Daily Development for Monday, June 11, 2001

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

[Although we usually don't cover individual Federal District Court opinions, this one educated the editor about some of the issues involved in code enforcement against group care homes. Although fair housing mavens may be only too familiar with these issues, DIRT readers generally should have awareness here. Emotions run high in this area, and so can liability.]

FAIR HOUSING; ZONING; GROUP HOMES: City ordinance limiting residency in single family zones by groups of people unrelated by blood, but permitting family groups of the same size to live together in the zone, cannot, under the Fair Housing Act, be applied to prohibit shared living facilities for alcoholics and drug addicts.

Tsombanidis v. City of West Haven, http://www.ctd.uscourts.gov/Opinions/013001.GLG.T sombanidis.pdf, No. 3:98CV1316(GLG) (D. Conn. 1/20/01)

The case involved an attempt by the City to limit the establishment of an Oxford House in a residential zoned neighborhood. Oxford Houses are independent communal facilities formed under the general aegis of a national organization for control of alcoholism and drug addiction. The residents of the house collectively lease the home from the owner, and live in a communal fashion, following the rules established by the national organization. There was no issue raised in the case challenging the effectiveness of establishing such facilities in residential neighborhoods as a method of dealing with recovering alcoholics and drug addicts (the term "recovering" is used by the court, although some treatment regimes claims that one is never "cured" of such addictions, but that one can learn to control them.

The neighbors, as is often the case, went crazy, and insisted that the City apply its zoning powers to prohibit this use. They flooded zoning board and council meetings, filed petitions, and in some cases used "self help"

to harass the residents of the house. The neighbors also alleged that there were adverse impacts on the neighborhood, including, allegedly, drugs left in yards, excessive traffic and noise, and even a few harassment incidents carried out by the Oxford House residents, such as "wolf whistles" directed at neighborhood women.

The City's lawyers were very much aware of the dangers of challenging this operation because of the protections of the Federal Fair Housing Act, and tried to control the City's understandable reaction to the pressures from neighborhood residents (who were also voters.) The problem was exacerbated when a candidate to replace one of the Council members became the spokesperson for the neighborhood group.

The house clearly was in violation of the City ordinance, which defined a premises occupied by more than three unrelated persons as a boarding house, for which special permits had to be obtained in residentially zoned areas..

The City's reaction to this activity began with a "spot inspection" and order from a City housing code inspector, making various charges concerning violations of building codes and also concluding that the City's zoning code was violated. The inspector allegedly ordered the owner to evict the Oxford House tenants within 24 hours. A letter later the same day moved the compliance demand to ten days.

In response to the City's finding that Oxford House was an unpermitted boarding house, Oxford House representatives formally requested in a letter that the City accommodate Oxford House within the zoning ordinance. The representative noted that it would be dangerous for the residents to apply for a permit because this would expose their names and "galvanize neighbors in opposition to the homes" and stigmatize the residents by holding them up to public scrutiny. The letter requested that further enforcement attempts be held in abeyance while some compromise was reached.

Although the City's attorney by this time got wind of the dispute, and managed to stall one local official, another continued with enforcement actions and commenced fining the owner of the house $99 a day for operating an unpermitted boarding house. The House appealed the violation citation to the Board of Zoning Appeals.

In the meantime, the political opposition to the Oxford House reached full steam. Despite the warnings of the City's lawyers, a City compliance officer issued another notice of violation. Then, although instructed to turn over the file to the City's lawyer, the same officer issued still another violation notice three months later.

In the meantime, a City inspector contacted the local Fire District, which then got into the act, inspected the property, found it in violation of the State Building Code, which stated that more than five unrelated persons living together constituted a rooming house, and subjected such usage to stringent fire code requirements. The Fire Inspector sent the owner a violation notice as well.

At the urging of the City's lawyer, the Fire Inspector sought a ruling from the State Attorney General's Office, which opined that the Fire Code requirements were not subject to the Fair Housing Act, because "the Life Safety Code was at issue rather than a zoning code."

Finally, about nine months after the establishment of Oxford House, the City sent another, "final," notice of violation, now threatening more severe fines and criminal prosecution with the possibility of imprisonment. At this point, the City's lawyers finally were able to corral things, and no further enforcement proceedings were initiated.

Ultimately, Oxford House brought an injunction action against both the City and Fire District and the defendants moved for summary judgment.

The motions were denied in part and granted in part. The court determined that both the State Fire Code and the City Zoning Code could and should accommodate persons suffering from a handicap with the meaning of the FHAA, that Oxford House's activities, at least for standards of summary judgment, warranted such accommodation, and that both the Fire Code and the City Zoning Code permitted special variances that would provide such accommodation.

The Court found, however, that it was up to Oxford House to apply for the variances, and did not accept the argument that such applications would unduly subject the residents to "stigmatization." In a section of the opinion discussed in a separate item below, the court found no evidence that the Fire District had sought to apply its regulations as harassment of the Oxford House activity, but that questions of fact existed as to whether the City had done so.

The Fair Housing Act states that unlawful discrimination against handicapped persons as defined in the Act includes "a refusal to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." The Act has been applied to "state or local land use and health and safte laws, regulations, practices or decisions . . ." Although the FHAA does contain an exemption for "maximum occupancy restrictions," the Supreme Court has found, in City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995), that it would be a denial of Equal Protection to apply such maximum occupancy restrictions only to unrelated parties but to permit persons related by blood to avoid application of the restrictions.

Courts may find a violation of the Act by intentional discrimination, discriminatory impact, or a refusal to make a reasonable accommodation.

As indicated, in a holding discussed separately below, the court found that there was a question of fact as to whether the City, through its enforcement officials, intentionally discriminated against Oxford House.

The court found, however, that there was no colorable case of intentional discrimination by the Fire District.

The court then addressed the disparate impact issue. Here, Oxford House had a tough challenge. It was required to show not only that the definition of boarding house disadvantage Oxford House residents as compared to large families who were not covered by the definition, but also that such disadvantage was greater than that suffered by unrelated parties who sought to live in such large communal arrangements who were not handicapped persons. The court concluded that a jury could find that the Oxford House residents' need to live communally in residential neighborhoods was such a vital part of the rehabilitation process that the impact of the City and State codes was greater on them then it would be on nonhandicapped persons. Summary judgment denied.

The court finally turned to the question of requirement for accommodation. Here, the court found that the dispute was not ripe because, as indicated, both the City and State codes provided for special variances from their provisions to be granted on appeal, and Oxford House had not sought such variances. As to the argument that the variance request itself would subject the residents of Oxford House to public opprobrium, the court found that this concern did not outweigh the needs of the public agencies to have reasonable and public proceedings to carry out their regulatory purposes. The court cited a number of cases on the point, virtually all of them involving Oxford House. On this point, summary judgment granted.

Comment: The opinion cites significant other authority on the maximum occupancy/ family exemption issue. But, in denying a related Section

1983 claim, the court found no "policy or custom" of the City enforcing its policies in a discriminatory fashion. As the authority builds, and cities become more cognizant of their responsibilities in this area, the availability of this defense is likely to erode. Particularly if a city, faced with knowledge of the FHA requirements, continues to apply the family exemption and provides no special variances from occupancy limits, we can anticipate Equal Protection Clause arguments in the future.

FAIR HOUSING; ZONING; GROUP HOMES; INTENTIONAL DISCRIMATION: City can be held responsible for intentional discrimination against a group care home for the handicapped under the Fair Housing Act when its enforcement policies are driven by animus on the part of particular officials or carried out in response to political pressure from neighborhood groups aimed at stopping the activity. Tsombanidis v. City of West Haven, No. 3:98CV1316(GLG) (D. Conn. 1/20/01)

http://www.ctd.uscourts.gov/Opinions/013001.GLG.Tsombanidis.pdf,

Most of the facts of this little war are described in a report above of the primary issues in the case. Of further interest, however, is the court's refusal to grant summary judgment to the City on the question of intentional discrimination. Such a finding, of course, could lead to significant liability, although in this case plaintiffs sought only an injunction.

In the early stages of the dispute, a city housing inspector visited the property and concluded that improvements were being carried out without a permit and posted violation notices on the property. The next day the property owner contacted the permits office at the City and learned that no permits were required for the work in question. But that very day, the same inspector came to the house with a Zoning Enforcement Officer, and who found that the house was operating as a boarding house without a permit and allegedly demanded that the residents leave the house within 24 hours. The officer also allegedly made hostile comments about his views concerning recovering addicts residing in a residential neighborhood.

Later the same day the City sent a letter demanding that the use be terminated within ten days, and that a daily fine would be assessed if the order was not complied with. As indicated in the report above, the City continued to issue violation notices for the next nine months, but never really enforced anything.

There followed a series of responses from Oxford House, but also an increasing application of political pressure from neighborhood groups.

For purposes of the summary judgment action, the Federal District Court found: (1) individual expressions of bias by enforcement officers involved in an enforcement proceeding may result in a determination of intentional discrimination; (2) even without any showing of bias, however, liability may still be imposed where discriminatory government actions are in response to significant community bias.

Oxford House pointed to the repeated notices of violation, the attempt to involve the Fire District in enforcement activities, and even the frequent discussions with opposition groups as evidence that the City was acting specially in response to political pressure. Although the City argued that regular communication between citizens and elected officials is the basic stuff of democracy, the court concluded that there was sufficient evidence that actions taken in this case were departures from standard procedures, and motivated by political pressure, to warrant a denial of summary judgment.

Comment: Certainly a "word to the wise City Attorney." Play it by the book, and make sure that opposition groups are told that the matter must be so played. Advise city officials that they should make no promises of special attention to these matters, and in fact so instruct enforcement officers, regardless of city pressures. The City Attorney in this case tried, clearly, to harness the heat, but apparently fought a losing battle.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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