Does the Federal Fair Housing Act preempt a Mecklenburg County zoning ordinance that requires group homes for the handicapped to be located at least one-half mile from another group home, with no variance or conditional use procedure?
Plain-English summary
The Mecklenburg County Board of Commissioners had adopted a zoning ordinance prohibiting any group home from being located within one-half mile of an existing group home, with no provision for variances or conditional use approvals to relax the spacing requirement. Marvin Bethune of Ruff, Bond, Cobb, Wade & McNair, counsel for the Board, asked the AG whether the ordinance violated the Fair Housing Act Amendments of 1988 (FHAA), which prohibit discrimination in housing on the basis of handicap.
Senior Deputy AG Ann Reed and Special Deputy AG John R. Corne walked through the case law in detail and gave a careful, two-sided answer.
The opinion's first conclusion was that the ordinance was not per se unlawful under the FHAA. The leading appellate case in 1993 was the Eighth Circuit's Familystyle of St. Paul, Inc. v. City of St. Paul, which upheld a municipal ordinance plus state licensing statute requiring a quarter-mile minimum spacing between group homes. Familystyle examined the FHAA's legislative history and concluded that Congress did not intend to preempt all local regulation of facilities housing handicapped persons. The Eighth Circuit's analysis was endorsed by district court decisions in Bangerter v. Orem City Corp. (Utah) and Elliott v. City of Athens (Eleventh Circuit, occupancy-limit ordinance), all holding that the FHAA leaves room for state and local regulation that does not effectively discriminate against the handicapped.
The contrary view came from Horizon House Developmental Services v. Township of Upper Southampton (E.D. Pa.), which struck down a 1,000-foot spacing ordinance. The Pennsylvania court called the ordinance unlawful "on its face" because it created an explicit classification based on handicap with no rational basis or legitimate government interest. But Horizon House went well beyond facial unlawfulness to make extensive findings about discriminatory intent, discriminatory effect, and lack of supporting rationale for the specific ordinance at issue. The court's broader language was tempered by U.S. v. Schuylkill Township, which acknowledged that the FHAA's legislative history allowed "reasonable government limitations so long as they are imposed on all groups and do not effectively discriminate on the basis of a handicap."
So on the per se question, the weight of authority outside the Third Circuit favored case-by-case review, not categorical invalidity.
The opinion's second conclusion was that even if the ordinance was not per se illegal, it might still be invalid as applied if it had a discriminatory purpose or effect. Two theories applied:
Discriminatory treatment (intentional discrimination): proof of intent by a public body is hard but not impossible. Where a court finds the ordinance was adopted with intent to exclude the handicapped, it will be struck down (Williams v. Matthews Co., Horizon House).
Discriminatory impact: many courts have allowed FHAA plaintiffs to proceed without proving intent if they can show a sufficient disparate impact, by analogy to Title VII (Huntington Branch, NAACP v. Town of Huntington; Familystyle). The Fourth Circuit in Smith v. Town of Clarkton adopted the four-factor test from the Seventh Circuit's Arlington Heights II:
- How strong is the plaintiff's showing of discriminatory effect.
- Is there some evidence of discriminatory intent.
- What is the defendant's interest in taking the action complained of.
- Does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups, or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.
The Eighth Circuit in Familystyle had used a rational-basis test for handicap classifications (since persons with mental retardation are not a suspect class under equal protection). The Eighth Circuit's analysis required the defendant to show a "rationally related" legitimate government purpose. Familystyle found a rational basis: Minnesota's policy of deinstitutionalization, supported by state legislative history, case law, and a state auditor's report. The plaintiff in Familystyle had also "clustered" twenty-one houses in a one-and-one-half-block area of St. Paul, a segregation pattern the court found contrary to FHAA's integration purpose and remedied by the spacing ordinance.
The Third Circuit had imposed a stricter burden on defendants: they had to demonstrate that their action furthered "in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect" (Horizon House). That least-restrictive-alternative requirement made it considerably harder for a spacing ordinance to survive in the Third Circuit than in the Eighth.
Where did the Fourth Circuit stand? The Fourth Circuit had not yet ruled on a spacing ordinance, but its general FHAA doctrine in Smith v. Town of Clarkton followed the Arlington Heights II four-factor balancing. One Eastern District of Virginia opinion (Atkins v. Robinson) had explicitly noted the split between Familystyle and Horizon House and said the EDVA would follow the Fourth Circuit's lead in Smith. So the Mecklenburg ordinance's survival in NC federal court would turn on how a Fourth Circuit court weighed the four Arlington Heights II factors against the specific facts.
The AG could not predict the outcome of those factor-balancing calls without development of the record. The opinion was carefully agnostic, providing the legal framework while declining to forecast which side would win.
Two practical takeaways that the AG implied without quite saying: First, the Mecklenburg ordinance's lack of variance or conditional-use provisions was a vulnerability. Familystyle had upheld a quarter-mile ordinance partly because the state's variance procedure had been used flexibly to allow individual exceptions. An ordinance with no escape valve looked harder to defend. Second, the Mecklenburg Board would need to develop a strong record of legitimate government interest (deinstitutionalization, integration goals) supported by evidence, not just policy assertions, if it wanted to defend the ordinance in court.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Federal Fair Housing Act jurisprudence on group home spacing has continued to develop since 1993, with most circuits eventually moving toward case-by-case analysis but with varied burdens. The U.S. Supreme Court's decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project (2015) settled some disparate-impact questions for fair housing claims. The ADA's Title II reasonable-accommodation framework also shapes current analysis. Anyone advising on a current group home ordinance should verify the present circuit law.
Background and statutory framework
The Fair Housing Act Amendments of 1988 added handicap and familial status to the protected classes covered by the original 1968 Fair Housing Act. The handicap protections were partly a response to the long history of NIMBY ("not in my back yard") opposition to group homes for persons with mental illness, developmental disabilities, and substance abuse recovery. Congress wanted to ensure that people with disabilities had meaningful housing access, including in group home settings where shared support services made independent community living possible.
Local governments responded with a variety of strategies. Some adopted express spacing or dispersion requirements ostensibly designed to prevent "concentration" of group homes in particular neighborhoods. Others used facially neutral occupancy limits on unrelated persons. Still others relied on conditional use procedures that required public hearings before each group home could be approved. The FHAA's prohibition on discrimination "because of handicap" was the new constraint on those strategies.
The early 1990s case law was just starting to settle the FHAA's reach when this opinion was written. The Eighth Circuit's Familystyle was the most prominent appellate decision favoring the constitutionality of spacing rules. The Third Circuit's Horizon House was the most prominent contrary decision. Other circuits had not yet ruled in this specific area, leaving the question genuinely open.
The Fourth Circuit's pre-FHAA fair housing jurisprudence in Smith v. Town of Clarkton was useful for an Arlington Heights II four-factor framework. Smith involved race-based housing discrimination, not handicap discrimination, but the four-factor approach was generic enough to extend.
The AG's careful refusal to predict the Mecklenburg ordinance's fate was appropriate. The opinion gave the Board's counsel a roadmap for understanding the relevant case law and the factors that would be weighed, without committing the office to a particular outcome that would depend on facts developed in actual litigation.
Mecklenburg County's specific ordinance, requiring half-mile spacing with no variance or conditional-use procedure, was tighter than the Eighth Circuit's quarter-mile rule and as restrictive as some struck-down ordinances. Whether it would survive Arlington Heights II balancing would depend on the strength of evidence the Board could marshal for its legitimate interests, and on the plaintiffs' showing of discriminatory effect.
Common questions
Did the AG say the Mecklenburg ordinance was illegal?
No. The AG said it was not per se illegal and that its survival would depend on Arlington Heights II factor balancing, which could go either way depending on the facts developed in litigation.
What's the difference between the Eighth Circuit's approach and the Third Circuit's?
The Eighth Circuit applied rational-basis review (the defendant needs only a rationally related legitimate purpose). The Third Circuit applied a stricter test requiring the defendant to show the action was necessary and that no less discriminatory alternative would serve the interest.
What did Smith v. Town of Clarkton say?
Smith was a 1982 Fourth Circuit case involving race-based housing discrimination. It adopted the Arlington Heights II four-factor test for proving FHA violations through disparate impact: strength of effect, evidence of intent, defendant's interest, and remedy type.
Did the Mecklenburg ordinance's lack of variance procedures make a difference?
The AG implied that it did. Familystyle had partly relied on the existence of a flexible variance procedure to uphold the St. Paul ordinance. An ordinance with no escape valve is harder to defend as a measured regulation.
What kind of legitimate government interest could support the spacing requirement?
The strongest support would be deinstitutionalization and integration policy backed by legislative history, expert evidence, and government studies (like the state auditor's report Familystyle relied on). A bare "we don't want clustering" rationale would be vulnerable, as Horizon House illustrated.
Citations
- 42 U.S.C. §§ 3601, 3604(f) (FHAA prohibitions)
- Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991)
- Horizon House Developmental Services v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992)
- Smith v. Town of Clarkton, 682 F.2d 1055 (4th Cir. 1982)
- Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977)
- Bangerter v. Orem City Corp., 797 F. Supp. 918 (D. Utah 1992)
- Elliott v. City of Athens, 960 F.2d 975 (11th Cir. 1992)
Source
Original opinion text
March 22, 1993
Mr. Marvin A. Bethune
Ruff, Bond, Cobb, Wade & McNair
Two First Union Center Suite 2100
Charlotte, NC 28282-8283
Re: Zoning Ordinances for Group Homes
Dear Mr. Bethune:
This letter is in response to your request for an opinion (a copy of which is attached) with respect to the legality of a recently amended zoning ordinance in light of the Fair Housing Act Amendments ("FHAA"), 42 U.S.C. § 3601, et seq.
Your letter indicates that the Mecklenburg County Board of Commissioners has adopted an ordinance which prohibits any group home from being located within one-half mile of an existing group home. You also indicate that the zoning ordinances currently do not provide for variances or conditional uses with respect to this spacing requirement. Thus, the question is whether this ordinance violates the FHAA, which makes it unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter . . . or discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of a handicap . . . ." 42 U.S.C. § 3604(f).
Based upon the information you have provided in your request and the available cases which have interpreted the FHAA and ordinances of this nature, it appears that a zoning ordinance which provides a minimum spacing requirement between group homes is not per se unlawful. Whether this particular ordinance adopted by the Mecklenburg County Board of Commissioners can withstand a potential legal challenge will depend upon the factors discussed below. However, because cases are just now beginning to be determined by the courts, an unequivocal answer cannot be given.
As you have set forth the applicable statutory and case law in your attached request, I will not repeat in detail the holdings of those cases.
The first question raised by your request is whether zoning ordinances such as the one at issue are per se unlawful under the FHAA. That is, does such an ordinance violate the FHAA regardless of whether there was discriminatory intent involved in its adoption and regardless of its application to a particular plaintiff.
As you have noted, only one federal court of appeals has directly addressed this issue. In Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991), the court upheld a municipal ordinance and a state licensing statute which required a minimum of one-quarter mile between group homes. The Familystyle decision presents several important points to consider in analyzing similar kinds of dispersion requirements for handicapped housing.
First, the Familystyle decision holds that, at least in the Eighth Circuit, such dispersion requirements are not preempted by the FHAA, and should be examined on a case-by-case basis. The district court below, after examining the legislative history of the FHAA, addressed the preemption issue distinguishing between the FHAA's effect on laws which regulate individuals and those which regulate institutions:
It is doubtful that in seeking to provide fair housing for the handicapped, the federal government intended to preempt all local regulation of the facilities which house them. Surely the Congress intended states to maintain some control over such facilities.
Familystyle of St. Paul v. City of St. Paul, Minn., 728 F. Supp. 1396, 1401 (D. Minn. 1990). The Eighth Circuit affirmed, concluding that "Congress did not intend to abrogate a state's power to determine how facilities for the mentally ill must meet licensing standards." Familystyle, 923 F.2d at 94.
This holding has found support in other courts as well, e.g., Bangerter v. Orem City Corp., 797 F. Supp. 918 (D. Utah 1992) (24-hour supervision requirement as condition for operating a group home not preempted by FHAA; ordinance upheld); Elliott v. City of Athens, 960 F.2d 975, 982-84 (11th Cir. 1992) (rejecting the argument that any ordinance which produces a disparate impact on handicapped persons is ipso facto illegal and upholding a zoning ordinance setting occupancy limits for unrelated persons).
On the other side of this issue is the decision in Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992), striking down an ordinance requiring a 1,000 foot spacing requirement for group homes. The Horizon House court stated that the ordinance was unlawful on its face "because it creates an explicit classification based on handicap with no rational basis or legitimate government interest." Id. at 693. Although the court's language at one point seems to indicate that all such ordinances would be unlawful, it actually goes far beyond the face of the ordinance in supporting its decision, making extensive findings and conclusions regarding the discriminatory intent of those who adopted it, the discriminatory effect on the handicapped, and the lack of a rational basis for adopting the ordinance.
In another case addressing this issue, the same court noted that the FHAA's legislative history "does not state that all zoning restrictions which impact upon the handicapped are per se invalid, rather Congress has indicated that the FHAA is intended to allow reasonable government limitations so long as they are imposed on all groups and do not effectively discriminate on the basis of a handicap." U.S. v. Schuylkill Township, Pa., 1990 WL 180980, at *6 (E.D. Pa. November 16, 1990) (citation omitted).
No other cases were found which hold that the FHAA preempts the adoption or enactment of dispersion requirements for group homes for the handicapped.
Even if the ordinance is not preempted by the FHAA, it may nonetheless be invalid if it is discriminatory within the meaning of the FHAA. Such a violation may be shown either by demonstrating an intent to discriminate on the part of the governing board ("discriminatory treatment") or, perhaps as a more likely case, by showing that the ordinance has a discriminatory effect ("discriminatory impact"). Because these factors can only be fully explored in the context of a legal challenge by persons claiming to be affected by the ordinance, one can do little more than speculate at this point as to the possible merit of such claims. However, it may be useful to consider the standards which other courts have utilized in determining whether a violation of the FHAA has occurred.
While proof of a discriminatory motive underlying the adoption of the ordinance would clearly establish a violation of the FHAA (See, e.g., Williams v. Matthews Co., 499 F.2d 819 (8th Cir. 1974); Horizon House, supra), proof of intent of a public body is a difficult matter. Some courts have ruled that where Fair Housing Act violations have been alleged against a public defendant, the proper analysis is the disparate impact approach of Title VII, 42 U.S.C. §§ 2000e-1 et seq.; See Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934 (2d Cir. 1988), Familystyle, 728 F. Supp. at 1402, n.9. Therefore, the following comments are directed to a disparate impact claim made under the FHAA.
The Fourth Circuit has ruled that a plaintiff alleging a Fair Housing Act violation need not prove discriminatory intent, and that proof of discriminatory effect or impact is sufficient. Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir. 1982). There, the court utilized the following factors to determine whether a violation of the Fair Housing Act had occurred:
(1) how strong is the plaintiff's showing of discriminatory effect; (2) is there some evidence of discriminatory intent . . . (3) what is the defendant's interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide such housing.
Id. at 1065, quoting from Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025, 98 S. Ct. 752, 54 L. Ed. 2d 772 (1978) ("Arlington Heights II").
In Familystyle, the Eighth Circuit set forth the following test: "whether legislation which distinguishes between the mentally impaired and others is 'rationally related to a legitimate governmental purpose.'" Familystyle, 923 F.2d at 94 (citation omitted). Using this standard, the court found that Minnesota's policy of deinstitutionalization of the mentally ill had a rational basis in state law (state-wide licensing requirement for group homes reflects the goal of deinstitutionalization) which was furthered by the municipal ordinance.
Additional factors weighed in favor of the defendants in Familystyle which are worthy of note. The stated "legitimate governmental purpose" of deinstitutionalization was supported by legislative history, case law, and a state auditor's report. Id. at 93, 728 F. Supp. at 1402. Also, the court was faced with a plaintiff organization which had "clustered" twenty-one of its houses in a one and one-half block area of the city, a segregation of the mentally ill which the court found to be antithetical to the purposes of the FHAA, which was remedied by the ordinance. The court not only found no evidence of discriminatory intent, but the city had five years earlier granted a special use permit to the plaintiff, on the condition that it work to disperse its facilities. 728 F. Supp. at 1398.
As noted by your research, the court in Horizon House, as well as the court in Schuylkill Township, supra, (same ordinance, decided parallel with Devereux Foundation v. O'Donnell, 1991 WL 36264, cited in your letter) found facts indicating that the ordinances at issue had been adopted with an intent to exclude persons with handicaps; that the effect was to limit the housing availability for the handicapped; and that the "legitimate government interest" put forward by the defendants (generally, to avoid "clustering") was without support when examined in light of the timing and historical context of their adoption. "That the current spacing requirement is the result of irrational fears, although well intentioned, is also evidenced by lack of any evidence in support of the decision to have a spacing requirement beyond the 'gut' instinct of the current Supervisors that clustering is bad and will hinder integration." Horizon House, 804 F. Supp. at 696.
It should also be noted that Familystyle and Horizon House placed different burdens on the defendants to rebut a showing of discrimination. Under the Eighth Circuit's rule, once a plaintiff has presented a prima facie case of discrimination, the defendant has the burden of showing that its conduct was necessary to promote a governmental interest commensurate with the level of scrutiny afforded the class of people affected by the law under the equal protection clause. Because persons with mental retardation do not constitute a suspect class under the Equal Protection clause, the court reasoned that the legislation need only be rationally related to a legitimate governmental purpose. Familystyle, 923 F.2d at 94.
On the other hand, the Second and Third Circuits have required a higher burden of defendants in rebutting a prima facie case. Thus, in Horizon House, Devereux, and Schuylkill Township, the defendant had to demonstrate "that its action furthers, 'in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.'" Horizon House, 804 F. Supp. at 698 (citations omitted) (emphasis added).
While the Fourth Circuit has yet to rule on the foregoing issue, at least one district court has acknowledged the disparity: "[t]o the extent that the approaches used by these courts [the Eighth Circuit on the one hand and the Second and Third Circuits on the other] differ from the Arlington Heights II inquiry, the Court will follow the lead of the Court of Appeals for the Fourth Circuit in Smith v. Town of Clarkton and closely adhere to the latter." Atkins v. Robinson, 545 F. Supp. 852, 867, n.78 (E.D. Va. 1982).
Thus it is likely that the Fourth Circuit would analyze this ordinance in a manner different from either the Familystyle or Horizon House courts, weighing the four factors set out above in Arlington Heights II. No clear determination can be made as to the application of these factors to the ordinance at issue.
I trust that the foregoing is of some help in addressing the Board's concerns. If I can provide anything further, please do not hesitate to contact me.
Ann Reed
Senior Deputy Attorney General
John R. Corne
Special Deputy Attorney General