In 1954, the United States Supreme Court struck down state-sponsored racial segregation in public schools. Brown v Board of Education. (1954) 347 US 483, 98 L Ed 873, 74 S Ct 686. Fourteen years later, the United States Congress enacted the Fair Housing Act (the Act), 42 USC §3601, Pub L 90-284, 82 Stat 81 (1968), to prohibit discrimination in housing based on race, religion, sex, or national origin. Twenty years later the Act was expanded by the Fair Housing Amendment Act of 1988 (FHAA)(Pub L 100-430, 102 Stat 1619) to provide protection for individuals with "handicaps." 42 USC §§3602(h); 3604(c)-(f); 3605; 3606; and 3631.
In response to the Act, the California Legislature amended the California Fair Employment and Housing Act (FEHA) (Govt C § § 12900-12996), effective January 1, 1994, making it unlawful to discriminate against handicapped individuals through, among other things, zoning permits or other land use practices. Govt C §12955, Stats 12993, ch 1277, §4. The scope of these laws is described in more detail below.
Although it is generally agreed that these federal and state housing laws have a broad reach, there is no general agreement about which specific land use practices violate the two fair housing schemes. One of the most controversial issues is the approval and siting of residential care facilities (also known as "group homes") that include service support components for the disabled.
This article analyzes some of the land use issues that arise under the Act and the FEHA, particularly with respect to group homes. It also examines some of the inherent conflicts between the goals of local land use laws and the objectives and prohibitions of the Act and the FEHA. Finally, it presents the perspective of local government and those individuals and entities concerned with local control of land use matters.
This definition of "handicap," which has its roots in Section 504 of the Rehabilitation Act of 1973 (Pub L 93-112, 87 Stat 355) "does not include current, illegal use of or addiction to a controlled substance..." 42 USC §3602(h)(3). The Act also excludes from its protection individuals whose tenancy would cause a direct threat to the health and safety of other persons or whose tenancy would result in substantial damage to others' property. 42 USC §3604(f)(9). The Act does accord protection to individuals in a treatment program for drug abuse. U.S. v Southern Management Corp. (4th Cir 1992) 955 F2d 914.
Generally, the Act makes it unlawful to discriminate against the handicapped in the sale, rental, or advertising of dwellings. Under the Act, a discriminatory housing practice occurs where a public or private entity refuses to:
(A) ... permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises ...
(B) make reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling.
42 USC §3604(f)(3)(A)-(B); U.S. v California Mobile Home Park Management Co. (9th Cir 1994) 29 F3d 1413.
Essentially, there are two ways to prove discrimination exists in violation of the Act: (1) discriminatory intent; and (2) disparate impact. Discriminatory intent is shown when the plaintiff proves that the handicap formed some, but not all, of the basis of the decision to deny of otherwise make housing unavailable to him or her. Under the disparate impact prong, the plaintiff needs to show only that the effect of the defendant's action is unnecessarily discriminatory, whether or not the defendant intended to discriminate. Association of Relatives and Friends of Aids Patients v Regulations and Permits Admin. (D PR 1990) 740 F Supp 95.
The Act applies to discriminatory conduct by both private and public actors. Keith v Volpe (9th Cir 1988) 858 F2d 467. It also applies to state and local zoning decisions and practices that unlawfully deny or make housing opportunities unavailable to individuals with disabilities. See HR Rep No. 711, 100th Cong, 2d Sess 13, 24. In fact the Act specifically invalidates "any law of a state, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under" the Act. 42 USC §3615.
As amended effective January 1, 1994 (Stats 1993, ch 1277), California's FEHA prohibits discrimination against handicapped individuals through zoning permits or other land use practices. The amendments invalidate all state laws that require or permit any action that would be unlawful under the Act. Govt C §12955.6. The FEHA states that it "may be construed to afford greater rights and remedies to an aggrieved person than those afforded by federal law and other state laws." Govt C §12955.6.
These laws set the stage for continuing clashes between fair housing advocates, particularly proponents of residential care facilities and other types of group homes, and local governments responsible for complying with fair housing laws while exercising local land use authority in a manner that respects neighborhood character and other community concerns.
This trend is of particular significance in light of the government's ever-decreasing capacity and desire to provide institutional support services and housing for such populations. In California, it has led to a substantial increase in group homes, including those with service support components for the disabled. These facilities and the individuals they house are not always welcomed by local residents and, in many instances, the facilities are not always appropriate under local zoning. Thus, the stage is set for conflict.
Local housing development corporations have provided strong leadership in creating affordable and accessible housing opportunities to meet the full range of needs of all the state's residents, including populations with disabilities. Avenues pursued have included new construction and rehabilitation of residential structures, as well as adaptation of nonresidential facilities for residential use. Such projects, particularly when publicly assisted, have included formulas for a certain percentage of units to be designated as affordable or accessible. See Lee, Hismen Hin-Nu: A Case Study of the Local Development Corporation's Role in Financing and Building Affordable Housing, p 35.
Nonprofit and religious organizations have joined housing development corporations in working to meet the housing needs of populations covered by state and federal fair housing laws. In addition to housing opportunities, these entities have often provided the key support service linkages needed to define truly independent living or accessible housing programs. They have also assumed strong advocacy leadership to ensure that the civil rights of people with disabilities and families with children are not abridged in the provision of equal housing opportunities.
Housing sponsors such as local development corporations, nonprofits, and religious service organizations have increasingly sought to provide housing for the disabled in residential settings commonly known as residential care facilities. "Residential facility" is defined (Health & S C §1502(a)(1)) as:
any family home, group care facility, or similar facility determined by the director for 24-hour nonmedical care of persons in need of personal services, supervision or assistance essential for sustaining the activities of daily living or for the protection of the individual.
Residents may include children, adults, or the elderly; the physically handicapped, developmentally disabled, or mentally ill; former substance abusers; and abused or neglected children or adults. Health & S C §1502(a); U.S. v Southern Management, supra, interpreting 42 USC §3602(h); Govt C § 12955.6. Residents may also include former criminal offenders, if they are handicapped. 42 USC §3602(h); Govt C §12955.6.
Local government fulfills a crucial role in providing housing for the disabled:
At the same time, citizens often require local government to fulfill the role of guardian of the aesthetic character, economic value, and physical coherence of its residential neighborhoods. While the prevailing conceptual view is that both are appropriate roles for local government to play, political conflict has been a frequent by-product of attempts to fulfill both roles.
The following is a typical scenario in California: A local government, represented by its city council, seeks to secure funding from state and federal sources to help defray the cost of financing a residential care facility for thirteen disabled teenagers. It authorizes its housing agency to submit an application for such funding and to abide by applicable grant restrictions concerning the provision of fair housing. The city council has already adopted fair housing goals and policies enthusiastically endorsed by the community in an extended public participation process.
Guided by these policies, the housing or redevelopment agency of the jurisdiction has taken the initiative to participate in a creative, local public-private partnership with the project sponsor (a community-based development corporation, a nonprofit, of a religious service organization) to create financing or programmatic sponsorship for the project. The housing agency seeks and obtains city council approval to enter into such a partnership agreement and to cooperate in the financing arrangement. Sponsors of the project proposal file applications for development entitlements (i.e., planning, design, or subdivision approvals) via the local jurisdiction's land use approval process.
The zoning regulations of the city require the project to obtain conditional use permit (CUP) approval to be established at the desired location. This process requires a public hearing. The city's planning commission has been charged by the city council with the responsibility of conducting such public hearings and with deciding whether to grant the CUP. Through public testimony the planning commission is aware of the city council's actions to date in support of the project. The commission has participated previously in the development of the city's housing policies via its role in reviewing and recommending adoption of the city's general plan. Therefore, it is familiar with those policies as well as federal and state legislative requirements pertaining to fair housing mandates. Furthermore, the commission's staff attorney has provided an opinion on recent judicial determinations related to housing proposals of the type under consideration, and it confirms that the issues related to such projects have typically been decided in favor of such housing and against zoning decisions deemed discriminatory in either intent or effect.
The project sponsors have voiced concern about the public hearing process. They believe that the city council's actions approving funding for the project already constitute city approval of the project, and they don't understand why the proposal must be subjected to time delays, significant application fees, potential approval conditions beyond those required for agency or city funding, and exposure to public comment. They further suggest that the CUP process, as it relates to their project, is in violation of the FHAA and the FEHA, since those legislative acts, they argue, expressly forbid the use of such zoning devices to discriminate against the population they intend to serve. In short, they believe that the project should be established as of right. The city does not concur.
During the public hearing, the planning commission receives testimony from residents of the area where the sponsors propose to locate the project. Witnesses inform the commission that the area has a high percentage of low-income residents and has experienced no significant development activity in recent years other than projects of the type under consideration. Statistics indicate that such projects have been routinely approved in the area and, in fact it has a higher ratio of these facilities per resident than any other neighborhood of the city. The area is single-family residential in character. The project like many others already established in the area, requires the construction of structural elements to accommodate support service functions (e.g., classroom space) to assist residents. The neighborhood residents argue that the area has an excessive concentration of such facilities, relative to other neighborhoods in the city. They also voice concern about the potential, cumulative adverse impact of the project on parking in the area. They argue that the high concentration of such developments threaten the character of the neighborhood, and, therefore, the project should be denied. Based on this testimony, the planning commission denies the project. The sponsors appeal its decision to the city council.
The dilemma is particularly underscored when the city council that initially endorsed the project is required to review the action of its planning commission on appeal. On the one hand, the individual members of the council must recognize that, as a collective body representing the entire community, the city council is responsible for ensuring fair housing opportunities for all residents, consistent with the goals of federal and state legislation. For that reason, the council may have endorsed, without hesitation, financing proposals to support the proposed project. On the other hand, each individual councilmember is responsible for ensuring the preservation of community empowerment and values consistent with the democratic process. To be sure, community empowerment may often mask indefensibly parochial self-interest. However, it may also encompass legitimate neighborhood concerns. The solution may lie in ensuring flexibility to evaluate each case on its merits, with open minds.
"The FHAA made it illegal to discriminate against any buyer or renter because the person is handicapped or is providing housing for the handicapped. The law broadly defines discrimination to include 'a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.' (42 USC §3604(f)(3)(B); emphasis added.) In this instance, the planning commission failed to reasonably accommodate the project applicant and their clients."
Standing alone, these arguments seem both compelling and fair. When evaluated against the FHAA and recent case law, however, the aura of fairness quickly dissipates. The duty to "reasonably accommodate" is not an open-ended obligation. As indicated by the courts, "reasonable accommodation," within the meaning of the FHAA, is one that would not impose undue hardships or burdens on the entity making the accommodations. U.S. v Village of Marshall (WD Wisc 1991) 787 F Supp 872. Thus local governments, when balancing the interests of handicapped populations against other neighborhood interests, are not without discretion. Oxford House, Inc. v City of Virginia Beach (ED Va 1993) 825 F Supp 1251.
"The public criticism, and not the impacts of the project, caused the planning commission to deny the project altogether. The planning commission's action on behalf of the city clearly did not recognize the latter's responsibility to provide reasonable accommodation for housing developments intended to serve populations with disabilities. Furthermore, the commission's action contradicted the two distinct actions taken by the city council when it adopted fair housing goals and approved financing for the project. Accordingly, this project should not have been subjected to the CUP process; but since it has, it should be approved."
In defense of the CUP, and contrary to some of the arguments stated above, neither statutory nor case law expressly prohibits local governments from ever subjecting handicapped persons, or projects meant to serve them, to a special use permit review process. The use permit requirement runs afoul of fair housing laws only if it intentionally discriminates, or otherwise has the effect of restricting the housing choices of handicapped populations to a greater extent than it restricts housing choices of similarly situated nonhandicapped persons.
Federal and state fair housing laws do not provide disabled individuals with preferential treatment. Instead, they provide equal opportunity and a level playing field. To avoid actual discrimination, local governments must simply treat similar land uses in a like manner. See, e.g. City of Cleburne v Cleburne Living Ctr. (1985) 473 US 432,87 L Ed 2d 313,105 S Ct 3249.
Fair housing laws were not enacted in a vacuum. When they expanded the housing rights of the disabled community, both Congress and the California legislature were fully aware that most cities used the CUP as a zoning tool to control land use impacts. This has led some courts to hold that local zoning authorities have discretion to require such permits and, under proper circumstances, to deny them to handicapped individuals. Oxford House, Inc. v City of Virginia Beach (ED Va 1993) 825 F Supp 1251.
Fair housing laws do not have the objective of destroying Euclidean zoning. City of Edmonds v Oxford House, Inc. (1 995) 514 US _, 131 L Ed 2d 801, 115 S Ct 1776.
Edmonds..... contends that subjecting single-family zoning to [Fair Housing Act] scrutiny will "overturn Euclidean zoning" and "destroy the effectiveness and purpose of single-family zoning." . . . This contention . . . exaggerates the force of the [Fair Housing Act's] antidiscrimination provisions.... 131 L Ed 2d at 812.
At least one court has held that municipal dispersal requirements for group homes did not violate the Act by discriminating against mentally ill individuals. Familystyle of St. Paul, Inc. v City of St. Paul (8th Cir l991) 923 F2d 91. The court in that case approved a quarter-mile dispersal requirement, holding that it furthered the proper governmental interest of integrating mentally ill individuals into the mainstream society. 923 F2d at 95. Therefore, like use permits, dispersal requirements are not illegal per se; however, they must be supported by a reasonable governmental interest and they must be reasonable in their application.
Public opposition to unwanted facilities or people is conventionally called the NIMBY (not in my back yard) syndrome. According to Robert W. Lake, professor of geography and urban planning at Rutgers University, "in the NIMBY framework, selfish parochialism generates locational conflict that prevents attainment of societal goals." Lake, Rethinking NIMBY, American Planning Association Journal, p 87 (Winter 1993). He goes on to say that NIMBYism is blamed for virtually all of our failures to solve pressing social problems such as environmental degradation, transportation congestion, homelessness, crime, and poverty. Faced with seemingly intractable problems, we invariably indict NIMBYism as the villain.
To be sure, NIMBYism has on many occasions provided the inspiration for community opposition to unwanted land uses and people. It has often provided the justification for neighborhood groups in their legal (and sometimes illegal) efforts to block project proposals of various kinds, including those that would promote fair housing opportunities for disabled populations. Nonetheless, NIMBYism should not be uncritically classified as the exclusive motivating force of irrational, selfish communities determined to frustrate the attainment of broader, worthier societal goals.
It is not realistic to expect that every neighborhood will accommodate affordable, accessible housing units. In some wealthy neighborhoods, for example, property values are typically so high that they exclude all but the richest members of the community. Even if fair housing goals were to be expressly articulated by residents, the high price of property effectively precludes the provision of housing opportunities for most populations with disabilities. Not even reasonable accommodation will overcome that truism. Such neighborhoods have not been directly faced with the political need to reveal whether NIMBYism in fact exists.
On the other hand, some middle-income neighborhoods have been very vocal in their opposition to affordable, accessible housing. Conventional NIMBYism has often been associated with such communities. They assert that preservation of neighborhood character is their primary purpose; other rationales include concern for safety, adverse impacts on property values, and environmental impact related to parking, hours of operation, noise, and so on.
Still other, often lower-income, residential neighborhoods have been well-intentioned in accepting housing for populations with disabilities. Some have successfully integrated such developments with virtually no discernible impact. Others have tried to accommodate (or, at least, not actively opposed) such land uses, with the result that they have become the location of more of such housing than the communitywide average. Ironically, when these communities protest the establishment of additional fair housing developments and suggest that other neighborhoods should share responsibility for accommodating them, their opposition is often ascribed to the NIMBY syndrome. They face the dilemma that, because property values in their neighborhoods are relatively low, they are likely to have the most attractive potential locations for additional affordable housing.
Accessible housing developments are often created through new construction or alteration of existing facilities. Either for economic-related or program support service-related reasons, some are required to be larger in scale or operate at greater intensity of use than surrounding residences. When a concentration of such developments exists, as is frequently the case in lower-income neighborhoods, it can alter the prevailing residential character. All too often this situation is improperly posed in terms of conflict between local and societal interests, rather than the inequity inherent in the geographic discrepancy between locally concentrated costs and dispersed societal benefits. See Lake, supra, at 88.
Notwithstanding these crucial responsibilities, local government must also ensure that in implementing fair housing objectives, it does not unreasonably compromise its other traditional responsibilities. Protecting constancy and stability in the community is also an essential responsibility of government. This includes protecting property as well as aesthetic values, social status, the sanctity of the home, and the coherence of community (Lake, supra, at 90) for every segment of the community. The task of balancing these interests is not an easy one.
Undoubtedly, the conditional use permit process can be and has been used as a tool to discriminate against the disabled. However, it has also been used legitimately to identify impacts that adversely affect local communities. Used properly, it will continue to play a critically important function not only in balancing the legitimate interests of various segments of the community but also in furthering fair housing goals. Policymakers thinking about abandoning the CUP process should first consider the following: If, in the name of fair housing objectives, government action (or lack thereof) results in the placing of a significantly greater burden on one geographic location of economic segment of the community than on other locations or segments, the "other civil rights revolution" has simply reallocated the oppressive phenomenon it was intended to eradicate. The locations and segments of the community required to shoulder an inordinate responsibility for affordable, accessible developments are as entitled as everyone else to a measure of assurance regarding neighborhood constancy and stability.
Alvin D. James is presently the Director of Planning and Permitting for the City of Pasadena, California where he oversees the planning, building, and permit processing functions. He was previously the Director of City Planning for the City of Oakland, California for ten years. He received his B.A. degree from Wesleyan University, Middletown, Connecticut, and his Masters of City and Regional Planning from Rutgers University Graduate School of Urban Planning.
Ralph Wheeler is a senior attorney in the Oakland City Attorney's Office, where he supervises the Land Use and Environmental Practice Group. From 1984 through 1986, he specialized in redevelopment law. Mr. Wheeler received his B.A. from the University of California, Berkeley; M.S. from Columbia University; and J.D. from Hastings College of the Law, He has lectured on disaster preparedness and response and in 1990 developed a disaster recovery form book for the League of California Cities. He also coordinated the City Attorney's responses to the two recent disasters in Oakland.