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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