Zoning Ordinances and the Fair Housing Amendments Act

• Publication year: 1997
• Pages: 63
• Citation: Vol. 26 No. 2 Pg. 63

26 Colo.Law. 63 Colorado Lawyer 1997.

1997, February, Pg. 63. Zoning Ordinances and the Fair Housing Amendments Act

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63

Vol. 26, No. 2, Pg. 63

The Colorado Lawyer
February 1997
Vol. 26, No. 2 [Page 63]

Specialty Law Columns
Local Government Newsletter
Zoning Ordinances and the Fair Housing Amendments Act
by David R. Fine

Column Ed.: Victoria M. Bunsen of the City of Westminster - (303) 430-2400, ext. 2231

This month's article was written by David R. Fine Denver, an associate of Kelly/Haglund/Garnsey & Kahn LLC (303) 296-9412. Lawyers representing public or private clients in the areas of municipal, county, and special or school district law are encouraged to submit articles for publication

Attempts to locate group homes and shelters in residential neighborhoods continue to generate controversy and require local governments to balance the rights of the residents of such group homes and shelters with the concerns of neighboring homes or businesses and local governments' legitimate interest in their zoning and land use regulation schemes. Central to these situations is the interplay between local zoning ordinances and building codes and the Fair Housing Amendments Act of 1988 ("FHAA"), which often provides the legal framework within which the parties operate.

This article first provides a brief overview of the FHAA, then discusses the FHAA's applicability to zoning ordinances and building codes. The article focuses on cases that have dealt with efforts to locate group homes or related entities in residential neighborhoods. Finally, the article outlines certain issues local governments should consider when faced with Fair Housing Act challenges to zoning ordinances.1

The FHAA

Under 42 U.S.C. § 3604(f)(1), it is unlawful

[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of -

(A) that buyer or renter;

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that buyer or renter.

In 42 U.S.C. § 3604(f)(3)(B), discrimination is defined to include "a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodation may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling."

As originally enacted in 1968, the Fair Housing Act prohibited discrimination based on race, color, religion, or national origin. Congress amended the Act in 1988 to extend coverage to individuals with disabilities and to prohibit "familial status" discrimination - that is, discrimination against parents or other custodial persons living with children with disabilities under the age of eighteen.2 Persons with disabilities include the frail elderly, persons with AIDS, persons with developmental disabilities, and persons recovering from drug and alcohol abuse.

Applicability to Zoning Ordinances

The FHAA applies to discriminatory zoning practices.3 The House Committee Report accompanying the FHAA provides that the FHAA

is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of [the handicapped] to live in the residence of their choice in the community.4

The U.S. Supreme Court, in its most recent decision construing the FHAA, recognized the FHAA's broad application to local zoning authority.5 In City of Edmonds v. Oxford Homes, Inc., the Court construed § 3607(b)(1) of the FHAA, which exempts from the FHAA's coverage "any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling." The Court held that the zoning provision at issue, which defined "family" as "persons [without regard to number] related by genetics, adoption, or marriage, or a group of five or fewer [unrelated] persons" was not a "restriction . . . regarding the maximum number of occupants permitted to occupy a dwelling" within the meaning of the FHAA's absolute exemption. The rationale for the Court's holding was that

rules that cap the total number of occupants in order to prevent overcrowding...