IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AVALON RESIDENTIAL CARE,
Civil Action No. 3:99-CV-2141-P
CITY OF DALLAS,
BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Table of Contents
Table of Contents
Table of Authorities
Interest of the United States
- Dallas Development Code and Texas Health & Safety Code
- Avalon's Handicapped Group Dwelling Units
- Equal Opportunity
- Undue Burden
- Fundamental Alteration
Table of Authorities
Alexander v. Choate,
469 U.S. 287 (1985)
Alliance for the Mentally Ill of DuPage County, Inc. v. City of Naperville,
923 F. Supp. 1057 (N.D. Ill. 1996)
Armstrong v. Neary,
206 F.3d 465 (5th Cir. 2000)
Assisted Living Assoc. of Moorestown, L.L.C. v. Moorestown Township,
996 F. Supp. 409 (D.N.J. 1998)
Bronk v. Ineichen,
54 F.3d 425 (7th Cir. 1995)
Bryant Woods Inn, Inc. v. Howard County,
124 F.3d 597 (4th Cir. 1997)
City of Edmonds v. Washington State Bldg. Code Council,
18 F.3d 802 (9th Cir. 1994), aff'd, City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995)
Elderhaven, Inc. v. City of Lubbock,
98 F.3d 175 (5th Cir. 1996)
Groome Resources, Ltd. v. Parish of Jefferson,
52 F. Supp.2d 721 (E.D. La.1999)
Hemisphere Building Company v. Village of Richton Park,
171 F.3d 437 (7th Cir. 1999)
Horizon House Developmental Services, Inc. v. Township of Upper Southampton,
804 F. Supp. 683 (E.D. Pa. 1992), aff'd mem., 995 F.2d 217 (3rd Cir. 1993)
Hovsons Inc. v. Township of Brick,
89 F.3d 1096 (3rd Cir. 1996)
Judy B. v. Borough of Tioga,
889 F. Supp. 792 (M.D. Pa. 1995)
Keys Youth Servs., Inc. v. City of Olathe,
52 F. Supp.2d 1284 (D. Kan. 1999)
Larkin v. State of Michigan,
89 F.3d 285 (6th Cir. 1996)
Marbrunak, Inc. v. City of Stow,
974 F.2d 43 (6th Cir. 1992)
New York Life Ins. Co. v. Deshotel,
142 F.3d 873 (5th Cir. 1998)
North Carolina State Bd. of Educ. v. Swann,
402 U.S. 43 (1971)
North Shore-Chicago Rehabilitation Inc. v. Village of Skokie,
827 F. Supp. 497 (N.D. Ill. 1993)
Oconomowoc Residential Programs, Inc. v. City of Greenfield,
23 F. Supp. 941 (E.D. Wis. 1998)
Oconomowoc Residential Programs, Inc. v. City of Milwaukee,
No. 97-C-251 (E.D. Wis. Mar. 16, 1999)
Oxford House, Inc. v. Town of Babylon,
819 F. Supp. 1179 (E.D.N.Y. 1993)
Remed Recovery Care Centers v. Township of Willistown,
36 F. Supp.2d 676 (E.D. Pa. 1999)
Smith & Lee Assoc., Inc. v. City of Taylor,
102 F.3d 781 (6th Cir. 1996)
Smith & Lee Assoc. v. City of Taylor,
13 F.3d 920 (6th Cir. 1993)
Southeastern Community College v. Davis,
442 U.S. 397 (1979)
United States v. California Mobile Home Park Mgt. Co.,
29 F.3d 1413 (9th Cir. 1994)
United States v. City of Birmingham,
538 F. Supp. 819 (E.D. Mich. 1982), aff'd in relevant part, 727 F.2d 560 (6th Cir. 1989)
42 U.S.C. § 3604(f)(3)(B)
42 U.S.C. § 3614
42 U.S.C. § 3615
Dallas City Code § 33
Dallas Development Code § 51A-2.102(36)
Dallas Development Code § 51A-4.209(b)(3)
Dallas Development Code § 51A-4.209(b) (3.1)
Dallas Development Code § 51A-4.209(b)(6)
Tex. Health & Safety Code § 247
Tex. Health & Safety Code §§ 247.031 & 247.004
H.R. Rep. No. 100-711 (1988), reprinted in 1988 U.S.C.C.A.N. 2173
The United States submits this brief as amicus curiae in support of Plaintiff Avalon
Residential Care Homes' opposition to the Defendant City of Dallas' motion for summary
judgment. This motion addresses two issues: (1) whether the City's spacing requirement, as
applied to the facts of this case, violates the Fair Housing Act and (2) whether the City's
occupancy cap, as applied to the facts of this case, violates the Act. The United States believes
that there are legal and factual issues precluding a summary judgment ruling for the defendant.
We, therefore, urge that the City's motion for summary judgment be denied. (1)
INTEREST OF THE UNITED STATES
The United States has important enforcement responsibilities under the Fair Housing Act.
See 42 U.S.C. § 3614. We therefore have a strong interest in the uniform interpretation and
application of the law in all of the fifty states; we do not, however, have the resources to
participate as a litigant in every action in which these issues may arise.
For this reason, we have sought and obtained leave to submit briefs as amicus curiae in
many cases where important issues of law were concerned, including cases regarding the
application of the Act's reasonable accommodation provision, Section 804(f)(3)(B), and the
Act's zoning provisions, Sections 3610(g)(2)(C) and 3614(b). See, e.g., Larkin v. State of
Michigan, 89 F.3d 285 (6th Cir. 1996); Marbrunak, Inc. v. City of Stow, 974 F.2d 43 (6th Cir.
1992) (Department of Justice participated as amicus in both trial and appellate courts); Alliance
for the Mentally Ill of DuPage County, Inc. v. City of Naperville, 923 F. Supp. 1057 (N.D. Ill.
1996); and Horizon House Developmental Services, Inc. v. Township of Upper Southampton,
804 F. Supp. 683 (E.D. Pa. 1992), aff'd mem., 995 F.2d 217 (3rd Cir. 1993). We therefore
respectfully submit that our views on the questions of law presented here may assist this Court.
We summarize the key facts underlying this suit as briefly as possible.
- DALLAS DEVELOPMENT CODE AND TEXAS HEALTH & SAFETY CODE
Part II of the Dallas Development Code is the portion of the Dallas City Code that
regulates land use and establishes zoning provisions and procedures. It creates two categories of
group homes for persons who are not a "family:" group residential facilities and handicapped
group dwelling units. See Dallas Development Code § 51A-4.209(b)(3) & (3.1).
The Code defines a handicapped group dwelling unit as "a single dwelling unit that is the
domicile of not more than six handicapped persons who are not a 'family' . . . and who are living
together as a single housekeeping unit." Id. § 51A-4.209(b)(3.1). Prior to May 1999, when the
City Council amended the Code, handicapped group dwelling units could house up to eight
persons, including two supervisory personnel. Handicapped group dwelling units can locate in
single family districts, but they must be spaced "at least 1,000 feet from all other handicapped
group dwelling units and group residential facilities." Id. § 51A-4.209(b)(3.1)(B).
A group residential facility is defined as "[a]n interim or permanent residential facility . . .
that provides room and board to a group of persons who are not a 'family.'" Id. § 51A-4.209(b)(3). These facilities may not locate in single family residential districts. Id. § 51A-4.209(b)(3)(B). Thus, a handicapped group dwelling unit may locate in single family residential
districts so long as it is not located within 1000 feet of another handicapped group dwelling unit
or group residential facility.
When handicapped group dwelling units do not satisfy the 1000 foot spacing
requirement, the Code allows them to apply for a Specific Use Permit ("SUP") to bypass the
restriction. Id. § 51A-4.209(b)(3.1)(B). However, there is no Code provision affording a way to
escape the six person occupancy cap. See id. § 51A-4.209(b)(3.1)(A). There is also no City or
State "grandfather" provision that would allow handicapped group dwelling units that opened
when the Code had an eight person occupancy cap to continue to operate lawfully with more than
The Dallas City Code and the Texas Health and Safety Code both contain references to
"assisted living facilities" and/or "personal care facilities." See Tex. Health & Safety Code §
247; Dallas City Code § 33. An assisted living facility is an establishment that "provides
personal care services" and "furnishes food and shelter to four or more persons who are unrelated
to the proprietor of the establishment." Tex. Health & Safety Code § 247.002. Prior to a 1999
amendment, the Texas Health and Safety Code referred to an "assisted living facility" as a
"personal care facility." See id. § 247.002 historical and statutory notes ("A reference in law to a
personal care facility means an assisted living facility. . . ."). The Dallas City Code continues to
use the term "personal care facility," which "has the meaning given that term in Section 247.002
of the Texas Health and Safety Code." Dallas City Code § 33-2(6). In other words, personal
care facilities and assisted living facilities have identical meanings under the Dallas and Texas
codes. The Texas Department of Health and Human Services is required by law to publish a
Directory of Assisted Living Facilities annually. See Tex. Health & Safety Code § 247.062.
Given the overlap in the definitions of assisted living facilities and handicapped group
dwelling units, any facility that would qualify as a handicapped group dwelling unit would also
qualify as a personal care or assisted living facility: Both facilities provide a residence to at least
four unrelated persons who are either explicitly handicapped - as in the case of handicapped
group dwelling units - or implicitly handicapped because of the personal care services they
require - as in the case of assisted living facilities. Compare Tex. Health & Safety Code §
247.002 with Dallas Development Code § 51A-4.209(b)(3.1) .
Under both Texas state law and Dallas municipal law, it is illegal for facilities that
qualify as assisted living facilities to operate without a license. See Tex. Health & Safety Code §
247.021; Dallas City Code § 33-3. The City, however, first enacted this municipal requirement
in September 1998. See Dallas Ordinance 98-2616. When an assisted living facility operates
without a license, state and municipal officials may prohibit its operation. Tex. Health & Safety
Code §§ 247.031 & 247.004; Dallas City Code § 33-6. In addition, the State may seek civil
penalties of up to $10,000 per day, and the City may seek civil penalties of up to $2000 per day
that such a facility operates without a license. Tex. Health & Safety Code § 247.045; Dallas City
Code § 33-8.
The City has stated that "nothing in the City's zoning regulations or State law require the
City to consider a handicapped group facility's licensing status when administering and
enforcing its zoning regulations." City's Reply Brief at 3. But the Dallas Development Code is
part of the Dallas City Code. And under basic principles of statutory construction, different
provisions of a code must be considered together and harmonized. See New York Life Ins. Co.
v. Deshotel, 142 F.3d 873, 885-86 (5th Cir. 1998). Moreover, "[a] provision must be considered
in context," and "the more specific provision within a statute prevails." Armstrong v. Neary, 206
F.3d 465, 471 (5th Cir. 2000) (citations omitted). As applied here, this means that - for the past
two years - handicapped group dwelling facilities that qualify as personal care facilities cannot
legally operate in compliance with Dallas municipal law (or Texas state law) unless they are
- AVALON'S HANDICAPPED GROUP DWELLING UNITS
Avalon opened a handicapped group dwelling unit at 7315 Glendora in Dallas, Texas in
July 1997. City App. (2) at 305. The Glendora home houses residents with Alzheimer's Disease.
Id. at 272-73. Before opening the home, Avalon inquired with the City whether there were any
other handicapped group dwelling units within 1000 feet of the Glendora home. Id. at 274-75.
The City informed Avalon that it had no way of knowing where such facilities were located. Id.
at 275. Avalon then contacted the Texas Department of Human Services ("TDHS") to find out
the same information and obtained TDHS's Directory of Personal Care Facilities Licensed in
Texas. (3) Id. at 274-75. This directory did not reveal any personal care facilities within 1000 feet
of the Glendora home. United States App. (4) at 21-27. Thus, Avalon opened the Glendora home
only after making reasonable good faith efforts to determine that it met the City's spacing
After the Glendora home opened, the City received a complaint from one of the Glendora
home's neighbors that a new group home for persons with disabilities had opened too close to
other such group homes. Avalon App. (5) at 56-58. Following an investigation of the complaints
and based on limited information, see id. at 116-17, the City informed Avalon that the home was
within 1000 feet of another handicapped group dwelling unit, ordered Avalon to stop using the
property, and issued Avalon numerous citations regarding the home's continued operation. City
App. at 280-85, 287-88, 351, 353, 362-63; Avalon App. at 13-23. The City alleges that the
Glendora home is located 364 feet from a handicapped group dwelling unit at 7615 Meadow
Road and 856 feet from another such unit at 7246 Mimosa Lane. City App. at 139. It is
undisputed that neither the Meadow Road home nor the Mimosa Lane home are licensed by the
State of Texas as an assisted living facility, and thus neither can legally operate as a handicapped
group dwelling unit if they have four or more residents. Avalon App. at 147-48, 151-59, 162-81,
197, 204-06, 209-10. It is a matter of disputed fact whether either of these homes had five or
more residents at any time since the Glendora home opened. Compare id. at 147-48 173-74, 178,
213-14 (three residents with disabilities at these facilities) with id. at 61 (eight residents with
disabilities at one such facility). (6)
On June 9, 1998, Avalon filed a request with the City for an SUP to allow the Glendora
home to continue operating despite the 1000 foot rule. City App. at 289-90; 364-65. The City
Plan Commission's staff recommended approval because "[t]he requested use is compatible with
surrounding land use and zoning districts." Id. at 370. The staff also concluded that the request
would not negatively impact traffic in the area. Id. at 371. On August 6, 1998, Avalon asked the
City Plan Commission to make a reasonable accommodation for the Glendora home under the
Fair Housing Act, but the Commission voted to deny the request for an SUP. Id. at 132.
Although the Act requires municipalities to consider requests for reasonable accommodations if
they are necessary to afford individuals with disabilities an equal opportunity to use and enjoy a
dwelling, the Commission did not specifically rule on Avalon's request for a reasonable
accommodation. Avalon appealed the City Plan Commission's denial of an SUP and again
requested that a reasonable accommodation be made. Id. On September 23, 1998, the Dallas
City Council voted to deny the SUP. Id. The City Council did not consider whether a
reasonable accommodation was appropriate.
At the time of these decisions, the Dallas ordinance allowed eight handicapped persons to
reside in handicapped group homes. See Avalon App. at 359-62. All of Avalon's handicapped
group dwelling units in Dallas, including the Glendora home, are licensed by the state as assisted
living facilities that may house eight residents. City App. at 290 & 302. But on September 10,
1998 - approximately two weeks before the City Council held its hearing on Avalon's request
for an SUP - a City Council member asked city officials to address a revision to municipal law
that would lower the occupancy cap for handicapped group dwelling units from eight persons to
six persons. See id. at 199; Avalon App. at 429. Since Dallas reduced the occupancy cap to six
persons in May 1999, see id. at 359-62, the Avalon homes have continued to house up to eight
handicapped persons. (7) City App. at 336-37.
Section 804(f)(3)(B) of the Fair Housing Act provides that unlawful discrimination
includes the "refusal to make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford [a handicapped] person equal
opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). The Act constitutes "a
broad mandate to eliminate discrimination against and equalize housing opportunities for
disabled individuals." Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995). Congress knew that
discrimination against handicapped persons is "'often the product, not of invidious animus, but
rather of thoughtlessness and indifference - of benign neglect.'" H.R. Rep. No. 100-711, at 25
(1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2186 (quoting Alexander v. Choate, 469 U.S. 287
(1985)). As the U.S. Court of Appeals for the Fifth Circuit has said, a municipality may violate
the Act when it applies its ordinances "rigidly and in a manner blind to the varying circumstances
attending the needs of persons with disabilities. . . ." Elderhaven, Inc. v. City of Lubbock, 98
F.3d 175, 178 (5th Cir. 1996).
In applying the reasonable accommodation standard, there are three elements to consider.
First, courts look at whether persons with disabilities have "equal opportunity to use and enjoy a
dwelling." 42 U.S.C. § 3604(f)(3)(B); see Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d
781, 794 (6th Cir. 1996). Second, courts determine whether the requested accommodation "may
be necessary" to afford a person with a disability equal opportunity to use and enjoy a dwelling.
42 U.S.C. § 3604(f)(3)(B); see Smith & Lee, 102 F.3d at 794-95. Third, courts consider whether
the accommodation is "reasonable." 42 U.S.C. § 3604(f)(3)(B); see Smith & Lee, 102 F.3d at
Before applying the reasonable accommodation test here, we note that the Court can
decide the spacing requirement claim without resort to this test. This is because it is undisputed
that the Glendora home is not within 1000 feet of a handicapped group dwelling unit, since no
handicapped group dwelling units other than the Glendora home have operated legally in this
1000 foot area. (8) If either of the two other group homes in this area have four or more residents
with disabilities so that they are actually handicapped group dwelling units, moreover, there is a
strong argument that the City should be enforcing its laws against these homes - which would be
operating illegally - rather than against the Glendora home - which would be operating lawfully.
In either case, the City should cease its efforts to close the Glendora home, as it is not operating
in violation of the City's spacing requirement.
Alternatively, this Court can apply the reasonable accommodation test to the spacing
requirement and occupancy cap claims, and denying summary judgment will still be proper.
- Equal Opportunity
Turning to the first step in the reasonable accommodation analysis, the City argues that it
need only afford Avalon an equal opportunity to live in the City as a whole, as opposed to an
equal opportunity to live within a particular dwelling within the City. City's Brief at 28. But the
Act's language focuses on whether a handicapped person would be denied the opportunity to use
or enjoy "a dwelling," meaning one particular residence, not simply the opportunity to live
somewhere in a city. See, e.g., Marbrunak, Inc. v. City of Stow, 974 F.2d 43, 48 (6th Cir. 1992)
(Act designed to provide handicapped persons an opportunity "to live in the residence of their
choice" in the community); Remed Recovery Care Centers v. Township of Willistown, 36 F.
Supp.2d 676, 686 (E.D. Pa. 1999) (irrelevant that ordinance would permit group home at other
locations); United States v. City of Birmingham, 538 F. Supp. 819, 830 (E.D. Mich. 1982), aff'd
in relevant part, 727 F.2d 560 (6th Cir. 1989) (ability to develop senior housing in properly zoned
site irrelevant because "[w]e are concerned with one particular proposal"); Oxford House, Inc. v.
Town of Babylon, 819 F. Supp. 1179, 1185-86 n.10 (E.D.N.Y. 1993); but see Bryant Woods Inn,
Inc. v. Howard County, 124 F.3d 597, 605 (4th Cir. 1997) (finding no need for accommodation
where vacancies existed at numerous other group homes). Indeed, the House Report on the Act
stated that it "is intended to prohibit the application of special requirements through land use
regulations . . . that have the effect of limiting the ability of such individuals to live in the
residence of their choice in the community." H.R. Rep. No. 100-711, at 24 (1988), reprinted in
1988 U.S.C.C.A.N. 2173, 2185 (emphasis added).
The only case that the City cites for its position - Smith & Lee - does not actually
support it. Although Smith & Lee speaks of "the right to choose to live in single family
neighborhoods," this phrase was not meant to be read narrowly as rejecting the right to live in a
specific dwelling. See Smith & Lee, 102 F.3d at 794. The court went on to quote another
decision noting that "'Congress intended the FHAA to protect the right of handicapped persons
to live in the residence of their choice in the community.'" Id. at 795 (quoting City of Edmonds
v. Washington State Bldg. Code Council, 18 F.3d 802, 806 (9th Cir. 1994), aff'd, City of
Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995)). And the court added that "the phrase
'equal opportunity,' at least as used in the FHAA, is concerned with achieving equal results, not
just formal equality." Smith & Lee, 102 F.3d at 795.
As applied here, the City is depriving the residents with disabilities at the Glendora home
of the "equal opportunity" to live in the home of their choice. This is the case for both the
spacing requirement and the occupancy cap claims, because these provisions prevent persons
with disabilities from living in their desired home. (9)
Avalon has introduced ample evidence to show that waiving the spacing requirement and
the occupancy cap may be necessary to afford Avalon's disabled residents an "equal opportunity
to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B).
The City does not dispute that accommodations in zoning laws are often needed to
provide persons with disabilities with housing opportunities that are equal to those enjoyed by
non-disabled persons. Moreover, since persons with Alzheimer's Disease often need assistance
with daily living, they may "have little choice but to live in a commercial [group] home if they
desire to live in a residential neighborhood." Smith & Lee Assoc. v. City of Taylor, 13 F.3d 920,
931 (6th Cir. 1993). Without these group homes, persons with Alzheimer's Disease like the
Avalon residents generally have no alternative but to move into large institutions that are
segregated from the community at large.
The City, however, makes several arguments about why the accommodations sought here
are unnecessary. First, the City asserts that Avalon can comply with the ordinance by either
decreasing the number of unrelated residents to five or less or by relocating the Glendora home
to a location that is not within 1000 feet of another handicapped group dwelling unit or group
residential facility. City's Brief at 18. Second, the City alleges that it has already granted an
accommodation by allowing six unrelated persons with disabilities to live in a handicapped
group dwelling unit. Id. at 27. Third, the City claims that it has already granted an
accommodation by allowing persons to apply for an SUP to escape the spacing requirement. Id.
at 27-28. None of these claims presents a valid reason to grant the City's summary judgment
Addressing the City's first point about Avalon's ability to comply with the zoning
requirements, there is ample evidence demonstrating that compliance with the spacing
requirement was and is impossible. Avalon cannot simply relocate the Glendora home to a
location that is 1000 feet away from another handicapped group dwelling unit or a group
residential facility because it has no reliable means of determining where other such facilities are
located. The facts here prove the point, since undisputed evidence indicates that Avalon made
every possible effort to comply with local zoning laws, but nevertheless ran afoul of them. That
the two alleged handicapped group dwelling units within 1000 feet of the Glendora home were
operating illegally makes the case for granting an exception even more compelling, as it
underscores that Avalon's violation of the spacing requirement was inadvertent and unavoidable.
Although no court has yet confronted the precise issue here of whether the inability of a group
home operator to identify the location of other group homes renders an accommodation from
spacing requirements necessary, common sense and several analogous court decisions dictate
that this is so.
In North Shore-Chicago Rehabilitation, Inc. v. Village of Skokie, for example, the
defendant had an ordinance permitting only those group homes that were licensed by the state.
827 F. Supp. 497, 501 (N.D. Ill. 1993). But the plaintiff sought to open a particular type of
group home for persons with disabilities to which no state licensing scheme applied. Id.
Therefore compliance with the local ordinance was by definition impossible, and the court
granted the plaintiff's motion for a preliminary injunction. Id. Similarly, in Assisted Living
Associates of Moorestown, L.L.C. v. Moorestown Township, a court found that an
accommodation was necessary where the plaintiff searched for alternative pieces of property to
purchase for an assisted living facility that would not violate the local zoning ordinance, but
found none. 996 F. Supp. 409, 438 (D.N.J. 1998). Thus, impossibility of compliance again
dictated a reasonable accommodation that waived compliance.
In addition, courts in the Eastern District of Wisconsin have confronted like situations
involving 2500 feet spacing requirements for group homes for persons with disabilities. These
courts found that a spacing requirement this large effectively prevented the opening of any
additional group homes so that accommodations were necessary. See Oconomowoc Residential
Programs, Inc. v. City of Greenfield, 23 F. Supp. 941, 958 (E.D. Wis. 1998) ("the spacing
requirement effectively prevents additional disabled adults who cannot live independently from
living in residential neighborhoods in either community," so accommodations were needed);
Oconomowoc Residential Programs, Inc. v. City of Milwaukee, No. 97-C-251 at 13 (E.D. Wis.
Mar. 16, 1999) (attached in United States' Appendix) ("merely because a group home will have
the right to open in limited cases is not an accommodation, however, it is merely good fortune").
All of these precedents underscore that accommodations are necessary where compliance with
zoning regulations is impossible.
Here, too, compliance with the zoning requirement was and is impossible, because there
is simply no foolproof way for Avalon to determine where other handicapped group dwelling
units and group residential facilities are located. Accommodations are therefore needed. As a
policy matter, this impossibility of complying with the spacing requirement surely has a chilling
effect upon the development of additional handicapped group dwelling units in Dallas, thereby
thwarting the intent of the Fair Housing Act to increase housing opportunities for persons with
disabilities in the community.
The other alternative that the City suggests - reducing the number of residents in the
Glendora home to five or less - likewise does not eliminate the need for an accommodation.
This option would require several residents with disabilities to vacate their chosen dwelling, so
an accommodation is still needed to preserve their rights to reside in a dwelling of their choice.
See Remed Recovery Care Centers v. Township of Willistown, 36 F. Supp.2d 676, 685 (E.D. Pa.
1999) (finding need to raise occupancy cap where "three ReMed clients will be unable to live at
84 Devon Road without the accommodation"). And it hardly seems like a fair accommodation to
force the Glendora home to have fewer than the six persons allowed in handicapped group
dwelling units just because satisfying the spacing requirement is impossible, largely because the
City does not maintain and provide access to records that identify the locations of other
handicapped group dwelling units and group residential facilities or allow people to rely on
Texas' Directory of Assisted Living Facilities.
The City next claims that it has already granted an accommodation by allowing six
unrelated persons with disabilities to live in a handicapped group dwelling unit. Citing no
authority, the City reasons that this is an accommodation because only five unrelated persons
without disabilities may live in a dwelling in a single family district. But that the zoning law
may not be facially invalid is not a defense to a reasonable accommodation claim, which is
"highly fact-specific, requiring a case-by-case determination." United States v. California
Mobile Home Park Mgt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994). And numerous courts have
found that accommodations were needed to escape occupancy caps. See, e.g., Smith & Lee, 102
F.3d at 795-96 (finding need for accommodation from a six person occupancy cap to allow nine
persons with disabilities in group home); Groome Resources, Ltd. v. Parish of Jefferson, 52 F.
Supp.2d 721, 724 (E.D. La.1999) (accommodation from four person occupancy cap was needed
to allow five residents with disabilities).
The City's third claim - that its provision of an SUP process for the spacing requirement
is a reasonable accommodation - is incorrect. Merely providing a procedure by which a group
home provider can seek a variance is not in itself a reasonable accommodation; the
accommodation goes to the outcome. Judy B. v. Borough of Tioga, 889 F. Supp. 792, 802 (M.D.
Pa. 1995). Moreover, where the required outcome is not achieved, the process of seeking the
outcome is plainly inadequate.
In order to prevail, of course, there must be evidence establishing that Avalon's requested
accommodations are not just necessary, but reasonable. (10) An accommodation is unreasonable
under the law only if it (1) imposes "undue financial and administrative burdens" on the
municipality or (2) requires a "fundamental alteration in the nature of" its zoning scheme. See
Southeastern Community College v. Davis, 442 U.S. 397, 410 & 412 (1979). The application of
both parts of this test requires a balancing test that considers cost to the defendant and benefit to
the plaintiff. See Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995). Conclusory allegations of
undue burdens and fundamental alterations do not justify denial of necessary accommodations.
The City, however, contends that balancing the parties' interests is inappropriate. See
City's Brief at 29. We disagree and find support for our view in Elderhaven, Inc. v. City of
Lubbock. Although the Fifth Circuit did not announce a specific standard by which to analyze
the reasonableness requirement in Elderhaven, it nevertheless applied a balancing approach that
considered the effects of the challenged ordinance on the plaintiff when analyzing the
reasonableness question. See Elderhaven, 98 F.3d 175, 178-79 (5th Cir. 1996). For instance, the
Court noted that the ordinance, "if applied rigidly and in a manner blind to the varying
circumstances attending the needs of persons with disabilities, might constitute a violation of the
Fair Housing Act." Id. at 178. Since the defendant city had granted multiple variances to the
plaintiff allowing it to house five more residents than allowed by statute at one home and three
extra residents at a second home, see id. at 177, the Court concluded that "[s]uch flexibility may
be an essential component of a process designed to provide reasonable accommodation and to
operate in the marginal circumstances of the market." Id. at 178. Finally, the Court stated that "a
municipality may violate the Fair Housing Act by placing unduly burdensome conditions upon a
proposed residence for the disabled." Id.
Without discussing Elderhaven, the City cites Hemisphere Building Company v. Village
of Richton Park, 171 F.3d 437 (7th Cir. 1999), as supporting its view that courts should not
balance the parties' interests. City's Brief at 29. But the City misconstrues Hemisphere. The
court there did not reject a balancing test in toto; the court simply declined to apply it in the
narrow circumstances of the case, in which the plaintiff's only interest in having a piece of
property rezoned was to "obtain housing suitable for the special needs [of wheelchair-bound
persons] at the lowest possible price." Hemisphere, 171 F.3d at 439-40. That situation is quite
unlike this case in which the total denial of housing to persons with disabilities - not price - is at
stake. (11) Recognizing this distinction, the Hemisphere court indicated that it would consider the
burden on a plaintiff in a situation akin to the one here, in which an ordinance prevents persons
with disabilities from obtaining the type of housing needed to accommodate the person's
A municipality that forbade builders to build showers that were flush with the
bathroom floor, though it did so not because it wanted to make showers unusable
by persons confined to wheelchairs but only because it wanted to reduce the risk
of flooding the apartment below, would still be hurting only handicapped people.
A developer could therefore seek an accommodation in the form of a waiver of
the rule for housing intended for handicapped people, or, what is the equivalent,
could argue that the municipality should be put to its proof that there is no
reasonable alternative method of preventing serious flood damage.
Id. at 440. But even if Hemisphere stood for the proposition for which the City cites it, the
balancing approach used in Elderhaven would still control the reasonableness inquiry here.
- Undue Burden
Applying the first part of the reasonableness test, the evidence shows that the heavy
burden on Avalon from denying the accommodations outweighs any minimal burden on the City
from granting them.
Without an accommodation from the spacing requirement, Avalon will have to close the
Glendora home and cannot reopen it in another location since it cannot ensure compliance with
the ordinance. Because the City "plac[ed] unduly burdensome conditions upon a . . . residence
for the disabled" and because the City "applied [the ordinance] rigidly and in a manner blind to
the varying circumstances attending the needs of persons with disabilities," Elderhaven, 98 F.3d
at 178, the requested accommodation is reasonable. And flexibility in administering ordinances
is "an essential component of a process designed to provide reasonable accommodation." Id.
The court in North Shore-Chicago Rehabilitation Inc. v. Village of Skokie, where
compliance with the zoning laws was also impossible, agreed: "[A]ny justification for the
licensing requirement on the basis of concerns over welfare and safety is inadequate where, as
here, the state does not license the particular type of group living facility for the handicapped."
827 F. Supp. 497, 501 (N.D. Ill. 1993). Likewise, there can be no justification for the City's
application of its spacing requirement in the circumstances of this case.
Though compliance with the occupancy cap requirement is not impossible, denying
housing to two persons with disabilities is still a heavy burden. And granting this
accommodation is even more reasonable here given that the ordinance allowed eight persons
with disabilities when Avalon opened the Glendora home.
By contrast, there is no evidence that granting these accommodations would cost the City
any money or increase its administrative burden.
- Fundamental Alteration
Turning to the second part of the reasonableness analysis, the accommodations will not
fundamentally alter the City's zoning scheme. The City, however, asserts that granting the
accommodations would undermine the basic purpose of its zoning regulations. City's Brief at
26-27. To support its claim, the City cites Hemisphere for its reference to the slippery slope of
making changes to zoning laws. See Hemisphere, 171 F.3d at 439. But this reference was made
about a disparate treatment claim - not a reasonable accommodation claim - in which the
plaintiff "ask[ed] [the court] to infer discriminatory intent from the fact (he contends) that the
Village had no good reason to turn him down." Id. at 439. This situation is quite different from
the facts here.
A defendant cannot deny a reasonable accommodation because it fears that doing so will
lead others to make similar requests for accommodations that will ultimately erode its zoning
scheme. See Elderhaven, 98 F.3d at 178 ("Our task . . . is to decide concrete disputes. It is not to
imagine."); United States v. California Mobile Home Park Mgt. Co., 29 F.3d 1413, 1418 (9th Cir.
1994) (requested accommodations "must be examined on a case-by-case basis to determine . . .
whether [they] would impose an undue burden"). Such fears can have no legitimate basis; if
other requests are made, the municipality must grant those that meet the standard imposed by the
Act and need not grant those that do not. To admit such a defense would render Section
804(f)(3)(b) a nullity.
The City's contention that the traditional deference to local zoning rules warrants
granting summary judgment falls short for the same reason. To the extent that local laws impede
the City's ability to make a reasonable accommodation under the Fair Housing Act, those laws
must "give way." North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971). The Act
itself reiterates that any state or local law "that purports to require or permit any action that
would be a discriminatory housing practice under [the Act] shall to that extent be invalid." 42
Beyond these concerns of the City, there is a factual dispute over whether the
accommodations would fundamentally alter the City's zoning scheme. As discussed above, the
City Plan Commission's staff found that the accommodation from the spacing requirement was
"compatible with surrounding land use and zoning districts." And when handling a previous
situation in which a handicapped group dwelling unit was operating within 1000 feet of another
such unit that had no license, the City found "no violation." Avalon App. at 222; see id. at 223,
225. Therefore, the City has arguably made a fundamental alteration to its own zoning scheme
by enforcing the spacing requirement against the only handicapped group dwelling unit within
the 1000 foot area that actually has a license, since all of these facilities need a license to comply
with state law and the Dallas City Code. See supra at 4-5.
There is also evidence suggesting that raising the occupancy cap to eight persons for
Avalon is not a fundamental alteration. Less than two years ago, Dallas had an eight person
occupancy cap, so the requested accommodation is hardly inconsistent with its zoning scheme.
In addition, precedents indicate that lifting a six person occupancy cap to allow two additional
residents is reasonable. As the Smith & Lee Court explained,
allowing [adult foster care] housing nine elderly disabled residents to operate in Taylor's
single-family neighborhoods is reasonable. Michigan already permits [adult foster care]
homes to operate with six or fewer residents in areas zoned for single family use. ... We
are not convinced that an additional three residents will fundamentally alter the nature of
102 F.3d at 796; see, e.g., Remed Recovery Care Centers v. Township of Willistown, 36
F.Supp.2d 676, 688 (E.D. Pa. 1999) ("there is no evidence that [the zoning] scheme is threatened
by permitting three additional residents to the Willistown Home"); Keys Youth Servs., Inc. v.
City of Olathe, 52 F. Supp.2d 1284, 1305 (D. Kan. 1999) (refusing to grant summary judgment
on request to raise occupancy limit from ten persons to allow two extra residents).
In sum, there is no evidence indicating that the accommodations will fundamentally alter
the City's zoning scheme, and Avalon has satisfied the reasonableness requirement.
For all of the above reasons, the Court should deny the City's motion for summary
BILL LANN LEE
Assistant Attorney General
Civil Rights Division
JOAN A. MAGAGNA
Housing and Civil Enforcement Section
JEANINE M. WORDEN
ELLEN M. BOWDEN
Housing and Civil Enforcement Section
Civil Rights Division
Department of Justice
P.O. Box 65998
Washington, D.C. 20035-5998
1. Plaintiff alleges disparate treatment and disparate impact causes of action under the Fair
Housing Act and an the Equal Protection claim under the Fourteenth Amendment. We do not
address these claims.
2. City App. refers to the City's appendix in support of its motion for summary judgment.
3. This directory is now called the Directory of Assisted Living Facilities. See Tex.
Health & Safety Code § 247.062.
4. This refers to the United States' appendix attached to this brief.
5. Avalon App. refers to Avalon's appendix in support of its response in opposition to the
City's motion for summary judgment.
6. As long as a home has no more than four unrelated persons living there, it constitutes a
"family" under Dallas law, rather than a handicapped group dwelling unit, and can locate in a
single family district without being subject to a spacing requirement. See Dallas Development
Code §§ 51A-2.102(36), 51A-4.209(b)(6).
7. There are no supervisory personnel residing at the Avalon homes; the staff members
work in shifts at the homes and live elsewhere. City App. at 291 & 344.
8. The City asserts that Avalon waived the issue of the legality of the two other
handicapped group dwelling units by failing to raise it during the administrative process. City's
Brief at 6. The Fifth Circuit has not ruled on whether exhaustion of administrative remedies is
needed to bring a reasonable accommodation claim in court; and even if exhaustion were
required, invoking the Fair Housing Act should suffice to preserve all specific factual claims
about the denial of reasonable accommodations. It is too burdensome to expect plaintiffs to
gather all of the facts that they would eventually have to establish at trial during what may be a
comparatively quick administrative process.
9. Even under the City's broader definition of "equal opportunity," there would still be a
factual issue for trial regarding the spacing requirement. As explained in greater detail in the
next section, Avalon cannot establish a handicapped group dwelling unit anywhere in Dallas and
be sure that it will not lie within 1000 feet of another handicapped group dwelling unit or a group
residential facility, because there is no way for it to learn where such facilities are located.
Therefore, compliance with this requirement becomes a matter of chance, which therefore denies
the disabled residents an equal opportunity to live in the entire City of Dallas.
10. The City is correct in saying that in the Fifth Circuit, plaintiffs have the burden of
proof on this issue. See City's Brief at 25; Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175,
178 (5th Cir. 1996). We note, however, that the United States disagrees with this result and
believes that the defendant has the burden of proving that an accommodation is not reasonable.
See Hovsons Inc. v. Township of Brick, 89 F.3d 1096, 1103 (3rd Cir. 1996).
11. The United States does not address whether cost is a relevant factor here, because it is
not at issue in this case. We note only that the Fifth Circuit has implicitly agreed that the cost of
housing to plaintiffs is a legitimate consideration in the reasonableness determination. See
Elderhaven, 98 F.3d at 179 ("We recognize that the economics of group living arrangements
often require a critical mass of residents in order to make feasible the type of alternative living
arrangements that the Fair Housing Act was designed to encourage."). The cost argument in
Hemisphere, moreover, was not very compelling based on its facts and did not involve group
homes. See Hemisphere, 171 F.3d at 438-40.