Daily Development for
Monday, April 17, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
FAIR HOUSING; ZONING
RESTRICTIONS; OCCUPANCY RESTRICTIONS: Although zoning authorities bear the
burden of proof in justifying restrictions on the number of persons that can
occupy dwellings of certain sizes, such authorities are entitled to establish restrictions
in a variety of ways. So long as the judgment is applied uniformly to all
residents of all dwelling units, there is no requirement that the restrictions
conform to any particular industry standard, including, specifically, those of
the Building Officials and Code Administrators ("BOCA").
Fair Housing Advocates
Assoc., Inc. v. City of Richmond Heights, Ohio, 2000 Fed. App,. 0132p (6th Cir.
4/13/2000)
http//www.michbar.org/opinions/home.html?/opinions/us_appeals/2000/041300/67
56.html
Housing Advocates sued
three Ohio cities, apparently in a test of occupancy restrictions that were
more severe than those established by a housing industry group, the BOCA. One
city's restrictions included occupancy limits that established a minimum of 300
feet of floor space for the first occupant and 150 square feet for each
additional occupant, but with an overall minimum of 750 square feet for four occupants.
Another city was more generous to builders, while the third set minimum
standards of 350 square feet for the first resident, 100 for each additional,
and with an overall limit of 650 square feet for a group of four. One city also
established established minimum "habitable bedroom floor area" of 80
square feet for the first occupant and 50 square feet for each additional
occupant.
Housing Advocates pointed
out that the BOCA standards in its model code, developed by "housing
experts arouind the country," set a minimum of 70 square feet per person
for bedrooms, with 50 square feet for additional persons. The BOCA standards
for overall limits for groups with three to five occupants were under 600
square feet [editor's interpolation from the standard set forth].
The court agreed with
Housing Associations that under the Fair Housing Act the cities had the burden
of proof to establish that their limitations were "reasonable," since
the Act prohibits discrimination based upon familial status but provides
further that "nothing in this subchapter limits the applicability of any
reasonable local . . . restrictions regarding the maximum number of occupants
permitted to occupay a dwelling." Since the language relating to occupancy
limits is stated as an exception to the general prohibition against
discrimination based upon familial status, the court concluded that the cities
were required to prove that they fell within the exception by proving that
their restrictions were "reasonable."
Although Housing Advocates
appeared to have a victory, the court took the short term prize away by
proceeding to hold that the cities' restrictions, so long as they applied to
all, regardless of family status, fell within a reasonable range, and did not
have to meet the BOCA standards or any other industry standard to be
reasonable. It noted that the HUD regulations stated that "there is no
support in the statute or its legislative history which [sic] indicates any
intent on the part of Congress to provide for the development of a national
occupancy code."
The court discussed the
applicability of the City of Edmonds case, 514 U.S. 725 (1995), where the
Supreme Court struck down occupancy lmits based upon a definition of
"family" as a violation of the Equal Protection Clause, but the Sixth
Circuit concluded that Edmonds decision did not prohibit cities from
establishing occupancy limits that did not involve questionable distinctions
based upon what constitutes a "family," but rather operated across
the board to limit occupancy.
Even though there was some
evidence that one city council had discussed the fact that occupancy limits
were a good way to keep large groups of children out of small apartments, the
court concluded that the ordinances contained no facial discrimination against
families and further concurred with the city that "families of four, as
opposed to families of three, are not protected classes." The court gave
no cite or other explanation for this language, but presumably it relates to
the Edmonds decision.
Comment 1: Although the
court here held that the cities had the burden of proof, and were not entitled
to the presumption of validity ordinarily accorded to public agencies, its
discussion of the reasonableness of the cities' ordinances seems to provide
exactly the presumption of validity it denied exists. After concluding that the
cities' ordinances applied uniformly, and were not facially discriminatory
against families, the court states:
"[T]he fact that the cities used a sqaure footage
calculation, as opposed to a total number per apartment calculation, does not make
the ordinance unreasonable. Similarly, the fact that the ordinances differed
with {BOCA or other suggested standards] does not make the ordinances
unreasonable. Finally the Eighth Circuit considered the issue of whether the
City of St. Louis violated the FHA by enforcing the city's zoning code to limit
the number of residents in group homes to eight individuals, and concluded that
the code does not violate the FHA. . . . [quote omitted] . . . The
"exercise of discretion" as to whether to require a minimum of 650
square feet for an apartment of four people, as opposed to a minimum of 500
square feet or 800 square feet, is a legislative, not a judicial
function."
That is the sum total of
the analysis, and of course appears to do little more than conclude that a city
is entitled to discretion when making decisions that are legislative in
character, a proposition that the court had just rejected in an earlier part of
its opinion.
A concurring judge, noting
that City of Edmonds had recognized a presumption of validity in favor of
cities in applying an Equal Protection Clause test, found it anomalous that the
court would apply a more restrictive test to ascertain whether the Fair Housing
Act was met than it would to determine whether the Constitution had been
followed.
Comment 2: This appears to
be a "no call." The court set a tough standard, but then ignored it
in application. The editor would view it as a victory for the Housing
Advocates, however, since it delivers valuable language on the standard of
proof that some other judge is likely to take seriously, even though this court
didn't do so.
Comment 3: On the merits,
the editor sides with the cities. Of course density of occupancy raises health
and safety issues that clearly are within the paramters of the police power. Where
there is no facial discrimination on familial status, and no evidence of an
animus against families, the cities should have the discretion to decide what
is healthy and safe. That's what the court decided, but the editor's head swims
from the backandforth way in which it did so.
Readers are urged to respond, comment, and argue with
the daily development or the editor's comments about it.
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