THOMAS W. KELTY, Chief Counsel,
Illinois Municipal League

"FAIR HOUSING STANDARDS"

In last month's edition of this column, I briefly commented upon the settlement of litigation between the United States Department of Justice and the City of Chicago Heights concerning alleged violations of the Fair Housing Standards Act by the City. That brief and summary description of the settlement of the action certainly does not present the complete picture of the action and the difficulty that municipalities may encounter in enforcement of fair housing standards. This month, we will explore the litigation in greater depth and the Appellate decisions and legislation which led to the filing of the action.

The Federal Fair Housing Act is best described as one of a group of statutes adopted to ensure the enforcement of civil rights for all Americans that was originally adopted in the 1960s. Although the Federal Fair Housing Act was principally adopted to ensure racial equality in housing opportunities, the passage of time and consideration of the Act in litigation subsequent to its adoption expanded its focus to include other minority groups and classes of individuals who were in need of protection from various types of discrimination in housing opportunities.

The adoption of civil rights statutes in the 1960s led to litigation and tests of the scope of the various Civil Rights Acts in the 1970s.

One of the earliest cases which involved housing opportunities in a civil rights context was the case of Village of Belle Terre et al v. Boraas et al, 94 S.Ct. 1536. This civil rights action challenged the constitutionality of a village zoning ordinance limiting, with certain exceptions, the occupancy of one-family dwellings to traditional families or to groups of not more than two unrelated persons. The District Court hearing the action initially held the ordinance to be constitutional. However, the Court of Appeals reversed that decision and the Supreme Court heard the case to consider the civil rights issues involved. In an opinion by Mr. Justice Douglas, the Supreme Court held that the ordinance was not aimed at transients, involved no procedural disparity inflicted on some but not others, involved no deprivation of any "fundamental" rights, bore a rational relationship to a permissible state objective and must be upheld as valid land-use legislation addressed to family needs, not withstanding claims that the ordinance was unconstitutional as violative of equal protection and of rights of association, travel and privacy. The summary holding of Belle Terre permitted municipalities to adopt zoning ordinances and other regulations which define "family" in a manner to regulate the number of individuals which may be housed in a particular housing unit and to mandate the familial association that must exist amongst the members of the household. The holding of Belle Terre remained as the law for approximately 11 years until the second major case in this area was heard by the United States Supreme Court.

In 1985, the Supreme Court again had an occasion to consider the constitutionality of zoning requirements imposed on particular groups of individuals in the case of City of Cleburne v. Cleburne Living Center, 105 S.Ct. 3249. In Cleburne, a proposed operator of a group home for the mentally retarded brought suit challenging the validity of a zoning ordinance which excluded group homes from permitted uses in a residential zoning district. Cleburne Living Center (CLC) filed the action after the City informed them that a Special Use Permit would be required for the operation of such a group home in the area where the home was to be located. In the City's view, the group home was properly classified for zoning purposes as a "hospital for the feeble minded" which under the zoning ordinance required a Special Use Permit. CLC applied for the permit and after a public hearing the permit was denied. In its lawsuit, CLC asserted that as applied to them, the ordinance violated the equal protection rights of CLC and its potential residents.

The District Court upheld the ordinance and its application to CLC as constitutional. However, the Court

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of Appeals reversed, holding that mental retardation was a "quasi-suspect" classification; and, applying the "intermediate scrutiny" equal protection test, held the ordinance facially invalid because it did not substantially further an important governmental purpose; and further held the ordinance invalid as applied to CLC and its potential residents.

The Supreme Court partially affirmed the holding of the Court of Appeals. While it reversed the Court on finding that mental retardation was a "quasi-suspect" category, the Court did find that requiring a Special Use Permit for a group home for mentally retarded individuals deprived those individuals of equal protection of the laws. According to the Court, requiring the permit in this case appeared to rest on an "irrational prejudice" against the mentally retarded. The Court noted that had the group facility not been for mentally retarded individuals, no Special Use Permit would have been required. In fact, the zoning ordinance of Cleburne did not require a Special Use Permit in the same zone for an apartment house, multiple dwelling facility, boarding and lodging house, fraternity or sorority house, dormitory, apartment hotel, hospital, sanitarium, nursing home for convalescence or the aged and other specified uses. In short, in the Supreme Court's view, it was clear that the only rationale underlying the action by the City of Cleburne and its requiring of a Special Use Permit for the group home was the "irrational prejudice" against the mentally retarded.

After Cleburne, Congress adopted the Fair Housing Amendments Act of 1988. This Act was the culmination of proposed amendments which had been considered in the 95th, 96th and 99th Congresses but had remained unadopted. In part, the House Report accompanying the public law makes it clear that the Cleburne case provided additional impetus to the Congress to act to provide greater protections to selected categories of individuals which the Court had chosen not to find "quasi-suspect" in the Cleburne decision. The amendments adopted by the Fair Housing Amendment's Act focused principally on additional coverage for handicapped persons and coverage of families with children. Section 6A of the Act added a new subsection making it unlawful to discriminate or otherwise make unavailable or deny a dwelling to any buyer or renter because of the handicap of that individual, someone associated with that individual or of a resident or potential resident. Clearly, this amendment was spurred, in part, by the

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holding of Cleburne. The House Report accompanying the Act specifically addressed the Cleburne holding in its discussion of the prohibition of discriminatory housing practices aimed at the handicapped.

"These new subsections would also apply to state or local land use and health and safety laws, regulations, practices or decisions which discriminate against individuals with handicaps. While state and local governments have authority to protect safety and health, and to regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in communities."

Clearly, this language of the report acted as a warning to state and local governments to not utilize their zoning and public health and safety powers against the handicapped less they risk prosecution pursuant to the amendments. In fact, the first prosecution pursuant to this subsection was brought in the Chicago Heights case.

The Chicago Heights case bears a striking resemblance to the factual context of Cleburne. However, the principal difference that existed at the time of the action by the City Council of Chicago Heights was the existence of the Fair Housing Standards Amendments of 1988.

In January of 1989, Residential Facilities Management Specialists, Inc. submitted an application for a Special Use Permit which would have allowed construction of a residential facility for fifteen mentally retarded adults. Pursuant to this city's zoning code, the Plan Commission and Zoning Board of Appeals held hearings on Special Use Permit Application. Many residents of the surrounding area gave testimony opposing the granting of the application. According to the complaint later filed by the United States Department of Justice "a large proportion of these statements indicated, explicity or by implication, that the speakers opposition was based on the handicap of the prospective residents of the facility." On May 1, 1989, the City Council denied issuance of the Special Use Permit by an unanimous vote.

On June 20, the United States Justice Department filed a complaint against the City of Chicago Heights

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alleging violations of the Fair Housing Act of 1968, as amended by the Fair Housing Amendments of 1988. On June 21, Residential Facilities Management Specialists filed its complaint in the same Court alleging the same violations.

The factual issues of the complaint were never tried because of the settlement that was entered into between Residential Facilities Management Specialists, the Department of Justice and the City of Chicago Heights. The cost to the City of Chicago Heights was $55,000.00. This amount represented a combination of fines and civil penalties that were assessed against the City by agreement. In addition, the City is required to report certain types of Special Use Permit. Applications to the Department of Justice for a period of years. In effect, a portion of the zoning control of the city is subject to case by case review by the Justice Department.

This action by the Department of Justice clearly underscores and reinforces the statements of Congress in the legislative report which accompanied the Fair Housing Amendments of 1988. Congress has effectively made handicapped individuals a "quasi-suspect" category notwithstanding the reluctance of the Supreme Court to take this step. The actions of every municipality in the consideration and review of zoning and health and safety decisions with respect to the location of facilities for handicapped individuals is now subject to close and exacting scrutiny by federal statutory law. This does not, however, mean that no regulation of these groups is possible. What it does mean is that the Justice Department, Congress and the United States Supreme Court will not tolerate actions taken by units of local government which are based on an "irrational prejudice" against handicapped individuals. Certainly, there are justifiable reasons which would preclude the location of certain facilities for the handicapped in particular areas. However, it appears that these reasons may only extend to a limit which protects the health and safety of the handicapped residents and may not be based on the NIMBY (not in my backyard) rationale.

Although the goal of the vast majority of elected municipal officials in Illinois and throughout the United States is to be responsive to their constituency in the development of their individual communities, these Fair Housing Standards make it clear that responsiveness must be to all residents of the community and not to just those residents who are the most vocal at public hearings and meetings at which permits like those considered in Cleburne and Chicago Heights were scrutinized. Clearly, the development of civil rights law in the United States is requiring that not only are federal officials charged with assuring that equal opportunity in civil rights is preserved, but also that this duty extends to municipal officials charged with local land-use control. •

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