MUNICIPAL RIGHTS TO REGULATE GROUP HOMES
STRENGTHENED BY RECENT DECISIONS
Part I
By THOMAS R. BURNEY and JEROME WIENER, Attorneys for the Village of Palatine*
Introduction
This article is the first of a two-part series addressing the evolution of the law regarding how far municipalities can go under the Federal Fair Housing Act in
regulating group homes. There are encouraging signs,
from a municipal attorney's standpoint, and from
some recent federal district and circuit court decisions.
In the zoning field, which is addressed in this article,
these decisions point out the need to balance considerations of detriment to the municipality, its residents
and the neighborhood against the benefits to the
group home. In the area of enforcement of the Life
Safety Fire Code, which will be covered in Part II of
this series, recent decisions are beginning to give guidance to the municipal practitioner regarding the balance that must be considered in evaluating the needs
of the disabled versus fire safety considerations in determining whether a municipality has reasonably accommodated the handicapped.
Although the Supreme Court's recent decision in
City of Edmonds v. Oxford House, Inc., . . . U.S. . . .,
115 S.Ct. 1776 (1995), held that unrelated persons occupancy restrictions were not exempt from the Act,
the municipal practitioner should be encouraged by a
trend towards a more balanced view of the needs of
the handicapped versus the obligations of a municipality when federal courts consider enforcement of
the Fair Housing Act. The following cases are of particular interest.
Recent Zoning Cases
In 1994, the Seventh Circuit made it clear in
United States v. Village of Palatine, 37 F.3d 1230 (7th
Cir. 1994), that a municipality must be given the opportunity to accommodate a group home's request
through the municipality's established zoning procedures for adjusting zoning before the group home can
complain that the municipality's actions have violated
the Fair Housing Act's requirement for a reasonable
accommodation. That decision has now been unequivocally adopted in the Eighth Circuit.
We begin our analysis with the case of Oxford
House-A v. City of University City, 1996 WL 368921,
a July 5, 1996, Eighth Circuit decision. Oxford Houses
are a nationwide network of residences for recovering
alcoholics and drug addicts. In this case, Oxford
House followed the same procedure it has followed
throughout the country in moving people into the
house without applying for occupancy permits or zoning approval. When the City objected and advised
Oxford House that it must either apply for a zoning
use permit or seek an amendment of the zoning code,
Oxford House complained to the Department of
Housing and Urban Development, which then filed an
action against the City for violation of the Act. The
City entered into a Consent Order with the government to allow Oxford House to apply for an amendment to the zoning ordinance. That process concluded
in an accommodation by the City with regard to the
number of individuals who could occupy the premises.
Oxford House then dismissed the lawsuit, but filed for
attorney's fees. The trial court granted Oxford House
$35,000.00 on the theory that the litigation was the
catalyst to the final accommodation.
In an attention-getting decision, the Eighth Circuit
said absolutely no and reversed the trial court's decision. Rather than viewing the litigation as a catalyst,
the Eighth Circuit found that Oxford House's suit was
unreasonable, premature, and superfluous. The court
referred to the Palatine decision and the recent Eighth
Circuit decision of Oxford House v. City of St. Louis,
77 F.3d 249 (8th Cir. 1996) (which will also be reviewed in this article), in holding that Oxford House
must exhaust its administrative remedies before complaining of a federal violation. As the court stated:
"In our view, Congress also did not intend the
federal courts to act as zoning boards
by deciding fact-intensive accommodation
issues in the first instance."
Oxford House-A v. City of University City, 1996 WL
368921, at 23. The court then dispensed with Oxford
House's argument that the lawsuit was necessary by referring to the basis for the lawsuit as litigation
"premised upon a self-inflicted wound". Id.
In Oxford House v. City of St. Louis, 77 F.3d 249
(8th Cir. 1996), the Eighth Circuit adopted the Seventh
Circuit's decision in the Palatine case and held that
Oxford House must seek a special use before it could
claim a violation of the Act's requirement for reason-
*Thomas R. Burney and Jerome Wiener are partners in the
Chicago law firm of Schain, Firsel & Burney, Ltd. The firm represents several municipalities and has represented the Village of
Palatine and the City of Oregon in Fair Housing Act matters.
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August 1996 / Illinois Municipal Review / Page 17
able accommodations. Significantly, the Eighth Circuit
held that the 8-person limit of the St. Louis zoning law
was rational and not in violation of the Act. It found
that the City had a legitimate interest in decreasing
congestion and noise which was reasonably related to
the 8-person rule. As the court noted:
"The City does not need to assert a specific reason
for choosing 8 as the cut-off point, rather than 10
or 12. '[E]very line drawn by a legislature leaves
some out that might well have been included. That
exercise of discretion, however, is a legislative, not
a judicial function.' [Citation omitted] We conclude the
City's 8-person restriction has a rational
basis and thus is valid under the Fair Housing Act.
[Citation omitted]" Id. at 252.
The St. Louis case also addressed the effect of
derogatory statements by representatives of the municipality on the question of whether the municipality
itself has violated the Act. The court made a distinction between the actions of the municipality and evidence regarding the beliefs of individual city officials.
"Having concluded Oxford House did not show
the City treated the Oxford Houses differently
from any other group, we believe the City's enforcement actions were lawful regardless of
whether some City officials harbor prejudice or
unfounded fears about recovering addicts." Id.
The court then ruled in favor of St. Louis and required Oxford House to apply for a zoning variance
expressing no opinion about whether such a variance
must be granted by the City.
In the case of Bronk v. Ineichen, 54 F.3d 425 (7th
Cir. 1995), the Seventh Circuit, citing its decision in
Palatine, held that the requirement of reasonable accommodation does not limit an obligation to do everything humanly possible to accommodate a disabled
person; cost (to the defendant) and benefit (to the
plaintiff) merit consideration as well. The concept of
necessity requires, at a minimum, the showing that the
desired accommodation will affirmatively enhance a
disabled plaintiffs quality of life by making the effects
of the disability more tolerable.
In Bryant Woods Inn v. Howard County, Maryland, 911 F. Supp. 918 (D. Md. 1996), the court engaged in a lengthy discussion of the three theories
upon which a cause of action for violation of the Fair
Housing Act may arise. Refer to this case for an
overview of the law on claims of intentional discrimination, discrimination based on disparate impact and
discrimination because of a failure to reasonably accommodate. After reviewing the basis for the claims in
each of these areas, the court held that Howard
County had not violated the Act.
Brandt v. Village of Chebanse, 82 F.3d 172 (7th
Cir. 1996), reminds us that there are in fact limits as to
how far courts will allow groups to wrap themselves in
the mantle of the Fair Housing Act in an attempt to
avoid municipal zoning restrictions. Developers seeking to use the Act as a sword to cut through municipal
restrictions in multiple family housing had better try a
new approach. The court concluded:
"Unless the Fair Housing Act has turned
the entire United States into a multi-family
dwelling zone, Brandt must lose.
It doesn't, so she does." Id. at
175.
With regard to zoning, courts are now more inclined to balance the interests of the municipality with
the interests of the group home and to hold in favor of
reasonable zoning laws protecting against congestion,
parking problems and other valid municipal concerns.
With the adoption by other circuits of the Palatine decision, courts are moving towards stricter views on requiring group homes to proceed through the administrative process before claiming a violation of the Fair
Housing Act. •
Page 18 / Illinois Municipal Review / August 1996
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