_____________

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 Department 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. *

_________________________ * Appeals from the United States

* District Court for the Eastern

Missouri Municipal League; City * District of Missouri.

of Columbia, Missouri; City of *

Clayton, Missouri; The National *

Fair Housing 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 Department of Mental *

Health, Division of Alcohol & *

Drug Abuse; Missouri Department *
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of Mental Health, *

*

Plaintiffs-Appellees, *

*

v. *

*

City of St. Louis, a Body *

Corporate, *

*

Defendant-Appellant. *

_____________

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, selfgoverning 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 encourage 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
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code's definition of single family dwelling includes group homes

with eight or fewer unrelated handicapped residents. 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 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 eightmember 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 counterclaim 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 handicap

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
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(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.

The Act prohibits the City from making a dwelling unavailable

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." Id. § 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 unlawfully 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
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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, however, 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

unrelated 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." Id. at 8. We conclude the City's eight-person

restriction 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
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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 violating 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 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 zoning 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.
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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 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." Id.

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. Id. 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 aldermen, however. Having

carefully reviewed the record, we conclude the district court
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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" 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.