Did a Mecklenburg County ordinance requiring one-half mile between group homes violate the Fair Housing Act Amendments even without evidence of discriminatory intent or effect?

Plain-English summary

Mecklenburg County's commissioners had adopted an ordinance barring a group home within one-half mile of another. The county's zoning rules had no variance or conditional-use provision for that spacing requirement. Counsel asked whether the rule violated the Fair Housing Act Amendments (FHAA), which prohibit discrimination in housing because of a handicap.

The AG answered that a minimum spacing rule was not per se unlawful under the FHAA. It cited the Eighth Circuit's Familystyle decision upholding a quarter-mile rule and contrasted an Eastern District of Pennsylvania decision, Horizon House, striking down a different rule after findings of discriminatory intent, effect, and lack of a rational basis. The opinion said Mecklenburg's rule might still be invalid if it discriminated through intent or effect.

The Fourth Circuit had not decided the specific issue. The AG expected a court to consider four factors drawn from Smith v. Town of Clarkton: the strength of discriminatory effect, some evidence of intent, the government's interest, and the type of housing relief sought. It said no clear determination could then be made for Mecklenburg's ordinance. The opinion mentions the lack of a variance procedure in describing the county's rule but does not say that fact would determine the result or attribute variance-based reasoning to Familystyle.

Currency note

This opinion discusses the cases and county ordinance as they stood in 1993. Check current fair housing law and the actual ordinance before acting on a present group-home placement question.

Background and statutory framework

The opinion distinguished two questions: whether spacing ordinances are categorically barred by the FHAA, and whether a particular ordinance discriminates. It found no categorical bar in the cases it reviewed. It then explained that proof of discriminatory intent would establish a violation, while discriminatory effect might also suffice without proof of intent.

Familystyle upheld a St. Paul ordinance and state licensing rule after examining the stated deinstitutionalization interest and facts about clustered facilities. Horizon House, an Eastern District of Pennsylvania case, struck down a 1,000-foot rule after detailed findings about its adoption and effect. The AG noted differing burdens in those cases and predicted that the Fourth Circuit would follow its own Smith analysis. The county's actual record would need to be developed before a reliable outcome could be stated.

Common questions

Did the AG approve Mecklenburg County's spacing ordinance?

No final approval was given. The AG said a minimum spacing requirement was not automatically unlawful, but this ordinance's validity would depend on facts and legal factors assessed in a challenge.

Could a rule violate the FHAA without proof of discriminatory intent?

The opinion says the Fourth Circuit had accepted proof of discriminatory effect in a Fair Housing Act case without a showing of intent. The AG expected the four Smith factors to guide a challenge to this ordinance.

Did the absence of a variance or conditional-use process decide the answer?

No. The opinion records that the Mecklenburg zoning rules lacked those processes, but does not say the omission was dispositive. It did not describe a flexible variance process as a reason Familystyle upheld the St. Paul rule.

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, Inc. 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

• Landing page: https://ncdoj.gov/opinions/zoning-ordinances-for-group-homes/

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