Subcommittee Hearing on H.R. 589: Fair Housing and Freedom of Speech Act of 1997
April 17, 1997
Testimony by Thomas Burney
Attorney
Schain, Firsel & Burney
I.
Introduction
I am the Village Attorney for the Village of Palatine, Illinois, and am here to express the Village's concerns over some very serious issues involving the Fair Housing Act, the construction of the same and its impact on local municipal land use regulation of homes for unrelated persons. My testimony is directed to what I perceive to be a gross exaggeration of the scope and affect of the 1988 amendments which are resulting in serious consequences on the ability of local government to enforce valid restrictions on the use and occupancy of single family residences within municipal borders.
My basis for familiarity with the problem comes from two specific experiences. In the first, as the legal counsel to the Village of Palatine, I represented the Village in legal challenges brought by the Department of Housing and Urban Development ("HUD") and the Department of Justice ("Justice") challenging the Village of Palatine's insistence on applying its local land use restrictions to an occupancy by the Oxford House, an organization for recovering alcoholics and drug abusers. In the second instance, I represented the City of Oregon as special counsel to that community to defend them in an investigation conducted by HUD.
Neither of these communities have any pending actions before any Federal executive agencies, the Department of Justice or the courts and, therefore, my remarks today cannot be construed as attempting to obtain congressional relief from a problem I am currently representing a client on. I can provide the Committee with insight based on these two experiences of what I perceive to be Federal agency, the Department of Justice and the proponents for the handicapped exaggeration of the intent, the scope and the affect of the Fair Housing Act and, particularly, sections 3602, 3604 and 3607.
The amendments to the Fair Housing Act have been in affect for over eight years and a track record has developed as to what the advocates of this law claim to be its scope and affect. That track record is evident from the lawsuits that have been litigated, the number of District Court and Circuit Court opinions on the subject and the countless investigations that have been conducted by HUD and the Department of Justice.
My perspective is from a lengthy involvement in two such investigations, one of which only resolved itself in the Seventh Circuit Court of Appeals. In the course of these assignments, I have attempted to keep abreast of the District and Circuit Court opinions involving this issue.
II.
General Conclusions
I have come to the conclusion that the advocates of this law both in and out of government have impermissibly attempted to expand the scope and extent of the Fair Housing Act and the 1988 Amendments by:
Improperly asserting that the term "handicapped" as that term is defined in Section 3602(h) applies to a far more expansive group of individuals with behavioral problems than the law was meant to cover.
Improperly asserting that the term "familial status" as defined in section 3602(k) applies to a far more expansive group of "unrelated person" living arrangements than the law was intended to cover.
Impermissibly attempting to treat the amendments as a congressional delegation of the federal pre-emptive power over local zoning to "handicapped" groups.
Impermissibly attempting to treat the amendments and particularly, the "familial status" provisions of the Act as a congressional delegation of the federal pre-emptive power over local zoning to any supervised group of unrelated persons living together who are under 18 years of age.
Erroneously asserting and acting as if the fundamental requirement of exhausting one's administrative remedies before local units of government has been eliminated.
Because such groups claim to be the "functional equivalent of a family" they have asserted that life safety restrictions found in National Building Codes like BOCA pertaining to housing arrangements of unrelated persons do not apply to them.
As a result, fire prevention officials are uncertain of whether they can require hardwired fire systems, sprinklers and the like to these group home living arrangements when it is clear that but for the claim of "handicap" or "familial status" such fire safety equipment is deemed to be the minimum requirements necessary for housing arrangements of unrelated persons.
A number of lawsuits and controversies have been spawned over this issue.
Federal officials and handicapped advocacy groups under the rubric that 5 or 8 or 11 or 15 or more unrelated individuals are the "functional equivalent of a family" (oftentimes a living arrangement that is without full-time professional supervision) or under the rubric of "familial status" assert that such living arrangements are not subject to facially neutral requirements that apply equally to all living arrangements of unrelated persons because of "economic" hardships of the "handicapped" group.
HUD and Justice have provided direct and indirect legal support to handicapped advocacy groups who have asserted such mistaken principles.
Members of the Constitutional Subcommittee, I do not believe that these are the results and effects that Congress intended when it adopted these amendments to the Fair Housing Act. I have concluded and I recommend to you that the law be amended to cure these consequences.
When I testified before you last September, I took great exception to the written remarks of Mr. Ishimaru, counsel to the Assistant Attorney General when he stated,
"The courts have shown that they can recognize those situations and deal with them appropriately".and
"It is up to the courts to make the distinctions and they have shown that they are up to the job".
I believe those remarks if they represent HUD's and Justice's approach are ill advised. From firsthand experience, I can tell you that Palatine,-a community of 42,000 people (at the time) and Oregon, a little town nestled on the banks of the Rock River of less than 4,000 people, had to spend a lot of money and other resources to defend themselves. These are resources that need not have been spent and efforts that need not have been expended. Waste of scarce municipal resources is the direct result of letting the courts "sort it out". An extreme example of this is the Justice Department's position on the exhaustion requirement - the principle issue in the Palatine decision.
III.
Justice's Position on Requirement of
Exhaustion Is an Extreme Example of a
Waste of Palatine's Resources to Defend Its Lawful Actions
By way of background, with regard to Oxford House, as it's self proclaimed structure, it requires that Oxford House residences be established in residential areas with no professional supervision. Oxford House claims that the residents live together as a family." The number of residents of any particular house depends upon Oxford House's determination of what it will cost to pay the bills. In a Federal publication, one of the founders of Oxford House stated as follows:
As a matter of practice, Oxford House, Inc. does not seek prior approval of zoning regulations before moving into a residential neighborhood. It considers itself no different from a biological family and its members just move into any suitable house.
(Self-run, Self-supported houses for more effective recovery from alcohol and drug addiction, U.S. Department of Health and Human Services, Technical Assistance Publication Series No. 5, DHHS Pub. No. (ADM.) 92-1678, page .30).
In Palatine, Oxford House moved 11 individuals into a home in a residential area. The residency of 11 unrelated, unsupervised people in this house violated Palatine's zoning ordinance. When Palatine officials advised Oxford House officials that they should file for a special use, Oxford House refused to do so and took the Palatine's insistence that Oxford House file an application for a special use as the denial of a request for a reasonable accommodation and a violation of the Fair Housing Act.
When Palatine filed an action to enforce its zoning regulations in state court, Oxford House filed a complaint with HUD that Palatine was violating the Fair Housing Act. HUD then invoked the Prompt Judicial Action provision of the Act and the Department of Justice filed a lawsuit in Federal court to enjoin Palatine from enforcing its laws until the completion of- the HUD investigation. The court entered a restraining order against Palatine which, after a three day hearing, became a preliminary injunction.
Palatine appealed the trial court's injunction order to the Seventh Circuit. In October, 1994, over one and one-half years after HUD began its "investigation", the Seventh Circuit reversed the trial court's decision and held 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. United States v. Palatine, 37 F.3d 1230 (7th Cir. 1994).
In his concurring opinion in the Seventh Circuit decision, Judge Manion graphically demonstrated how the Fair Housing Act, if blindly enforced by the Federal government can be used to subvert the rightful authority of a municipality. As Judge Manion stated:
Of course, had the Oxford House not disregarded the law in the first place, there would be no residents illegally living in the house who could be stigmatized. In seeking affirmance of the preliminary injunction, the Oxford House also emphasizes the harm its residents would suffer if displaced. Any such harm is the Oxford House's own doing; again, had the Oxford House not prematurely moved the occupants into the house, no displacement would occur. Id. at 1235.
Has HUD (or Justice) learned anything from this decision? Probably not: On June 19, 1995, in response to a request that HUD dismiss a complaint filed by a group home not affiliated with Oxford House against the City of Oregon, Illinois, HUD stated:
Additionally, it is HUD's position that the court's ruling in The United States v. The Village of Palatine, Illinois, 37 F.3d 1230 (7th Cir. 1994), in which it held that Oxford House was required to apply for a zoning variance or a special use permit prior to asserting a cause of action of failing to reasonably accommodate a complainant's handicap was premature, is not applicable to the case at hand. Even if the City rezoned the complainant's realty for non- discriminatory reasons, given the level of opposition that Mr. Harkema encountered from the community, applying for a special use permit would have been manifestly futile. Therefore, HUD is of the opinion that the complainant does not lack jurisdiction because the complainant failed to exhaust all local remedies. (See Attachment A)
In Palatine, the Federal government encouraged and supported Oxford House in ignoring the law. It allowed the Fair Housing Act to be misused in an attempt to force Palatine to abdicate its responsibilities to provide due process for all its residents.
In Oregon, HUD's director pointedly suggested,
It should be noted that, in HUD's estimation, the complainant may also lawfully name the Illinois Department of Children and Family Services and the School Board that is governing the education of Oregon's children as a Co-Respondents. However, at this point, it should be emphasized that the complainant is not seeking to further complicate this matter and is, in good faith, attempting to reach an amicable solution to the problems that have been raised in this complaint.
IV.
HUD and Justice's Construction of the Terms "Handicapped" and "Familial Status" are far Broader than Congress Intended
My experience representing the City of Oregon and my review of the recent Bellevue decision' convinces me that HUD and Justice are attempting to stretch the common sense meaning and the definitions of the words "handicapped" and "familial status" as used in the Act beyond reason and common sense. In fact what HUD, Justice and the handicapped advocacy groups are doing is attempting to legislate through the courts.
In the Oregon experience, the letter from HUD's local- Director identifies the lengths to which HUD is going in construing the term "handicapped". As attorneys for the City of Oregon, we argued that HUD should dismiss the complaint as the proposed inhabitants of the complainant's transitional living center (children identified by DCFS for various reasons including family problems, etc.) were not members of a protected class because they do not meet the definition of handicapped status as defined under the Fair Housing Act. Ms. Knox writing on behalf of HUD advised that the Department disagreed with that conclusion. A copy of her reasoning is found in Attachment A at pages 1 and 2. In relevant part, Ms. Knox on behalf of HUD argued that emotional or mental illness and specific learning disabilities, emotional illness, drug addiction and alcoholism other than an addiction caused by current illegal use of a controlled substance constitutes a handicap under the Act and therefore the proposed inhabitants fell within the definition of "handicapped". Ms. Knox reasoned that,
Because the complainants proposed program in its totality indicates that it is being designed to assist, house and provide therapeutic treatment to individuals who, among other things, have learning disabilities and emotional illnesses, the individuals that the complainants are attempting to serve can reasonably be expected to be members of the class of individuals with handicapped status that the Fair Housing Act specifically amended to protect. (e.s.)
In Bellevue, the term "familial status" as found in section 3604(a) and (b) of the Act and as defined in section 3602(k) of the Act has been successfully employed to prevent a municipality from regulating unrelated groups of youth under age 18 who are institutionally supervised. Such regulation has been deemed to be discriminatory for treating members of a "protected group" differently than others who are similarly situated.
In Bellevue, Justice filed an arnicus brief in support of the handicapped advocacy group's position. Below I have identified some key legal positions that Justice has taken. In certain instances, I have included my annotated comments immediately following Justice's position. Justice represented to the court as follows:
Congress made it flatly illegal, to discriminate against any person ... because of familial status. Thus, the language of the statute strongly indicates that discrimination against families is not subject to a rational basis. (Page 14 of Amicus).
Although the Constitution affords families no special protection, the Fair Housing Act does. (Page 14 of Amicus)
TRB COMMENT: How is the regulation of unrelated children in an institutionally supervised setting discriminating against families?
First, we think the issue before the court is whether Ordinance No. 4861 was adopted with an intent to discriminate on the basis of handicap and familial status. (Page 1 of Amicus).
TRB COMMENT: When did "familial status" enter the debate and become an offensive weapon used by Justice?
We wish to stress at the outset that the principal issue in this case is whether the City has, -by enacting Ordinance 4861, accorded "disparate treatment" to supervised groups of children. (Page 4 of Amicus).
It seems apparent that what distinguishes a "group facility" from a "family" is the supervision provided the residents. This classification thus resembles closely those held in [citations omitted] to be directed against group homes for the handicapped. (Page 9 of Amicus).
TRB COMMENT: It seems logical and a common sense construction of the Act to distinguish between biological families and institutionally supervised groups of unrelated persons. The former are a "protected class", the latter may or may not be a "protected class" depending on other considerations. Justice does not appear to agree.
We think this provision discriminates both on the basis of familial status and on the basis of handicap. (Page 9 of Amicus, Footnote 3).
TRB COMMENT: Where is the handicap in a group of unrelated youths who are abandoned, abused or neglected, require treatment for drug or alcohol abuse; or are finishing their sentence for a juvenile offense - all potential inhabitants of the group home facility in Bellevue.
Justice reasons that the Ordinance regulates "abused or neglected children and orphans" and that it "singles out group homes for children and places them under restrictions to which no comparable group is subject". (Page 1 1 of Amicus).
TRB COMMENT: What comparable group is Justice suggesting - a nuclear family?
The position taken by Justice in its amicus in Bellevue raises several troubling questions over the interpretation of the Act that it is fostering and promoting in the court.
V.
Is Justice's Position in its Amicus filed in the Bellevue Case consistent with its Written Statements and Representations to Congress?
At least one commentator (the attorneys for the City of Bellevue) felt that Justice was not remaining true to its representations to Congress at the September 5, 1996 hearings and in Mr. Hancock's letter to Ms. Cameron Whitman of the National League of Cities, a copy of which was submitted into the record on September 5, 1996. Below I have set forth key passages referenced by Bellevue in Mr. Ishimaru's written statement and in Mr. Hancock's letter to the National League of Cities. Next to these comments, I have set forth Justice's explanation and response. I leave it to each individual member of Congress to decide for themselves whether Justice has been honest with Congress as to what Justice and HUD have asserted to be the scope of this Act and the rights remaining to municipalities to regulate groups of unrelated persons in single family neighborhoods.
Comparison of Justice's Statements to Congress and Its Representations to the Court
According to the Division's public pronouncements, the FHA requires a case- by case analysis of a challenged ordinance, based on the facts and municipal interests in a specific case (I at 10-11; H at 9-10 and 13)
The Division has also recognized the importance of upholding the residential character of single family neighborhoods: The key question is whether a proposed group home is "basically consisitent with the area where it wants to locate..."(I at Page 7)
In many cases, as when a group home for six or fewer people with mental retardation is propsed for single family neighborhood, the answer will be "yes". This is because for all intents and purposes, that kind of home is single family. But of course, not all group homes are alike, and not all groups homes are appropriate in every setting. Id. See also letter at page 6 ("A large institutal type facility....might be completely out of place in a single family neighborhood, and might be more appropriately placed in multi-family or commercial district". (H at 6)
The Division has repeatedly endorsed reasonable accommodations as the appropriate device to address the individual needs of group home residents and operators. A reasonable accommodation procedure avoids the kind of stereotyping that Congress was concerned about.(1 at 3 and 10-11; H at 10-13) The division has also noted that nothing in the FHA gives special rights to people without disabilites, including sex offenders and drug abusers, and that inquiry about handicapped in this context is entirely approproate.)I at 10-11, H at 6)
The Division has also confirmed the common-sensical understanding of "family" which the city has encouraged the court to adopt:
In order to protect families with children from housing discrimination, the act prohibits discrimination on the basis of familial status;. That term is defined in Section 802 of the amended Act, and basically means a family including children under the age of 18. (H at 3)
[I = The statement of Stuart Ishimaru, Counsel to the Assistant Attorney General, Civil Rights Division before the Subcommittee on the Constitution presented on September 5, 1996.]
[H = The letter dated January 31, 1996 to Cameron Whitman of the National League of Cities by Paul Hancock.]
Normally, we would not consider it appropriate, in our capacity as a potential amicus, to burden this court by replying to this pleading. (Reply at 1)
The City attaches to its pleading, and quotes at length from the testimony of a Department official before a congressioanl committee (Exhibit A), and from a letter to the National League of Cities from the chief of this section (Attachment B), both of which discuss our understanding of the law.
Rather than discuss the individual quotations in detail, we simply point out that they are all taken from discussions of the application of the "reasonable accommodation" provision of the Act, 42 U.S.C. 3604(f)(3)(B).
Defendant appears to acknoledge as much and argues that "reasonable accommodation" analysis should be applied to this case. This arguement is incorrect. First, the Act requires reasonable accomodations only for the benefit of handicapped persons, 3604(f)(3)(B) does not provide for accommodations on the basis of familial status, and thus, has no application to the central issue in this case.
It is not necessary to to reach the reasonable accommodation issue where the policy in question is intentionally disriminatory[citations omitted].
In conclusion, the documents attached by defendant to its pleading were both drafted in response to specific inquiries, in wake of the Supreme Court's decision in City of Edmonds V. Oxford House, Inc. 115 S. Ct. 1736, 1995, about the application of the reasonable accommodation provision.
They [the documents] accurately represent the views of this Department with respect to the issues they discussed-but, as described above, they do not deal with the situation alleged to be present here.
Nor is it true, as defendant asserts...this Department would "forbid regulation of all facilities." The Act permits municipalities to regulate such facilities". The Act permits municipalites to regulate such facilities as they see fit, as long as they do not discriminate against members of protected class."
It appears that the position taken by the plaintiff in Bellevue and Justice and adopted by the district court is that merely treating groups of unrelated children under 18 years of age differently than families, is intentional discrimination (whether the inhabitants be abandoned, abused, or neglected, have mental health problems, or development disabilities, require treatment for drug or alcohol abuse, or are finishing their sentence for a juvenile offense).
It appears that Justice is attempting to pigeon hole the guidance they gave to Congress in September by claiming it relates to only a specific issue and not a general policy of what Justice believes to be the law.
I respectfully suggest that Congress needs to get direct answers to specific policy questions from Justice about Justice's view of this law, its scope and its affect on municipal regulation of such uses. Specifically, Congress needs to get specific answers from Justice to specific questions. For example:
Is a group home composed of unrelated youths under 18 years of age whom are institutionally supervised exempt from municipal land use regulation?
Can the number of unrelated individuals inhabiting such a facility be regulated by a municipality? Can the distance between such facilities be regulated?
Can the municipality require such a facility to obtain a special use?
Is it Justice's position that such a facility must be subject to the same restrictions, (and no more) than a single-family residence is subject to?
Is it Justice's position that life safety code provisions applicable to all other congregate living arrangements of unrelated persons cannot be applied to such a facility?
These are some of the specific questions that Justice must disclose its position on to Congress. Does this Subcommittee believe that HUD and Justice are being consistent in their public pronouncement before this Committee and the legal positions that they are taking in court? I do not.
Fundamentally, the question for this Committee is whether Congress, when it adopted these amendments intended that municipal land use regulation as it affects the sighting of a group home for juvenile delinquents (for example) was to be preempted and that in fact such regulation in and of itself would subject municipalities to claims of intentional discrimination, disparate treatment and the resulting legal fees, penalties and fines.
The Seventh and Eighth Circuits have spoken on the mistaken proposition that a group of unrelated individuals living together is the "functional equivalent of a family" and therefore to be treated the same as a biological family.
Justice Manion writing a concurring opinion in the Palatine case observed,
The Oxford House's stated policy also explains that [i]t considers itself no different from a biological family and its members just move in any suitable house." While the Oxford House may consider a group of unrelated people living under its roof the same as blood relations; the law does not. . . . rather, traditional and extended families receive constitutional protection that individuals and groups of friends, acquaintances or even strangers do not. . . ('The Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nation's history and tradition.').
The Eighth Circuit observed in the University City case,
Oxford House's belief that its members must be treated the same as a biological family is highly suspect. . . the majority in City of Edmonds v. Oxford House, Inc. [citations omitted] did not reach this issue, and the courts in Oxford House-C, Palatine, and Virginia Beach construed the FHA is not prohibiting family oriented zoning restrictions, so long as the handicapped are treated the same as other unrelated persons.
On several occasions in the last several years, United States courts have found in response to handicapped groups' claims of being the "functional equivalent of a family" that such a proposition is incorrect. Justice appears to be studiously overlooking and avoiding these judicial determinations.
I invite the members of this Committee to review Mr. Ishimaru's written statement as well as Mr. Hancock's letter and decide for yourself whether those statements square with the legal position Justice has taken in Bellevue.
VI.
Summary
The courts are not a good place to sort this out. Municipalities under tax caps like most communities in Illinois, cannot afford the effort or expense of HUD investigations, Department of Justice lawsuits and the resulting risk of fines and costs.
If its Justice's position that all regulation of institutionally supervised facilities for youths under age 18 constitutes intentional discrimination whether the inhabitants of the house are finishing their juvenile sentences or suffer from some form of retardation, then let Justice come out and pronounce that to Congress. If it is Justice's position that municipalities cannot regulate the location, the number of such residents in such a home or the location vis-a-vis one another, then demand that Justice so advise Congress. That will allow Congress and the people to examine HUD's and Justice's position in the full light of day. Then Justice, municipalities, Congress and the people will know what Justice believes the law to be. If it goes HUD's, Justice's and handicapped advocacy groups way, then any municipality defying the law deserves to be fined, but this piecemeal approach that HUD and Justice and the handicapped advocacy groups have pursued to date must come to an end. I, like thousands of other municipal attorneys throughout the country, need to advise our clients of what the law is. We cannot do it with any certainty under the present approach. I think HUD and Justice are wrong. I request Congress to put an end to this legislating in the courts. The Bilbray Amendment is a first step in that direction.
BIOGRAPHICAL SKETCH OF THOMAS R. BURNEY
VILLAGE ATTORNEY, PALATINE, ILLINOIS
In 20 years of practice, Mr. Burney's focus has been in the field of zoning and governmental land use regulation. Mr. Burney has been the Village Attorney for the Village of Palatine for five years. He has been appointed special counsel to several other municipal corporations in Northeastern Illinois.
In the course of his zoning practice, he has represented numerous developers before many communities in Northeastern Illinois. He has represented both developers and municipalities in the trial and appellate courts on land use/zoning matters relating to residential, commercial and industrial uses of properties.
Mr. Burney's experience in the Fair Housing Act field includes his representation of the Village of Palatine, with his partner Jerome Wener, in the defense of the Village of Palatine against charges brought by HUD and DOJ that Palatine had engaged in housing discrimination. The Seventh Circuit Court of Appeals found that the injunction that the Department of Justice had obtained against the Village was wrongfully entered, and vacated the injunction. In another recent Fair Housing Act case, HUD opened an investigation against the City of Oregon. Mr. Burney and Mr. Wener represented the City of Oregon in connection with that investigation. After months of effort, Oregon was successful in obtaining a decision from HUD dropping the investigation.
Mr. Burney has written a number of articles for the Illinois Municipal League's publication on recent developments in the Fair Housing Act field. He has been invited to speak on land use and government regulation issues.
Mr. Burney is a founding member of the Chicago law firm of Schain, Firsel & Burney, Ltd., a twenty plus number law firm originally established in 1977. Mr. Burney serves as Vice-Chairman of the McHenry County Zoning Board of Appeals. He received his J.D. from Loyola University-Chicago (1977), his BA from the University of Wisconsin-Madison (1972). He is admitted to practice in the States of Illinois (1977) and Wisconsin (1986).
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