5 Defenses

• Library: Group Homes: Strategies for Effective and Defensible Planning and Regulation (ABA) (2014 Ed.)

A key aspect of understanding the defenses available to local governments is appreciating that, generally, exceptions to the requirements of the Fair Housing Amendments Act (FHAA) are to be construed narrowly.¹ Local zoning authorities have only a few affirmative defenses to claims by people with disabilities. The FHAA provides specific defenses, particularly in situations where a local government has enacted reasonable occupancy limits or where a potential resident of a group home would constitute a direct threat to the nearby community. The FHAA also contains a one-year statute of limitations of for an administrative proceeding and two years for an action in court.² Beyond these defenses are judicially-imposed limitations on claims, including the justiciability doctrines of ripeness and exhaustion, as well as the procedural doctrines of abstention, res judicata, and collateral estoppel. All of these defenses are discussed at length in this chapter.

Occupancy Limits

Section 3607(b)(1) ofTitle VIII provides that "[n]othing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling."³ Thus, rules contained in zoning ordinances or elsewhere in local government regulations to prevent overcrowding of dwelling units—and the public health and safety concerns that come with overcrowding—are acceptable under the FHAA.⁴

Section 3607(b)(1), however, has been problematic for local governments in cases where the local government conditions the occupancy limitation on whether the occupants of the dwelling unit are related or unrelated. In 1974, the Supreme Court in Belle Terre v. Boraas determined that local regulations limiting the occupancy of single-family dwellings to people related by blood, marriage, or adoption or two unrelated people were permissible and did not violate the Due Process Clause of the Fourteenth Amendment.⁵ Thus, as a matter of federal law, local governments are free to regulate dwelling-unit occupancy on the basis of the relatedness of the dwelling's occupants.⁶ Several states have limited Belle Terre, finding that such definitions exceed the authority granted under their state's enabling legislation or constitution.⁷ Conversely, regulations governing intrafamily composition of a dwelling's occupants—that is, restricting a dwelling only to a nuclear immediate family—are unconstitutional violations of substantive due process.⁸

While occupancy limits pertaining to unrelated people are acceptable in most states outside of the FHAA context, such occupancy limits are disfavored under the FHAA. In City of Edmonds v. Oxford House, Inc., decided in 1995, the U.S. Supreme Court⁹ held that § 3607(b)(1) did not authorize family-composition rules to the extent that such rules prohibit the establishment of group homes in residential areas. The City of Edmonds, Washington, had enacted an ordinance—the sort of which is common in many local jurisdictions around the nation—allowing only one family to live in a single-family residence, and the ordinance defined "family" as "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."¹⁰ The group home in question, which provided rehabilitative services to recovering drug and alcohol abusers, was providing services and housing for 12 unrelated adults. The city filed suit against the group home. On appeal, the Supreme Court found that "rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain," are outside the exemption provided in section 3607(b)(1).¹¹ To date, many state courts have ruled that local zoning ordinance occupancy limits differentiating between related and unrelated individuals cannot be applied to group homes.¹² Some state courts have held that a group of unrelated people with disabilities in a group home fall within the definition of "family" in zoning ordinances.¹³

Family composition rules excepted, reasonable occupancy limits are otherwise valid under section 3607(b)(1). As long as the occupancy limits apply to all occupants, without regard for the familial relationship of the occupants or their disability, they will be upheld.¹⁴ Moreover, courts are unlikely to call into question a local government's determination of the proper occupancy limit for a dwelling as long as the jurisdiction had some acceptable, nondiscriminatory rationale for its determination of the occupancy limit.¹⁵Additionally, where a local government has a family-composition occupancy rule in a residential area, but grants an exception allowing a group home a higher occupancy limit than other dwelling units in the area, such an occupancy limit will likely be treated more favorably by a court.¹⁶ But a limit on group home occupancy that disadvantages the group home as compared with a related family unit is unlikely to be met with judicial approval.¹⁷

On the other hand, courts have found some occupancy limits to fail the section 3607(b)(1) exception for particular reasons. For example, when Suffolk County, New York, imposed an occupancy limit pertaining to group homes, the limit was found to constitute facially discriminatory animus toward people with disabilities.¹⁸ Moreover, the occupancy limit was found overinclusive because it failed to acknowledge differences between various types of disabilities and group homes, in violation of the FHAA.¹⁹ A City of Taylor, Michigan, ordinance limited group home occupancy to six or fewer residents. That limit meant that the group living facility would be limited to "a negligible or negative rate of return." The occupancy limit was thus found to violate the reasonable accommodation prong of the FHAA.²⁰

Site Impracticability

The reasonable accommodation provision of the FHAA does not require localities to allow development that would otherwise be disallowed based on site constraints. The impracticability of a proposed site for a group home is also a permissible defense for local governments that deny permits for group homes. In no case is a locality required to relax environmental regulations related to floodplain, wetlands, steep slope or other protections, or other local regulations addressing site development constraints in order to accommodate a group home. However, the local government must apply these regulations uniformly and may not use regulations to specifically target group homes for people with disabilities. For example, a locality may not raise environmental concerns as a demonstration of site impracticability if the environmental concerns suggest a pretext for the denial. Nor does the reasonable accommodation provision require a local government to make significant alterations to its height and bulk restrictions in order to accommodate a group home's application for a permit,²¹ although the local government may be required under the FHAA to grant a variance if the ordinance would otherwise prohibit a group home. An improper pretext may be obvious if the local government has permitted other development in, for example, an environmentally sensitive area, but then denies a group home permission to develop in that same area.²²

When environmental concerns or other site characteristics make a particular site impracticable for the construction of a group home, the local government should undertake adequate studies and should reflect the results of such studies in its land use regulations and in the record of any site-specific proceedings. For example, if an area of the community lies within a floodplain, the local government should demonstrate through scientific and topographic study that the area is indeed within the flood-plain, and the local government should take adequate steps to zone and regulate development in the area in a manner consistent with the existence of the floodplain. A jurisdiction that rejects a proposed group home, but that has undertaken studies and has demonstrated the seriousness of the environmental or site concerns through its land use regulation, will have a far more compelling case than a local government that haphazardly denies an approval to a group home because of unfounded concerns about site impracticability. In no case should the locality rely on anecdotal evidence of site impracticability, as it may be discovered to merely hide an underlying discriminatory motive.²³

Direct Threats

If allowing a group living facility housing people with disabilities in a residential area creates a risk to nearby residents, the FHAA does not require that the group facility be approved. Section 3604(f)(9) of the act says, "Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." It is worth mentioning that section 3604(f)(9) refers particularly to "individuals" who would constitute a threat, not "facilities." Thus, the exception for threatening people in section 3604(f)(9) may not apply to a facility that houses many people with disabilities where not all pose a threat.

As with the other exceptions to Title VIII requirements, this section is construed narrowly. The legislative history of the FHAA says that "[i]n the case of a person with a mental illness . . . there must be objective evidence from the person's prior behavior that the person has committed overt acts which caused harm or which directly threatened harm."²⁴ Congress further noted that findings of direct threats may not be based upon "unsubstantiated inferences"²⁵ The standard for determining whether an individual constitutes a direct threat is codified at 24 C.F.R. § 9.131(c):

In determining whether an individual

...