). Since a r estricti ve defin ition of “f amily” 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 re strictions to a signif icant ex tent.

7 Under the Developmental Disabilities Law, a group home serves between four and eight indiv

iduals. 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. Qu ite apart f

rom Fair Housing Act cons iderations, loca l zoni ng laws with re s tri ctive family composition rul es are already unen forcea ble with regard to some group hom es. Under the Mental Hygiene Law, a “small pr ivate group home ... [i] s deemed c onclu sively a singl e-famil y dwelling . .. and ... [i] s permitt ed t o locate in allresi dentia l zones. ” §10-518 (b) of the Healt

h-General (“HG”) Articl e, Maryland Code. 6 A sim ila r, and ev en m ore expansive, “d ee mi ng ” p ro vi si on ap pe ar s i n the Dev el op me nta l Disa bilities La w:

To avoid discrim ination in ho using and to afford a natu ral reside ntial setti ng, a group ho me or an alt ernative living unit f or indivi duals wit

h developmentaldisabi lit y: (i) Is deemed conclusi vely a si nglefamily dwell ing; (ii) Is perm itted to locate in all resi dentia l zones; and (iii) May not be subject to any speci al excepti on, conditi onal use p erm it, o r procedu re that differs from tha t required for a singl e-famil y dwelling. HG §7-603 (b)(1). 7 Other grou p ho me s are n ow subje ct to loc al fam ily compositi on rules . For example, such localrestrictions have bee n enfo rced a gains t cong regate housing for the elderly, for

there i s no com parab le “dee min g” pr ovisio n in S tate law. To the contrar y, theGen. 21] 27

8 State law

does not a

ddress the zoning status of these fac ilities. regulations of the Off

ice on Aging expr essly r equi re a p rovider of group sheltere d ho using for th e elde rly to ve rify “co mp liance with localzoning requirements. ” COM AR 14.11.07.11. If re s t rictive fam ily compositi on rules were ultimately decl ared unlawful under the F air Housi ng Act, pres umably provider s of the se li ving arrang em ents for the elder ly might be abl e to loc ate l arger f acil iti es in areas zone d fo r single -fam ily reside nces . So, too , wo uld providers of group hom es for recove ring alcoho lics and drug abusers and of som e hom es serv ing ind ividua ls in need of domicili ary care . See COM AR 10.07.03. 8

III Conclusion

In summary, it i s our opini on that City of Edmon ds v. Oxford House its elf l eaves int actal l e xi st in g Stat e a nd l oc al laws related to the locat ion of gro up homes. However, the c ase does mean that fam ily compositi on rules in loca l zo ning o rdinance s must be defendedon the merit s if c halle ng ed und er the F air H ousin g A ct, and a local ity’ s decis ion to enf orce sucha r

ul e a ga i ns t a g ro up ho me m igh t we ll be v ery diffic ult to def end suc ces sfull y. J. Joseph C urran, Jr. AttorneyGeneral Jack Sch wa rtz Chief Counsel Opinions & Advice