Introduction

This article is the first of a two-part series addressing the evolution of the law regarding how far municipalities can go under the Federal Fair Housing Act in regulating group homes. There are encouraging signs, from a municipal attorney's standpoint, and from some recent federal district and circuit court decisions. In the zoning field, which is addressed in this article, these decisions point out the need to balance considerations of detriment to the municipality, its residents and the neighborhood against the benefits to the group home. In the area of enforcement of the Life Safety Fire Code, which will be covered in Part II of this series, recent decisions are beginning to give guidance to the municipal practitioner regarding the balance that must be considered in evaluating the needs of the disabled versus fire safety considerations in determining whether a municipality has reasonably accommodated the handicapped.

Although the Supreme Court's recent decision in City of Edmonds v. Oxford House, Inc., . . . U.S. . . ., 115 S.Ct. 1776 (1995), held that unrelated persons occupancy restrictions were not exempt from the Act, the municipal practitioner should be encouraged by a trend towards a more balanced view of the needs of the handicapped versus the obligations of a municipality when federal courts consider enforcement of the Fair Housing Act. The following cases are of particular interest.

Recent Zoning Cases

In 1994, the Seventh Circuit made it clear in United States v. Village of Palatine, 37 F.3d 1230 (7th Cir. 1994), that a municipality must be given the opportunity to accommodate a group home's request through the municipality's established zoning procedures for adjusting zoning before the group home can complain that the municipality's actions have violated the Fair Housing Act's requirement for a reasonable accommodation. That decision has now been unequivocally adopted in the Eighth Circuit.

We begin our analysis with the case of Oxford House-A v. City of University City, 1996 WL 368921, a July 5, 1996, Eighth Circuit decision. Oxford Houses are a nationwide network of residences for recovering alcoholics and drug addicts. In this case, Oxford House followed the same procedure it has followed throughout the country in moving people into the house without applying for occupancy permits or zoning approval. When the City objected and advised Oxford House that it must either apply for a zoning use permit or seek an amendment of the zoning code, Oxford House complained to the Department of Housing and Urban Development, which then filed an action against the City for violation of the Act. The City entered into a Consent Order with the government to allow Oxford House to apply for an amendment to the zoning ordinance. That process concluded in an accommodation by the City with regard to the number of individuals who could occupy the premises. Oxford House then dismissed the lawsuit, but filed for attorney's fees. The trial court granted Oxford House $35,000.00 on the theory that the litigation was the catalyst to the final accommodation.

In an attention-getting decision, the Eighth Circuit said absolutely no and reversed the trial court's decision. Rather than viewing the litigation as a catalyst, the Eighth Circuit found that Oxford House's suit was unreasonable, premature, and superfluous. The court referred to the Palatine decision and the recent Eighth Circuit decision of Oxford House v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996) (which will also be reviewed in this article), in holding that Oxford House must exhaust its administrative remedies before complaining of a federal violation. As the court stated:

Oxford House-A v. City of University City, 1996 WL 368921, at 23. The court then dispensed with Oxford House's argument that the lawsuit was necessary by referring to the basis for the lawsuit as litigation "premised upon a self-inflicted wound". Id.

In Oxford House v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996), the Eighth Circuit adopted the Seventh Circuit's decision in the Palatine case and held that Oxford House must seek a special use before it could claim a violation of the Act's requirement for reason-

*Thomas R. Burney and Jerome Wiener are partners in the Chicago law firm of Schain, Firsel & Burney, Ltd. The firm represents several municipalities and has represented the Village of Palatine and the City of Oregon in Fair Housing Act matters.

August 1996 / Illinois Municipal Review / Page 17

able accommodations. Significantly, the Eighth Circuit held that the 8-person limit of the St. Louis zoning law was rational and not in violation of the Act. It found that the City had a legitimate interest in decreasing congestion and noise which was reasonably related to the 8-person rule. As the court noted:

The St. Louis case also addressed the effect of derogatory statements by representatives of the municipality on the question of whether the municipality itself has violated the Act. The court made a distinction between the actions of the municipality and evidence regarding the beliefs of individual city officials. "Having concluded Oxford House did not show the City treated the Oxford Houses differently from any other group, we believe the City's enforcement actions were lawful regardless of whether some City officials harbor prejudice or unfounded fears about recovering addicts." Id.

The court then ruled in favor of St. Louis and required Oxford House to apply for a zoning variance expressing no opinion about whether such a variance must be granted by the City.

In the case of Bronk v. Ineichen, 54 F.3d 425 (7th Cir. 1995), the Seventh Circuit, citing its decision in Palatine, held that the requirement of reasonable accommodation does not limit an obligation to do everything humanly possible to accommodate a disabled person; cost (to the defendant) and benefit (to the plaintiff) merit consideration as well. The concept of necessity requires, at a minimum, the showing that the desired accommodation will affirmatively enhance a disabled plaintiffs quality of life by making the effects of the disability more tolerable.

In Bryant Woods Inn v. Howard County, Maryland, 911 F. Supp. 918 (D. Md. 1996), the court engaged in a lengthy discussion of the three theories upon which a cause of action for violation of the Fair Housing Act may arise. Refer to this case for an overview of the law on claims of intentional discrimination, discrimination based on disparate impact and discrimination because of a failure to reasonably accommodate. After reviewing the basis for the claims in each of these areas, the court held that Howard County had not violated the Act.

Brandt v. Village of Chebanse, 82 F.3d 172 (7th Cir. 1996), reminds us that there are in fact limits as to how far courts will allow groups to wrap themselves in the mantle of the Fair Housing Act in an attempt to avoid municipal zoning restrictions. Developers seeking to use the Act as a sword to cut through municipal restrictions in multiple family housing had better try a new approach. The court concluded:

With regard to zoning, courts are now more inclined to balance the interests of the municipality with the interests of the group home and to hold in favor of reasonable zoning laws protecting against congestion, parking problems and other valid municipal concerns. With the adoption by other circuits of the Palatine decision, courts are moving towards stricter views on requiring group homes to proceed through the administrative process before claiming a violation of the Fair Housing Act. •

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