Family Composition Provisions
Not Exempt From Fair Housing Act
By THOMAS R. BURNEY and JEROME WIENER, Attorneys for the Village of Palatine
The City of Edmonds in Washington State has a law
on its books which defines "family" as follows:
"An individual or two or more persons related
by genetics, adoption, or marriage, or a group
of five or fewer persons who are not related by
genetics, adoption or marriage".
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The Oxford House sought to establish a group home
to house 10 to 12 unrelated persons in a single-family
zoning district. Edmonds sought to apply its law to limit
the occupancy of the single-family home. At the District Court, the City of Edmonds argued that its law was
a "maximum occupancy restriction" which was exempt
under §3607(b)(l) of the federal Fair Housing Act
(FHA). That section exempts from the Act "any reasonable local, State, or Federal restrictions regarding the
maximum number of occupants permitted to occupy a
dwelling." The District Court agreed with the City.
The Ninth Circuit Court, however, disagreed, finding that Edmonds' law was not a maximum occupancy
restriction within the meaning of the Fair Housing Act
and, the absolute exemption did not apply. The case
was returned to the District Court for further proceedings on the issue of whether the City failed to grant a "reasonable accommodation." In contrast, the Eleventh Circuit, in the case of Elliott v. City of Athens, Georgia,
held that an ordinance similar to the ordinance in the
Edmonds case was exempt under the Act.
The Supreme Court took the case to straighten out
the dispute in the circuit courts. In a 6-3 vote, it upheld
the Ninth Circuit ruling. The Supreme Court found
Edmonds' law to describe "family living, not living
space per occupant." It found Edmonds' law to define
family primarily by background and legal relationships
and that the law also accommodated other group associations: "Five or fewer unrelated people are allowed to
live together as though they were a family." The Supreme Court framed the issue as "whether the law was a
'maximum occupancy restriction' or a'family composition rule'." The Court found that Edmonds' law was not
a maximum occupancy restriction and therefore the
absolute exemption did not apply.
Left intact by the decision to be resolved by some
later case is the question as to whether "family composition rules" violate the Fair Housing Act, and if so, under
what circumstances. The Court was careful to note that
it was not deciding this issue. In footnote 4, it stated,
"We do not decide whether Edmonds' Zoning Code
provisions defining 'family' as the City would apply it
against Oxford House, violates the FHA's prohibitions
against discrimination set out in 42 U.S. Code, §3604 et
seq." Further the Court stated, "The sole question before the Court is whether Edmonds' family composition rule qualifies as a 'restriction regarding the maximum number of occupants permitted to occupy a
dwelling' within the meaning of the FHA's absolute
exemption."
In fact, the Court rebuked Edmonds' claims that
subjecting single-family zoning to the FHA's scrutiny
would "overturn Euclidean zoning." In its rebuke, the
Court pointed out that in making this argument, Edmonds was ignoring the limited scope of the issue before the Court and exaggerating the force of the FHA's
anti-discrimination provisions. The majority pointed
out that the FHA anti-discrimination provisions, when
applicable, require only 'reasonable accommodations'
to afford persons with disabilities equal opportunities
to use and enjoy housing.
In fact, the Court expressly recognized that family
composition rules are an essential component of single-family residential use. The Court limited its opinion to a
determination that Edmonds' family composition rules
do not fall within the "absolute exemption" provisions
of the Fair Housing Act. Thus, the decision in no way
implicates or addresses the question of whether, and
under what circumstances, family composition rules
violate the Fair Housing Act.
In the dissent written by Justice Thomas, the three-member minority took issue with the majority's assumption that such exceptions to the Fair Housing Act
must be read narrowly. Justice Thomas did not find the
language to be as limiting as the majority did. According to the dissent, the very establishment under
June 1995 / Illinois Municipal Review / Page 21
Edmonds' Code of a specific limit of the number of
unrelated persons who may occupy a dwelling in
single-family neighborhoods qualified as a maximum
occupancy restriction and therefore fell within the absolute exemption from the Fair Housing Act.
The decision is disappointing in that limitations on
unrelated persons under the "family" definition found
in most municipal ordinances will not be entitled to an
absolute exemption from the Act and litigation regarding these provisions and claims of violation of the Act
will continue. On the other hand. Village of Belle Terre
v. Boraas, and Moore v. City of East Cleveland, continue to be recognized as the leading authority on the
subject of family composition rules. Euclidean zoning
remains active and valid. It is clear from the opinion
that the Court has steadfastly refused to enter into the
arena of determining when and under what circumstances restrictions on the number of unrelated persons
found in a zoning ordinance violate the Fair Housing
Act. The Court determined that those family composition rules or what it referred to as "family value preservers" must be viewed in light of the "reasonable
accommodation" provisions in the Fair Housing Act.
With respect to those restrictions the Court noted that
no one should "exaggerate the force" of those antidiscrimination provisions. •
Page 22 / Illinois Municipal Review / June 1995
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