Housing And Civil Enforcement Cases Documents

In the United States District Court

For the District of Columbia

Father Flanagan’s Boys Home                     

Plaintiff,

                      v.                                                  Consolidated cases:   

                                                                           Civil Action No. 01-1732 (JR)

District of Columbia,                                            Judge James Robertson

Defendant.

_________________________________

United States of America,                            

Plaintiff,

                                                                            Civil Action No. 04-0619 (JR)

                      v.                                                  Judge James Robertson

District of Columbia,                                   

Defendant.

_________________________________

UNITED STATES’ MEMORANDUM OF POINTS AND AUTHORITY

IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT

            On April 15, 2004, the United States filed a two-count complaint alleging that the District of Columbia, (“District”) violated the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (“the Act”). Count I of the complaint alleges that the District discriminated against Father Flanagan’s Girls & Boys Town (“Boys Town”) on the basis of disability and denied rights granted under the Act to a group of persons in violation of 42 U.S.C. §§ 3604(f)(1) & (2). Count II alleges that the District’s municipal regulations include zoning classifications on the basis of disability that violate 42 U.S.C. §§ 3604(f)(1) & (2).

            The United States submits this motion, pursuant to Fed. R. Civ. P. 56, in order to narrow the issues for trial. First, the United States asks the Court to rule that the District has violated the Act by enforcing discriminatory provisions of the zoning regulations. These provisions are occupancy restrictions, spacing requirements, and a special exception requirement for youth residential care homes and certain other community-based residential facilities (“CBRFs”) in high-density residential, mixed use and certain commercial zones where such housing is intended as housing for persons with disabilities, as well as a certificate of occupancy requirement for CBRFs with six or fewer residents. ¹

            The uncontested facts in this case demonstrate that these District zoning regulations constitute a pattern or practice of discrimination because they place restrictions and impose procedural requirements on housing for persons with disabilities that are not placed upon similar housing for non-disabled persons without sufficient justification, in violation of 42 U.S.C. §§ 3604(f)(1) and (f)(2). As the experiences of Boys Town and other group homes demonstrate, the District’s zoning scheme, on its face, puts group homes for children with disabilities at a distinct disadvantage. Even in zones where virtually any other residential use is permitted without restrictions, the District subjects potential residents of group homes to the scrutiny and bias of neighbors, and erects onerous procedural hurdles, which suggest that people with disabilities present a threat to the quality of life of a neighborhood.

            Second, the United States asks the Court to rule that the District discriminated on the basis of disability when it denied Boys Town’s January 6, 2003, application for a certificate of occupancy to operate one group home for six abused and neglected youth, including residents with disabilities, and two staff at 1308 Potomac Ave., S.E. As discussed below, even under the District’s current zoning scheme, such use clearly should have been a matter of right in that commercial zone, but instead Boys Town was directed to file its application with the Board of Zoning Adjustment so that community opponents could have a say.  

            For the reasons set forth below, the United States should be granted summary judgment against the District as to liability on these issues, thereby limiting the issues for trial to remaining issues and relief.

I. BACKGROUND ²

            This case began with Boys Town’s February 10, 2000 purchase of nine lots of record consisting of 2.1 acres in the 1300 block of Pennsylvania and Potomac Ave., SE, in Washington, DC (“Potomac Avenue site,” “Potomac Avenue property,” Pennsylvania Avenue,” or “subject property”). Ex. A Feola Decl. ¶ 4. The entire property was zoned as C-2, a commercial designation, which, under the District’s zoning regulations, allows either residential or commercial development. ³ Id. ¶ 5; 11 DCMR § 721. Boys Town intended to construct four single-family homes for the purpose of operating four residential group homes, each housing six abused and neglected children, and their caretakers (a parent-teacher couple). Id. ¶ 4. Boys Town also intended to build a short term residential group home (“short term shelter”) to house up to 16 children and their caretakers. ⁴ Id.

            A. The District’s Regulatory Scheme ⁵

            The District’s zoning regulations establish a framework for permitting residential group homes, or “community-based residential facilities” (“CBRFs”). Each CBRF is required to be classified into one or more of seven subcategories, and, if an establishment is a CBRF, “it shall not be deemed to constitute any other use permitted under the authority of these regulations.” 11 DCMR § 199.1. The zoning regulations define “Community-based residential facility” in relevant part as “a residential facility for persons who have a common need for treatment, rehabilitation, assistance, or supervision in their daily living” (emphasis added). ⁶ The allowable subcategories include: (a) adult rehabilitation homes for adjudicated felons; (b) community residence facilities licensed pursuant to the Health Care Facilities and Community Residence Facilities Regulations; (c) emergency shelters for the homeless; (d) health care facilities licensed as a skilled care facility or intermediate nursing care facility; (e) homes for substance abusers; (f) youth rehabilitation homes for adjudicated youth offenders; and (g) youth residential care homes. 11 DCMR § 199.1. A youth residential care home (“YRCH”) is defined as “a facility providing safe, hygienic, sheltered living arrangements for one (1) or more individuals less than eighteen (18) years of age, not related by blood, adoption, or marriage to the operator of the facility, who are ambulatory and able to perform the activities of daily living with minimal assistance.” Id.

            The District’s zoning regulations require all structures to be used “for any purpose other than a one-family dwelling” to obtain a certificate of occupancy. 11 DCMR § 3203.1 (2001). Because a CBRF, as noted above, cannot constitute any other use, including a one-family dwelling, all CBRFs must obtain certificates of occupancy. Id.; 11 DCMR § 199.1.

            A YRCH housing six children, plus resident supervisors or staff and their families, is permitted as a matter of right in all residential, mixed use and commercial zones.

11 DCMR § 201.1(n)(1). A YRCH housing more than 7 youths is also permitted as a “matter of right” in zones R-5, CR, C-1 and C-2 zones ⁷ (7 to 15 youths for R-5, CR & C-2 and 7 to 8 youths for C-1), but is subject to a spacing requirement: there may not be other properties containing an existing community-based residential facility for 7 or more persons in the same square or within 500 feet of the subject property. 11 DCMR §§ 350.4(f), 601.2(b), 701.3, 721.5. A YRCH for 16 to 25 children is permitted in the R-5, CR and C-2 zones (like the zone where the Potomac Avenue property is located) only through the granting of a special exception by the Board of Zoning Adjustment (“BZA”) pursuant to 11 DCMR § 3104, after public input, and generally remains subject to the occupancy cap of 25 children and spacing requirements. ⁸ 11 DCMR §§ 358, 616.1(a), 732.1(a). The BZA has limited authority to waive spacing requirements for YRCHs after weighing whether facilities will have “adverse impact on the neighborhood because of traffic, noise, or operations” and to waive occupancy caps upon finding “there is no other reasonable alternative to meet the program needs of that area of the District.” ⁹ 11 DCMR §§ 358.7-358.8.

             These zoning regulations effectively put a cap of 25 on the number of children who may reside in a YRCH in areas zoned R-5, CR and C-2 (and 15 in C-1 zone), regardless of the actual physical size of the home or facility. 11 DCMR §§ 358, 616.1(a), 711.1(a) & 732.1(a). Under the District’s zoning regulations, other matter of right uses in the R-5 zone include, for example: multiple dwellings (including apartment houses), hotels (in all but R-5-A, low density subzones), boarding houses ¹⁰ and residences for teachers or staff at private schools. 11 DCMR § 350.4. In the mixed use zones, matter-of-right uses include those such as: boarding houses, hotels, community centers, and restaurants. 11 DCMR § 601.1. In the C-1 and C-2 commercial zones (like the zone in which the Potomac Avenue property was located), matter-of-right uses include those in the R-5 zone and others such as boarding houses, hotels, restaurants, liquor stores, bars, college and university uses, auditoriums, movie theaters, and department stores. 11 DCMR. §§ 701 & 721. Significantly, these uses, including large residential uses, need not meet any special requirements; however, in these same zones, housing classified as a YRCH is generally subject to occupancy caps, spacing requirements, and the BZA special exception requirement. 11 DCMR §§ 350.4(f), 358, 601.2(b), 616.1(a), 701.2, 701.3, 711.1(a) & 711.1(a), 721.5 & 732.1(a).

            The zoning regulations authorize the BZA to grant special exceptions “where, in the judgment of the Board, the special exceptions will be in harmony with the general purpose and intent of the Zoning Regulations and Zoning Maps and will not tend to affect adversely, the use of neighboring property . . . subject in each case to the special conditions” set out in 11 DCMR

§ 3104.1. Section 3104 identifies other sections of the zoning regulations containing the special conditions that must be met for the BZA to grant a special exception for a community based residential facility. These special conditions include occupancy caps, spacing requirements, and a determination that the facility will not have an adverse impact on the use of neighboring property. ¹¹ 11 DCMR §§ 350.4(f), 358, 601.2, 616.1, 701.2, 701.3, 711.1, 721.5 & 732.1. The District applied occupancy restrictions, spacing requirements and the special exception requirement to Boys Town’s efforts to locate YRCHs at the Potomac Avenue site in the C-2 zone. Ex. B-1 BZA Opinion 16791 p. 25; Ex. B-18 Noble Letter November 2003 (conditioning issuance of building permit for short-term shelter on “confirmation that there are no other facilities for seven or more residents within 500 feet of this location.").

            In addition to this regulatory structure, there is a provision in the section of the zoning regulations that describes the uses permitted as a matter of right in the R-4 Zone as including:

Community-based residential facility; provided that, notwith-standing any provision in this title to the contrary, the Zoning Administrator has determined that such community-based residential facility, that otherwise complies with the zoning requirements of this title that are of general and uniform applicability to all matter-of-right uses in an R-4 District, is intended to be operated as housing for persons with handicaps.

11 DCMR § 330.5(i).¹² This section is not referenced in any of the R-5, mixed use or commercial zoning provisions discussed above. See 11 DCMR §§ 350.4(f), 358, 601.2, 616.1, 701.2, 701.3, 711.1, 721.5 & 732.1. There is no statement in the zoning regulations regarding whether or how Section 330.5(i) applies in the R-5, mixed use and C-1 and C-2 commercial zones. See id.; Ex. FF. As discussed below, this provision was not applied to enable Boys Town to operate YRCHs in the Potomac Avenue C-2 zone.

            Finally, a separate portion of the District’s municipal code includes procedures for requesting a reasonable accommodation to the zoning regulations. 14 DCMR § 111. ¹³  The Director or his/her designee is responsible for making a written determination regarding the request, which must be made within 45 days ¹⁴ after receiving the request. 14 DCMR §§ 111.6 & 111.9. In order to reach a decision, the regulations provide that the Director “may request further information from the applicant consistent with the Act, specifying in detail the information required.” 14 DCMR §111.7. The Director’s decision on a reasonable accommodation request is final and cannot be appealed to the BZA. 14 DCMR § 111.13.

            B. Boys Town’s Efforts to Open Group Homes

              On December 19, 2000, ten months after purchasing the Potomac Avenue property, Boys Town applied to the District’s Department of Consumer and Regulatory Affairs (“DCRA”) seeking four building permits for four proposed YRCHs, each to house six children and a married teacher couple, on four distinct lots at the Potomac Avenue site. See 11 DCMR § 201.1(n)(1); Ex. A Feola Decl. ¶¶ 4, 5. Boys Town had considered building some of the proposed YRCHs as homes for eight children plus resident staff. However, Boys Town was advised that the occupancy of a YRCH was limited to six children plus resident staff to qualify as a "matter of right" use under the DC zoning code, and that a "matter of right" use would, in turn, avoid the spacing and special exception requirements of the zoning regulations. Thereafter, Boys Town decided to build all four YRCHs as homes for six children, with each to qualify as a "matter of right" use. Ex. A Feola Decl. ¶ 12.

             Because YRCHs serving six youths are permitted as a matter of right in the C-2 zone, Boys Town did not reference the disabilities of the children to be served in the four permit applications. ¹⁵ Id. at ¶ 6. On October 3, 2000, shortly before Boys Town made these applications, the BZA issued a preliminary decision indicating that if Boys Town had proposed four YRCHs on four separate lots of record, each housing six children, at its Sargent Road site, the proposed use would have been a matter of right. Ex. A Feola Decl. ¶ 6; Ex. B-5 BZA Application No. 16531 p. 2. In its December 21, 2000 written Decision and Order, the BZA granted a special exception for Boys Town’s request to build multiple buildings on a single lot at Sargent Road and reiterated its finding that had separate lots existed at the site each YRCH housing six children would have been a matter of right use. ¹⁶ Ex. B-5 BZA Application No. 16531 p. 2.

            1. Community Opposition

            Community opposition to Boys Town’s plan began shortly after it purchased the Potomac Avenue site and months before it filed its December 2000 permit applications. On July 13, 2000, Advisory Neighborhood Commission 6B (“ANC 6B”), ¹⁷ convened a special public hearing to advise the community of Boys Town’s recent purchase and elicit public comment about the proposal to construct and operate four homes for children in that location. Ex. HH Jarboe Dep. 63:3-71:12; Ex. II Furness Dep. 140:1-141:19, Exhibit 8. According to media reports, the overwhelming majority of persons in attendance at the hearing opposed the proposed housing. Ex. JJ, ANC Votes No on Boys Town, Heart & Soul, voice of the hill, July 14, 2000, at 28. D.C. Councilwoman Sharon Ambrose informed the gathering that she and her staff had reviewed “the zoning because [they] were hopeful that there was some little string in respect to zoning or planning that [they] could pull to unravel the process.” Ex. B-7 Transcript July 2000 ANC 6B Meeting 2:14-16. The councilwoman further explained that “there is nothing we can do from a zoning or land use perspective to unravel this.” Id. 3:2-4.

            At the conclusion of the discussion on Boys Town’s proposed housing, ANC-6B adopted a resolution in Opposition to Boys Town USA facility on the 1300 Block of Pennsylvania Avenue, S.E. stating, interalia, that “the vulnerable children who will be housed at the Boys Town facility require a safe and secure setting.” Ex. H Resolution of ANC 6B. According to Peter Waldron, a former chairman of ANC 6B who presided over the meeting where this resolution was adopted, the term “vulnerable” as used in the resolution referenced the psychological problems of the children. Ex. I Waldron Dep. 178:5-179:8, July 12, 2006. In explaining ANC 6B’s opposition to Boys Town’s proposed construction, another former ANC Chairman, Kenan Jarboe, described the children as “at risk” and summarized ANC 6B’s opposition to the Boys Town proposal as being motivated by a desire to “protect the children from an unsuitable environment” because the commission did not believe that the Potomac Avenue site was “the safest neighborhood for children.” Ex. HH Jarboe Dep. 95:15-18, 115:6-18.

            In addition to the ANC’s opposition to Boys Town’s proposed construction, the leadership of the Capitol Hill Restoration Society (CHRS), in conjunction with an elected official and other neighborhood activists, founded an organization to coordinate community opposition and mount a legal challenge to Boys Town’s proposed construction. There was a concern in the Capitol Hill neighborhood, where the proposed Potomac Avenue homes were to be located, that “Capitol Hill not get identified as the place to put homeless shelters and treatment centers and the like.” Ex. J Nevitt Dep. 37:22-38:2, May 17, 2006; Ex. II Brian Furness Dep. 29: 13-22.

            In June of 2000, these activists and elected officials set the agenda for the opposition to the Boys Town proposal. Southeast Citizens for Smart Development (SCSD), an organization with the primary purpose of opposing and preventing the construction of the Boys Town proposal, was established to oppose Boys Town’s plans. ¹⁸ Ex. KK Hill Dep. 66:22-67:8. A primary spokesperson for SCSD was Ellen Opper-Weiner, a social worker whose work at one time involved providing services to children. Ex. LL Opper-Weiner Dep. 140:20-141:14; Ex. II Furness Dep. 17:15-18. Ms. Opper-Weiner described the prospective children at Boys Town’s Potomac Avenue site as “vulnerable” and “kids who had problems that needed help.” Ex. LL Opper-Weiner Dep. at 13:15-16, 42:8-9. Ms. Opper-Weiner educated herself extensively on the contracts the District’s Child and Family Services Agency (“CFSA”) had with Boys Town, visited the Sargent Road property, and requested extensive information about the program description of services and staff training at Sargent Road. Id. at 24:14-28:13, 38:15-17, 234:18-235:7.

            In their efforts to stall and ultimately prevent the construction of Boys Town’s proposed housing, the community opponents contacted District officials as high ranking as the Mayor and continued down through his deputies, department heads, administration chiefs, to front-line employees of zoning and regulatory agencies. Members of ANC 6B and SCSD gathered petitions, held meetings, launched a website, and wrote to and met with District officials, including the DCRA, to voice their opposition to housing Boys Town’s “vulnerable “ or “at-risk” the children in their neighborhood. Ex. GG Bello Dep. 26:4-29:1; Ex. II Furness Dep. 114:21-117:12, 130:1-22; Ex. LL Opper-Weiner Dep. 12:5-13:4, 71:20-75:12. It was reported on November 16, 2000, that over 150 Capitol Hill residents and political leaders, including ANC 6B Commissioner Will Hill and City Councilwoman Sharon Ambrose, participated in an outdoor protest against Boys Town and the group homes planned by the organization. Ex. B-9 Duncan Spencer, Editorial, Hill to Mayor: Do Something to Stop Boys Town, the hill, Nov. 22, 2000 at 14.

            The opposition to Boys Town’s proposal intensified after Boys Town submitted its building permit applications in December 2000. Ex. GG Bello Dep. 21:6-29:1. Community opponents drafted a lengthy memorandum and submitted it to DCRA on June 29, 2001, raising concerns as to the environmental impacts of the project, and whether the site – previously a gas station – may contain historical artifacts requiring an architectural review. Ex. B-11 Comments to Pending Environmental Assessment and Impact Analysis submitted by SCSD. During a nine-month period while the building permit applications were pending, DCRA requested Boys Town to submit to an archeological review of the subject property and investigated whether an environmental study would be required. Ex. O, Burditt Decl. ¶ 4, p. 19; Ex. B-38 Facsimile From Altman to Burditt; Ex. MM, August 1, 2001 Memorandum from Altman to Noble. Both of these reviews were later determined to be unnecessary. Ex. B-10 DOH Environmental Assessment. Ex. O, Burditt Decl. ¶ 4, p. 20.

            2. BZA’s Consideration of Boys Town’s Applications

            On September 6, 2001, DCRA issued building permits for the four, six-child YRCHs requested by Boys Town, having determined that the proposed uses were permitted as a matter of right in the C-2 zone. Ex. A Feola Decl. ¶ 5; Ex. B-12, Building Permits. ANC 6B and SCSD, representing community opponents, appealed the DCRA decision to the BZA on September 12, 2001. Ex. B-1, BZA Opinion No. 16791 p. 1. The community opponents argued that treating the four YRCHs as separate, matter-of-right entities would evade the zoning regulations’ spacing and occupancy cap requirements on CBRFs in the C-2 zone. Id. p. 3. Due to their “concern[] about the concentration of community-based residential facilities in the neighborhood, and about the impacts of [the Boys Town] project,” they argued that the four YRCHs should be treated as one “facility” housing 24 children, and subject to the spacing and occupancy cap limitations of 11 DCMR § 721.5, as well as the special exception requirements of 11 DCMR § 732.1. Id. at 3-5.

            In its presentation before the BZA, Boys Town argued that its four applications for four YRCHs at the Potomac Avenue property should each be regarded as a separate matter of right use, consistent with the District’s zoning regulations and with the BZA’s previous Sargent Road decision. Ex. A Feola Decl. ¶ 7; Ex. B-1 BZA Opinion 16791 p. 14. Boys Town also attempted to argue that the community opposition to these group homes was based on discriminatory animus and attempted to submit evidence that the housing was intended as housing for persons with disabilities. Ex. A Feola Decl. ¶¶ 6 & 7; Ex. B-16 Response Brief of Father Flanagan’s Boys Town. The BZA, however, refused to consider any evidence of the disabilities of children who would be served by the Boys Town homes or evidence of the requirements of the Fair Housing Act, finding it “irrelevant, since there is no evidence that Girls and Boys Town has as [sic] sought ‘reasonable accommodation’ under District of Columbia regulations implementing the Fair Housing Act.” Ex. B-1 BZA Opinion 16791 p. 38.

            On June 21, 2002, nine months after the BZA appeal was filed, the BZA upheld the community opponents’ appeal and revoked the four building permits. Ex. B-1 BZA Opinion 16791 p. 27. The BZA held that the four group homes were one “facility” and should be treated as one YRCH serving 24 youths, subject to the special exception and spacing requirements of section 732.1(a), not four (matter of right) homes serving six children each. Ex. B-1 BZA Opinion 16791 p. 25.

            On May 1, 2002, while this appeal was pending before the BZA, Boys Town submitted to DCRA a revised permit application for the Potomac Avenue short-term shelter under 11 DCMR § 330.5(i), attaching an affidavit from Dr. Handwerk dated January 9, 2002, which specifically concluded that the majority of the prospective residents would have disabilities. ¹⁹ Ex. B-40 Permit Application; Ex. B-41 Second Handwerk affidavit dated 1/9/02. This application was not acted on by DCRA until November 12, 2003, when the Zoning Administrator informed Boys Town that the short-term shelter at the Potomac Avenue property was subject to the 500-foot spacing requirement under 11 DCMR § 721.5. Ex. B-18_{Noble Letter November 2003.}

            On June 28, 2002, following this decision by the BZA, Boys Town filed four new building permit applications for homes on four separate lots, changing only the proposed use from “four YRCHs” to “four single-family homes” that did not express any intent to house children with disabilities. Ex. A Feola Decl. ¶ 8; Ex. B-46, Building Permit Applications. Boys Town made this decision to get the buildings finished as quickly as possible “solely and only to minimize damage to the buildings that were partially completed.” Ex. C Feola Dep. 161:15-17. On July 8, 2002, DCRA approved the revised building permit applications, and issued building permits for four single-family homes at the subject property. Ex. B-19_{Building Permits. On August 1, 2002, SCSD filed an appeal with the BZA, later joined by ANC 6B, challenging the DCRA’s decision to issue these building permits. ²⁰ Ex. B-20 BZA Appeal No.16935; Ex. B-44 BZA Appeal No. 16935 p. 1.}

            3. Boys Town’s Reasonable Accommodation Request for the Four Homes

            In light of the BZA’s June 2002 decision, on October 11, 2002, Boys Town submitted a request to DCRA for a reasonable accommodation from 11 DCMR § 732.1's special exception requirement, in order to operate the four long-term YRCHs. Ex. B-47 Request for Reasonable Accommodation; Ex. A Feola Decl. ¶ 9. Boys Town made the reasonable accommodation request pursuant to 14 DCMR § 111 and the Fair Housing Act, 42 U.S.C. § 3604. Ex. B-47 Request for Reasonable Accommodation. The request was accompanied by an affidavit from Dr. Michael Handwerk, Director of Clinical Services, Research and Internship Training at the long term facilities at Boys Town, Nebraska, addressing the disabilities of the prospective children at the Potomac Avenue/Pennsylvania Avenue site. ²¹ Id.

            On November 22, 2002, DCRA denied Boys Town’s request for a reasonable accommodation. Ex. B-24 Denial of Reasonable Accommodation. The Director of DCRA found the application had not presented sufficient evidence of the disabilities of the children to be served. Id. The Decision and Notice also found that the Director of DCRA “does not have the authority to grant a waiver from compliance with the zoning regulations” of the District; that granting the accommodation “would require a fundamental alteration of legitimate zoning policies” of the District; and that “Father Flanagan’s did not describe any condition or impairment that meets the definition of handicapped as defined in the Fair Housing Act.” Id. The Director of DCRA, who is specifically designated as the person to make a determination regarding reasonable accommodations in the District under 14 DCMR §111.6 did not seek additional information, although he is authorized to do so under 14 DCMR § 111.7. Id.

            4. Boys Town’s Request for a Single Certificate of Occupancy

            Construction of the four single-family homes was completed in January 2003. Ex. A Feola Decl. ¶8. On January 6, 2003, Boys Town submitted a single application for a certificate of occupancy to operate one of the homes as a YRCH housing six children and two staff. Ex. B-25 Application for Certificate of Occupancy. Pursuant to 11 DCMR § 201.1(n), a single YRCH serving no more than six children is permitted as a matter of right even in the most restrictive zone (R-1), and in all less restrictive zones, including C-2 where the subject property is located. 11 DCMR § 201.1(n). On February 7, 2003, DCRA denied the certificate of occupancy “pursuant to” the May 7, 2002 decision of the BZA granting the appeal of community opponents with regard to the four YRCH permits, and citing the “need for Board of Zoning Adjustment approval.” Ex. B-31 Denial Letter. In deposition for this case, former Zoning Administrator Robert Kelly testified that the certificate of occupancy was denied because the project had received a lot of “neighborhood resistance” and he believed Boys Town should go back to the BZA “and give the people a chance to have a public hearing to get up and speak.” Ex. S Robert Kelly Dep. 210:3-19, Apr. 12, 2006.

            5. Subsequent Developments

            On February 11, 2003, the United States Department of Justice sent a letter to the District’s Office of Corporation Counsel stating the Department of Justice was authorized to file a complaint alleging that certain of the District’s zoning regulations and its discriminatory actions against Boys Town violated the Fair Housing Act. Ex. T US Notice of Intent to File Suit. The letter offered to withhold the “filing of the complaint for a short period of time to permit discussion regarding a possible negotiated resolution of this matter.” Id.

            On June 24, 2003, DCRA General Counsel Karen Edwards wrote a letter to Boys Town’s counsel, stating that it was in reference to Boys Town’s complaints of discrimination that had been made to the United States Justice Department. Ex. B-27 Edwards Letter. This letter stated: "In summary, except for the October 2002 Fair Housing Accommodation Request just discussed, in none of the various building permit applications filed with DCRA has Fr. Flanagan's [sic] indicated that the Potomac Avenue properties were intended to be operated as housing for the handicapped. Had such a representation been made and supported, the decision regarding the matter-of-right use in a C-2 district would have been made pursuant to 11 DCMR 330.5(i)." ²² Id.             On July 10, 2003, Boys Town requested reconsideration of the DCRA’s November 22, 2002 Decision and Order denying Boys Town’s request for a reasonable accommodation for the four, six children group homes. Ex. B-28 Re-submitted Request for Reasonable Accommodation. Boys Town submitted additional supporting materials – all of which had already been in the possession of the District for more than a year – regarding the disabilities of the children to be served at the Potomac Avenue properties. ²³ Id. On September 18, 2003, DCRA granted the reasonable accommodation request, stating that the "newer" affidavit "now satisfies the procedural requirements" of the District's reasonable accommodation regulations and finding that the CBRFs at the Potomac Avenue site were “intended to be operated as housing for persons with handicaps.” Ex. B-29 Letter Granting Reasonable Accommodation. The decision stated that “accordingly” Boys Towns’ intended use of the four Potomac Avenue housing units as CBRFs was a matter-of-right-use under 11 DCMR § 330.5(i). ²⁴ Id. DCRA also ordered that certificates of occupancy issue for 1308, 1310, and 1312 Potomac Ave., S.E., to be operated as YRCHs, and withheld approval for the YRCH at 1314 Potomac Ave., pending resolution of a side-yard issue. Id. However, even though Boys Town applied for those certificates of occupancy, they were never issued. Ex. A Feola Decl. ¶ 10. ²⁵

            On December 12, 2003, SCSD and ANC6B filed another appeal with the BZA challenging the DCRA’s decision to issue certificates of occupancy for the four homes under 11 DCMR § 330.5(i). Ex. B-30 BZA Appeal No. 17121. SCSD also filed a suit in the Superior Court of the District of Columbia seeking to enjoin the issuance of the permits, which is the appropriate avenue for challenging decisions made under the District’s reasonable accommodation regulations. 14 DCMR § 111.13. Southeast Citizens for Smart Development, Inc. v. Anthony Williams, Civ. No. 03-9896 (D.C. Super. Ct. 2003).

            After more than three years of delay, set backs, and litigation – three years in which Boys Town’s mission to serve youth with disabilities in the District of Columbia was frustrated, and three years in which the children who would have been served at the Potomac Avenue property were deprived of that housing – there was no prospect of an end to the uncertainty and expense of the continuing battle. Ex. E Peter Decl. ¶¶ 3-6. Thus, Boys Town concluded that its efforts to operate at the Potomac Avenue site were futile. ²⁶ Id.; Ex. U Melingagio Dep. 147:8-148:9. The property was sold on October 12, 2004. Ex. B-36, Seller’s Settlement Statement.

            The developer who purchased the property encountered no community opposition for its plan to erect 247 apartment units and 5,000 square feet of retail space on the site. ²⁷ Ex. LL Opper-Weiner Dep. 68:19-69:9. In fact, community opponents to Boys Town welcomed the developer. Ex. KK Hill Dep. 150:22-151:9; Ex. NN Ambrose Dep. 320:15-321:2, May 11, 2006.

II. ARGUMENT

            The United States seeks partial summary judgment on two aspects of its claims that the District of Columbia has violated the Fair Housing Act. First, the United States is entitled to judgment as a matter of law on Count II of its Complaint because there is no genuine dispute that District zoning regulations impose disparate conditions on certain CBRFs, including those intended to serve persons with disabilities, without sufficient justification. In particular, the District’s zoning regulations: (1) impose occupancy restrictions on YRCHs in R-5, mixed use and C-1 and C-2 commercial zones; (2) impose spacing requirements on YRCHs in R-5, mixed use and C-1 and C-2 commercial zones; (3) impose a special exception requirement on YRCHs in R-5, mixed use and C-1 and C-2 commercial zones, and (4) require a certificate of occupancy for a CBRF housing six or fewer persons, in any zone. The District’s zoning regulations do not similarly encumber housing for persons without disabilities.

            Second, the United States seeks judgment as a matter of law as to one aspect of Count I of its Complaint. Specifically, the undisputed facts show that the District denied Boys Town’s January 6, 2003 application for a certificate of occupancy to operate a single YRCH at 1308 Potomac Avenue, S.E. for discriminatory reasons, even though it should have been granted as a matter of right use.

            A.       Summary Judgment Standard 

            Summary judgment is governed by the framework set forth in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Taylor v. Rice, 451 F.3d 898, 904 (D.C. Cir. 2006). To avoid summary judgment, the non-moving party must present competent evidence setting forth specific facts to show that there is a genuine issue for trial and that a reasonable jury could find it its favor. Fed. R. Civ. P. 56(e); Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). While the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor,” Anderson, 477 U.S. at 255, if the non-moving party’s evidence is “merely colorable” or “not significantly probative,” the court may grant summary judgment for the moving party. Anderson, Id. at 249-250.

            B.       District of Columbia Zoning Regulations Discriminate Against Persons with Disabilities

            The Fair Housing Act authorizes the Attorney General to file suit

whenever [he] has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this title, or that any group of persons has been denied any of the rights granted by this title and such denial raises an issue of general public importance.

42 U.S.C. § 3614(a)(emphasis added). The District’s discriminatory zoning regulations challenged in Count II of the United States’ Complaint constitute a pattern or practice of discriminatory treatment under the Fair Housing Act, as a matter of law.

            To prove a pattern or practice of discrimination, the government must present evidence that the discrimination is more than accidental or isolated, but was the defendant's “standard operating procedure the regular rather than the unusual practice.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977). "The existence of a discriminatory policy, statute, or ordinance is itself a discriminatory pattern or practice."United States v. City of Parma, 494 F. Supp. 1049, 1095 (N.D. Ohio 1980), aff'd, 661 F.2d 562 (6th Cir. 1981), cert. denied, 456 U.S. 926 (1982); see also Hyman v. First Union Corp., 980 F. Supp. 46, 50-51 (D.D.C. 1997) (noting in case under Age Discrimination in Employment Act that plaintiff makes out a prima facie case of a pattern or practice of discrimination by showing existence of a discriminatory policy). Where the discriminatory policy is openly declared, such as through the enactment of a discriminatory ordinance, direct proof of such a policy is sufficient to meet the pattern or practice requirement, and it is unnecessary for the United States to prove numerous specific occasions on which the discriminatory policy was carried out. See United States v. Gregory, 871 F.2d 1239, 1243 (4th Cir. 1989) (Title VII) ("if the admissions [of a policy of discrimination] are credited, the . . . violation has been proven"); United States v. Garden Homes Mgmt. Corp., 156 F. Supp. 2d. 413, 423 (D.N.J. 2001) (“Proof that a party adopted a discriminatory policy satisfies the Fair Housing Act's pattern and practice requirement.”).

            It is well-established that the Fair Housing Act protects the rights of individuals with disabilities to live together in a group home setting. See, e.g., City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995); Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10^th Cir. 1995); United States v. S. Mgmt. Corp., 955 F.2d 914 (4^th Cir 1992). See also Comty. Hous. Trust v. Dep’t of Consumer & Regulatory Affairs, 257 F. Supp. 2d 208, 221(D.D.C. 2003) (the Act is “‘a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals.’”) (quoting Bronk v. Ineichen, 54 F.3d 425, 428 (7^th Cir. 1995). A plaintiff who challenges a statute for singling out persons with disabilities and imposing different standards on them states a claim of disparate treatment. Cmty. Hous. Trust, 257 F. Supp. 2d at 222 (quoting Alliance for the Mentally Ill v. City of Naperville, 923 F.Supp. 1057, 1069 (N.D. Ill. 1996)); see also Int’l Union v. Johnson Controls, 499 U.S. 187, 199 (in Title VII context, absence of malevolent motive behind policy does not convert facially discriminatory policy into neutral policy with discriminatory effect; and whether a policy “involves disparate treatment through explicit facial discrimination does not depend on why the [defendant] discriminates but rather on the explicit terms of the discrimination.”). To make out a prima facie claim of disparate treatment, a plaintiff need only show that the zoning regulations subject persons with disabilities to different treatment than those without disabilities. See Cmty. Hous. Trust, 257 F. Supp. 2d at 222 (citing Bangerter v. Orem City Corp., 46 F.3d 1491, 1501 (10th Cir. 1995)); see also Johnson Controls, 499 U.S. at 198. ²⁸

            Once a plaintiff has demonstrated that a statute is facially discriminatory, the burden shifts to the defendant to justify the differential treatment. Bangerter, 46 F.3d at 1499-1500; Larkin v. Michigan Dep’t Social Serv., 89 F.3d 285, 290-91 (6th Cir. 1996). Like the majority of courts to consider this issue (including a district court in this circuit), the Tenth Circuit has held that because the Act explicitly makes persons with disabilities a protected class, a governmental defendant must justify intentional differential treatment by public safety concerns “tailored to particular concerns about individual residents” and not based on stereotypes, or, by demonstrating that the challenged provision actually benefits or advances the housing opportunities for persons with disabilities, rather than discriminates against them. Bangerter, 46 F.3d at 1504. In applying this standard, the court observed:

We should be chary about accepting the justification that a particular restriction upon the handicapped really advances their housing opportunities rather than discriminates against them in housing. Restrictions that are based on unsupported stereotypes or upon prejudice and fear stemming from ignorance or generalizations, for example, would not pass muster. However, restrictions that are narrowly tailored to the particular individuals affected could be acceptable under the [Act] if the benefit to the handicapped in their housing opportunities clearly outweigh whatever burden may result to them.

            Bangerter, 46 F.3d at 1504. Similarly, the Sixth Circuit has held that defendants must show that the discriminatory statutes are warranted by the unique and specific needs and abilities of those persons with disabilities to whom they are applied. Larkin, 89 F.3d at 290-91; Marbrunak, Inc. v. City of Stow, Ohio, 974 F.2d 43, 47 (6th Cir. 1992); see also Horizon House Dev. Serv., Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 693 (E.D. Pa. 1992), aff'd, 995 F.2d 217 (3rd Cir. 1992); United States v. City of Chicago Heights, 161 F. Supp. 2d 819, 831-46 (N.D. Ill. 2001); Children’s Alliance v. City of Bellevue, 950 F. Supp. 1491, 1497-98 (W.D. Wa. 1997); Alliance for the Mentally Ill v. City of Naperville, 923 F. Supp. 1057, 1074-75 (N.D. Ill. 1996). ²⁹

             Although the D.C. Circuit has not addressed this issue, Judge Kennedy in this district court adopted the more stringent standards of the Sixth and Tenth Circuits in a 2003 decision. Cmty. Hous. Trust, 257 F. Supp. 2d at 228. Specifically, the court required a defendant to show either “(1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, and is not based on stereotypes.” Id. Thus, the court held that a challenged statute or procedural requirement need not present a “protracted” or “unduly burdensome” hurdle in order to violate the Act. Cmty. Hous. Trust, 257 F. Supp.2d at 223. In that case, the court granted summary judgment against the District, finding the certificate of occupancy requirement for CBRFs did not “respond[] to specific and legitimate safety concerns” and that an alternative scheme could accomplish the District’s goals with “less discriminatory effect.” Id. at 229. ³⁰

            The District's zoning regulations at issue here treat housing classified as CBRFs for persons with disabilities less favorably than housing for persons without disabilities, without sufficient justification. The challenged provisions are therefore, facially discriminatory and violate the Act.

            1. Occupancy Restrictions On Number of Persons Who May Live In YRCHs

            The District’s zoning regulations impose an absolute cap on the number of persons who may occupy YRCHs (and certain other CBRFs) in areas zoned R-5, CR, C-1 and C-2. 11 DCMR § 358.1 (YRCH capped at 25 persons, not including staff, in R-5 zone); 11 DCMR § 616.1(a) (YRCH capped at 25 persons, not including staff, in CR zone); 11 DCMR § 711.1(a) (YRCH capped at 15 persons, not including staff, in a C-1 zone); 11 DCMR § 732.1(a) (YRCH capped at 25 persons, not including staff, in a C-2 zone). These requirements impose burdens on YRCHs, and certain other CBRFs housing persons with disabilities, that are not required for similarly situated housing for non-disabled persons. Thus, even in these multi-family, mixed use and commercial zones (which allow, for example, apartment houses and dormitories), YRCHs such as those Boys Town sought to operate are usually limited to 25 persons, excluding resident supervisors or staff and their families. ³¹

            As discussed in detail below, the spacing and special exception requirements imposed on a YRCH are based on the number of persons served there. In this case, for example, Boys Town formulated its request to operate four long-term YRCHs with each housing six children, with the understanding that YRCHs for six children would qualify as “matter of right” uses under the zoning regulations while a YRCH for eight children would be subject to additional requirements. Ex. A Feola Decl. ¶ 12.

            Such occupancy restrictions for persons with disabilities must be adequately justified by specific, legitimate health or safety reasons, or provide a benefit for persons with disabilities and not be based on stereotypes to survive scrutiny under the Fair Housing Act. See Cmty. Hous. Trust, 257 F. Supp. 2d at 228. The District cannot show any specific, legitimate health or safety reason that would justify the disparate treatment capping housing for persons with disabilities at just 25, nor can it show that the caps benefit persons with disabilities or are not based on stereotypes. The fact that the BZA has limited authority to waive occupancy caps upon finding “there is no other reasonable alternative to meet the program needs of that area of the District,” 11 DCMR § 358.8, does not save these provisions because similarly situated persons without disabilities do not have to clear this hurdle or acquire waivers and special exceptions to locate in these zones.

            An occupancy cap also may survive a challenge under the Act if it falls within the statute’s occupancy cap exemption. The Act specifically exempts occupancy cap regulations that are generally applicable numerical caps intended to protect public safety:

Nothing in [the Act] limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

42 U.S.C. § 3607(b)(1). The legislative history of the Act sheds more light on this exemption:

A number of jurisdictions limit the number of occupants per unit based on a minimum number of square feet in the unit or the sleeping areas of the unit. Reasonable limitations by governments would be allowed to continue, as long as they were applied to all occupants, and did not operate to discriminate on the basis of race, color, religion, national origin, handicap, or familial status.

H.R.Rep. No. 100-711, p. 31 (1988) (emphasis added). The Supreme Court analyzed the occupancy cap exemption in City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995). In City of Edmonds, the Court addressed whether the exemption applied to a municipality’s ordinance that imposed an absolute cap of five on the number of non-related persons who could occupy a single family home, but did not impose a cap on persons who were related by genetics, adoption, or marriage. The Court noted that Congress tailored the exemption to protect occupancy limitations that protect the health and safety of the public by preventing dwelling overcrowding. Accordingly, the Court held that an occupancy cap which applied only to non-related persons and allowed any number of related individuals to live in the same home did not fall within the occupancy exemption.

In sum, rules that cap the total number of occupants in order to prevent overcrowding of a dwelling “plainly and unmistakably” . . . fall within §3607(b)(1)’s absolute exemption from the FHA’s governance; rules designed to preserve the family character of a neighborhood, fastening on the composition of households rather than on the total number of occupants living quarters can contain, do not.

Id. at 735 (emphasis added).

            The District’s occupancy cap regulation does not satisfy the requirements of the Act’s exemption. The regulations do not impose a generally applicable numerical cap. The regulations do not tie the occupancy cap to considerations of size and overcrowding or to any other health or safety concern. Instead, the occupancy caps apply only to YRCHs and certain other CBRFs.

11 DCMR §§ 358, 616.1, 711.1 & 732.1. The factor that triggers the occupancy restriction is not the size of a complex or the livable space within a particular structure, but whether the structure is occupied by persons with a common need for treatment, rehabilitation, assistance, or supervision in daily living. Where that common need arises from the disabilities of the residents, the occupancy limitations placed on the YRCHs are based on the disabilities of the residents. Because the District cannot show a specific justification that is substantially related to protecting persons with disabilities or to a non-stereotyping safety concerns, this restriction violates the Act as a matter of law. Cmty. Hous. Trust, 257 F. Supp. 2d at 229.

            2. The Spacing Requirements

            The District's zoning regulations limit the location of YRCHs (and certain other CBRFs) in R-5, mixed use and C-1 and C-2 commercial zones by imposing spacing requirements in these zones. For example, section 358 of the zoning regulations sets forth the conditions which a YRCH must satisfy in seeking a special exception from the BZA to operate a facility for 16-25 persons in an R-5 zone. 11 DCMR § 358. With regard to spacing requirements, these include:

There shall be no other property containing a community-based residential facility for seven (7) or more persons in the same square. 11 DCMR § 358.2.

There shall be no other property containing a community-based residential facility for seven (7) or more persons within a radius of five hundred feet (500 ft.) from any portion of the subject property. 11 DCMR § 358.3.

            The Board may approve more than one (1) community-based residential facilityy in a square or within five hundred feet (500 ft.) only when the Board finds that the cumulative effect of the facilities will not have an adverse impact on the neighborhood because of traffic, noise, or operations. 11 DCMR § 358.7

11 DCMR § 358 (outlining special exception conditions for YRCHs in R-5 zones). Similarly, in the CR and C-2 zones, a YRCH that serves 7 to 15 individuals may not locate within 500 feet of another CBRF. Id. at §§ 601.2(b) & 721.5. In the C-1 zone, a YRCH that serves 7 to 8 persons may not located within 500 feet of another CBRF. Id. at § 701.3. The District does not place similar spacing or dispersal requirements upon housing for an equal or greater number of persons without disabilities or on commercial facilities. Any number of such facilities may locate in close proximity to one another. For example, a boarding house may locate as a matter of right in R-5, mixed-use, and certain commercial zones without consideration of where other boarding houses have located within the same square or within a radius of 500 feet. 11 DCMR §§ 701.6.

            These explicit restrictions upon the ability of persons with disabilities to live where they choose violate the Act. SeeLarkin, 89 F.3d at 290-91 (rejecting 1,500 foot spacing requirement as violating the Act in part because the Act “protects the right to live in the residence of their choice in the community”); Chicago Heights, 161 F. Supp. 2d at 831-46 (observing that courts have “repeatedly rejected the ‘anti-clustering’ justification for spacing requirements as incompatible with [the Act], especially where . . . the burden of the quota falls on the disadvantaged minority”); Arc of New Jersey, Inc. v. New Jersey, 950 F. Supp. 637, 644 (D.N.J. 1996) (finding spacing, occupancy caps and conditional use permit requirements to be facially discriminatory); Horizon House, 804 F. Supp. at 693-95 (finding a 1,000 foot spacing requirement to avoid “clustering” persons requiring professional services violated the Act, even if motive of drafters was benign, or if rule caught within its net, some unrelated groups of people without handicaps). But see Familystyle of St. Paul, 923 F.2d at 94-95 (8th Cir. 1991) (upholding denial of special use permit for 21 houses occupied by 119 persons with mental illness based on a quarter-mile spacing requirement because the state’s goal of deinstitutionalizing persons with disabilities was legitimate and proposed “campus” would be counterproductive to the desegregation of the mentally ill.).

            In the case of the District’s regulations, the language of the zoning regulations indicates that the spacing requirements stem from the assumption that multiple CBRFs are likely to have an adverse impact on the neighborhood in which they are located. Indeed, DCMR section 358.7 permits the BZA to waive the spacing requirements only after a determination “that the cumulative effect of the facilities will not have an adverse impact on the neighborhood because of traffic, noise, or operations.” 11 DCMR § 358.7. At the same time, presumably more intensive and potentially disruptive uses, such as housing for ten times as many people, are allowed as of right in the same district without meeting special exception conditions, and without being required to disperse.

            As the experience of Boys Town illustrates, the District imposed the spacing requirements as one obstacle to Boys Town’s plans to build four long-term group homes housing 24 children and one short-term shelter housing 15 children, the majority of whom would have disabilities. Nevertheless, the District subsequently permitted a developer to use the same property to build 247 apartment units, with a retail component, with no spacing or dispersal requirement. In the face of the stereotyping assumptions, expressed in the BZA waiver provision (see 11 DCMR §§ 358.7-8), the District cannot show that these discriminatory requirements are justified by specific health or safety concerns. Larkin, 89 F.3d at 290; Bangerter, 46 F.3d at 1503-04; Cmty. Hous. Trust, 257 F. Supp. 2d at 228. ³²

                        3. The Special Exception Requirement

            The District's zoning regulations require YRCHs with the following numbers of children to obtain a special exception from the BZA: 16 to 25 children in R-5, CR and C-2 zones and 9-15 children in a C-1 zone. 11 DCMR §§ 358.1, 616.1(a), 701.3 & 732.1(a). In contrast, a wide range of multi-family residential uses are allowed as of right in R-5 zones, (e.g., apartment buildings, row houses, and boarding houses, ) and virtually any other residential development, would be allowed as a matter of right in the C-2 zone where Boys Town attempted to operate its YRCHs.

            The special exception process requires the BZA to find that "[t]he facility shall not have an adverse impact on the neighborhood because of traffic, noise, operations, or the number of similar facilities in the area." 11 DCMR §§ 358.6. The BZA has broad discretion to deny or grant special exceptions, and in all proceedings before the BZA, the party requesting the exception has the burden of proof. 11 DCMR §3119.2. The Board is required to hold a public hearing at which interested parties are invited to testify. 11 DCMR §3105.2. The Board must also solicit the recommendation of the local ANC and grant it "great weight."

11 DCMR § 3115.2. Thus, the District’s zoning regulations place significant restrictions upon homes for persons with disabilities that are not placed on housing for an equivalent or even much larger number of individuals without disabilities. This special exception requirement severely limits the housing choices of persons with disabilities. Indeed, in the case of Boys Town, the BZA’s application of this provision was an enormous hurdle to operating the planned YRCHs. ³³

            The District’s special exception requirement for YRCHs (and certain other CBRFs) in the otherwise widely permissive R-5 and commercial zones is the type of barrier the Act was intended to prohibit. As noted in the House Report:

The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of [handicapped] individuals from living in the residence of their choice in the community . . .

H.R. Rep. 100-711, Fair Housing Amendments Act of 1988, House Committee on the Judiciary, at 24 (June 17, 1988). ³⁴

            Like the occupancy caps and spacing requirements discussed above, the special exception requirement appears to stem from an assumption that persons who reside in YRCHs have a negative impact on a neighborhood and thus should be specially monitored by the BZA in its oversight capacity. In order to obtain a special exception for a CBRF, the provider must affirmatively establish that it will not have an adverse impact on a community. 11 DCMR §3104. Indeed, the BZA stated in its Decision and Order revoking Boys Town’s original permits that “a review and public hearing process should take place in order to ensure that [the proposed homes are] in harmony with the zone plan and [do] not adversely affect the neighborhood or the use and enjoyment of the adjacent and neighboring properties.” Ex. B-1 at 25, BZA Opinion No. 16791. Once again, the District cannot show that these discriminatory requirements are justified by specific health or safety concern, not based on stereotyping. ³⁵

             As noted above, the BZA has broad discretion to deny or grant special exceptions. However, the BZA is required to hold a public hearing, potentially subjecting persons with disabilities to the scrutiny of neighbors (11 DCMR §3105.2), and must also grant “great weight” to the views of the local ANC. 11 DCMR § 3115.2. The experiences of Boys Town illustrate that this process can pose insurmountable obstacles for persons with disabilities seeking to locate in a neighborhood where, for whatever reason, including the irrational fears of neighbors based on stereotypes, they may not be welcome. The District cannot show that these special exception procedures, which incorporate stereotyping presumptions, are justified by a legitimate safety or health concern, or a non-stereotypical governmental purpose beneficial to persons with disabilities. Such an unpredictable process, especially when it is requires the input of neighborhood opponents, “has the effect of limiting the [] ability of [persons with disabilities] to live in the residence of their choice.” Marbrunak, 974 F. 2d at 48. This is precisely the type of discrimination that Congress sought to prohibit in the Fair Housing Amendments Act of 1988. ³⁶

                        4. The Certificate of Occupancy Requirement 

            The District’s zoning regulations require certain households of six unrelated individuals to obtain a certificate of occupancy, and not others. The regulations state that “no person shall use any structure, land, or part of any structure or land for any purpose other than a one-family dwelling until a certificate of occupancy has been issued.” 11 DCMR § 3203.1 (2001). The regulations define “family” as:

one (1) or more persons related by blood, marriage, or adoption, or not more than six (6) persons who are not so related, including foster children, living together as a single house-keeping unit, using certain rooms and housekeeping facilities in common; provided, that the term family shall include a religious community having not more than fifteen (15) members.

11 DCMR § 199.1 (2000). By definition, “[i]f an establishment is a [CBRF] as defined in [section 199.1], it shall not be deemed to constitute any other use permitted under the authority of these regulations.” Id. (emphasis added). In other words, a dwelling deemed to house a “family,” including six unrelated individuals, does not require a certificate of occupancy, but a home classified as a CBRF housing six unrelated individuals, does. See 11 DCMR § 3203.1. ³⁷

            This disparate treatment of housing for individuals with disabilities is not tied to any specific, legitimate health or safety concern, and violates the Act. This provision did not directly affect Boys Town’s proposed development at the Potomac Avenue site because each of the four YRCHs would have housed a total of eight unrelated individuals (six children plus their caretakers). ³⁸ However, the provision is facially discriminatory and presents a hurdle to other potential residents and operators of CBRFs for six or fewer persons in the District who would otherwise qualify as a “family.”

            A home designated as a CBRF houses “persons who have a common need for treatment, rehabilitation, assistance, or supervision in their daily living.” 11 DCMR § 199.1. When the common need for treatment, rehabilitation, assistance, or supervision arises from the disabilities of the individuals housed, the CBRF designation and the requirements and limitations flowing from that designation, are based on the disability of the residents.SeeCmty. Hous. Trust, 257 F. Supp.2d at 221-22. In Cmty. Hous. Trust, the court found that the District’s certificate of occupancy requirement for a facility intended to house six disabled individuals, designated as a CBRF, was facially discriminatory and violated the Fair Housing Act. Id. ³⁹ The court determined that the District’s certificate of occupancy requirement created administrative hurdles and a more onerous standard for persons with disabilities than for similarly-situated, non-disabled persons. Id. The court found that under the District’s requirement, “six college students or six young professionals may cohabitate without submitting a certificate of occupancy” but that “six people who need treatment, assistance, or supervision are not so entitled.” Id. at 222.

            The Cmty. Hous. Trust court also addressed whether the District’s certificate of occupancy requirement created a distinction based upon disability. The court ruled that where a disability creates the common need for such “treatment, rehabilitation, assistance, or supervision,” the resulting certificate of occupancy requirement is based on this protected status, and therefore facially discriminatory. Id. The regulation need not make this distinction explicitly to be held facially discriminatory. Id. It is likewise irrelevant whether the ordinance “incidentally catche[s] within its net some unrelated groups of people without handicaps.” Id. (quoting Horizon House, 804 F.Supp. At 694); Children’s Alliance, 950 F. Supp. at 1496. The court’s holding in Cmty. Hous. Trust is clear: the certificate of occupancy requirement in the District’s zoning regulations resulted in disparate treatment discrimination against persons with disabilities in violation of the Act. Although that decision was rendered three years ago (and not appealed), the Zoning Commission has done nothing to amend the offending regulations, and the District apparently continues to engage in this discriminatory practice.

            In its Cmty. Hous. Trust decision, the court rejected the argument that different standards or procedures for homes for disabled residents must be “protracted” or “unduly burdensome” in order to violate the Act. See Cmty. Hous. Trust, 257 F. Supp.2d at 222 -223. The court found that the District’s certificate of occupancy requirement constitutes a substantial hurdle to occupancy because it imposes a “not-insubstantial monetary burden” and an “onerous” series of construction, electrical, plumbing, and fire inspections. Id.at 224. ⁴⁰

            This disparate treatment of CBRFs for six or fewer persons, where such housing is for persons with disabilities, cannot be justified by any safety or health concern. Nor does it advance the interests of persons with disabilities to obtain housing. Its continued enforcement in the zoning regulations constitutes a pattern or practice of discrimination under the Act, and should be declared invalid as a matter of law.

            C.       The District Violated the Fair Housing Act When It Denied Boys Town’s Certificate of Occupancy Application Seeking to Operate One YRCH

            The United States also seeks summary judgment on one aspect of Count I of its Complaint. The undisputed facts show that the District discriminated against Boys Town when it denied the January 2003 application for a certificate of occupancy to operate one YRCH housing six children and two adult caretakers. ⁴¹

            The Fair Housing Act prohibits housing discrimination based on the disability of “a person ... intending to reside in” the dwelling at issue. 42 U.S.C. 3604(f)(1)(B) and (f)(2)(B). To show disparate treatment under the Act “must show that defendant intentionally discriminated against them” on the basis of the protected trait. 2922 Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d 673, 682 (D.C. Cir. 2006). Once a plaintiff has presented “sufficient evidence to permit an inference of discrimination . . . the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant meets that burden, plaintiffs may prevail by showing that the defendant’s proffered reason was pretext for discrimination.” Id. In other words, a plaintiff’s ultimate burden is to show that disability was in fact a “motivating factor” in defendant’s actions. Cmty. Hous. Trust, 257 F. Supp. 2d at 225;

see also Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1234. The plaintiff need not show that the defendants were motivated exclusively or even predominantly by the protected status, but merely that the status played some role in the defendant’s differential treatment of the disabled person. Cmty. Hous. Trust, 257 F. Supp. 2d at 225 (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). While showing that the protected trait played “some role” in the differential treatment, the plaintiff is not required to show that defendant was motivated by an invidious or malicious desire to discriminate. Id.

            When considering whether a discriminatory purpose was a motivating factor for an official action, courts look to such evidentiary factors as: “the historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes;” the specific sequence of events leading to the challenged decision, departures from the normal procedural sequence, and substantive departures “particularly if the factors usually considered important . . . strongly favor a decision contrary to the one reached.” Village of Arlington Heights, 429 U.S. at 267-68.  

            On July 8, 2002, DCRA granted building permits for the four of the homes at issue based on applications that did not mention a use as a YRCH or the disability status of the intended occupants. However, because the District requires a certificate of occupancy for a CBRF, Boys Town had to clear this hurdle before it could put even one of these houses to its matter of right use as a YRCH. On January 6, 2003, Boys Town submitted a single application for a certificate of occupancy for one home, stating its intent to operate it as a YRCH housing six children and two staff at 1308 Potomac Ave., S.E. ⁴² Ex. B-2 Application for Certificate of Occupancy. Pursuant to 11 DCMR § 201.1(n)(1), a YRCH serving no more than six children is permitted as a matter of right in virtually all residential and commercial zones, including C-2, where the subject property is located. 11 DCMR § 201.1(n)(1).

            Nonetheless, on February 7, 2003, DCRA denied the certificate of occupancy “pursuant to” the May 7, 2002 decision of the BZA granting the appeal of community opponents citing the “need for Board of Zoning Adjustment approval.” Ex. B-31 Denial Letter. The Zoning Administrator testified that he issued this decision because the project had heretofore received a lot of “neighborhood resistance” and he believed Boys Town should go back to the BZA “and give the people a chance to have a public hearing to get up and speak.” Ex. S Robert Kelly Dep. 209-210.

            The undisputed facts are more than sufficient to raise an inference of discrimination. By February 2003, Boys Town had clearly communicated to the District, including the DCRA, its intention to operate the homes to include many children with disabilities, as well as supporting evidence of the children’s disabilities. By that time, Boys Town had submitted two requests to the DCRA for reasonable accommodations at the Potomac Avenue site indicating the children who would be living in the homes on Potomac Avenue would have disabilities. ⁴³ Also, in its presentation before the BZA regarding the four long-term YRCHs, Boys Town attempted to argue that the community opposition to these homes was based on discriminatory animus and attempted to submit evidence that the housing was intended as housing for persons with disabilities. Ex. A Feola Decl. ¶¶ 6 & 7; Ex. B-16 Response Brief of Father Flanagan’s Boys Town. As noted above, however, the BZA, refused to consider any such evidence, finding it “irrelevant.” Ex. B-1 BZA Opinion 16791 p. 38. Moreover, in January 2003, DCRA had under consideration an application for Boys Town’s short-term shelter at Potomac Avenue, which was submitted under 11 DCMR § 330.5 on May 1, 2002, along with a January 9, 2002 affidavit from Boys Town psychologist Dr. Michael Handwerk. Ex. B-40 May 1, 2002 Permit Application; Ex. B-41 Second Handwerk affidavit dated 1/9/02. That affidavit described Dr. Handwerk’s statistical studies demonstrating that the majority of the prospective children at the Potomac Avenue site would have disabilities. Ex. B-41 Second Handwerk affidavit dated 1/9/02. ⁴⁴ In addition, DCRA was well aware of the tenacious community opposition to the project, and, the undisputed facts show that the community opponents had contacted DCRA repeatedly to attempt to block Boys Town’s efforts. See discussion, supra, at 10-14.

            Against this backdrop, the DCRA’s February 2003 decision cited no legal or regulatory authority for denying the certificate of occupancy, or for forwarding the matter to the BZA. Ex. B-31 Denial Letter. The community opposition to the group home, which is cited in that decision, is not a legitimate, non-discriminatory reason for denying the single certificate of occupancy.

            The District’s refusal to grant the single certificate of occupancy denied housing to the children with disabilities who would have occupied the home. A review of the factors outlined in the Village of Arlington Heights decision demonstrates that the District’s reasons do not withstand scrutiny and the denial constitutes discrimination based on the disabilities of the intended occupants. Specifically, the historical background of Boys Town’s efforts at Potomac Avenue and the community’s opposition; the sequence of events, including the granting of building permits and denial of request for reasonable accommodation, leading to the denial of the certificate of occupancy; the abnormal procedure of DCRA referring the single certificate of occupancy application to the BZA, which, as discussed above, had previously determined to apply the discriminatory provisions of § 732 to Boys Town; and the departure from the normal substantive standards that clearly mandated issuing the certificate of occupancy, all support a finding of discrimination. As such, the District has violated 42 U.S.C. §3604(f)(1), as a matter of law, by denying and otherwise making unavailable a dwelling to a person because of disability.

IV. CONCLUSION

            For the foregoing reasons, the Court should grant the United States’ Motion for Partial Summary Judgment, declaring the challenged sections of the zoning regulations violate the Fair Housing Act as a matter of law, and finding, as a matter of law, that the District violated the Fair Housing Act when it denied Boys Town’s January 6, 2003 application for a certificate of occupancy. A proposed order is attached. 

Respectfully submitted,

______________________________
WAN J. KIM
Assistant Attorney General

S /  Michalyn Steele            
STEVEN H. ROSENBAUM
Section Chief
DONNA MURPHY
Deputy Chief
JENNIFER C. CASS
MICHALYN STEELE 
BRUCE I. GEAR
DONALD W. TUNNAGE
Attorneys
U.S. Department of Justice
Civil Rights Division
Housing and Civil Enforcement Section
mailing address:
950 Pennsylvania Ave., NW
Washington, D.C. 20530
street address: 1800 G Street, NW, Suite 7002
Washington, DC 20006
telephone:(202) 307-2896
(202) 514-1116

---

1.  Although the Act refers to the protected class as persons with “handicaps,” the term “disabilities” is synonymous and generally preferred. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).

2.  Pursuant to Local Rule 56.1, the United States has submitted an accompanying Statement of Undisputed Material Facts. The United States refers throughout its Memorandum to Exhibits attached to the Statement of Undisputed Material Facts as well as Exhibits attached to its Memorandum of Points and Authority in Opposition to Defendant’s Motion for Summary Judgment, filed September 22, 2006, so as not to burden the Court with repetitive submissions.

3.  The District’s zoning regulations establish zoning districts according to the uses permitted in those districts. 11 DCMR § 105. The districts, or zones, reserved primarily for residential use are designated “R” zones, and distinguished by the density of development and uses permitted within the zone. The zones are organized within the zoning regulations beginning with the most restrictive, or “R-1” zone, and continuing with progressively less restrictive zones. Id. Commercial zones, where the uses permitted as a matter of right in the residential zones also are incorporated as matter-of-right uses, are designated as “C” zones. See e.g., 11 DCMR § 701.2, 721.1, 741.1, & 751.2(a).

4.  The D.C. Office of the Surveyor reconfigured the nine lots acquired by Boys Town into six record lots; Boys Town intended to construct a YRCH group home on each of four lots, 1308, 1310, 1312, and 1314 Potomac Avenue, S.E.; a fifth lot was intended to house the short-term shelter and the remaining lot was to house an administration building. Ex. B-1 BZA opinion 16791 p. 7; Ex. A Feola Decl ¶ 4.

5.  The United States attaches all zoning regulations referred to throughout this memorandum and in UNITED STATES’ STATEMENT OF MATERIAL FACTS NOT IN GENUINE DISPUTE at Ex. FF.

6.  Some of these facilities, but not all, may be subject to licensing requirements. The definition of CBRFs at 11 DCMR § 199.1 “includes, but is not limited to” facilities covered by the District of Columbia Health Care and Community Residence Facility, Hospice and Home Care Licensure Act of 1983, as amended; D.C. Official Code §§ 44-501 to 44-509, and “facilities formerly known as convalescent or nursing home, residential halfway house or social service center, philanthropic or eleeomysynary institution, and personal care home.” 11 DCMR § 199.1. In addition, D.C. Mun. Reg. 22-3102 requires licensing of health care facilities including community based residential facilities.

7.  These zones can be characterized as follows: R-5 (high density residential districts); CR (mixed use); C-1 (neighborhood shopping districts); and C-2 (community business center centers). 11 DCMR §§ 350, 600.1, 700.1, 720.1. The C-3 zones (major business and employment centers) do not have spacing requirements or occupancy cap limitations on CBRFs. 11 DCMR § 741.5(c).

8.  A C-1 zone, a less restrictive zone than R-5, has a cap even lower than 25 on the number of children who may reside in a YRCH. 11 DCMR § 711.1(a). In a C-1 zone, a YRCH for nine to 15 children is permitted only upon the granting of a special exception by the BZA. Id.

9.  The District’s zoning officials consist of the BZA, the Zoning Commission, and the Zoning Administrator. The BZA is the arm of District government charged with granting variances from the zoning regulations, considering special exceptions, and hearing appeals of decisions of the Zoning Administrator. D.C. Official Code Secs. 6-641.07; 11 DCMR 3100.1-.7. The Zoning Administrator is an officer of the District’s DCRA, which issues licenses and permits, conducts inspections, enforces building, housing, and safety codes, and regulates land use and development. 11 DCMR 199.1. The Zoning Commission is the legislative body charged with preparing, adopting, and amending the District’s zoning regulations and map. D.C. Official Code Sec. 6-641.01. One member of the BZA is a rotating member of the Zoning Commission. D.C. Official Code Sec. 6-641.07.

10.  11 DCMR 199.1 defines a boarding house as “a building or part thereof that provides for compensation, meals or lodging and meals to three (3) or more guests on a monthly or longer basis” (emphasis added).

11.  11 DCMR § 3104.1 directs the BZA to sections 218-221, 303-306, 335, 357-360, 513, 616, 711, 732 and 913 as the sections specifying the special conditions that must be met for consideration of a special exception for a CBRF in any R, SP, CR, C-1, C-2 or W District, respectively.

12.  Section 330.5(i) was added to the zoning code in April 1999. 46 DCR 3997. Like the reasonable accommodation provisions discussed herein, it appears to have been enacted in response to a 1997 “Stipulated Agreement between the United States and the District of Columbia.” See Ex. GG, Bello Dep. 114:1-115:16; Ex. B-43 Zoning Commission Order No. 869 at pp. 1, 3, 7. In the 1997 agreement the United States agreed not to file a lawsuit based on the District’s promise, inter alia, to “remove the restrictions placed upon housing for people with disabilities in multi-family zones. . . . To accomplish that end, the District of Columbia will. . .amend the District of Columbia’s zoning regulations contained at 11 DCMR § 330.5.” Ex. B-22 1997 Stipulated Agreement p. 4.

13.  The reasonable accommodation provisions were enacted in response to a 1997 “Stipulated Agreement between the United States and the District of Columbia”, in which the United States agreed not to file a lawsuit based on the District’s promise, inter alia, to “create a mechanism to ensure that eligible persons may request and obtain, if appropriate, a reasonable accommodation.” Ex. B-22 1997 Stipulated Agreement p. 5.

14.  In the event that additional information is requested by the Director pursuant to a request for additional information under 14 DCMR § 111.7, the running of the period is tolled until the applicant responds to the request. Id. at § 111.9.

15.  As noted above, section 201.1(n)(1) provides that a CBRF is permitted as a matter of right use in R-1 (and all less restrictive zones by incorporation), subject to an occupancy cap limiting each YRCH to six youths. 11 DCMR § 201.1(n)(1).

16.  Currently, Boys Town operates one administrative building, one short-term shelter for up to 16 children, a majority of whom have disabilities, and one long-term home for six children, a majority of whom have disabilities, and a parent-teacher couple at the Sargent Road site, located at 4801 Sargent Road, N.E., in Washington, DC. Ex. B-5 BZA Application No. 16531 p. 5 That site is one lot in an R-2 zone. Id. at 15. Boys Town is also in process of opening and operating four additional long-term homes at the site, each to house up to six children and a resident married couple. Id. at 5.

17.  Advisory Neighborhood Commissions (ANCs) are elected commissions within each of the eight wards in the District and that provide public comments relating to neighborhood issues. D.C. Stat. §§ 1-207.38; 309.06; 309.10. Under District law, the ANC has automatic standing in any zoning case before the BZA within the ANC’s jurisdiction, and the formal decision of the ANC is to be given “great weight” by the BZA. D.C. Stat. § 1-309.10; 11 DCMR §§ 3112; 3115.2. As explained by Kenan Jarboe, a former Chairman of ANC 6B, great weight is not statutorily defined but in practice it has meant that “[a]t a minimum it requires both the Zoning Commission and BZA to comment upon and recognize the ANC’s formal recommendation.” Ex. HH Jarboe Dep. 39:3-6, March 1, 2006.

18.  Southeast Citizens for Smart Development ("SCSD") was created "in response" to the Boys Town’s proposed project at the Potomac Avenue site. Ex. B-8 Bylaws of the Southeast Citizens for Smart Development. In an open letter to Capitol Hill residents, Hill and Opper-Weiner wrote that "Southeast Citizens for Smart Development, Inc. (SCSD) has led the charge in opposing the Boys Town project at this location." Ex. LL Opper-Weiner Dep. 10:16-11:4. Likewise, Ms. Opper-Weiner testified that she, Mr. Hill, and SCSD "played a part in the demise of Boys Town's plans to place children at the Potomac and Pennsylvania property." Id. at 8:19-9:4.

19.  Boys Town had first submitted a reasonable accommodation application for a short term shelter at the Potomac Avenue site on July 19, 2001, stating that it would house “handicapped children.” Ex. B-13 Permit Application. The District denied this request on August 9, 2001 stating that Boys Town had provided “no substantive documentation” upon which the District could determine that “such residents have a record of physical and/or mental impairments” or could be “regarded as having such an impairment.” Ex. B-14 Clark Letter.

20.  SCSD and ANC 6B appealed the issuance of the four single-family permits, alleging that the revised permits violated both parking and side yard setback requirements. Ex. B-20, p. 2, BZA Appeal No. 16935. The BZA ultimately dismissed the part of the appeal challenging the parking requirements because it found that the proposed parking under both the initial permits as YRCHs and the revised permits for single-family homes were identical and could have been challenged by SCSD at the time of its first appeal. Ex. B-44 BZA Appeal No. 16935 pp. 4-5. With respect to the side yard challenge, the BZA held that only one of the homes did not comply with the side yard requirements, which needed to be addressed by Boys Town before a permit could be issued. Id. pp. 5-6.

21.  Dr. Handwerk’s affidavit, as submitted with the October 2002 reasonable accommodation request, stated that “reliable predictions about the mental and emotional health and functioning abilities of the children to be served in the long-term facilities at Pennsylvania Avenue can be made by considering the data concerning the mental and emotional health and functioning abilities of the children in the long-term facilities in Boys Town, Nebraska.” Ex. B-23 First Handwerk Affidavit dated 1/9/02. The affidavit also states that a majority of the Boys Town children in Nebraska “have mental and/or emotional disorders which substantially limit one or more of their major life activities such as caring for themselves, learning and working.” Id. However, in one of the final paragraphs of that affidavit, Dr. Handwerk draws the conclusion that a majority of the children who would be living at Boys Town’s long term homes on Sargent Road in the District will have disabilities. Id. Boys Town inadvertently submitted this draft version of Handwerk’s affidavit with its reasonable accommodation request on October 11, 2002 instead of submitting a corrected version, also dated January 9, 2002, which stated the same conclusion about the prospective children at the Potomac Avenue long term homes and had been submitted to DCRA in May 2002 as part of the request to build the short-term shelter. See discussion, infra, at fn 41; Ex. B-41 Second Handwerk affidavit dated 1/9/02; and Ex. A Feola Decl. ¶ 9. In addition, the Director of DCRA testified during his deposition that one could infer that the conclusion in the draft affidavit was about the Potomac Avenue children from the context of that affidavit. Ex. B-23 First Handwerk Affidavit dated 1/9/02; Ex. EE Clark Dep. 167:5-170:21.

22.  Ms. Edwards’ letter references section 330.5(i), which, as described above, is a provision regarding matter of right uses in the R-4 zone.

23.  These “additional supporting materials” were: (1) a page from Contract #8KGC12 between Boys Town and CFSA, dated April 1, 1998; and (2) an Affidavit from Dr. Michael Handwerk dated January 30, 2002, which had previously been submitted by Boys Town to the District in Father Flanagan’s Boys Home v. D.C. (01-1732) by electronic notice on February 8, 2002 (docket entry number 38 in this proceeding).

24.  This decision did not address how its application of 11 DCMR 330.5(i) related to the 2002 BZA determination that 11 DCMR 732.1 applied. Ex. B-29 Letter Granting Reasonable Accommodation.

25.  At that time, the DCRA also had under review Boys Town’s May 2002 application for a short-term shelter on the Potomac Avenue site. Ex. 40 Short-term Shelter Application. Despite the “matter-of-right” language in this September 2003 decision granting the reasonable accommodation for the four long-term homes, two months later, in November 2003 the Administrator of the DCRA issued a letter to Boys Town informing it that the issuance of the building permit for the short-term shelter facility "is dependent on confirmation that there are no other facilities for seven or more residents within 500 feet of this location." Ex. B-18 Noble Letter November 2003. The short-term shelter application had been pending with DCRA for more than 17 months. Ex. 40 Short-term Shelter Application. Boys Town did not pursue building the shelter because it never got a permit to do so. Ex. A Feola Decl. ¶ 11.

26.  At deposition, John Melingagio, public relations director for Boys Town, testified that Boys Town “sold the property . . . because of going through this endless permitting process. . . . [W]e threw up our hands and said we’re moving on.” [sic] Mr. Melingagio also testified that Boys Town was “stopped from doing the work [they] had set out to do” at the site. Ex. U Melingagio Dep. 146:4-149:21.

27.  http://www.dclofts.com/newcondosdirectory.html.

28.   The D.C. Circuit recently endorsed the McDonnell Douglas burden-shifting framework for cases where a disparate treatment claim under the Act is supported only by indirect evidence. 2922 Sherman Ave. Tenants’ Ass’n v. District of Columbia, 444 F.3d 673, 682 (D.C. Cir. 2006) (citing McDonnell Douglas, 411 U.S. 792, 802-04 (1973)). As to Count II of its complaint, the United States has proffered direct evidence of explicit classifications based on a protected class, and the McDonnell Douglas burden-shifting framework does not apply. See Bangerter, 46 F.3d at 1501, n. 16.

29.  The exception to this general rule is the Eighth Circuit, which has held that because disability is not a protected trait under the Equal Protection Clause, review of a facially discriminatory ordinance is limited to whether the legislative enactment was rationally related to a legitimate governmental purpose. Familystyle of St. Paul, Inc. v. St. Paul, Minnesota, 923 F.2d 91, 94-95 (8th Cir. 1991)see also, Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996).

30.  The court also stated, “[i]n finding that the certificate of occupancy requirement is burdensome enough to violate the FHAA, the court also relies on a line of authority which has ‘consistently held that discriminatory procedural requirements are themselves violative of the FHAA.’” Id. citing Potomac Group Home Corp. v. Montgomery County, 823 F. Supp. 1285, 1295 (D. Md. 1993); United States v. Village of Pallatine, 37 F.3d 1230, 1234 (7^th Cir. 1994) (holding that a procedure may not be required of persons with disabilities but not of other people).

31.  Even if the Court were to apply the Eighth Circuit test, as articulated in Familystyle, it is difficult to imagine a legitimate governmental concern the District could assert for capping YRCHs in these zones at 25 children, when no occupancy cap encumbered the developers who succeeded Boys Town on the property in their successful effort to erect 247 apartments on the site. http://www.dclofts.com/newcondosdirectory.html

32.  Even if the Eighth Circuit test applied, it is difficult to imagine that the District could articulate a legitimate governmental concern to overcome the stereotyping assumption expressed in the BZA waiver standard.

33.  The District may argue that 11 DCMR § 330.5(i) provides authority to exempt housing for persons with disabilities from the operation of the special exception requirements, occupancy cap and spacing requirements, and thereby saves the challenged zoning requirements. See, e.g., Ex. B-27 Edwards Letter (June 2003 letter from DCRA Counsel Karen Edward to Boystown’s counsel arguing that had Boys Town simply provided the District with adequate notice of and evidentiary support for the children’s disabilities, Boys Town would have secured permits pursuant to 11 DCMR 330.5(i)). However, the District’s failure to implement or utilize section 330.5(i) in that manner during Boys Town’s more than two year-long process prior to the June 2003 letter undermines such argument. First, this argument ignores the contrary decision of the BZA in 2002. Ex. B-1 BZA Opinion No. 16791 p. 15-25, 38. Despite Boys Town’s efforts to present evidence of the children’s disabilities during that process, the BZA refused to hear such evidence, and it certainly did not apply section 330.5(i) on behalf of the children to be served by Boys Town. Instead, with notice that the children to be housed would have disabilities, the District authority charged with interpreting and enforcing the zoning regulations applied the occupancy, spacing and special exception restrictions of 11 DCMR § 732.1(a) to Boys Town. Id. at 25. Similarly, when Boys Town did file an application under § 330.5(i) for its planned short term shelter (Ex. B-40 Permit Application; Ex. B-41 Second Handwerk affidavit dated 1/9/02), DCRA held that application without acting for 18 months and then issued a letter stating that the spacing requirements of 11 DCMR § 721.5 applied. Ex. B-18 Noble Letter November 2003.

34.  The Fair Housing Act "repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion." H.R. Rep. No. 711, 100^th Cong., 2d Sess. 24 (1988) at p. 2179.

35.  Even if it were permissible to require some YRCHs to obtain a special exception, the nature of the hearing and review process of the BZA’s consideration of a special exception places an impermissible burden on persons with disabilities to demonstrate that they will not have an adverse impact on a neighborhood. See e.g., 11 DCMR 358.6-.8.

36.  As with the occupancy caps and the spacing requirement, we believe the District also could not justify the special exception requirement even if the Eighth Circuit standard were applied because the District cannot articulate a legitimate governmental concern justifying the additional procedural burdens and enforced public input for housing for persons with disabilities, where no similar requirements are imposed on housing for persons without disabilities.

37.11 DCMR § 3203.1 creates an exception for a religious community of up to fifteen members, which is not required to obtain a certificate of occupancy.

38.  As discussed below at section II.C., in this motion the United States also challenges the denial of a certificate of occupancy for one YRCH at the Potomac Avenue site. That is a distinct claim, based on the District’s discriminatory action in denying the requested certificate of occupancy because of community opposition. We do not allege that Boys Town should have been exempt from the certificate of occupancy requirement based on the number of persons who would reside in the proposed YRCH.

39.  The United States here challenges the same provision found to violate the Fair Housing Act in Cmty. Hous.Trust, 257 F. Supp. 2d at 221-22. As discussed in the text, Cmty. Hous. Trust found that the District’s certificate of occupancy requirement violated the Act on its face, and was not justified by the District’s proffered rationale: that it needed information regarding the proposed uses of property to enforce the zoning requirements. Id. at 224-25. The Court granted the group home’s motion for summary judgment, but no injunction was issued with that decision, and the parties subsequently entered a voluntary settlement that did not remedy the facial invalidity of the District’s certificate of occupancy requirement for CBRFs.

40.  In addition, more than a decade ago, the District of Columbia Zoning Commission itself expressed concerns that the requirement for CBRFs to obtain a certificate of occupancy facially discriminates on the basis of disability, but it has not corrected the discrimination. In a 1992 order, the Commission stated that “[w]hile the CBRF provisions of the Zoning Regulations do not explicitly treat handicapped individuals differently from others, the effect of the application of the regulations may inadvertently deny handicapped individuals in a group residential setting equal rights when compared to non-handicapped individuals.” Ex. B-45, Z.C. Order No. 725 at 3 (1992). The Commission went on to find that the act of “placing greater restrictions on CBRFs which may house handicapped persons than are placed upon unrelated adults occupying a dwelling, ... could be subject to challenge under the provisions of the Fair Housing Amendments Act . . .” Id. at 4.

41.  Here, the United States is challenging the discriminatory denial of Boys Town’s requested certificate of occupancy. As noted above, we do not challenge the facial validity of the District’s zoning regulation that appears to require certificates of occupancy for all homes of more than six unrelated individuals.

42.  After the BZA had determined that Boys Town’s requested permits for four YRCHS amounted to one “facility” on the Potomac Avenue property, Boys Town sought, and was granted, building permits to complete the four homes as single-family homes rather than as YRCHs. Ex. B-19 Building Permits. After completion of construction of the homes, Boys Town sought permission to operate a single home as a YRCH housing six children. Ex. B-25 Application for Certificate of Occupancy.

43.  Boys Town’s first request, on July 19, 2002, deals with the short-term shelter and states that “[t]he youth residential care home must be able to house up to fifteen children in order to adequately and efficiently provide the services necessary for these handicapped children.” Ex. B-13 Permit Application. The second, October 11, 2002 request for reasonable accommodation regarding the four long-term homes attached a January 9, 2002 affidavit from Dr. Handwerk which stated that “reliable predictions about the mental and emotional health and functioning abilities of the children to be served in the long-term facilities at Pennsylvania Avenue can be made by considering the data concerning the mental and emotional health and functioning abilities of the children in the long-term facilities in Boys Town, Nebraska,” but mistakenly referenced Boys Town’s Sargent Road homes in its concluding paragraph. Ex. B-23 Affidavit of Handwerk. See discussion, supra, at fn. 21 regarding Dr. Handwerk’s various affidavits.

44.  This May 2002 application was not acted on by DCRA until November 12, 2003, when the Zoning Administrator informed Boys Town that the short-term shelter at the Potomac Avenue property would be subject to the 500-foot spacing requirement under 11 DCMR § 721.5; Ex. B-18 Noble Letter November 2003.

---

Document Filed: October 11, 2006 > >