by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

ZONING AND PLANNING; COMMERCIAL ZONING; SPECIAL USE PERMIT: Requiring annual review of a special use permit is not justified when contingencies appear to be controllable under the ordinary law of nuisance and the city's power to declare and abate nuisances.

Turning Point, Inc. v. City of Caldwell, 96 C.D.O.S. 492 (9th Cir. 1996).

The Fair Housing Act is violated when a city refuses to make reasonable accommodations in its rules when those accommodations may be necessary to afford handicapped persons an equal opportunity for housing. In this case, proponents of a shelter for homeless persons argued that the city in which the shelter was located set the occupancy limitation so low that it constituted a failure to make reasonable accommodation for the handicapped. The district court agreed, and ordered that the occupancy be set at the higher number requested by the proponents of the homeless shelter. However, the court imposed the condition of an annual review of the special use permit allowing such occupancy. The court regarded regular review of the SUP as a crucial component because accommodations that might be reasonable at one time may become unreasonable due to change of circumstances.

On appeal, reversed. The Ninth Circuit found that there was no persuasive justification for the review requirement. Contingencies to which the district court alluded appeared to be controllable under the ordinary law of nuisance and the city's power to declare and abate nuisances. Thus, the District Court was directed to eliminate the condition of annual review.

Comment 1: It seems clear that the city's original position was not an accomodation as required by the Fair Housing Act. It had limited occupancy to 15 and had required .33 parking spaces per occupant, even though the occupants were largely homeless families. According to the evidence at least one member of each family, and many of the non-family residents, fit the definition of "handicapped" under the Fair Housing Act. The fire marshall had testified that a maximum occupancy of 25 was appropriate, and that the only accomodation from the requirements of the Uniform Housing Code would be a waiver of the maximum ceiling height requirement. The District Court had reversed the City ruling and had required occupancy limites of 25 with 5 required parking spaces.

The City did not appeal this aspect of the ruling.

The shelter did appeal, however, and lost on this aspect. The court cited to the provisions of the Act basically upholding the right of a city to establish reasonable occupancy limits. It apparently concluded that Uniform Housing Code limits were, in substance, prima facie reasonable. The ceiling height waiver did not appear to be a major concession imposed upon the City.

Comment 2: The facility already had been used to house substantially more than the number of occupants allowed in this opinion - as many as forty occupants at one time. The City found out about the violations only when fire personnel responded to a minor fire at the shelter. There also was evidence of problems experienced by the neighborhood with regard to fighting, garbage and parking issues. Under these circumstances, what is so bad about a regular review of the use of the facility? The shelter operators had defied the law in the past, and were brought to the zoning board only when they were found out.

One response the court made was that the zoning for the property was commercial, and that other commercial uses might present similar issues, but were not being so heavily monitored. Although that might be true, these other uses also were not being "accomodated." The concept of "accomodation" suggests a balance of the needs of the community against special needs of a particular group privileged under federal law. What is a sufficient "accomodation" varies in each case. When parties and courts are "feeling their way," as here, why not permit an annual review? Isn't it better to keep the parties talking?

The public nuisance remedy suggested by the court seems to indicate that any impact that falls short of the kind of conduct that ordinarily would trigger a "public nuisance" action must be accomodated. This is an interesting standard, and seems to go beyond that required by the Fair Housing Act, at least with regard to occupancy limitations.

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