SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCFAIR HOUSING REFORM AND FREEDOM OF SPEECH ACT OF 1997
THURSDAY, APRIL 17, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 10:07 a.m., in room 2226, Rayburn House Office Building, Hon. Charles Canady (chairman of the subcommittee) presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Asa Hutchinson, John Conyers, Jr., and Robert C. Scott.
Also present: Kathryn Hazeem Lehman, chief counsel; John H. Ladd, counsel; Robert Corry, counsel; Brett Shogren, staff assistant; Perry Apelbaum, minority chief counsel; Stephanie Goodman, minority counsel; and Brian Woolfolk, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order.
Last September this subcommittee held hearings on protecting freedom of speech and neighborhood safety under the Fair Housing Act. At that time, bills introduced by Representative Brian Bilbray were the focus of the hearing.
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The subject of today's hearing is H.R. 589, also introduced by Representative Bilbray. Congress enacted the Fair Housing Act in 1968 to remedy problems of discrimination in housing. Twenty years later in 1988, Congress amended the Fair Housing Act expanding its protections to cover persons with disabilities and families and creating a new enforcement mechanism to speed the resolution of complaints of discrimination.
With certain exceptions, some of which we will discuss today, it appears that the 1988 amendments have been working as intended. Concerns have been raised, however, that Federal agency actions and recent court decisions have failed to carefully balance the need to protect against discrimination and housing with the ability of local jurisdictions to enact reasonable zoning restrictions and the rights of individuals and communities to have a voice in the process by which siting decisions are made.
Today's hearing will focus on recent controversial efforts of the Department of Housing and Urban Development and the Department of Justice to enforce the Fair Housing Act against individuals engaging in protected first amendment activities. Citizens who have voiced concerns about group homes through the normal zoning appeals process, or who have filed lawsuits to compel enforcement of local zoning laws have been investigated by HUD and have become the target of litigation by the Justice Department. In addition, a number of municipalities in cities across the country have found themselves embroiled in litigation under the Fair Housing Act over the validity of zoning ordinances designed to protect the public safety.
[The bill, H.R. 589, follows:]
Page 3 PREV PAGE TOP OF DOCINSERT OFFSET RING FOLIOS 1 TO 2 HERE
Mr. CANADY. I look forward to hearing from all of our witnesses who are with us here today, and I'll now recognize Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman, and I appreciate your assembling todayassembling us today to consider H.R. 589, the Fair Housing Act Reform on Freedom of Speech. This bill was introduced by Mr. Bilbray and is the continuation of his efforts to try to make changes in the Fair Housing Act that seek to strike the appropriate balance between practices of free speech and anti-discrimination. Although I have some concerns about the current language of Mr. Bilbray's bill, I'm confident that we can work out these differences.
It is very unfortunate that in 1997 we still need a statute to prohibit discrimination on account of one's race, color, religion, national origin, or disability. However, an article in Saturday's Washington Post reminds us that these laws are still very much necessary. That article which discusses a study done by the Fair Housing Council, revealed that minorities are discriminated against more than two out of every five times they attempt to obtain housing. Two out of every five times that they attempt to find housing, they are discriminated against. This represents a problem of grave proportion deserving more of our attention, and, Mr. Chairman, I would hope that these issues could be addressed by this subcommittee, and I look forward to discussing how some of our housing laws may be underenforced.
H.R. 589 exempts from Fair Housing Act coverage of group homes for convicted felons, sex offenders, and recovering drug addicts. I'm not sure if this is the intent of the bill, but in its current form any group home, whether it be for those with severe mental illness or those for rehabilitation of those with severe physical disabilities, would be subject to discriminatory zoning laws if they have residents that happen to be convicted felons, sex offenders, or recovering addicts. As it now appears, the bill would enable challenges to the siting of a six-member group home for those with physical disabilities just because one of the potential residents has a 20-year-old felony conviction. I look forward to Mr. Bilbray shedding some light on this particular issue.
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I also have some serious concerns about dropping protections for those recovering from drug problems. Courts and our own statutory language and legislative histories have made it clear that those recovering from drug or alcohol addictions should be protected by laws that protect the disabled. In addition, those continuing to use illegal drugs are not protected by these laws. Furthermore, any tenancy that presents a direct threat to the health or safety of other individuals is not protected by the Fair Housing Act. We must therefore ask ourselves the question, ''What legitimate interest would be served by denying some of the sickest and most vulnerable the services and setting they need to overcome some of the most serious and even life-threatening health problems?''
The mental and physical health challenges of those recovering from drug addiction are not sexy or popular. Recovering from addiction is not the type of condition that would likely make one welcome in many neighborhoods. The Fair Housing Act was not, in fact, passed to assist the popular or desirable; it was enacted to protect those who are not politically powerful, those not likely to win the approval of zoning boards because of discrimination, and those most likely to be discriminated against in the first place. Those recovering from drug dependency fall under this category and deserve our continued protection.
Mr. Chairman, I look forward to the testimony by witnesses and appreciate the time that you have taken to share your views with us today, and I'd like to thank you once again. It is my hope that we can reach a proper balance on this issue.
Thank you, Mr. Chairman.
Page 5 PREV PAGE TOP OF DOC Mr. CANADY. Thank you, Mr. Scott.
Mr. CONYERS. Good morning, Mr. Chairman, members of the committee, ladies and gentleman. Good morning, Mr. Bilbray; good to see you here again. I think we went through this last year toward the close of the session, and I presume that the pressures back home require that you join the Judiciary Committee again in the pursuit of what is a matter that, I think, as you can tell, concerns all of us. So, consider us your friendly Subcommittee on the Constitution working with you to cure in a reasonable and intelligent way a realistic problem. This is not a matter of black and white where we're locked in horns. There's a great sympathy for the reason that has motivated you to introduce legislation. I share it, and I think everyone up here does.
The Banking Committee is also working on this matter, and one of our colleagues, Mr. Watt, is a member of both committees and, matter of fact, several of our colleagues are. So, we're hoping that between these two committees we'll be able to resolve this matter. We notice that your language is different in this measure, and we'd like to learn more about it.
Let me just for my partsince I'm managing a bill on the floor today and won't be able to hear all of the witnesseslet me just leave a couple of ideas with you, Brian, that will give us something to work on after the hearing today. There are a few concepts that we might all be able to latch onto that will give us the middle ground that we need to perhaps bring this to a successful resolution.
The FHA doesn't restrict individual's first amendment rights to free speech and free expression; I think we can agree on that. The FHA doesn't give any rights to individuals based on their status as sex offenders, convicted felons, or current drug addicts. I don't think there's a great deal of disagreement about that. If a particular home for persons with disabilities will negatively affect a neighborhood's quality of life, a variance need not be granted. The FHA shouldn't be a blanket waiver for all local zoning laws, and it seems to me, that in those several observations, Mr. Chairman, lay the seeds of a possible resolution that I hope you'll consider during these hearings, and we all stand ready to work with you on this.
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Thank you very much.
Mr. CANADY. Well, thank you, Mr. Conyers, and I'll just respond to that. I appreciate your comments and Mr. Scott's comments, and I am hopeful that we will be able to find common ground on this, because I think it's clear that we share at least some of the same objectives and recognize that there are some problems that would appropriately be addressed. I thank you for your comments.
I now will go to our first panel.
Mr. CONYERS. Perhaps Chairman Hyde might have an observation.
Mr. CANADY. I'm sorry; I didn't see Mr. Hyde there. Mr. Hyde.
Thank you for bringing that to my attention.
Mr. HYDE. I'm not generally known for unobtrusiveness. [Laughter.]
I just want to thank Chairman Canady and Mr. Conyers and the staff for holding these important hearings on this important issue that Mr. Bilbray has brought to us.
I too, like Mr. Conyers, have to be on the floor; we have a very important and controversial bill up today that will require our attention, so I cannot remain past 10:30, I guess, when we're going to have a quorum call, but I do want to greet Henry Tews who is president of Serenity House and is one of our witnesses.
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Mr. Tews, I know well, and he's from my district. His wonderful institution, Serenity House, which does so much good and deals with so many difficult problems and cases, and it does so because of his enthusiasm and his commitment and that of his staff who are excellent people. So, I welcome Mr. Tews; he has a different view than Mr. Bilbray but one worth hearing, as is Mr. Bilbray's, and I just wish you all success, and I hope we can work this out so that we can reach an accommodation, because it's an important problem.
Mr. CANADY. Thank you.
Mr. HUTCHINSON. I'm just delighted that you are having this hearing, and I look forward to the testimony on this important issue. Out of respect for the witnesses, I'll forgo any other statement at this time.
Mr. CANADY. Thank you.
Upon our first panel we will hear from two distinguished Members of Congress. Testifying first will be Brian Bilbray. Congressman Bilbray has served with the 49th Congressional District of California since 1994 and is a member of the Commerce Committee. Congressman Bilbray is the author of H.R. 589, a bill to amend the Fair Housing Act.
Page 8 PREV PAGE TOP OF DOC Hopefully, following Representative Bilbray will be Representative Jane Harman. Congresswomen Harman has served the 36th District of California since 1993 and sits on both the House National Security and the Select Permanent Intelligence Committees. Ms. Harman is a strong advocate and cosponsor of H.R. 589. I understand that Representative Harman is on her way to the hearing, and we anticipate her arrival momentarily.
Representative Bilbray, I wanted to thank you for your leadership on this important issue, and I'll now recognize you for 5 minutes.
STATEMENT OF HON. BRIAN P. BILBRAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. BILBRAY. Thank you very much, Mr. Chairman. I appreciate the chance to be able to testify here today on H.R. 589.
First of all, let me make it clearyour colleague pointed out that there may be pressures coming from back home to pass this legislationlet me assure you the greatest pressures on this issue come from myself. I don't know how many Members of Congress have actually sited these homes or have had the responsibility to take on local municipalities about the siting of these facilities; I have. I might have served for 6 years as a mayor in a small community, but I served as 10 years as a member of the board of supervisors in an area of 2.7 million people where we had to site group homes consistently.
My concern here is the fact that those of us who site appropriate locations and have due process for these sitings must stand up when we see those processes and that system being abused. And that is why I'm here today. I'm not here as somebody who wants to keep proper facilities out; I'm here as somebodyone of the few, I think, in Congresswho've actually sited these facilities appropriately. So, I really feel strongly that those of us who want to see the continuing proper siting of facilities need to stand up and stop the abuses, because I see that as the greatest threat to the appropriate location of these types of housing facilities.
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The main point is to allow reasonable exercise of zoning control, and frankly, I think that when we get into this issueI've worked with the minority counsel and the disability community to change this law so it would be site-specific on where the problem was being generated.
The three categoriesthe convicted felons, sex offenders, and recovering drug addictswere specifically identified by colleagues on both sides of the aisle as being where the focus should be. So, we changed it to concentrate on that focus. These three categories do not exclude the right of protection for mentally or physically disabled individuals. The qualification that's being addressed here is: if the only qualification that protects them is under these three categories, then they are not protected. If they have the other protections, it's specifically retained in the law.
The fact that some may say that this is somehow an assault on those who have mental and physical disabilities is just a counter. In my own district, my disabilities community, there are individuals who strongly believe that allowing these three categories to be considered with mental and physical disabilities is an affront and an assault to those who are truly disabled and those who are victims of circumstances beyond their control, not victims of their own decisionmaking process, be it good or bad.
H.R. 589 also upholds the first amendment right of the individual to be able to petition your Government. I don't believe anybody in Congress ever meant to have the Federal Government bringing charges against a citizen because they signed a petition for relief on certain issues. That's a basic concept that our Constitution and our whole Republic was based on.
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Right now there have been situations and cases specifically addressing the fact that individuals ''committed a crime,'' by signing a petition, petitioning local land use bodies to be able to get them to take certain action. I think that the concept that this is a civil rights violation is turning on the head the whole concept of civil rights; the right of free petitionI can just imagine the pioneers in the civil rights movement looking back and seeing that people who are petitioning their Government for redress are being cited by the Federal Government and prosecuted by the Federal Government, because they were protesting or they were petitioning for redress of what they thought was a wrong action of the Government. I don't think anybody in a clear state of mind ever meant this to be the intention.
This is strictly the issue that we're trying to point out, Mr. Chairman, that there are things that have been done under the guise of the authority of the Constitution, constitutional rights, but mostly under this law. It was never meant to be the intention of the Congress when they passed this law, and that is when we get down to these three categories and the right to be able to have freedom of speech. I mean, it is ironic that you can burn the American flag, and you're protected if you do that, but if you petition your city council not to site a business or an activity next to you, you are then in violation, and you're able to be prosecuted. I don't think anybody in their right mind ever meant that to happen.
The fact is that we're here today mostly because there have been interpretations made by the courts that was not your intention or Congress' intention or the President's intention when they signed it in to law. I just cannot believe that. In fact, this is the problem we have here: the courts have interpreted the FHA to include sex offenders and convicted felons, to fit into the legal definition of ''handicapped.'' Now, if you go through the records, nobody brought up those classifications when the FHA was being considered, and no Member of Congress that I know of has stood up and said, ''This was our intention all along.''
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The fact is, the courts have interpreted this, and you may hear people say otherwise, but I'd like to introduce into evidence 30 cases, Mr. Chairman, where the courts have classified these three categories as coming under the classification as ''handicapped,'' and I think that
Mr. CANADY. Without objection, that will be placed in the record along with your complete written statement.
Mr. BILBRAY. Thank you.
[The cases are in the subcommittee files.]
Mr. BILBRAY. The issue really comes down to the fact as the perceived or possible perceived threat to persons living in a single-family R1 neighborhood having the right to be able to be concerned about that their local land use decision process be able to address these three categories. We're not saying that these three categories can be actively discriminated against under the law; what we're saying is that these three categories will not be exempt from local land use zoning; that these three categories will not have a higher standard of protection than the average citizen who has not committed a crime; that the average resident in the area will have equal protection to these three categories.
Right now, under the court interpretation these three categories are exempt from R1 zoning and exempt from the process that other individuals would have coming in without this type of protection. So, it really comes down to the equal protection under the law of those who do not fall under these categories.
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I want to say, quite frankly, that there will always be excuses not to do the right thing and correct a mistake that's been made. This is one where many members of my disability community really believe that to have three groups tied into the disabilities community by the courts constitutes a greater threat to their ability to site the appropriate facilities, and I want to address again and again that we are only changing the language based on court cases specifically identified in the record now. I also want to point out that we changed the original legislation after consultation with, not only the disabilities community, but also with the minority staff on this subcommittee to be able to say, ''What is it that both sides can agree on?'' as pointed out by my colleague.
And that is why the wording was changed; that's why we reflected that, and that is why we want to move forward. In fact, this whole concept of moving on these three categories came fromXavier Becerra. In a Corrections Day Committee meeting he said, ''Brian, why don't you just take those three categories, and concentrate on them?'' That is what we've done here.
Mr. Chairman, we're just trying to provide relief to individuals who are having the Federal Government, under the guise of the Fair Housing Act, abuse their constitutional rights and abuse their right of equal protection, and we're trying to minimize the abuse of a good process if it's done right. And I leave you again with the fact, I don't know how many Members of Congress sited these facilities and have the experience I have had and the responsibilities, but I know that I did, and I do, and that is why I'm presenting this law; I'm presenting it for the good of the system to make if fair, to make it effective, and to protect those who truly need the protection.
Page 13 PREV PAGE TOP OF DOC Mr. CANADY. Thank you, Representative Bilbray; we appreciate your testimony, and we will, of course, continue to work with you on this issue.
I think Representative Harman has not arrived so, in light of that, we're going to move to our next panel. Thank you.
[The prepared statements of Mr. Bilbray and Ms. Harman follow:]
PREPARED STATEMENT OF HON. BRIAN P. BILBRAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Thank you Chairman Canady, and Members of the Constitution Subcommittee, for allowing me to testify before you today on behalf of H.R. 589. I am pleased to share my perspective as a former member of the San Diego Board of County Supervisors, who sited residential care facilities for ten years in a county of 2.7 million people.
My legislation allows state and local authorities to exercise reasonable control over the siting and make-up of residential care facilities when they are intended to house convicted felons, sex offenders, and recovering drug addicts. These three categories of individuals are explicitly named in the bill in order to clarify the intent of my legislation. H.R. 589 in no way diminishes or alters the anti-discrimination provisions designed to protect care facilities for individuals with physical or mental disabilities.
In fact, I have specifically sought out suggestions from representatives of the physical and mental disabilities community, and have found their input constructive in the drafting of my legislative proposal.
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This legislation also protects and preserves the First Amendment rights of residents and homeowners who wish to express opposition and/or peacefully protest the proposed location of one of these facilities in their neighborhood, without the threat of being sued or harassed by the federal government. While these instances are not the norm in most communities, they have proven to be a serious enough problem to warrant federal legislation as a remedy.
Throughout my involvement with this issue, I have heard from numerous citizens throughout the nation who have been personally sued by the federal government. What did these people do to deserve this governmental harassment? They merely exercised their First Amendment rights, by peacefully objecting to the placement of residential care facilities for convicted felons and sex offenders in their neighborhood. In addition to being sued for ''civil rights violations'' which claimed that they were ''discriminating'' against disabled individuals, each of these citizens were fined hundreds of thousands of dollars each by the Department of Housing and Urban Development and the Department of Justice, all under the auspices of ''discrimination.''
I find it ironic that the federal government will go out of its way to ensure your First Amendment right to burn the American flag, but if you should try to exercise this right by protesting convicted felons moving into your neighborhood, HUD and the Department of Justice may slap a suit on you and charge you with ''discrimination.''
Therefore, my legislation will restrict HUD and the Department of Justice from suing or harassing people who peacefully and lawfully protest the location of group homes for those in the aforementioned categories in their neighborhood. This legislation merely reaffirms the ability of individuals to exercise their First Amendment rights to engage in free speech, free press, free assembly, or to petition the government for the redress of grievances. It will allow residents to express legitimate concerns about property use and zoning in their neighborhoods, without threat of retaliatory litigation by the federal government.
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More specifically, this legislation will allow communities to exercise reasonable zoning and other land use regulations in determining the location, composition, and the occupancy number of residential care facilities intended to house sex offenders, convicted felons, and recovering drug addicts. This bill will clarify and refine the original intent of the federal Fair Housing Act (FHA) amendments, while leaving intact protections against true discrimination. Simply put, if a community feels that group homes for sex offenders, convicted felons, or recovering drug addicts pose a threat to a residential community, federal statute will not automatically supersede local zoning and land use regulations.
There are several reasons why this legislation is needed. Due mainly to court interpretations which have expanded the original intent of the FHA, municipalities and homeowners are restricted in their ability to comment on or protest the location of such facilities in certain neighborhoods, and have little say as to who may own or operate them.
Communities across the country have expressed serious concerns win the FHA as it affects their ability to review and implement appropriate land use regulations for residential care facilities. These restrictions are of particular concern in situations where convicted felons or sex offenders have been allowed to reside in traditionally single family residential neighborhoods. Providing municipalities with reasonable control over the location or placement of such residential care facilitieswithout the threat of being sued by the federal government for ''violating'' civil rightswill enable them to fulfill their traditional mandate to protect and preserve the integrity of residential neighborhoods. The following provisions have contributed to problems under the existing law.
Page 16 PREV PAGE TOP OF DOC The legal definition of ''handicapped'' includes not only individuals with special physical and mental conditions, but also the homeless, as well as recovering drug or alcohol addicts. Some courts have also interpreted the FHA to include sex offenders and convicted felons within the legal definition of handicapped, and to thus be eligible for protections under the FHA. Questions about my legislation have arisen claiming that the FHA does not mention or reference sex offenders or convicted felons. While this is accurate, it needs to be understood that the courts have interpreted those two categories to be protected under the FHA. Numerous court decisions exist which dramatically illustrate this point.
According to the FHA, it is illegal to discriminate in the sale or rental of a housing unit, or to make unavailable or deny a dwelling to any buyer or renter because of a ''disability.'' Discrimination includes the refusal to make reasonable concessions in rules, policies and practices in order to accommodate the mentally and physically disabled. This provision of the FHA creates a problem when residential communities are not provided an opportunity to express concern about the location of a treatment facility in their neighborhood that may house sex offenders, convicted felons, or recovering drug addicts. While the law and courts protect these individuals as ''disabled,'' occupants of residential neighborhoods have a legitimate concern about such persons dwelling in their community, and potentially presenting a threat to themselves or their children. It is one thing for a residential neighborhood to contain a facility which houses mentally or physically disabled individuals. It is quite another when a facility is housing sex offenders, convicted herons. or recovering drug addicts.
Additionally, sex offenders, convicted felons, and recovering drug addicts are inclined to be more transitory than mentally or physically disabled individuals, who tend to remain in a specific neighborhood for a longer period of time. The higher transiency rate of group homes with sex offenders, convicted felons, and recovering drug addicts poses a concern to residents because once these individuals are released from their program, they often remain in the neighborhood, outside the relatively structured environment of the residential care program.
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Another factor which has contributed to problems under the FHA is the occupancy rate of facilities. Many state regulations, including the California State Health and Safety Code, specifically exempt residential care facilities with six or fewer clients from compliance with local zoning ordinances by defining these facilities as ''family units,'' thus allowing these facilities to be considered a ''residential'' use of property. Taking advantage of this loophole, many care facilities purposefully house six or less individuals per facility for the express purpose of avoiding compliance with zoning laws. It is ironic that law-abiding citizens have to comply with the law, yet this loophole allows individuals such as convicted felons and sex offenders to be exempted from compliance.
Notification requirements, or a lack thereof, is another problem in which neighborhoods face. The FHA does not require prospective residential care facilities to notify residents of a target neighborhood of their intentions, prior to locating in that particular neighborhood. In some instances, neighbors have not found out that the house next door will be occupied by sex offenders or convicted felons until they see the moving vans. Residents are left feeling defenseless, as there is little they can do at that point to stop the care facility from operating in their neighborhood.
Finally, the FHA does not establish any separation requirements between residential care facilities. Over concentration of residential care facilities in certain neighborhoods can disrupt the livelihood and integrity of these single-family residential neighborhoods. Separation requirements of 1,000, 1,500, and 2,000 feet between facilities have all been struck down by federal courts. Residents of affected areas have expressed concern about such care facilities significantly changing the environment and character of the neighborhood. People who have facilities in their neighborhoods would prefer for them to be more evenly distributed throughout the community, rather than being compacted in one specific residential neighborhood.
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In many instances, families in such affected neighborhoods are no longer able to enjoy everyday life without living in fear of the potential dangers posed by one of these three categories of individuals. The major complaint from the homeowners in neighborhoods is that they all chose to live in a particular community due to the enhanced quality of life it offered to them. The location of these facilities in certain neighborhoods has jeopardized the property value of some homes. This is just one example of many problems created by residential care facilities throughout the nation.
It is clear from the aforementioned that a legislative solution is needed to correct this problem and balance the interests of residential communities with those of the residential care facilities.
While it might not have been the original intention of the FHA amendments to enable the government to sue homeowners on the basis of discrimination for merely exercising their First Amendment right, the activities of the federal government in these instances have been unjustifiable, at best, and possibly unconstitutional. Individuals should be able to exercise their First Amendment right to voice an opinion about these residential care facilities moving into their neighborhoods. Even if one does not agree with the homeowners who raised these objections, these individuals should not be threatened by the federal government and sued for expressing divergent opinions.
My testimony today marks another landmark on the long road which I have traveled since the beginning of 1996. Since I initially introduced comparable legislation in the 104th Congress, I have learned a great deal from colleagues of mine on both sides of the aisle who have shared with me thoughts and concerns they had about my legislation. As a result of this constructive input, I have taken several steps to clarify the language of H.R. 589 to address these concerns. For instance, H.R. 589 makes no reference to ''disabled'' individuals, in order to clarify that mentally and/or physically disabled individuals are not impacted by my legislation. H.R. 589 is also specifically written to apply only to convicted felons, sex offenders, and recovering drug addicts.
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In fact, I have changed the legislative language of my proposal three times since the beginning of 1996, with H.R. 589 being the most recent productall at the behest of physical and mental disabilities groups who have opted to work with me, and at the suggestion of the Minority Counsel of this Subcommittee. I am happy to say that I have worked closely with the disabilities community and have actively taken steps to more narrowly craft my legislation to ensure that it would not have a negative impact on this vulnerable population.
H.R. 589 is endorsed by the National League of Cities and by the League of California Cities, several representatives of which are here today. In addition, numerous cities from across the nation which are experiencing problems with residential care facilities have endorsed this legislation, and anxiously await a legislative remedy to their problems. H.R. 589 also enjoys bipartisan support, with 21 current cosponsors.
I have worked in good faith to address the concerns expressed early on about this legislation, and believe that the result of my efforts is a more narrowly crafted piece of legislation that will provide relief to the individuals and communities who have been victims of an unforeseen loophole in the Fair Housing Act.
Mr. Chairman and Members of the Constitution Subcommittee, I appreciate your interest in H.R. 589, and thank you once again, for this opportunity to testify on its behalf. I would also like to introduce San Diego Mayor Susan Golding, who is here this morning to testify on behalf of my legislation, and to thank her for continuing support on this issue. Mr. Chairman, I would be happy to answer any questions at this time.
Page 20 PREV PAGE TOP OF DOCPREPARED STATEMENT OF HON. JANE HARMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman and members of the Subcommittee, my thanks for your kind invitation to testify in support of the Fair Housing Reform and Freedom of Speech Act of 1997. As you know, I am a cosponsor of this measure and commend my colleague, Brian Bilbray, for introducing it.
Mr. Chairman, over the last year or two, the issue of special needs housing has received considerable attention in my congressional district, especially in the cities of San Pedro and Torrance.
I have heard from many constituents who are upset with the proliferation of group homes in their neighborhoods and the perceived inability of local officials to respond. Many of these residences house registered sex offenders, convicted felons, and recovering drug addicts and alcoholics. Others are established to house homeless individuals and victims of domestic violence. Some are licensed businesses, others not.
In response to concerns about the concentration of special needs housing in San Pedro, community organization called C.A.R.E.S, or Community Advocates for Responsible Environmental Safety, was formed by concerned business owners and residents. C.A.R.E.S has been very vocal and has highlighted the tremendous impact that the proliferation of this type of housing has had on the historic downtown business district of San Pedro and residential neighborhoods.
Los Angeles City Councilman Rudy Svornich next took action by recently appointing a citizen task force that found that a section of San Pedro called ''Old San Pedro''a roughly 21 block mixed residential and business neighborhoodincluded 26 special needs facilities, ten licensed and 16 unlicensed. The concern of many is that increased traffic, high transiency and the behavior of some of the individuals residing in these facilities has altered the atmosphere of local neighborhoods, driven down property values and impacted nearby businesses.
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Mr. Chairman, let me be perfectly clear that this bill is not intended to legitimize discrimination against individuals, groups of individuals or families, or to provide local officials with tools to block altogether the siting of special needs housing in their communities. As you know, I abhor discrimination in any form and have devoted much of my professional and political career fighting it.
But muddiness resulting from judicial interpretation and extension of provisions of the Fair Housing Act have confused both local officials and special need providers about the types of restrictions that may imposed to address issues of density or proximity and occupancy on special needs facilities. Indeed, at a recent Mayors' Roundtable that I held with the 12 Mayors and City Managers from my district, the issue of groups homes was at the top of our agenda. Mayor Dee Hardison of Torrance, for example, shared the kind of difficulties local municipalities have because they are preempted, or believe they're preempted, from exercising reasonable zoning and other land use regulations over the establishment of group homes within the community.
A similar view is contained in the testimony the Committee received from Assemblyman Steve Kuykendall, whose own district overlaps much of the 36th Congressional District, which I represent.
Assemblyman Kuykendall shares a perspective not only as a state legislator, but also as a former councilman and mayor for the City of Rancho Palos Verdes. He describes his efforts to enact legislation in Sacramento to change the definition of over-concentration and permit cities to require spacing between care facilities of no less than 1,000 feet. Currently, the state requires no less than 300 feet between facilities. Interestingly, separation requirements of 1,000 to 3,000 feet have all been struck down by the federal courts and the state's legislative counsel has opined that a 1,000 feet separation requirement likely violates the anti-discrimination provisions for the Fair Housing Amendments of 1988.
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Yet, the Assemblyman's proposal is not based on any desire to discriminate, but rather a concern about the increased city services that must be planned for, provided for and paid for when a part of a city becomes concentrated with group homes.
In researching this issue and talking to interested parties, it is clear that city officials find themselves in an awkward position of attempting to address the concerns of residents regarding group homes while having unclear authority over the source of the concern.
But special need advocates, too, are hurt by the existing confusion over rights and responsibilities. As one of my constituents pointed out, where a group home is well run, no one seems to notice. But one unscrupulous operator gives a black eye to everyone. Similarly, uneven application of zoning variance requests, whether intentional or not, impose an undue burden on some operators and not others.
H.R. 589 is intended to provide clarity to this situation. To the extent additional improvements in the bill's language need to be made, I hope the Committee as well as other interested parties will help. But our intent is to clarify the range of responsible restrictions local governments may place in order to regulate occupancy and proximity of group homes from those that can be clearly viewed as discriminatory in intent or application.
This bill is a bipartisan effort that permits cities to exercise reasonable limits as to how many unrelated individuals can live in a neighborhood zoned for single homes and to regulate the proximity of group homes for convicted felons, sex offenders, or recovering drug addicts. Most importantly, it will allow local officials to enact reasonable planning or zoning requirements and procedures that will help answer questions or concerns of neighborhood residents ahead of time.
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In the absence of this clarification, local officials, residents, advocates of special needs housing, and other interests will resume their war of words and lawsuits where the courts will make the rules. This is neither to the advantage of local communities nor special need advocates and social service providers.
My thanks for the opportunity to share my views with you regarding H.R. 589.
Mr. CANADY. On our second panel is Paul Hancock. From 1988 until March 1997 Mr. Hancock served as the Chief of the Civil Rights Division, Housing and Civil Enforcement Section, with responsibility for enforcing the Fair Housing Act, the Equal Credit Opportunity Act, and the Public Accommodations Act. In March 1997, he assumed his current position of Acting Deputy Assistant Attorney General in the Civil Rights Division.
Mr. Hancock, we want to thank you for being with us here today, and without objection your full written testimony will be made a part of the permanent record. We would ask that you attempt to summarize your testimony in 5 minutes.
STATEMENT OF PAUL F. HANCOCK, ACTING DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. HANCOCK. Thank you, Mr. Chairman. Mr. Chairman, Mr. Scott, and members of the committee, I do appreciate the opportunity to be here today to tell you the views of the administration on this legislation. We recognize that the legislation is a bit narrower than previous suggestions to address this issue, but for the reasons that we have given previously, the administration continues to oppose the legislation.
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First of all, let me emphasize that from our perspective as the agency with primary responsibility along with HUD for enforcing the Fair Housing Act, it is our view that the act as currently enacted does not prohibit housing discrimination against someone because he or she is a sex offender or a convicted felon. Neither our Department or HUD has ever made such a contention in litigation and we arewe try to keep a pretty close watch of private lawsuits that are pending around the country, and we simply are unaware of any court decision that says that convicted felons or sex offenders are protected under the Fair Housing Act as currently enacted.
I've listened to Mr. Bilbray's testimony on this issue; we would be happy to look over the list of cases that he has submitted to you and give you our views on that. We haven't seen that list previously, but it's our view that there's no need to amend the act to address this issue, because the act already answers the question.
The act does include within its definition of ''handicap'' people who are recovering from drug addiction; it does not protect people who currently use or are addicted to a controlled substance; it does not protect anyone who would be a danger to a community, but it does protect people who are acting to overcome their addiction.
That program is modeled on this Congress' 1988 Anti-Drug Abuse Act. That law required States as a condition of Federal funding to establish group homes for recovering substance abusers. The law requires States to allow group housing for at least six recovering substance abusers, and they must operate on four basic principles: one, drug and alcohol abuse is prohibited in the houses; second, it must be a condition that any resident who uses drugs or alcohol be evicted immediately; third, the residents must agree to share the expenses of housing; and fourth, the housing must be democratically runthat is, the residents themselves establish the rules of who lives there and enforce those rules.
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We do bring lawsuits consistent with that law when municipalities act to specifically exclude such homes, and we believe that those lawsuits are consistent with our national interest.
The Fair Housing Act, however, does not mean that these homes are exempt from local zoning laws. In our view, it merely means that municipalities must consider exemptions to their zoning laws that may be necessary to allow fair housing opportunities for people with these disabilities. The act that this Congress passed provides the infrastructure necessary for recovering from addiction, and that's a vital part of our national drug control strategy. The Fair Housing Act, as currently enacted, plays an important role in that design, and it's our view that the legislation proposed today would seriously damage our Nation's ongoing effort to address the scourge of drugs.
Regarding the first amendment, let me emphasize that the first amendment itself is a civil rights piece; it guides all we do in enforcing civil rights laws. For many years, in desegregating schools and ensuring the right to vote, we listened to people complain and protest, and yet, we never prosecuted people for expressing their views; but it's clear that the line can be crossed from protected speech to prohibitive conduct.
Most recently, for example, we prosecuted a case in the State of Florida where a black family attempted to move into their dream home in the city of Lakeland, FL, and a neighbor approached the black family and said, ''I just want to let you know that I'm a redneck; I'm prejudiced, and I hate black people. I'm going to make your life a living hell.''
That's protected by the first amendment even though we all find it to be obnoxious, but when the neighbor approached the family with his weed-wacker and started shooting stones at the family that wasn't protected by the first amendment. And when an FBI agent went out posing asa black FBI agent went out posing as a prospective homeowner, and the neighbor employed the same tactics against the FBI agent, that person was prosecuted, and even though the person defended that prosecution on the grounds that he had the first amendment right to take such action, the jury disagreed and convicted him of interfering with housing rights.
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What concerns us most about the legislation proposed is that it seems to condone the filing of lawsuits that are otherwise prohibited, that aren't protected by the first amendment. It's clear, historically, that the litigation process can be used to interfere with civil rights, and particularly housing rights. As far back as 1948, the Supreme Court recognized in Shelley v. Kramer that citizens who seek to enforcerestrict racially-restrictive covenants in State courts are prohibited from doing that, and the first amendment doesn't give them any protection to do that.
The first amendment does not protect the filing of frivolous lawsuits or baseless lawsuits. In our enforcement program we are guided by standards that the Supreme Court has established that basically say that; ''if someone files a lawsuit that is without support in fact or law and seeks an illegal objective, it's not protected by the first amendment.''
Then, in closing, I'll just summarize the way that it was described by Judge Easterbrook of the seventh circuit in a recent opinion in which he said, ''A request for something that, if granted, is unlawful, is itself unlawful.'' ''If someone who files a lawsuit seeking to prevent a family from moving into a community because they are disabled, that lawsuit is not entitled to any protection under the first amendment.''
That in no way interferes with legitimate first amendment interests we continue to recognize the importance of the first amendment, but we also must make sure that people aren't victims of housing discrimination.
I would be happy to answer questions that you might have.
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[The prepared statement of Mr. Hancock follows:]
PREPARED STATEMENT OF PAUL F. HANCOCK, ACTING DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman and members of the Subcommittee, thank you for the opportunity to present the views of the Department of Justice on H.R. 589, a bill introduced by Congressman Bilbray of California to amend the Fair Housing Act. My name is Paul Hancock, and I am an Acting Deputy Assistant Attorney General for the Civil Rights Division. Before assuming this position last month, I served since 1988 as the Chief of the Housing and Civil Enforcement Section of the Division, and thus had responsibility for implementing and managing enforcement of the Fair Housing Act and its 1988 Amendments. As you know, the Department last year presented testimony regarding a similar bill by Mr. Bilbray before this Subcommittee, and before the Senate Banking Subcommittee on HUD Oversight and Structure on a bill introduced by Senator Faircloth.
The Administration's view on these bills remains the same. We strongly oppose enactment of H.R. 589. I have attached to this statement the testimony of former Assistant Attorney General Deval L. Patrick on the similar bill introduced last year by Senator Faircloth, as the testimony fully lays out the Administration's opposition to bills of this nature. Like the bills introduced in the last Congress, H.R. 589 would hamper our ability to enforce the Fair Housing Act to ensure equal opportunity in housing for all people.
I would like to provide the Subcommittee with a few additional observations on H.R. 589.
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The first section of this bill would amend Section 807(b)(1) of the Act to enable localities to restrict the maximum number of unrelated persons in a dwelling and to restrict the proximity of dwellings ''in connection with the occupancy of a dwelling unit by a convicted felon, sex offender, or recovering drug addict, if the purpose of the restriction is to restrict land use to single family dwellings.''
This bill has the unfortunate effect of raising unwarranted fears that the Fair Housing Act currently forces single family neighborhoods to accept potentially dangerous individuals. Let me make clear that the Fair Housing Act has never restricted local communities from placing occupancy or spacing restrictions on single family dwellings with convicted felons and sex offenders. Convicted felons and sex offenders are not protected categories under the Fair Housing Act. The Fair Housing Act prohibits discrimination on the basis of race, color, national origin, religion, sex, handicap or familial status. Being a felon or sex offender is not a ''handicap'' as defined in the Fair Housing Act or in HUD's implementing regulations. The Fair Housing Act also provides additional protection for the safety of landlords and neighbors by explicitly excluding from coverage anyone ''whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.''
Let me be clear: felons and sex offenders are not covered by the Fair Housing Act, and we know of no cases in which protections have been provided under the Act to these groups.
Let me also be clear about this: current drug users, drug dealers and drug manufacturers are not protected by the Fair Housing Act, and again, we know of no cases in which persons have been afforded protection under the Act on these bases.
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The only real issue in this section is the Fair Housing Act's application to recovering drug addicts. When Congress amended the Fair Housing Act in 1988, it included the longstanding recognition of drug addiction as a handicap, and took steps to protect those who were recovering from addiction. At the same time, Congress made clear that current users of drugs are outside the definition of handicap in the Act, and would not be entitled to protection as persons with a handicap.
At the time Congress acted to protect persons recovering from drug addiction, many Members of Congress noted that drug addiction happens throughout society, without regard for race, gender, religion, class, or social standing. Many noted at the time that without this protection, even someone like a former First Lady who had been addicted to, but no longer used, prescription drugs, could be subject to discrimination.
The Administration opposes this section of H.R. 589 because it would seriously damage this nation's on-going fight against the scourge of drugs. A crucial component of this fight is allowing former drug addicts to live together in recovery in supportive, family-like settings. In the 1988 Anti-Drug Abuse Act, Congress provided funding to set up group homes, where former drug addicts live together in single-family dwellings, sharing household chores and household expenses, attending Narcotics Anonymous meetings together, and, most importantly, ensuring that each fellow resident maintains a drug-free lifestyle. Residents at these group homes know that if they relapse they will be expelled immediately.
Under this bill, a locality could limit the number of unrelated former drug users in a single family dwelling to as few as two persons, thereby making such rental housing unaffordable for recovering drug addicts who often work low-paying service sector jobs. In this way, a locality could effectively exclude all such group homes.
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Providing the infrastructure necessary for recovery from addiction is a vital part of our national drug control strategy, and the current protections of the Fair Housing Act are an important part of that effort. We urge the Subcommittee to consult with other appropriate government agencies and private organizations that deal with this difficult issue before taking action that will have such a negative impact upon coordinated public and private efforts to provide treatment to individuals recovering from drug addiction.
H.R. 589 also proposes adding a new section to the Fair Housing Act to protect persons who file lawsuits, or engage in otherwise lawful activity, ''solely for the purpose of(1) achieving or preventing action by a governmental entity or official; or (2) receiving an interpretation of any provision of this Act in a court of competent jurisdiction.''
We understand this section is designed to address the concern that the Fair Housing Act has been used to infringe upon the First Amendment rights of persons to express their views to government officials, a concern first brought to national attention by the Department of Housing and Urban Development's investigation in a Berkeley, California case. In response to that justifiable concern, HUD issued guidelines in September 1994 covering the interplay of the First Amendment and its fair housing investigations. As we stated last year, the Department of Justice agrees with those guidelines and follows the same principles in enforcing the Fair Housing Act.
Let me again repeat the standards that govern our work in this sensitive area. The First Amendment plainly protects the rights of all citizens to express their views on housing issues in a peaceful manner by speaking out at public meetings, submitting petitions to government agencies, writing letters to elected officials, or filing legitimate lawsuits. Thus, we have never, and will never, challenge those activities as violations of the Fair Housing Act. No statutory amendment is necessary to protect the First Amendment rights of citizens who seek legitimately to use the judicial process.
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However, this does not mean that all lawsuits enjoy First Amendment protection. As a unanimous Supreme Court stated: ''Just as false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition.'' Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). Indeed, it is well established that courts may sanction litigants and their attorneys for filing baseless, malicious or abusive lawsuits under existing tort law and under Rule 11 of the Federal Rules of Civil Procedure.
In only four cases over the past eight years, the Department of Justice has enforced the Fair Housing Act against individuals who filed lawsuits that lacked a reasonable basis in law or fact and that sought an illegal objectiveprecisely those type of lawsuits that are not protected by the First Amendment. We have not, and will not, contend that a meritorious lawsuit, or one that reasonably could have been thought to be meritorious, was filed in violation of the Fair Housing Act. This standard provides ample protection for First Amendment rights while ensuring our ability to safeguard housing opportunities for all individuals.
However, the sweeping language of H.R. 589 would have the unintended consequence of protecting any lawsuitno matter how baseless, and even where filed solely to intimidate persons of another race from obtaining housingfrom a Fair Housing Act challenge. Every lawsuit is brought to ''achiev[e] *** action by a governmental entity or official''namely, a ruling by a court or judge. Every lawsuit implicating fair housing issues can be characterized by plaintiffs and their attorneys as an effort to ''receiv[e] an interpretation of any provision of this Act.'' This bill appears to give Congressional imprimatur to the filing of frivolous and baseless lawsuits.
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For example, this bill would protect just the sort of lawsuit that the Department successfully challenged in United States v. Wagner. In that case, a group of Fort Worth neighbors filed a state court lawsuit to block a family from selling their house to a non-profit county mental retardation agency, which wanted to use it as a group home for six retarded children. The neighbors' attorney, who lived next door to the proposed group home, filed that lawsuit even though he and the neighbors knew beforehand that both the Texas Property Code and the Fair Housing Act gave persons with retardation the right to live in neighborhoods with single family deed restrictions. The neighbors dropped their baseless lawsuit only after the sellers hired an attorney to defend their interests. By that time, however, the sellers had incurred over $3500 in legal expenses and suffered emotional distress. After hearing all the evidence in a three-day trial, the federal court ruled that the neighbor's lawsuit violated the Fair Housing Act and was not entitled to First Amendment immunity because it had been filed without a reasonable basis in law or fact and with an illegal objective. The court subsequently awarded damages to the sellers for their out-of-pocket expenses and emotional distress, as well as punitive damages against three of the defendants.
Finally, let me stress, as we did in testimony last year, that the Department has made efforts to work with municipalities to address their concerns about what is required by the Fair Housing Act. We met with representatives of the National League of Cities and the National Conference of Mayors, and sent a very detailed letter to the League of Cities answering their questions on the basic requirements of the Act. I have attached this letter to my statement. We believe that any misunderstandings regarding the scope or application of the Act are more effectively addressed by cooperative efforts between units of government rather than by additional unnecessary legislation. welcome the opportunity to provide further assistance in the future.
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In conclusion, H.R. 589 would limit sharply the ability of former drug addicts to form the stable, supportive living arrangements in single-family neighborhoods that have proved to be highly effective in advancing recovery and preventing relapse. In addition, H.R. 589 would be overly protective of baseless lawsuits at the expense of victims of housing discrimination. We believe both changes are unwarranted and strongly oppose enactment of H.R. 589.
PREPARED STATEMENT OF DEVAL L. PATRICK, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, BEFORE THE SUBCOMMITTEE ON HUD OVERSIGHT AND STRUCTURE, COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS, U.S. SENATE, CONCERNING S. 1132, a Bill To Amend the Fair Housing Act and for Other Purposes, September 18, 1996
I appreciate the opportunity to present the views of the Department of Justice on S. 1132. Because of time constraints, we have not had the opportunity to coordinate our testimony with other interested parties in the Administration. We strongly oppose S. 1132 because it would curtail our ability to enforce the Fair Housing Act to ensure equal opportunity in housing.
Since 1968, the Fair Housing Act has been a central component of this nation's effort to provide equal opportunity. All people, regardless of race, national origin, religion, sex, disability or familial status must be able to share in the precious American right to equal opportunity in housing. Since Congress amended the Fair Housing Act in 1988 to, among other things, protect people with disabilities from housing discrimination and increase the federal government's enforcement abilities in this area, the Act has worked well to protect the right to fair housing. While we recognize the legitimate concerns and questions of municipalities with respect to what the Act means and what it requires, we are convinced that the changes proposed in S. 1132 would unfairly limit the housing rights of persons with disabilities.
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The first section of this billthe section that would amend Section 807(b)(1) of the Actwould eliminate our ability to ensure that individuals with disabilities can live in settings that maximize their potential and their contributions to society. This legislation is based on misapprehensions regarding the Supreme Court's decision in Oxford House v. City of Edmonds. At the time that case was decided, many statements in the news media gave the impression that the decision would make it impossible for communities to use zoning laws to reserve some areas for single-family residences. But that is not the case, and the Department of Justice has been working hard to correct this misimpression.
The Fair Housing Act was amended in 1988, in large part to protect from housing discrimination millions of Americans with disabilities who for too long had been unable to share in a right many of us take for grantedthe right to live where we want and can afford. In amending the Act, Congress also recognized that persons with disabilities in many cases have different needs than those of us who do not have a disability. Thus, Congress required in the Fair Housing Act that housing providers engage in ''reasonable accommodation'' of individuals with disabilities.
Section 804(f)(3)(B) of the Act requires ''reasonable accommodations in rules, policies, practices and services'' that unintentionally restrict the ability of disabled people to live in housing. When Congress added this section to the Act in 1988, it quoted the Supreme Court as saying that ''discrimination on the basis of handicap is 'most often the product, not of invidious animus, but rather of thoughtlessness and indifferenceof benign neglect.' '' Alexander v. Choate, 469 U.S. 287 (1985). In requiring reasonable accommodations, Congress made it clear that in certain situations persons with disabilities would require treatment different than that afforded others if they were to receive equal housing opportunities. The standard that is being applied today by the courts to determine if an accommodation is reasonable was articulated by the Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397 (1979), which states that an accommodation is reasonable if, and only if, it does not cause an undue financial or administrative burden, and it does not bring about a fundamental alteration in the nature of the program with regard to which the accommodation is requested.
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Courts have ruledconsistent with congressional intent and longstanding constructions of the Actthat municipal zoning and land use ordinances are ''rules, policies and practices'' that are subject to the reasonable accommodation requirement. The interplay between the Act's reasonable accommodation requirements and municipal zoning and land use practices has arisen most often in the context of municipal decisions concerning so-called ''group homes'' for individuals with disabilities.
Group homes are not a new development. The group home concept arose decades ago, when research on the education of people with mental retardation showed that people with disabilities do best when they live with their families. But there were then, are now, and will always be those who have no families that are able to take care of them. One solution is to set up ''artificial families''residences where small groups of disabled people live together in a family atmosphere, and receive the guidance and assistance they need to function in society.
The first group homes were set up for people with mental retardation, but the concept has worked equally well for people with other kinds of disabilities. People with head injuries, people with physical handicaps and people with mental illnesses all live successfully in group homes in all parts of the country. Group homes have proved to be especially beneficial to elderly people who need help with daily living, but don't need costly nursing home care. The American Association of Retired Persons predicts that the need for this kind of housing will grow as our population increases and that this alternative to nursing home care can be a big factor in containing health care costs.
The typical group home fits well into its neighborhood and is virtually indistinguishable from an ordinary single-family home. The great majority of these homes do not cause undue noise; they do not increase traffic or cause parking problems; and study after study has shown that they do not lower property values. In fact, in the Edmonds litigation, the City of Edmonds stipulated that the proposed group home in that case would have no greater impact on city services than a house occupied by a family that met the definition of ''family'' under the City's zoning code.
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Many communities have zoning ordinances that define a ''family'' as a certain number of related people, or not more than a specified number of people who are not related. Although these ordinances were not written to keep out group homes for individuals with disabilities, they often have that result. In Edmonds, the Supreme Court held that such ordinances are reached by the Fair Housing Act and municipalities must reasonably accommodate individuals with disabilities.
Butand this is very importantthat is all the Supreme Court decided. It did not decide whether or not the particular accommodation requested was reasonablethat is, whether a group home for eleven people could operate in the City of Edmonds. The decision of what is reasonable was left for the courts to decide according to the facts of each situation. The test boils down to a very simple question: is a proposed group home basically consistent with the area where it wants to locate, or would it be out or place''a pig in the parlor and not in the barnyard,'' as the Supreme Court put it in Ambler Realty v. Village of Euclid.
Courts in 22 states have had to decide whether group homes are families for purposes of restrictive covenants that say ''single family home only.'' Twenty of the 22 have said that they are single family homes for all intents and purposes.
But of course, not all group homes are alike, and not all group homes are appropriate in every setting. The courts have shown that they can recognize those situations and deal with them appropriately. For example, a court in Maryland held that it was not reasonable for an existing group home for eight elderly residents in a single-family neighborhood to expand to 15 residents. Fifteen is just too many, the court said. Bryant Woods Inn, Inc. v. Howard County, 911 F. Supp. 918 (D. Md. 1996). In another case, the Seventh Circuit recently said that it was not permissible to build a building with four handicap-accessible units in a single-family zone. Brandt v. Village of Chebanse, 82 F.3d 172 (7th Cir. 1996).
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But, both before and after Edmonds, there has been legitimate concern on the part of municipalities as to exactly what the Fair Housing Act requires and what the Edmonds decision means. We have found municipalities to be genuinely concerned about complying with federal law. And we believe there has been a fair amount of misunderstanding in this area on the part of municipal officials. So we have tried to work with municipalities to discuss their concerns and give them guidance. We have met with representatives of both the National Conference of Mayors and the National League of Cities to discuss these issues. We have listened to their concerns and their questions, and we have responded in writing to questions from municipalities. I am attaching to my testimony today a copy of a letter sent by the Department on January 31 of this year to the National League of Cities. As the Committee will see, we have attempted to explain in the letter our view of the basic requirements of the Act and our enforcement program.
In our dialogue with municipalities, we have tried to clear up some common misunderstandings. First of all: nothing in the Fair Housing Act requires reasonable accommodation of any group of people who do not have disabilities. Edmonds does not change this in any way. If a locality excluded groups of unrelated individuals before Edmonds, it can continue to do so. If it excludes boarding houses, it can still do so. Second, the Act does not extend protection to anyone who has been convicted of manufacturing or selling any drug. Section 807(b)(4). And while recovering drug addicts are protected by the Act, they are protected only as long as they are not currently using any illegal substance. Section 802(h)(3). In our view, this protection for former drug users is an important component in our nations commitment to combat the scourge of drug use that has weakened our society. Experience shows that group homes for recovering drug addicts enhance the likelihood that individuals will not use drugs.
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It is appropriate here to take a few minutes to add a word about ''Oxford Houses.'' An Oxford House is a group of former users of drugs or alcohol who band together to live as a group and provide mutual support for each other in resisting the temptation to return to their former lifestyle. No drug or alcohol use of any kind is tolerated in an Oxford House, and a violator is immediately expelled. Congress was impressed enough with the success of this model in helping people maintain sobriety that in the 1988 Anti-Drug Abuse Act, it provided for funding to set up homes on the Oxford House model throughout the United States. The Justice Department has seen first hand how this program has contributed to a solution to the problem of drug and alcohol abuse. And all cases brought by the Department involving recovering substance abuserswhether involving an Oxford House or some other grouppresented situations where there was no current drug use and drug use was simply not tolerated. While local communities may be required to make reasonable accommodations in zoning practices to permit establishment of group homes, they are not required to make such accommodations to permit illegal conduct or conduct that would fundamentally harm neighborhoods.
An issue that has worked its way through the courts is whether a group home must request an accommodation before a municipality is required to provide one. While we originally took a different position, we now believe that a formal request is necessary under the Act. A municipality cannot be expected to make special allowance for a condition it does not know exists. That view of the law was set forth by the Seventh Circuit in its decision in the Palatine case. We have adopted this position and incorporated it into our enforcement program.
To repeat, the Supreme Court decided in Edmonds that the Act requires localities to consider, on a case-by-case basis, whether particular groups of disabled people should be allowed to live in particular areas. It doesn't say what the answer should beit simply requires that local governing bodies consider whether the group will fit in and be a good neighbor. If the evidence is that the group will be detrimental, then the locality doesn't have to let it move in. It should be noted that municipalities frequently entertain requests for accommodation in zoning rules in other contexts. All that is required under the Fair Housing Act is that a city take disability into account.
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This Bill also proposes adding a new section to the Fair Housing Act to protect persons who file lawsuits, and engage in otherwise lawful activity, to achieve governmental action. This provision is unnecessary to protect legitimate First Amendment rights and could be construed to hinder efforts to redress discrimination.
The First Amendment protects the right of all citizens to express their views on housing issues by speaking out at public meetings, submitting petitions to government agencies, writing letters to elected officials, or filing legitimate lawsuits. We are working together with HUD to ensure that we do not interfere with legitimate First Amendment rights in our joint enforcement efforts under the Act.
HUD published internal guidelines in 1994 to guide its investigation of cases that implicated First Amendment concerns. The Department of Justice fully supports these guidelines and adheres to the policies stated in them. As a technical matter, they do not bind the Department of Justice and could not, since, in some instances, they address procedures that are unique to HUD. But, I assure you that there is no disagreement between us regarding the principles and policies that govern our enforcement efforts.
Let me clarify what the DOJ and HUD policy means with regard to enforcement actions challenging lawsuits filed as a means of denying housing on a basis prohibited by the Fair Housing Act. Individuals have a right to seek governmental redress through filing legitimate actions in court or before administrative bodies and we will not interfere with that right.
Not all lawsuits, however, are protected by the First Amendment. Courts frequently sanction individuals for filing frivolous, malicious or abusive legal actions. The legal process can be used as an instrument to harass individuals or impede lawful activity. Where it is so used without a reasonable basis in law or fact, penalties and remedies for the harm caused must be available.
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Thus, the filing of lawsuits that lack a reasonable basis in law or fact and seek an illegal objective is not an activity that is protected by the First Amendment. See Bill Johnson's Restaurants. Inc. v. NLRB, 461 U.S. 731, 743 (1983). As the Supreme Court has stated: ''Just as false statements are not immunized by the First Amendment right to freedom of speech, [citations omitted] baseless litigation is not immunized by the First Amendment right to petition.'' Ibid. Where baseless litigation is filed as a means of denying housing opportunities in violation of the Fair Housing Act, it enjoys no more protection than a statement by a landlord to an applicant that he will not rent to the applicant because he or she is black.
The Department of Justice, therefore, will continue to enforce the Fair Housing Act against individuals who file legal actions that lack a reasonable basis in law or fact and seek a discriminatory objective. We will not, however, contend that a meritorious lawsuitor one that reasonably could have been thought to be meritoriouswas filed in violation of the Fair Housing Act. This standard provides ample protection for First Amendment rights while ensuring that we can enforce the Fair Housing Act effectively. Any further restriction on our activities would unjustifiably impair our ability to safeguard housing opportunities for all individuals.
These issues do not arise often in our litigation. Two cases have received the most attention, so let me address them. The first, United States v. Robinson, is a fair housing case filed in New Haven, Connecticut, in 1992, during the Bush Administration. The case involved a mother and her adopted and foster children who wanted to move into a larger home in town but were initially prevented by neighbors from doing so because of a lawsuit brought by the neighbors based on the foster status and disabilities of the children.
Page 41 PREV PAGE TOP OF DOC This mother, a nurse by profession, is a unique individual. She originally took in each of her children as a foster child and then immediately started the necessary proceedings to adopt each one in turn. All of her children had disabilities within the meaning of the Fair Housing Act, were members of a racial or ethnic minority, and came to her as ''wards of the state'' in need of a family home.
The mother therefore provided her children with what Connecticut state law defines as a ''Permanent Family Residence'' (PFR), a residence designed to provide disabled children with care in ''a home environment and family setting.'' Children's residence in a particular PER is permanent, unlike either a standard foster home or group home, and this mother accepted legal responsibility for each of her children.
In order to afford care for her children and to meet their specialized financial needs, the mother in this case established a nonprofit entity known as ''There's No Place Like Home,'' the primary function of which was to assist the family in managing its financial affairs. It allowed all foster and adoptive care payments, grants, and other donations made to assist these handicapped children to be tax exempt.
In early 1992, the mother, whose family at the time consisted of seven adopted children and three foster children in the process of being adopted, was living in a modest home she owned in a mixed residential-non-residential neighborhood of New Haven. She decided that because her house was overcrowded she needed a larger one to raise her children. She found such a home in the Ronan-Edgehill neighborhood, an upscale area in New Haven. the building had previously been a student dormitory residence, housing up to 28 students, and was being sold by a local college. Her March 1992 offer to buy the residence was accepted, and a June 1992 closing date was set. During this interim period, she attempted to secure financing for the new home from the state. The residence was located in a zoning district designated as RS1, which limits residences to single-family dwellings. Under the local zoning ordinance, the definition of the term ''family'' did not expressly include foster children or children in the process of being adopted.
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Community opposition to the family's purchase of the home after the purchase-sale agreement was signed was immediate. Threatening phone calls and correspondence about the disabilities and foster status of the children were received by the college selling the property, the family's realtor and others.
Sometime in mid to late April, 1992, an attorney for some of the neighbors contacted the family's attorney to inquire about the family and their intended use of the property. During this and other subsequent conversations with the neighbor's counsel, the family's attorney explained in detail what a ''permanent family residence'' was under Connecticut law and that the family would be residing in the new residence as would any other normal single family. Also discussed was the fact that the mother was in the process of adopting the remaining foster children and that this fact could be verified by legal papers filed with the state. This same group of neighbors were also told by their own attorney that if this woman and her children were a family, which it appeared that they were, litigation under the local zoning code would most likely be unsuccessful.
Nonetheless, on May 1, 1992, neighbors filed suit against the mother in state superior court, seeking to bar her purchase and occupancy of the residence in alleged violation of the zoning ordinance. On the face of the complaint, they alleged that the mother's proposed use of the residence would violate the zoning ordinance because the family included foster children. The complaint also stated that they would be harmed because, among other things, the presence of ''unrelated'' foster children would ''diminish the attractiveness, value and unique qualities [defendants] have enjoyed and expected from an RS1 zone.'' Verified Complaint at Par. 16(2)(b). In other words, the complaint asserted that the term ''family'' as used in the zoning ordinance, excluded foster children. The Fair Housing Act's definition of ''familial status,'' however, specifically includes a family such as this one. The complaint also sought a Temporary Restraining Order (TRO) barring the family from using the property ''for any use in violation of applicable New Haven Zoning Ordinances.'' On May 18, 1992, the TRO was granted, after the Ronan-Edgehill Neighborhood Association also intervened as a plaintiff.
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As a result of the neighbor's state court lawsuit and subsequent injunction, the State Bonding Commission postponed its vote to approve bond funds to enable the family to purchase the Ronan-Edgehill residence. Such funding was essential to the family's ability to close on the contract to purchase the home. In addition, the Connecticut Department of Children and Youth Services also declined to issue a license to the mother to allow her foster children to reside in the new permanent family home while the lawsuit was ongoing. Moreover, the purchase of the mother's existing residence was also put in jeopardy since she was unable to move out of it and into the new home.
In May, 1992, the mother filed a complaint of housing discrimination with HUD. In June, 1992, HUD referred the complaint to the Department of Justice, which began an investigation. After the commencement of the investigation, the persons responsible for bringing the state lawsuit against the family voluntarily dismissed the case. Later that month, the Department of Justice filed a lawsuit alleging housing discrimination on the basis of familial status and handicap against the neighbors responsible for the state court lawsuit.
While the family ultimately moved into the Ronan-Edgehill residence after dismissal of the state court suit, they did so over two and a half months later than scheduled, with substantial inconvenience, including financial and emotional hardship, to the family.
Because of the controversy, the mother incurred close to $62,000 in legal fees associated with both the state and federal court litigation. Approximately $42,000 of these fees were incurred before the defendants dismissed the state court lawsuit. In June of 1995, the United States and defendants settled the litigation for $30,000.
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The second lawsuit is United States v. Wagner, in which a family of seven in Fort Worth, Texas found themselves being sued by several neighbors because the buyer of their home wanted to house six children with mental retardation. Earlier this year, a federal court in Texas ruled that six of those neighbors violated the Fair Housing Act when they filed that state lawsuit. The court flatly rejected Defendants' argument that their lawsuit was protected by the First Amendment, finding that the lawsuit sought an illegal discriminatory objective and had no reasonable basis in law. Indeed, the Court found that the evidence suggested that Defendants' attorneys filed the lawsuit even though they knew beforehand that both the Fair Housing Act and Texas law permitted the establishment of group homes for persons with retardation in single-family neighborhoods. This case is a good example of the type of lawsuit that we will pursueone in which individuals have sought to impede housing opportunities for individuals with disabilities through pursuing legal action that has no basis in law or fact.
The Department of Justice has never filed a lawsuit against an individual for engaging in activity protected by the First Amendment, such as distributing literature or speaking out in public fore. Only where there has been discriminatory conduct that deprives individuals of housing opportunities have we sought to enforce the Fair Housing Act. Where an individual engages in such conduct, of course, prior statements and actions that would otherwise enjoy First Amendment protection may become relevant evidence in ascertaining the reason for the conduct. Thus, where a landlord refuses to rent an apartment to an African American, it is highly relevant in determining his motivation that he has made racially hostile statements in the past.
S. 1132 would upset the careful balance that we have struck between the need to protect freedom of speech and to ensure that individuals are not denied housing opportunities in violation of the Fair Housing Act. We, therefore, oppose its enactment.
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INSERT OFFSET RING FOLIOS 3 TO 19 HERE
Mr. CANADY. Thank you, Mr. Hancock. I appreciate your comments, and I'm from Lakeland, FL; I represent that area, and the people who were the victims of that act of discrimination were constituents of mine, and I think that the enforcement action taken there was quite appropriate. I think it's an outrage that any citizen would be subjected to that sort of intimidation by someone acting in that way. So, I just wanted to comment on that.
Let me ask you something about the relationship here between the municipal authority and the Fair Housing Act: Is a groupin your view, is a group home composed of unrelated youths under 18 years of age who are institutionally supervised exempt from municipal land use regulation?
Mr. HANCOCK. No.
Mr. CANADY. What sort of restriction may be imposed on such a group home consistent with the Fair Housing Act?
Mr. HANCOCK. Normal zoningthe types of zoning restrictions that are applied in our country vary greatly from jurisdiction to jurisdiction. I note, for example, that you have witnesses today from the State of California and the State of New Jersey. I emphasize to you that you might want to look at whether some of these issues that concern you are the result of the application of the State law or the application of the Fair Housing Act.
Page 46 PREV PAGE TOP OF DOC For example, in both of those States the high courts of those States have interpreted the State constitution as prohibiting municipalities from prohibiting unrelated people from living together. So that in the State of California it's a violation of the State constitutionso says the California Supreme Courtto prohibit a group of unrelated people from living together; that's regardless of whether the people are juveniles, whether they're sex offenders, whether they're convicted felons. That's a matter of State law. It's not a matter of Federal law, and amending the Fair Housing Act wouldn't change that in any way.
Mr. CANADY. Well, let me ask you this: can the number of unrelated individuals inhabiting a group home facility, such as I described, be regulated by a municipality?
Mr. HANCOCK. Yes, but I thinkI have trouble answering it in a vacuumif I could just give an example. If
Mr. CANADY. Well, let meto help me understand it, when could that be regulated? You said, ''yes.'' That's your basic answer; the number can be regulated. When can it be regulated? What circumstances would indicate that it's appropriate to regulate that? And when can it not be regulated? And what circumstances would indicate that that would bethat sort of regulation would be inappropriate?
Mr. HANCOCK. Well, in a jurisdiction like California again
Mr. CANADY. I'm not talking aboutno wait. Now, I'm not talking about that. Now, we're talking about the Fair Housing Act, and I don't want to hear any more about the States; I understand that. I understand State lawand State law, and certain things can be required under State law; that's not what we're here to talk about today. We're here to talk about the Fair Housing Act; just want to make that clear. So, please address that.
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Mr. HANCOCK. All right. This might come up then in a situation where a municipality has a zoning rule that says no more than three unrelated people can live together in a single-family neighborhood. A group home for, let's say, mentally retarded adults seeks to open in that neighborhood and wants to house six people. The zoning laws of the municipality apply to that group home. The Fair Housing Act envisions that the operator of that facility would have a right to ask that jurisdiction to make a reasonable accommodation for the people with disabilities to allow them to live in that single-family neighborhood. The jurisdiction then needs, under the Fair Housing Act, to consider that request to see whether the granting of the request would impose an undue burden on the city and to make a decision as to whether the accommodations should be granted or not be granted.
In many instances since the Fair Housing Act was amended, municipalities have amended their laws to allow group living arrangement for people with disabilities. In some instances, they've placed a cap on the number of people who can live in the facilities, and so long as those caps aren't being used invidiously to exclude group homes, they most likely would be upheld by the courts.
Mr. CANADY. OK. So, whatat what level can a cap, in your view, be imposed?
Mr. HANCOCK. Well, there's no magic number. Generally, jurisdictions have adopted different approaches. I mean, some jurisdictions have set the number at eight, for example
Mr. CANADY. Well, again, I'm not talking about what the various jurisdictions have done; I'm talking about what in your view is legal under the Fair Housing Actexcuse us; we've got things happening on the floor here.
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I apologize. Without objection, I'll give myself 2 additional minutes, and then
Mr. CONYERS. Will it allow all of us to question the witness before we vote?
Mr. CANADY. Yeswell, not beforewell, I won't give myself 2 minutes
Mr. CONYERS. Thank you.
Mr. CANADY. I'llMr. Hancock, can you stay until we get back from the vote?
Mr. HANCOCK. Sure.
Mr. CONYERS. But could I go out of order then, because I won't be able to return, I'm sorry to say?
Mr. CANADY. I'll be happy to accommodate the gentleman, and I'll continue with my questions when we returnif that is acceptable to Mr. Scott.
Mr. SCOTT. I have no objections, Mr. Chairman.
Mr. CANADY. OK.
Page 49 PREV PAGE TOP OF DOC Mr. CONYERS. Thank you.
Mr. CANADY. Mr. Conyers, you're recognized.
Mr. CONYERS. Thank you very much. I just wanted to thank you for joining us, and I see our colleague, the author of the bill, is still in the room, Chairman Canady. Couldn't we invite him to join us here? Would that violate any rules of the committee?
He doesn't choose to? OK.
Mr. Hancock, I just want to help my dear chairman out here. The civil rights aren't about finite numbers. We're talking about discrimination, Chairman Canady. We're talking about illegal conduct based on racism or something, you know, invidious. So, there isn't a magic number here, and I think you shed a lot of light on this.
Now, let me get the drift of your presentation, Mr. Hancock. You're saying that actually, notwithstanding the laws, we don't need to changewe don't need any legislation in front of it because of the interpretations that have gone on around this legislation as it exists?
Mr. HANCOCK. Yes. We believe the law, as currently drafted, is clear.
Mr. CONYERS. Well, expand on that, because we've gotwe've hadthis is the second year of hearings on this measure. We'reI'm going to have to take a little more than your quote to the floor when
Page 50 PREV PAGE TOP OF DOC Mr. HANCOCK. Well, that it does not now provide protection for people, for example, who are sex offenders or convicted felons; there's no provision of the act that would suggest
Mr. CONYERS. Has the Department of Justice ever brought any cases to protect convicted felons or sex offenders from housing battles like this?
Mr. HANCOCK. No, sir. We have filed almost 800 cases under the Fair Housing Act since it was amended by Congress in 1988; none of those address that issue. We think we do a pretty good job of keeping up with all litigation in the country under the Fair Housing Act, and we simply are unaware of any court that has said that those types of persons are protected from discrimination under the Fair Housing Act. Now, perhaps we're missing something, and I'm pleased to look at the list that was submitted to you, but I can tell you that we are unaware, and if there is any such interpretation, it's simply wrong.
Mr. CONYERS. Well, maybe this is one huge miscommunication that's been going on here. I mean, if you're right andhow long have you been in this business?
Mr. HANCOCK. I've been with the Civil Rights Division for 27 years. I've been enforcing the Fair Housing Act since it was amended by Congress, since the handicap provisions were added to the Fair Housing Act in 1989.
Mr. CONYERS. Well, that sounds like you've been in office long enough to get this straight. [Laughter.]
Page 51 PREV PAGE TOP OF DOC A whole lifetime.
Mr. HANCOCK. Not a whole lifetime.
Mr. CONYERS. Matter of fact, you might be eligible to consider retiring before the millennium. [Laughter.]
Now, let me just understand this. Now, maybe there's a miscommunication going on here. If there are no cases here, and yet, my colleague is very concerned and very articulate and very expert on this subjectwhat's the miscommunication that seems to be going on?
Mr. HANCOCK. I have trouble understanding, sir. What I've tried to suggest is perhaps it's a result of State and local laws that allow this type of living. It's not the result of the Fair Housing Act.
Mr. CONYERS. Well, that seems clear enough to mewell, anyway, thanks, Mr. Canady; appreciate that.
Mr. CANADY. Thank you.
Mr. CONYERS. And thank you, Mr. Hancock, very much.
Mr. HANCOCK. Thank you.
Mr. CANADY. Thank you, Mr. Conyers.
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As everyone knows, there's a vote going on on the floor, so the committee will stand in recess so that the members can go to the floor and vote. We will reconvene immediately following the vote.
Mr. CANADY. Due to events on the floor, we're going to continue the recess of the committee until a time certain or as soon thereafter as we can reconvene, given events that are taking place on the floor. That time will be 1 o'clock. So, those who are waiting can have lunch. Again, I apologize for the delay, but this is a matter beyond our control. So, we'll be back at 1 o'clock or as soon thereafter as events on the floor permit. Thank you.
Mr. CANADY. The subcommittee will be in order, and we will proceed, and I'll recognize Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I had questions about the impact of the bill, and I think some of them have been covered.
Mr. Hancock, it's my understanding that convicted felons and sex offenders are not protected under the Fair Housing Act.
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Mr. HANCOCK. That's correct.
Mr. SCOTT. And that those covered in this situation still have to go through the normal zoning process and, hopefully, would get somewhere along the lines reasonable accommodations by way of waiver.
Mr. HANCOCK. Yes. The act does not remove zoning requirements for people with disabilities and including group homes for recovering substance abusers. Again, it's merely recognizing people who are trying to do the right thing and overcome addiction, and the law basically says that, people shouldn't be excluded from a neighborhood simply because they pledge not to use drugs or alcohol. I must say that weand I'm sure that you're going to hear about this later in other testimony because of some of the case law that developedit's our position that the reasonable accommodation provision envisions that those seeking to place group homes in these neighborhoods make a request to do so. That was an issue that was litigated before the Seventh Circuit Court of Appeals in the Palatine case; the seventh circuit saidit thought that your act envisioned a request for reasonable accommodation; we agreed with that when the decision was made, and since that time, which was almost 3 years ago now, we've changed our enforcement program to say that we won't bring cases unless there has been a request for reasonable accommodation. I want to make that clear to everyone
Mr. SCOTT. And part of the process, if the locality determines that it would cause problems in parking, or traffic, or something of that nature, would they still have the right to deny the application?
Page 54 PREV PAGE TOP OF DOC Mr. HANCOCK. Yes, those are all valid considerations that a municipality may take into account in deciding whether the request is reasonable.
Mr. SCOTT. Now, the language in this bill says, ''recovering drug addict''; that would include people thatif it just said, ''drug addict,'' that would suggest that people are engaged in illegal activities. Would they bewould drug addicts be protected under the Fair Housing Act?
Mr. HANCOCK. No, the act now includes a provision that says, people who actively use a controlled substance are not protected by the Fair Housing Act. That's clear from the present legislation, though we have to be careful when we enforce this law that when we bring cases, we're bringing it on behalf of groups that are in sober living arrangements.
Mr. SCOTT. So, that if someone was recoveringand as I understand the literature on this, they consider themselves recovering for the rest of their livesso, if someone used to be a drug addict and is no longer a drug addict, if this bill were to pass, they would not be covered if you have ''recovering'' as an adjective?
Mr. HANCOCK. Yes, it's somewhat counter-intuitive that we would use our fair housing laws to exclude people from neighborhoods because they decided not to use drugs or alcohol any longer. It just doesn't make much sense.
Mr. SCOTT. Now, the next part is on the free speech part of the bill. The language, in my judgment, seems a little overbroad when it says, ''Nothing in the act should be construed to apply to any otherwise lawful activity'' and then, ''including filing suits and testifying beforetalking to your government officials.''
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What otherwise lawful activity is proscribed byand this proscription applies in the act, not just to the provisions of this law, of this billwhat otherwise lawful activities do you proscribe that would be allowed if this language were to pass?
Mr. HANCOCK. Well, let me say to start, if I could, Representative Scott, that we certainly hold the first amendment dear to our hearts; we're civil rights lawyers; that's an important civil right principle.
What we're concerned about here is that this just goes too far. We understand wherethe evolution of it; we understand the need to let people speak their mind. But what this means, for example, by saying, ''It includes the filing or maintaining of a legal action to achieve or prevent action by a government entity or official,'' the literal language of that would mean that people could enforce racially-restrictive covenants that were enforced in a State court proceeding. They ask for a decision by a government official; they meet the definition of this term. That takes us back a long way in the enforcement of civil rights laws. But even more recently, while racially-restrictive covenants haven't been enforced today, we often
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. HANCOCK [continuing]. We often do experience cases of discriminatory evictions where minorities are evicted from housing for racially discriminatory reasons. Landlords, housing providers who seek to evict someone normally use a State judicial process to do that. This bill would seem to protect
Page 56 PREV PAGE TOP OF DOC Mr. SCOTT. Well, other than filing suits and contacting government officials, are there any other otherwise lawful activities thatbecause it says,''including,'' not ''such as.''
Mr. HANCOCK. Well, we would agree with this provision to the extent that it concerns leafleting, speaking at public hearings, speaking on the street corner; even the case I gave you in Lakeland, FL, where the neighbor said, ''I just wanted to let you know I'm prejudiced, and I hate black people.'' While we might find that obnoxious, that's protected by the first amendment. But it's the conductwhen speech turns into conduct inthe judicial process can be used to intimidate people.
Mr. SCOTT. Well, outside of the judicial process, are there any otherwise lawful activities that could create, for example, a hostile atmosphere, and run people out of the community or otherwise discriminatebecause it says, ''otherwise lawful activity.'' If it's otherwise lawful but for this act, then the act obviously doesn'twith that exceptionisn't covered.
My question is, what is an otherwise lawful activity that would be proscribed other than filing suits and testifying before committees? Are there otherwise lawful activities that have been proscribed under the act?
Mr. HANCOCK. I can't say that I know the intent underlying that. I'm not sure what the purpose of that language is.
Mr. SCOTT. The word that I think is most problematic is on line 14 where it says, ''including,'' not ''such as.'' And so, I mean, you might as well cross out everything including afterwards and say, ''Nothing in this act shall be construed to apply to any otherwise lawful activity engaged in by one or more persons.''
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Thank you, Mr. Chairman.
Mr. CANADY. Thank you.
Mr. Hancock, we thank you for being here, and in the interest of time, and the fact that our witnesses have been waiting so patiently in the remaining panel, I'm not going to continue with you. We may have some additional questions which we would submit to you in writing, and we would appreciate your responding to those.
But I appreciate your patience in being with us today and waiting for the continuation of the questions with you. Thank you very much.
Mr. HANCOCK. Thank you, Mr. Chairman, and we'd be happy to provide answers to your questions in writing.
Mr. CANADY. I appreciate that very much.
We are now going to go to our third panel of the day, and I'd like to ask that those who are on the third panel come forward, and take your seats.
And I will apologize, again, to each of you for the delay that took place due to matters beyond our control.
On our third panel we will hear, first, from Carol Clark. Ms. Clark is a member of the National League of Cities Board of Directors. In addition, she serves as a city councilmember for the city of East Orange, NJ.
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Secondly, we'll hear from Thomas Burney, an attorney specializing in the field of zoning and governmental land use regulation. Mr. Burney's experience with the Fair Housing Act includes his successful representation of the Village of Palatine against charges brought by HUD and the Justice Department that Palatine had engaged in housing discrimination. Mr. Burney has written extensively for the Illinois Municipal League's publication on recent developments in the Fair Housing Act and has spoken on land use and government regulation.
Next, we will hear from Henry Tews, founder and director of Serenity House and an instructor at the College of DuPage. Mr. Tews is also the founder and director of the first licensed halfway house and comprehensive treatment center for adult men and women suffering from alcoholism in DuPage County.
The final witness on the third panel will be the Honorable Susan Golding, mayor of San Diego. I understand that Mayor Golding is on her way to join us. Before being elected mayor in 1992, the mayor chaired the San Diego County Board of Supervisors, served as deputy secretary of Business, Transportation and Housing for the State of California, and was a member of the San Diego City Council.
Without objection, your written testimony will be made a part of the permanent record. I would ask that each of you do your best to summarize your testimony in 5 minutes. Again, we thank you for being with us.
Page 59 PREV PAGE TOP OF DOCSTATEMENT OF CAROL Y. CLARK, CITY COUNCILMEMBER, EAST ORANGE, NJ, AND MEMBER, NATIONAL LEAGUE OF CITIES BOARD OF DIRECTORS
Ms. CLARK. Good afternoon. Mr. Chairman, Mr. Scott, and other members of the committee. Thank you for inviting me to testify on H.R. 589, the Fair Housing Reform and Freedom of Speech Act of 1997. I am Carol Clark, a councilmember from the fifth ward in East Orange, NJ, and a member of the Board of Directors of the National League of Cities.
I am here today to testify on behalf of NLC and to share with you the situation in my community as it related to siting of group homes. I believe that you can help my city of East Orange, NJ, and thousands of other cities throughout the country that are trying to balance the overall needs of their communities.
As a local elected official, I am working and fighting every day to try to preserve some semblance of a safe and stable quality of life for the residents of East Orange. We need the Federal and State government to be partners with us in our effort to rebuild our cities and improve the quality of life for the residents we were all elected to serve.
As I will explain in my remarks, despite my best efforts to find out, I have no idea how many group homes are located in East Orange, and I have never received any notice, while I was a sitting member of council, prior to the siting of a home.
I just ask you to try and think back for a moment when you were growing up in your communities and the sense of community that you have, and please understand my concern and my, I guess, anguish when I can't find out what's going on in terms of siting of group homes.
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In speaking recently with the New Jersey State Municipal League director, he said that ''This is a very emotionally-charged issue in our State and, indeed, throughout the Nation. It's imperative for municipalities to preserve local planning and zoning authority. We must also ensure that appropriate certificates of need be issued by health departments, et al., to preserve local oversight.''
As far as one can discern, in New Jersey the only stipulations placed on group home sitings are: one, that they not be located closer than 1,500 feet from one another; and two, that a municipality can deny entrance into the community if the maximum number of allowable people in a city's group home is exceeded. And the you would calculate that would be based on your town's total population.
However, getting factual information about group homes is a very difficult challenge for me in East Orange. This councilperson checked with the State Department of Community Affairs and Housing; I tried unsuccessfully to contact the Department of Youth and Family Services' Division of Licensing, and I asked our town zoning officer and our law department in an attempt to compile some factual data for you today.
Astonishingly, no one had the information that I requested. All I wanted was a list of State of New Jersey-approved and licensed group homes in the city of East Orange and a description of the various types of homes. I couldn't figure outwhy would this be a very difficult thing? Surely, somebody or some agency had this information. After all, they don't have to come before our local zoning board or our local zoning officer to get approval; they can just cite them. That's the way it is in New Jersey.
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I have some data, however, for you and that is that East Orange is 3.9 square miles; we have an average per capita income of approximately $14,000 per year, and our population is about, roughly, 80,000 people; 98 percent of our residents are African-American.
Our city has about 10 group homes that we know of or that I could figure out. One is a halfway house for men, and it was only after my motherwho is with me this afternoona retired State correctional officer, got wind of the news from general conversation that we learned of the siting of this halfway house; no one ever stopped to consider the implications of locating this type of group home in a somewhat depressed spot in our town or the impact it could have on the kids in the neighborhood.
I would always say, ''There, but for the grace of God, go I.'' No one is suggesting, necessarily that group homes not exist, just that you not preempt local zoning authority in doing it. Allow local municipalities to have some say in it. Require that the agencies that want to site them come before local zoning officials to get the approval for this, and maybe work out a spot for where it should go if it's going to go there.
In the fifth ward, which I represent, a group home was sited in the middle of a block that had received citations from our Historical Preservations Society. The homes on that block are among some of the largest and most spacious in the entire city. Needless to say, the residents were up in arms; they were incensed, but our hands on city council were tied as a result of that.
As I read H.R. 589, I believe it would allow my city to determine the number of unrelated persons permitted to live in a group home in a single-family neighborhood. This would not provide much relief for East Orange as most of our neighborhoods are both single and multifamily. This change would be welcomed by thousands of cities, and if you broaden it, as I have suggested, it will find even more support.
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The bill would also address the issue of proximity. This, I assume, would allow a city to require that group homes be sited a minimum number of feet from each other. We have a 15-foot spacing requirement in New Jersey, as I already indicated, and so this might increase the spacing requirement some. It would contribute very little to addressing the concentration, however, of group homes in East Orange as they're already there.
Currently, we must meet the Fair Housing Act standard which determines discrimination based on disparate impact. Therefore, no city or State can impose use restrictions that would exclude a group home. H.R. 589 would allow exclusion of homes for convicted felons, sex offenders, and recovering drug addicts if the purpose of the restriction is to restrict land use to single-family dwellings. This is certainly a step in the right direction.
I do believe that H.R. 589 would interject some common sense into a municipality's ability to decide on siting group homes in single-family residential neighborhoods, but I would encourage you to broaden the definition of a residential neighborhood to include both single- and multi-family homes, as we have in my city.
Even with these positive changes, this still leaves open some other uses which may not be appropriate in certain areas of a city. For example, as I mentioned earlier, siting a halfway house in a depressed area of a neighborhood is probably not the best location for the occupants or for the residents of that particular neighborhood.
NLC believes that there is a need to balance considerations of a municipality, its residents, and the neighborhood with the benefits to the group home's residents. We would encourage the committee to consider including language that would require fair and even distribution of group homes throughout a city's residential communities. This would help avoid concentration of these homes in particular areas and would find them sited in neighborhoods across a community and other towns. As I indicated, we're a tiny town, and we already have 10. I would hate to think that my town would be singled out as the town of preference for group homes as other towns would never be considered for that. I don't think that that's what you intended here in Congress at all for that.
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Attached is NLC's policy which relates to local zoning authority and land use principles. Also attached is a resolution which speaks to guidelines for housing accommodations for persons recovering from alcohol and drug abuse.
Please let me just summarize quickly by saying that our zoning andby saying that NLC opposes Federal preemption of local zoning and land use authority. The league also opposes the use local zoning and land use authority to advance or condone discrimination of any kind. It is our belief that equal housing opportunities for all and full zoning and land use authority for local governments are not incompatible public policies. Municipalities can maintain their governing authority, and at the same time, ensure that the exercise of zoning authority neither intentionally or unintentionally produces discrimination.
I think in all earnestness that this isn't a partisan issue, and this is just an issue that cities are humbly requesting of our distinguished legislators here in Congress that you work with us as partners. Help us to maintain our local authorities, and help us to codify and clarify exactly what you meant by the Fair Housing Act.
Let me thank you for this opportunity to testify today. It was a special privilege. I'll be pleased to answer your questions now or as time permits or in writing, if you would like, following this hearing. Thank you so much.
[The prepared statement of Ms. Clark follows:]
PREPARED STATEMENT OF CAROL Y. CLARK, CITY COUNCILMEMBER, EAST ORANGE, NJ, AND MEMBER, NATIONAL LEAGUE OF CITIES BOARD OF DIRECTORS
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Mr. Chairman, and Members of the Committee: Thank you for inviting me to testify on H.R. 589, the ''Fair Housing Reform and Freedom of Speech Act of 1997.'' I am Carol Clark, a Councilmember from the 5th Ward in East Orange, New Jersey, and a member of the Board of Directors of the National League of Cities (NLC).
I am here today to testify on behalf of NLC and to share with you the situation in my community as it relates to siting of group homes. I believe that you can help my City of East Orange, N.J., and thousands of other cities throughout the country that are trying to balance the overall needs and priorities of the citizens of their communities. We believe you could amend federal laws to ensure some protections so that communities are not overwhelmed with group homes without full disclosure and to restore some authority to the host local governments.
My fear, as a former chairperson of my City Council's Health, Education and Welfare and Public Safety Committees, and current chairperson of our Art, Culture and Recreation Committee, is that our City, which is struggling with a number of social and financial issues common to urban areas, is or will become the location of preference for group home facilities without our consent. As I will explain in my remarks, despite my best efforts to find out, I have no idea how many group homes are located in East Orange, and I have never received any notice prior to a siting of a home.
As a local elected official I am working and fighting everyday to try to preserve some semblance of a safe and stable quality of life for the residents of East Orange. We need the federal and state governments to be partners with us in our efforts to rebuild our cities and improve the quality of life for the residents we were all elected to serve.
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Each of us, the President, Senators, Representatives, Justices, Governors, Councilpersons live in cities. Just remember for a moment what it was like for you growing up in your home town before you became a distinguished legislator. Then try to empathize with me for a moment about the anguish I feel when, as a local legislator, I can't have input in a matter so central to families and communities as the siting of group homes. I can't even find out how many homes are in my city, nor does the state provide notice when it decides to issue a special use permit for a group home that will locate in my community.
I do not believe that you, in your infinite wisdom, intended for the Fair Housing Act to eliminate the power of local municipal authorities to shape their communities while considering and balancing the needs of everyone.
The National League of Cities is a nonpartisan organization which represents some 150,000 elected officials from 16,000 cities and towns throughout the country. Like each of you, our responsibilities are to all the residents in our communities, and we respond to their concerns daily.
The League strongly supports fair and equal treatment for all persons. However, there are times when we go so far to ensure fair treatment for certain individuals and groups that the results may be counter productive. We are especially concerned where federal and state actions may interfere and preempt the right and authority of local governments to address the needs and safety of our constituents. This, I believe, is what has happened as a result of the Fair Housing Act.
I am not a student of the Fair Housing Act, but I do know it has brought both positive changes, as well and significant problems to cities like mine. Let me share with you the situation we face throughout New Jersey as well as in my City of East Orange.
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Pursuant to N.J. Statutes Annotated 40:55D66.1, in the State of New Jersey local municipalities have no control over siting of group homes. State municipal land use laws allow for ''specially permitted use'' under state law and licensing. There is no central agency in Trenton that deals with siting or licensing group home facilities; it is fragmented throughout many different departments, each with authority to issue a license.
As you can imagine, this makes it very difficult for the local municipality to keep track of these facilities and to monitor them. It makes it impossible for us to balance the needs and priorities of our neighborhoods.
In speaking recently with the New Jersey State Municipal League director, he said, ''This is a very emotionally charged issue in our state and indeed throughout the nation. It is imperative for municipalities to preserve local planning and zoning authority. We must also ensure that appropriate certificates of need be issued by health departments et al., to preserve local oversight.''
As far as one can discern the only stipulations placed on group home siting in New Jersey are:
1) That they not be located closer than 1500 feet from one another; and
2) That a municipality can deny entrance into the community if the maximum number of allowable people in a city's group homes is exceeded. This is based on a town's total population.
Page 67 PREV PAGE TOP OF DOC Getting factual information about group homes is a difficult challenge in East Orange. This Councilperson checked with the State Departments of Community Affairs and Housing; I tried unsuccessfully to contact the Department of Youth and Family Services' division of licensing; and I asked our town zoning officer and our law department in an attempt to compile factual data for this testimony.
Astonishingly, no one had the information I requested. All I wanted was a list of State of New Jersey approved and licensed group homes in the City of East Orange and a description of the various types of homes. How hard could it be to find this information? Surely, someone, some agency in the state must have a list compiled by county and by city. After all, you don't have to answer to the local governing body or zoning official, so pertinent information on group home locations and their occupants must be documented and on file somewhere. Well if they are, as of this writing I cannot find them.
However, on my own I have pulled together some facts:
East Orange occupies 3.9 square miles and the average per capita income is approximately $14,000 per year. The population is about 80,000, and 98 percent of our residents are African American.
Our city has about 10 group homes that we know about. One is a halfway house for men. It was only after my mother, a retired State Correctional Officer, got wind of the news from general conversation that we learned of the siting of this halfway house. No one ever stopped to consider the implications of locating this type of group home in a somewhat depressed spot in town or the impact it could have on the kids in the neighborhood.
Page 68 PREV PAGE TOP OF DOCIn the 5th Ward which I represent, a group home was sited in the middle of a block that had received citations from the Historical Preservation Society. The homes on the block are among some of the largest and most spacious in the entire city. Needless to say, the residents were incensed, but the city council's hands were tied by the law.
As I read H.R. 589. I believe it would allow my city to determine the number of unrelated persons permitted to live in a group home in a single-family neighborhood. This would not provide much relief for East Orange as most of our neighborhoods are both single-and multifamily. This change will be welcomed by thousands of cities, and, if you broaden it as I have suggested, it will find even more support.
The bill would also address the issue of proximity. This, I assume, would allow a city to require that group homes be sited a minimum number of feet from each other. We have a 1500 foot spacing requirement in New Jersey now, so this might increase the spacing requirement some, although it would contribute very little to addressing the concentration of group homes in East Orange.
Currently, we must meet the Fair Housing Act standard which determines discrimination based on disparate impact. Therefore, no city or state can impose use restrictions that would exclude a group home. H.R. 589 would allow exclusion of homes for convicted felons, sex offenders and recovering drug addicts if the purpose of the restriction is to restrict land use to single family dwellings. This is certainly a step in the right direction.
I do believe that H.R. 589 would interject some common sense into a municipality's ability to decide on siting group homes in single-family residential neighborhoods, but I would encourage you to broaden the definition of a residential neighborhood to include both single- and multifamily homes as we have in my city. To do otherwise might unreasonably impose an even greater burden on neighborhoods in cities with multifamily homes.
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Even with these positive changes, this still leaves open some other uses which may not be appropriate in certain areas of a city. For example, as I mentioned earlier, siting a halfway house in a depressed neighborhood is probably not the best location for the occupants or for the residents of the depressed neighborhood.
NLC believes that there is a need to balance considerations of a municipality, its residents, and the neighborhood with the benefits to the group home's residents. We would encourage the committee to consider including language which would require fair and even distribution of group homes throughout a city's residential communities. This would help avoid concentration of these homes in particular areas and would find them sited in neighborhoods across a community.
The League is pleased by the direction of the courts as it pertains to ''reasonable accommodation.'' The courts have ruled that among the ''rules, policies and practices'' that are subject to the reasonable accommodation requirement are zoning and land use ordinances of municipalities. This gives municipalities the opportunity through a standard process to gather the information they need to issue special use permits and variances and to maintain reasonable control over use in their communities.
Attached is NLC's policy which relates to local zoning authority and land use principles. There also is attached Resolution No. 9710, ''Guidelines for Housing. Accommodations for Persons Recovering from Alcohol and Drug Abuse.''
Let me summarize briefly our zoning and land use policies. NLC opposes federal preemption of local zoning and land use authority. The League also opposes the use of local zoning and land use authority to advance or condone discrimination of any kind. It is our belief that equal housing opportunities for all, and full zoning and land use authority for local governments are not incompatible public policies. Municipalities can maintain their governing authority and at the same time ensure that the exercise of zoning authority neither intentionally or unintentionally produces discrimination.
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Let me thank you for this opportunity to testify today. I will be pleased to answer your questions now as time permits and in writing following this hearing.
INSERT OFFSET RING FOLIOS 20 TO 25 HERE
Mr. CANADY. Thank you, Ms. Clark.
STATEMENT OF THOMAS R. BURNEY, ATTORNEY, VILLAGE OF PALATINE
Mr. BURNEY. Thank you, Mr. Chairman and Mr. Scott. This is my second opportunity to address you, and I appreciate it.
I'm the village attorney for the village of Palatine, and I'm here to express the village's concerns over some very serious issues involving the Fair Housing Act, its construction, and its impact on the local municipalities ability to regulate these kinds of uses.
As Ms. Clark saidand maybe some of you are wondering, this question about Federal preemption of local zoningwe've heard from Mr. Hancock that that's not the case, that reasonable accommodation is the issue, but what my remarks are going to be addressed to is that Federal preemption is being pursued, in my opinion, by the Department of Justice by exaggerating the meaning of the term ''handicap,'' by exaggerating the meaning of the term ''family,'' and I think now, most recently, by exaggerating the termthe meaning of the term, ''familial status.''
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My remarks discuss how I've been deeply involved in these obvious issues on two separate occasions. We represented the village of Palatine; I can tell you, in connection with that, that Oxford House and the Department of Justice, really pursuing that lawsuit against the village of Palatine, pursued a line of argument that the Oxford House was the functional equivalent of a family; that it's no different than a biological family. The seventh circuit wanted to address the issue ofthat, in fact, you have to exhaust your administrative remedies, that a precondition to claiming that there isn't a reasonable accommodation is that you have to ask the municipalities in the first place, and you have to go through their constitutionally-provided procedures before you can claim that a municipality's depriving you of your rights.
Another issue is this question of whether a group of unrelated persons is the same as the biological family, and Justice Manion spoke on it, and his quote is cited in my materials. The eighth circuit in connection with the St. Louis case also spoke on it, and those two courts have said it's different. A biological family, a family of natural persons, is completely different than a group of unrelated persons, whether they're handicapped or unhandicapped. In my judgment, in not only Palatine, but in the efforts that the Department of Justice has been asserting over these years, they have taken the position that ''family'' includes groups of unrelated persons who have handicaps, and I think that that's clearly erroneous.
Second of all, in terms of an attempt to preempt a local regulation, what constitutes a handicap? And I think it was you, Mr. Chairman, whoand I'm not sure if I have your formulation right, but a handicapped person is somebody whose disability is caused by something that's not of their own doing, but I see in arguments advanced by the Department of Justice in positions that they've supported in other States and in the courts that they are taking a position that juvenile delinquents, children who are suffering from drug use, not recovering, are handicapped, and if I follow what in the Oregon caseand I've attached Ms. Knox's letter, and I referred to it the last time I was herethat the line of argument that I believe that they're pursuing is that, because somebody has repeatedly violated the law, that they have a learning disability, because they haven't learned that to continue to violate the law isdidn't learn it; that's a learning disability; that's a handicap. Therefore, a group of unrelated persons who are living together in a group setting fall within the definition of ''handicap,'' and that a municipality is obliged to grant them a reasonable accommodation.
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I think that the Bilbray bill focuses attention on this problem, and I think that as this committee sits down to mark it up, if you would look at the definitions of ''family,'' ''familial status,'' and a definition of ''handicap,'' that municipalities and the Department of Justice will stop warring with each other, because we'll all know what the rules are.
I was sitting, preparing my remarks on Friday, and I was like, ''The definition of familywhat is the definition of family in the act?'' And it was like, whatI wanted to knock my head against the wallit's like, ''Why didn't I look at that?'' Do you know what the definition of family is? It reads, ''Includes a single individual.'' Now, what does that tell us? That's all it says, ''Family includes a single individual.'' There's lots of technical definitions about what ''familial status'' means, but ''family'' has been left tobecause we all assume that we know what a family is, and so I would respectfully suggest that, as the committee takes this bill up, that it deal with the age-old question of what a family is. I believe that the seventh circuit and the eighth circuit have given this committee and Congress very good guidance on what a family is.
In the rest of my remarks I have takenI've presented to the committee what I believe to be a different set of what Congress and Mr.I'm sorry, what Mr. Hancock and the Justice has presented to this committee as to what the law is and positions that they've taken in the courts.
There's a Bellevue decision that I think is very disturbing. I didn't handle the case, and I'm obviously just trying to get up to speed on it, but I believe that it can stand for the proposition that an unrelated group of youths, under 18 years of age, who have juvenile delinquency problems, that for a municipality to attempt to regulate them any differently from a family, a nuclear family, is to subject a municipality to claims of intentional discrimination. Now, I can't believe that Congress ever intended thatthat there is a difference between a biological family and a group of unrelated persons whether they be youths under 18 or adults over 18. I believe that ''familial status'' is a term that's confusing that debate, and I would ask you again, the committee, to look into that and, as it marks this up, to try to address that issue.
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I think, just to conclude, Mr. Ishimaru, when he was here the last time, suggested that the courts are a good place to work this out. You know, I really don't believe that it is. Very few municipalities can afford to take these kinds of fights on. The Government's represented by the very best attorneys, and we all know what lawyers can do in terms of taking words of Congress. I think what's been going on here, is that there's been legislatingthey're legislating through the courts in terms of the meaning of ''handicap'' and in terms of the meaning of ''familial status'' and in terms of the meaning of ''family.'' I think that it needs to be corrected.
Mr. Bilbray's bill focuses the committee's attention to permit Congress to straighten this out, and for those reasons, I support the Bilbray bill, and I ask Congress to move forward to correct these things, so that municipalities under tax caps, like ours in Illinois, don't have to continue to face these kinds of expenses and the uncertainty of whether they're intentionally discriminating against groups of people who we all recognize are not biological families and what we all mean.
Thank you very much.
[The prepared statement of Mr. Burney follows:]
PREPARED STATEMENT OF THOMAS R. BURNEY, ATTORNEY, VILLAGE OF PALATINE
Page 74 PREV PAGE TOP OF DOC Honorable Chairman and Subcommittee members, I am the Village Attorney for the Village of Palatine, Illinois, and am here to express the Village's concerns over some very serious issues involving the Fair Housing Act, the construction of the same and its impact on local municipal land use regulation of homes for unrelated persons. My testimony is directed to what I perceive to be a gross exaggeration of the scope and affect of the 1988 amendments which are resulting in serious consequences on the ability of local government to enforce valid restrictions on the use and occupancy of single family residences within municipal borders.
My basis for familiarity with the problem comes from two specific experiences. In the first, as the legal counsel to the Village of Palatine, I represented the Village in legal challenges brought by the Department of Housing and Urban Development (''HUD'') and the Department of Justice (''Justice'') challenging the Village of Palatine's insistence on applying its local land use restrictions to an occupancy by the Oxford House, an organization for recovering alcoholics and drug abusers. In the second instance, I represented the City of Oregon as special counsel to that community to defend them in an investigation conducted by HUD.
Neither of these communities have any pending actions before any Federal executive agencies, the Department of Justice or the courts and, therefore, my remarks today cannot be construed as attempting to obtain congressional relief from a problem I am currently representing a client on. I can provide the Committee with insight based on these two experiences of what I perceive to be Federal agency, the Department of Justice and the proponents for the handicapped exaggeration of the intent, the scope and the affect of the Fair Housing Act and, particularly, 3602, 3604 and 3607.
The amendments to the Fair Housing Act have been in affect for over eight years and a track record has developed as to what the advocates of this law claim to be its scope and affect. That track record is evident from the lawsuits that have been litigated, the number of District Court and Circuit Court opinions on the subject and the countless investigations that have been conducted by HUD and the Department of Justice.
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My perspective is from a lengthy involvement in two such investigations, one of which only resolved itself in the Seventh Circuit Court of Appeals. In the course of these assignments, I have attempted to keep abreast of the District and Circuit Court opinions involving this issue.
II. GENERAL CONCLUSIONS
I have come to the conclusion that the advocates of this law both in and out of government have impermissible attempted to expand the scope and extent of the Fair Housing Act and the 1988 Amendments by:
Improperly asserting that the term ''handicapped'' as that term is defined in 3602(h) applies to a far more expansive group of individuals with behavioral problems than the law was meant to cover.
Improperly asserting that the term ''familial status'' as defined in 3602(k) applies to a far more expansive group of ''unrelated person'' living arrangements than the law was intended to cover.
Impermissibly attempting to treat the amendments as a congressional delegation of the federal pre-emptive power over local zoning to ''handicapped'' groups.
Impermissibly attempting to treat the amendments and particularly, the ''familial status'' provisions of the Act as a congressional delegation of the federal pre-emptive power over local zoning to any supervised group of unrelated persons living together who are under 18 years of age.
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Erroneously asserting and acting as if the fundamental requirement of exhausting one's administrative remedies before local units of government has been eliminated.
Because such groups claim to be the ''functional equivalent of a family'' they have asserted that life safety restrictions found in National Building Codes like BOCA pertaining to housing arrangements of unrelated persons do not apply to them.
As a result, fire prevention officials are uncertain of whether they can require hardwired fire systems, sprinklers and the like to these group home living arrangements when it is clear that but for the claim of ''handicap'' or ''familial status'' such fire safety equipment is deemed to be the minimum requirements necessary for housing arrangements of unrelated persons.
A number of lawsuits and controversies have been spawned over this issue.
Federal officials and handicapped advocacy groups under the rubric that 5 or 8 or 11 or 15 or more unrelated individuals are the ''functional equivalent of a family'' (oftentimes a living arrangement that is without full-time professional supervision) or under the rubric of ''familial status'' assert that such living arrangements are not subject to facially neutral requirements that apply equally to all living arrangements of unrelated persons because of ''economic'' hardships of the ''handicapped'' group.
HUD and Justice have provided direct and indirect legal support to handicapped advocacy groups who have asserted such mistaken principles.
Page 77 PREV PAGE TOP OF DOC Members of the Constitutional Subcommittee, I do not believe that these are the results and effects that Congress intended when it adopted these amendments to the Fair Housing Act. I have concluded and I recommend to you that the law be amended to cure these consequences.
When I testified before you last September, I took great exception to the written remarks of Mr. Ishimaru, counsel to the Assistant Attorney General when he stated,
The courts have shown that they can recognize those situations and deal with them appropriately.
It is up to the courts to make the distinctions and they have shown that they are up to the job.
I believe those remarks if they represent HUD's and Justice's approach are ill advised. From firsthand experience, I can tell you that Palatine, a community of 42,000 people (at the time) and Oregon, a little town nestled on the banks of the Rock River of less than 4,000 people, had to spend a lot of money and other resources to defend themselves. These are resources that need not have been spent and efforts that need not have been expended. Waste of scarce municipal resources is the direct result of letting the courts ''sort it out''. An extreme example of this is the Justice Department's position on the exhaustion requirementthe principle issue in the Palatine decision.
III JUSTICE'S POSITION ON REQUIREMENT OF EXHAUSTION IS AN EXTREME EXAMPLE OF A WASTE OF PALATINE'S RESOURCES TO DEFEND ITS LAWFUL ACTIONS
By way of background, with regard to Oxford House, as it's self proclaimed structure, it requires that Oxford House residences be established in residential areas with no professional supervision. Oxford House claims that the residents live together ''as a family.'' The number of residents of any particular house depends upon Oxford House's determination of what it will cost to pay the bills. In a Federal publication, one of the founders of Oxford House stated as follows:
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As a matter of practice, Oxford House, Inc. does not seek prior approval of zoning regulations before moving into a residential neighborhood. It considers itself no different from a biological family and its members just move into any suitable house.
(Self-run, Self-supported houses for more effective recovery from alcohol and drug addiction, U.S. Department of Health and Human Services, Technical Assistance Publication Series No. 5, DHHS Pub. No. (ADM.) 921678, page-30).
In Palatine, Oxford House moved 11 individuals into a home in a residential area. The residency of 11 unrelated, unsupervised people in this house violated Palatine's zoning ordinance. When Palatine officials advised Oxford House officials that they should ale for a special use, Oxford House refused to do so and took the Palatine's insistence that Oxford House file an application for a special use as the denial of a request for a reasonable accommodation and a violation of the Fair Housing Act.
When Palatine bled an action to enforce its zoning regulations in state court, Oxford House filed a complaint with HUD that Palatine was violating the Fair Housing Act. HUD then invoked the Prompt Judicial Action provision of the Act and the Department of Justice bled a lawsuit in Federal court to enjoin Palatine from enforcing its laws until the completion of the HUD investigation. The court entered a restraining order against Palatine which, after a three day hearing, became a preliminary injunction.
Palatine appealed the trial court's injunction order to the Seventh Circuit. In October, 1994, over one and one-half years after HUD began its ''investigation,'' the Seventh Circuit reversed the trial court's decision and held that a municipality must be given the opportunity to accommodate a group home's request through the municipality's established zoning procedures for adjusting zoning before the group home can complain that the municipality's actions have violated the Fair Housing Act's requirement for a reasonable accommodation. United States v. Palatine, 37 F.3d 1230 (7th Cir. 1994).
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In his concurring opinion in the Seventh Circuit decision, Judge Manion graphically demonstrated how the Fair Housing Act, if blindly enforced by the Federal government can be used to subvert the rightful authority of a municipality. As Judge Manion stated:
Of course, had the Oxford House not disregarded the law in the first place, there would be no residents illegally living in the house who could be stigmatized. In seeking affirmance of the preliminary injunction, the Oxford House also emphasizes the harm its residents would suffer if displaced. Any such harm is the Oxford House's own doing; again, had the Oxford House not prematurely moved the occupants into the house, no displacement would occur. Id. at 1235.
Has HUD (or Justice) learned anything from this decision? Probably not: On June 19, 1995, in response to a request that HUD dismiss a complaint filed by a group home not affiliated with Oxford House against the City of Oregon, Illinois, HUD stated:
Additionally, it is HUD's position that the court's ruling in The United States v. The Village of Palatine, Illinois, 37 F.3d 1230 (7th Cir. 1994), in which it held that Oxford House was required to apply for a zoning variance or a special use permit prior to asserting a cause of action of failing to reasonably accommodate a complainant's handicap was premature, is not applicable to the case at hand. Even if the City rezoned the complainant's realty for nondiscriminatory reasons, given the level of opposition that Mr. Harkema encountered from the community, applying for a special use permit would have been manifestly futile. Therefore, HUD is of the opinion that the complainant does not lack jurisdiction because the complainant failed to exhaust all local remedies. (See Attachment A.)
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In Palatine, the Federal government encouraged and supported Oxford House in ignoring the law. It allowed the Fair Housing Act to be misused in an attempt to force Palatine to abdicate its responsibilities to provide due process for all its residents.
In Oregon, HUD's director pointedly suggested,
It should be noted that, in HUD's estimation, the complainant may also lawfully name the Illinois Department of Children and Family Services and the School Board that is governing the education of Oregon's children as a Co-Respondents. However, at this point, it should be emphasized that the complainant is not seeking to further complicate this matter and is, in good faith, attempting to reach an amicable solution to the problems that have been raised in this complaint.
IV. HUD AND JUSTICE'S CONSTRUCTION OF THE TERMS ''HANDICAPPED'' AND ''FAMILIAL STATUS'' ARE FAR BROADER THAN CONGRESS INTENDED
My experience representing the City of Oregon and my review of the recent Bellevue decision(see footnote 1) convinces me that HUD and Justice are attempting to stretch the common sense meaning and the definitions of the words ''handicapped'' and ''familial status'' as used in the Act beyond reason and common sense. In fact what HUD, Justice and the handicapped advocacy groups are doing is attempting to legislate through the courts.
Page 81 PREV PAGE TOP OF DOC In the Oregon experience, the letter from HUD's local Director identifies the lengths to which HUD is going in construing the term ''handicapped''. As attorneys for the City of Oregon, we argued that HUD should dismiss the complaint as the proposed inhabitants of the complainant's transitional living center (children identified by DCFS for various reasons including family problems, etc.) were not members of a protected class because they do not meet the definition of handicapped status as defined under the Fair Housing Act. Ms. Knox writing on behalf of HUD advised that the Department disagreed with that conclusion. A copy of her reasoning is found in Attachment A at pages 1 and 2. In relevant part, Ms. Knox on behalf of HUD argued that emotional or mental illness and specific learning disabilities, emotional illness, drug addiction and alcoholism other than an addiction caused by current illegal use of a controlled substance constitutes a handicap under the Act and therefore the proposed inhabitants fell within the definition of ''handicapped.'' Ms. Knox reasoned that,
Because the complainants proposed program in its totality indicates that it is being designed to assist, house and provide therapeutic treatment to individuals who, among other things, have learning disabilities and emotional illnesses, the individuals that the complainants are attempting to serve can reasonably be expected to be members of the class of individuals with handicapped status that the Fair Housing Act specifically amended to protect. (e.s.)
In Bellevue, the term ''familial status'' as found in 3604(a) and (b) of the Act and as defined in 3602(k) of the Act has been successfully employed to prevent a municipality from regulating unrelated groups of youth under age 18 who are institutionally supervised. Such regulation has been deemed to be discriminatory for treating members of a ''protected group'' differently than others who are similarly situated.
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In Bellevue, Justice filed an amicus brief in support of the handicapped advocacy group's position. Below I have identified some key legal positions that Justice has taken. In certain instances, I have included my annotated comments immediately following Justice's position. Justice represented to the court as follows:
Congress made it flatly illegal, to discriminate against any person ... because of familial status. Thus, the language of the statute strongly indicates that discrimination against families is not subject to a rational basis. (Page 14 of Amicus.)
Although the Constitution affords families no special protection, the Fair Housing Act does. (Page 14 of Amicus.)
TRB Comment: How is the regulation of unrelated children in an institutionally supervised setting discriminating against families?
First, we think the issue before the court is whether Ordinance No. 4861 was adopted with an intent to discriminate on the basis of handicap and familial status. (Page 1 of Amicus.)
TRB Comment: When did ''familial status'' enter the debate and become an offensive weapon used by Justice.
We wish to stress at the outset that the principal issue in this case is whether the City has, by enacting Ordinance 4861, accorded ''disparate treatment'' to supervised groups of children. (Page 4 of Amicus.)
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It seems apparent that what distinguishes a ''group facility'' from a ''family'' is the supervision provided the residents. This classification thus resembles closely those held in [citations omitted] to be directed against group homes for the handicapped. (Page 9 of Amicus.)
TRB Comment: It seems logical and a common sense construction of the Act to distinguish between biological families and institutionally supervised groups of unrelated persons. The former are a ''protected class,'' the latter may or may not be a ''protected class'' depending on other considerations. Justice does not appear to agree.
We think this provision discriminates both on the basis of familial status and on the basis of handicap. (Page 9 of Amicus, Footnote 3.)
TRB Comment: Where is the handicap in a group of unrelated youths who are abandoned, abused or neglected, require treatment for drug or alcohol abuse; or are finishing their sentence for a juvenile offenseall potential inhabitants of the group home facility in Bellevue.
Justice reasons that the Ordinance regulates ''abused or neglected children and orphans'' and that it ''singles out group homes for children and places them under restrictions to which no comparable group is subject.'' (Page 11 of Amicus.)
TRB Comment: What comparable group is Justice suggestinga nuclear family?
The position taken by Justice in its amicus in Bellevue raises several troubling questions over the interpretation of the Act that it is fostering and promoting in the court.
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V. IS JUSTICE'S POSITION IN ITS AMICUS FILED IN THE BELLEVUE CASE CONSISTENT WITH ITS WRITTEN STATEMENTS AND REPRESENTATIONS TO CONGRESS
At least one commentator (the attorneys for the City of Bellevue) felt that Justice was not remaining true to its representations to Congress at the September 5, 1996 hearings and in Mr. Hancock's letter to Ms. Whitman of the National League of Cities, a copy of which was submitted into the record on September 5, 1996. Below I have set forth key passages referenced by Bellevue in Mr. Ishimaru's written statement and in Mr. Hancock's letter to the National League of Cities. Next to these comments, I have set forth Justice's explanation and response. I leave it to each individual member of Congress to decide for themselves whether Justice has been honest with Congress as to what Justice and HUD have asserted to be the scope of this Act and the rights remaining to municipalities to regulate groups of unrelated persons in single family neighborhoods.
"The Official Committee record contains additional material here."
"The Official Committee record contains additional material here."
Bellevue's attorneys asserted that Justices' amicus eschewed the analysis set forth by Justice to Congress and the National League of Cities. Bellevue asserted that in its amicus Justice argues to forbid regulation of all group facilities denying the City the power to control land use and to protect neighborhoods even in cases where the FHA is in no way implicated. Bellevue suggests that the positions taken in the amicus are hard to square with the guidance Justice provided to Congress.
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It appears that the position taken by the plaintiff in Bellevue and Justice and adopted by the district court is that merely treating groups of unrelated children under 18 years of age differently than families, is intentional discrimination (whether the inhabitants be abandoned, abused, or neglected, have mental health problems, or development disabilities, require treatment for drug or alcohol abuse, or are finishing their sentence for a juvenile offense).
It appears that Justice is attempting to pigeon hole the guidance they gave to Congress in September by claiming it relates to only a specific issue and not a general policy of what Justice believes to be the law.
I respectfully suggest that Congress needs to get direct answers to specific policy questions from Justice about Justice's view of this law, its scope and its affect on municipal regulation of such uses. Specifically, Congress needs to get specific answers from Justice to specific questions. For example:
Is a group home composed of unrelated youths under 18 years of age whom are institutionally supervised exempt from municipal land use regulation?
Can the number of unrelated individuals inhabiting such a facility be regulated by a municipality? Can the distance between such facilities be regulated?
Can the municipality require such a facility to obtain a special use?
Is it Justice's position that such a facility must be subject to the same restrictions, (and no more) than a single-family residence is subject to?
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Is it Justice's position that life safety code provisions applicable to all other congregate living arrangements of unrelated persons cannot be applied to such a facility?
These are some of the specific questions that Justice must disclose its position on to Congress. Does this Subcommittee believe that HUD and Justice are being consistent in their public pronouncement before this Committee and the legal positions that they are taking in court? I do not.
Fundamentally, the question for this Committee is whether Congress, when it adopted these amendments intended that municipal land use regulation as it affects the sighting of a group home for juvenile delinquents (for example) was to be pre-empted and that in fact such regulation in and of itself would subject municipalities to claims of intentional discrimination, disparate treatment and the resulting legal fees, penalties and fines.
The Seventh and Eighth Circuits have spoken on the mistaken proposition that a group of unrelated individuals living together is the ''functional equivalent of a family'' and therefore to be treated the same as a biological family.
Justice Manion writing a concurring opinion in the Palatine case observed,
The Oxford House's stated policy also explains that ''[i]t considers itself no different from a biological family and its members just move in any suitable house.'' While the Oxford House may consider a group of unrelated people living under its roof the same as blood relations; the law does not.... rather, traditional and extended families receive constitutional protection that individuals and groups of friends, acquaintances or even strangers do not... ('The Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nation's history and tradition.').
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The Eighth Circuit observed in the University City case,
Oxford House's belief that its members must be treated the same as a biological family is highly suspect ... the majority in City of Edmonds v. Oxford House, Inc. [citations omitted] did not reach this issue, and the courts in Oxford House-C, Palatine, and Virginia Beach construed the FHA is not prohibiting family oriented zoning restrictions, so long as the handicapped are treated the same as other unrelated persons.
On several occasions in the last several years, United States courts have found in response to handicapped groups' claims of being the ''functional equivalent of a family'' that such a proposition is incorrect. Justice appears to be studiously overlooking and avoiding these judicial determinations.
I invite the members of this Committee to review Mr. Ishimaru's written statement as well as Mr. Hancock's letter and decide for yourself whether those statements square with the legal position Justice has taken in Bellevue.
The courts are not a good place to sort this out. Municipalities under tax caps like most communities in Illinois, cannot afford the effort or expense of HUD investigations, Department of Justice lawsuits and the resulting risk of fines and costs.
If its Justice's position that all regulation of institutionally supervised facilities for youths under age 18 constitutes intentional discrimination whether the inhabitants of the house are finishing their juvenile sentences or suffer from some form of retardation, then let Justice come out and pronounce that to Congress. If it is Justice's position that municipalities cannot regulate the location, the number of such residents in such a home or the location vis-a-vis one another, then demand that Justice so advise Congress. That will allow Congress and the people to examine HUD's and Justice's position in the full light of day. Then Justice, municipalities, Congress and the people will know what Justice believes the law to be. If it goes, HUD's, Justice's and handicapped advocacy groups' way, then any municipality defying the law deserves to be fined, but this piecemeal approach that HUD and Justice and the handicapped advocacy groups have pursued to date must come to an end. I, like thousands of other municipal attorneys throughout the country, need to advise our clients of what the law is. We cannot do it with any certainty under the present approach. I think HUD and Justice are wrong. I request Congress to put an end to this legislating in the courts. The Bilbray Amendment is a first step in that direction.
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INSERT OFFSET RING FOLIOS 26 TO 29 HERE
Mr. CANADY. Thank you, Mr. Burney.
STATEMENT OF HENRY TEWS, PRESIDENT, SERENITY HOUSE, INC.
Mr. TEWS. Good afternoon, Mr. Chairman, members of the committee, and panel. I thank you for being here today and giving me the opportunity to address this committee and the effects of H.R. 589.
I am here because over the past 30 years I have seen the marvelous work done by halfway houses and recovery homes for individuals in recovery from alcohol and drug dependency. I have seen many of these homes coexist wonderfully within single-family residential settings for over 25 years. They are supported by their local municipalities and receive financial assistance and support from their respective government agencies, local churches, clubs, organizations, and the United Way.
Each funding source has requirements that ensure that the homes are financially sound, accountable, and meet rigid criteria. One of the thousands of hours of service I doout of the thousands of hours of service, I do not recall hearing of one major negative incident.
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H.R. 589 begs the question, ''Who should be your neighbor?'' Do I qualify? I am 62 years old. My wife and I have been married for 36 years. We have raised five children and have five grandchildren. We built two corporations, one a very successful commercial printing company, now operated by my wife and three sons, and a not-for-profit corporation called Serenity House, a halfway house for men and women, an alcohol/substance abuse treatment center.
I am an addict. I am an alcoholic. Although it was 32 years ago that I stopped drinking and smoking, it is still a fatal disease that I must work on each day, one day at a time. Do I qualify to be your neighbor?
Halfway houses and recovery homes are not single-room occupancy, one-night-stand flop houses catering to a transient unknown trade. Their residents are committed to sobriety and long-term residency, mostly 3 to 5 months, some staying up to a year, a few even longer. H.R. 589 would fuel the selective housing process that creates ghettos and skid rows.
Just who are the residents of halfway houses and recovery homes? Most have lost everything because of their dependency to drugs and alcohol; they are mostly homeless. These individuals are not using drugs or alcohol, but 75 percent of them who need these services will relapse within 3 months if we do not help them.
The average age of persons in our program is 29, and they need a great deal of nurturing and support. They need assistance with a program directed towards behavioral modification. However, if we do help them, they look very different three months from now.
Page 90 PREV PAGE TOP OF DOC All clients in our program have a job within 2 weeks of entering into Serenity House and pay a $95 fee for room, board, and counseling. Residents must comply to a highly structured program, and although it is a completely volunteer program, every community needs its rules, responsibilities, and when not adhered to, its consequences. All residents go to work and are at home at 6 p.m. for supper. They rotate on cooking chores, cleaning chores, and general maintenance duties. They attend six group therapy meetings a week plus 12-step groups and an evening of education. Being a State-licensed agency, our facilities and programs are inspected and our professional staff reviewed annually or whenever the need arises.
The residents are no longer causing problems for society, but are now taxpaying members of society. Fifty percent of our residents who find work at local businesses stay in the area and keep their employment once they've left our halfway house or our recovery home. They must not be ostracized or taken out of a community which they have now become an active part of. H.R. 589 would eliminate that very vital part of their recovery. Why should people in recovery want to be a part of a society that will not let them live in their own community? That concept is a major deterrent to any recovery program and has no validation nor substance in its reason or proposition.
What process do I follow in establishing a recovery home? I approach a community; I visit with the authorities; I ask questions, get their parameters telling me how we how we can work together. Our recovery homes that move into single-family neighborhoods do the same.
Sure, we have to comply with all the fire, safety codes, and local ordinances, but so does everyone else. If we need a variance, there is a process which upon we can address it, and we can comply to the rules and the program can exist.
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In talking with many halfway houses and recovery homes, I have found that a majority are in single-family residential areas now. All are operating without incident. Would you use H.R. 589 to uproot them from a community they have been in, successfully operating for years?
In working with addicts who live in halfway houses and recovery homes, I have found some very simple basic truths. While some believe the recovery homes are just dumping grounds for those with undesirable histories or behavior, they are wrong. You cannot help everyone; some people do not want your help. Some are too ill or not ill enough for your services. Group home providers are skilled in matching people to the appropriate service, and recognize who is ready and able to live in the appropriate residential community.
For example, I have discussed H.R. 589 with Mr. John Day, who is on the board of directors of Serenity House and executive director of the DuPage County Housing Authority. He said the location of these facilities and residential areas is not detrimental. I believe it helps to get people back into the mainstream of society by being in a residential area. These comments reflect the opinions of many others.
I have seen the red light. So I know then that I must be brief. I promise you I will be.
Most communities can be found to work with such a group of men and women. Sure, we do have some bad apples. That is when the service provider has a commitment and a moral obligation, not only to the members of the facility or the community, but to the client. Such behavior cannot and will not be tolerated.
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If you ask most neighbors of present longstanding halfway houses and recovery homes, they will almost always tell you they don't even know they are in their backyard. We have enough regulations on the books now, some say too many. All I can say is H.R. 589 would be a major deterrent to the thousands of good people who happen to be addicts, addicts like me, that need an opportunity, a chance, and a place to start and rebuild their lives.
I will close in saying this: just last February, Congressman Henry Hyde came to Serenity House's 11th annual banquet, which was attended by over 500 supporters. He met with many alumni and heard four give their testimonials. He heard members of the local and county governments endorse our fine programs. Congressman Hyde spoke to us on the Declaration of Independence, which said, ''We hold these truths to be self-evident: that all men are created equal, and that they are endowed by their Creator with certain unalienable rights, that among them are life, liberty, and pursuit of happiness.'' He directed us not to the right to happiness, but the right to pursue happiness.
We, who represent those in halfway houses and recovery homes, only ask for that right to pursue a new way of life and happiness. Abraham Lincoln reminds us in the Gettysburg Address of a new birth of freedom. We in halfway houses and recovery homes want and need the freedom to coexist with our equals. H.R. 589, I believe, would take away our rights and would take away our freedom. Thank you.
[The prepared statement of Mr. Tews follows:]
PREPARED STATEMENT OF HENRY TEWS, PRESIDENT, SERENITY HOUSE, INC.
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INSERT OFFSET RING FOLIOS 30 TO 35 HERE
Mr. CANADY. Thank you, Mr. Tews.
Mayor Golding, we appreciate your being here. You may proceed.
STATEMENT OF SUSAN GOLDING, MAYOR, CITY OF SAN DIEGO
Ms. GOLDING. Thank you very much, sir. Mr. Chairman, and members of the committee, I want to thank you for the opportunity to testify before you today, and would like to commend this committee for focusing what I believe is much-needed attention on what I view, and my city views, as the erosion of local authority and zoning powers which we, and all communities, have historically held. What we are not disputing, and I want to make this very clear, is the need for residential care facilities. We have many in our communities. The gentleman who just spoke is referring to the need for good residential care facilities. I would agree with that.
What we are speaking to, is local zoning powers that we have historically held, and which have only recently been eroded by court decisions and certain decisions by HUD and DOJ. During the last few years, local governments have encountered increasing difficulty doing things that we have historically done under the police power of local zoning. Let me start this morning by saying we don't allow chicken ranches to go into next to single-family homes. We don't allow certain businesses to go in single-family residential areas. Why? Because decisions on the zoning code should be appropriate for those neighborhoods. What makes sense in one neighborhood may not make sense in another. We don't do this because we don't like chickens. In fact, we are happy to have chicken farms and chicken ranches. It is a question of what is an appropriate location. It has nothing to do with the color of the chicken, the color of the beak of the chicken, or even what the ethnic background of that chicken may be. It is truly a question of what is an appropriate location. It's called zoning. It's something that we as local officials do for hours every day. It is not a euphemism for discrimination. My city fully supports the goals of the ADA. I fully support the goals of the ADA and those who are truly disabled.
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As you know, HUD and the courts have blocked the right of local governments to pass reasonable regulations affecting the type, size, and number of residential care facilities in single-family neighborhoods. This is something that local governments have always had the right to do in order to preserve the character of the neighborhoods. Residential care facilities do fulfill very very critical needs in any community. I have advocated for them in the past, whether it's caring for the elderly, the physically and mentally disabled, or those living with AIDS.
However, some operators of residential care facilities and I underline the word ''some,'' choose to ignore legitimate local ordinances that everyone else must adhere to, and every other business adheres to, by establishing their business operations, and these are business operations, both nonprofit and for profit, in residential neighborhoods adjacent to single-family homes where the character of the neighborhood is clearly different from the entity moving in. And there are no restrictions whatsoever on issues referring to hours of operation, the number of people who may live in the home, et cetera.
Today, in San Diego we have residential care facilities available throughout the city and in every neighborhood which accommodate approximately 6,000 people. I brought with me a map that clearly indicates by the little circles and dots, that residential care facilities are located in every neighborhood, and I mean every community of our city. We have a great number of them. We probably need more. It is a question of where it is appropriate to locate them and whether or not we can use our conditional use permit process to affect issues such as hours of operation and the number of people in the facility, to make sure they are compatible with the neighborhoods in which they locate.
Page 95 PREV PAGE TOP OF DOC So it is not a question of San Diego not approving residential care facilities under our conditional use permit, we have and we'll continue to do so. But, today we can't do it without being sued. Rather than complying with local housing ordinances, such as occupancy limits and limits on the number of facilities which can be located in a residential area, group homes for recovering drug addicts, juvenile offenders, convicted felons and former sex offenders can run to court to file a law suit under the Fair Housing Act.
In San Diego, we were sued by an existing facility in a direct challenge to the legality of the city using our conditional use permit to regulate the number of persons occupying a facility. A facility which was already illegally operating over the number of beds allowed applied for a permit to expand. When the request was denied by the city because a larger facility was incompatible with the single-family residences surrounding it, they filed suit. That suit is still pending.
Mr. Chairman, I don't believe that you and other Members of Congress intended for this to happen during passage of the Fair Housing Act. Unfortunately, the Federal courts, through expansive interpretations of the act, have left local governments without the ability to respond to the legitimate nondiscriminatory concerns of our citizens. This is also something I believe was not intended.
These residential care facilities which are business enterprises, have sought Federal protection for locating anywhere they choose in a community, a freedom not accorded to other businesses at the local level. What has been created is really, in a way, a special class of entities under the law, which can locate where they want, whenever they want at any size they want, accommodating any number of people they want. We cannot even require today that notification be sent to the surrounding community when a residential care facility has applied for a permit. Now I would like to make sure you understand what that means.
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Our city has a mandated standard notification of 300 yards, so that if something is happening in a neighborhood, the neighbors are notified and have the opportunity to come testify for or against. Whether it's somebody putting in an extra building, or someone digging up a piece of property, we must notify them. This is the only instance where not only do we not, but we cannot. When my constituents come to me and say, why can't you at least give us a chance to tell you that we would like them to close at 6 o'clock in the evening instead of continuing to operate, or when they want to inquire as to how much traffic or how many residents they can have, we tell them we cannot. We cannot let them know because we have been precluded from doing this. No one can believe it. I think it's outrageous. Yet we are required to notify neighbors within 300 feet if a residence is adding a porch, adding a garage, or similar circumstances because it's a change to the existing community. But we are not allowed to notify neighbors that a residential care facility is moving in.
Let me give you an example. We have a community in San Diego which I would describe as a solid middle class community. It's neither high income nor low income, just solid middle class. A home for ex-offenders moved into this community which houses juveniles convicted of violent behavior, sexual perpetration, and substance abuse. The facility moved into a single-family residence without city approval. According to the State's interpretation of Federal law, we don't even have the right to notify the surrounding community. They can locate there by right. No one else can, just residential care facilities.
So one morning, you get up, and right next door, instead of the family moving in that you expected when you bought probably the only investment that you will ever have in your entire life, you now have a home for ex-offenders. If you have young children, that can be a concern. It's not even a question that perhaps it will work out just fine, but rather that under the law you can't even be notified of what is happening.
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Remember, these are business enterprises. They have sought and received Federal protection. This is the practical application of what is going on. We have been told that under current interpretations by the courts and by HUD, we don't have the authority to regulate by use of conditional use permits any more, period. Section 3607(b)(1) of the Fair Housing Act specifically states that the act does not limit any reasonable local, State or Federal restriction regarding the maximum number of occupants permitted to occupy a dwelling. To me, that is very clear and unmistakable language. But not withstanding this language, one that we support, several Federal courts, HUD, and DOJ seem to have broadened the definition of the Fair Housing Act's plain meaning, and instead have pushed a unreasonably wide interpretation upon local governments.
Legislation is needed to correct this unintended overreach of what I think was a legitimate attempt by the Fair Housing Act, and to once again restore the right of local governments all over this country to pass reasonable regulations that respond to legitimate housing concerns and legitimate neighborhood character.
I think that some of the restrictions that are in the legislation are common sense and reasonable. It is unfortunate that those of us who are on the implementation side of the legislation are made to feel that if the usurping of what has historically always been a local government authority, is argued for, you are somehow against residential care facilities or against the disabled. That is simply and categorically untrue. It is not a question of whether or not we should fight discrimination. It's a question of zoning power and zoning authority that does not relate to the things that the Fair Housing Act was drafted to protect.
The City of San Diego appreciates and supports the efforts of Congressman Bilbray, but we also believe a broader approach is needed to ensure the rights of everyone are protected. The Fair Housing Act specifically allows for reasonable local regulation. That is what we're asking forthose reasonable local regulations that we had just a few years ago. Congress needs to reaffirm these rights, because either they have been ignored or misinterpreted. We need legislation, or DOJ and HUD need to correct the interpretation in some other manner.
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I want to emphasize the fact that I am not talking about any local authority or power that has not historically been held by cities or counties all over the country. I have been in local office almost 15 years. It is only within the last few years that, all of a sudden, what we have always been able to do, we cannot do any longer.
[The prepared statement of Ms. Golding follows:]
PREPARED STATEMENT OF SUSAN GOLDING, MAYOR, CITY OF SAN DIEGO
Mr. Chairman and Members of the Subcommittee, as Mayor of the City of San Diego, I appreciate the opportunity to testify before you today, and would like to commend this Committee for focusing much needed attention on the erosion of local authority in the fair housing issue.
During the last few years, local governments have encountered increasing difficulty in doing things historically done under their police power such as common sense zoning.
Let me start this morning by sayingwe do not allow chicken ranches to go in next to single-family homes, in single-family residential areas. We do this not because we don't like chickens. And it's not because they have two orange legs or beaks.
It is because this is not an appropriate location for chicken ranches, which has absolutely nothing to do with the integrity of chickens, where they were born, their color, or anything else.
Page 99 PREV PAGE TOP OF DOC This is called zoning. It is not a euphemism for discrimination.
As you may know, HUD has blocked the right of local governments to pass reasonable regulations affecting the type, size and number of residential care facilities in family neighborhoods. This is something local governments have always had the right to do in order to preserve the character of neighborhoods.
Residential care facilities do fulfill very, very critical needs in any community, whether it's caring for the elderly, the physically and mentally disabled, or those living with AIDS.
However, today, operators of residential care facilities openly choose to ignore legitimate local ordinances by establishing their business operationsand these are businesses, both non-profit and for profit, make no mistake about itin residential neighborhoods, adjacent to single-family homes where the character of the neighborhood is clearly different from the entity moving in.
In San Diego today, we have approximately 6000 beds available throughout the City. By the dots on that map, it is clear that there is no community in San Diego that doesn't have some type of residential care facility.
So this isn't a question of San Diego not approving residential care facilities. We do. However, we have historically used conditionaluse permits to regulate conditions such as type of facility and hours of operation.
Page 100 PREV PAGE TOP OF DOC But today we cannot do this without being sued.
Rather than complying with local housing ordinances such as occupancy limits and limits on the number of facilities which can be located in a residential area, group homes, for recovering drug addicts, juvenile offenders, convicted felons and sex offenders, run to the federal court to file a lawsuit under the Fair Housing Act.
Mr. Chairman, I do not believe that you and the other members of Congress intended for this to happen during passage of the Fair Housing Act. Unfortunately, the Federal courts have, through expansive interpretations of the Act, left local governments without the ability to respond to the legitimate, nondiscriminatory concerns of our citizens.
This is also something I believe Congress did not intend.
These residential care facilities, which are business enterprises, have sought federal protection for locating anywhere they choose in a communitya freedom not accorded other businesses at the local level. What has been created is a special class of entities under the law who can locate wherever they want, whenever they want.
We cannot even require that notification be sent to the surrounding community when a residential care facility has applied for a permit. This has been deemed by the federal government to be a violation of the Fair Housing Act.
Yet, we are required to notify neighbors within 300 feet of a residence which is adding a porch, adding a garage, or other similar instances, because this would be a change to the existing community.
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Let me give you an example. We have a community in San Diego which I would term as middle-class community. It's neither high income, nor low income, but it's a solid middle-class community. A home for ex-offenders moved into this community which houses juveniles convicted of violent behavior, sexual perpetration, and substance abuse.
The facility moved into a single family residence with City approval and with specifically six occupantsbecause with six occupantsaccording to the State's interpretation of the federal law, they don't have to notify the surrounding community.
So one morning you get up, and right next door, instead of a family moving in as you expected, you now have a home for ex-offenders. And if you have young children, it's now a tremendous concern and there is nothing you can do about it.
Remember, these are business enterprises who sought and received federal protection. This is the practical application of what is going on and we have been told that under current interpretations by the courts and by HUD, we don't have the authority to regulate by use of conditional use permits any more. period.
Section 3607(b)(1) of the Fair Housing Act specifically states that the Act does not limit ''any reasonable local, state or federal restriction regarding the maximum number of occupants permitted to occupy a dwelling.'' That's unmistakable language. But notwithstanding this language, several federal courts, HUD and the Department of Justice have broadened the definition of the Fair Housing Act's plain meaning, and instead, pushed an unreasonably wide interpretation upon local governments.
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Legislation is needed to correct this unintended overreach of federal power restoring, once again, the right of local government to pass reasonable regulations that respond to legitimate housing concerns.
I truly believe that Congressman Bilbray's legislation is a step in the right direction.
His measure, H.R. 589, would amend the Fair Housing Act to permit land use restrictions on dwellings in relation to the number of unrelated inhabitants, building proximity or the inhabitant's criminal record if those restrictions were for the purpose of limiting land use to single family residences.
This is a good beginning. However, Congress should also restore local control in zoning matters, particularly in single family residential zones.
While the city of San Diego appreciates and supports these efforts to deal with the issue on a limited basis, we believe a broader approach is also needed to ensure the rights of everyone are protected.
Mr. Chairman, as I have stated before, the Fair Housing Act specifically allows for reasonable local regulations. Congress needs to reaffirm these rights which, unfortunately, have either been ignored or misinterpreted.
I would be happy to answer any questions you might have.
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Mr. CANADY. Thank you, Mayor Golding. I'll now recognize Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I would like to thank the witnesses. They have come from a long distance and have given excellent testimony.
I have a question about the testimony, because it seems that the testimony is aimed at group homes in general. The bill just speaks to certain categories of group homes. I guess my question to all of the witnesses is whether or not their testimony should apply, is aimed at all group homes or just the ones cited in the bill.
Ms. GOLDING. I think I can speak to that. I support those cited in the bill, but my request is also to make it somewhat broader than that, which goes to the fact that the definition of disabled has been extremely and broadly interpreted by court decisions. That's really what has given us the problems that we're having at the local level today.
Mr. SCOTT. This bill, and I don't mean to cut you off, but this bill speaks to a couple. Do you agree that group homes for physically or mentally handicapped, that the present rules should be changed or not changed?
Ms. GOLDING. I am not quite sure what you mean by the present rules. Do you mean interpretations by the courts?
Mr. SCOTT. Well, this bill does notonly speak toit creates an exemption for group homes involving convicted felons, sex offenders, or recovering drug addicts. Listening to your testimony, it seemed to me that you were upset about any group home moving into the neighborhood, not just those in that category.
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Ms. GOLDING. No. I think you completely misinterpret what I am saying. I didn't say I was upset with any group home moving into a neighborhood. I said I was upset that the local zoning power has been preempted. We can no longer attach reasonable regulation to group homes.
Mr. SCOTT. That, however you want to describe it, would apply to any group home, not just to those categories?
Ms. GOLDING. That is correct.
Mr. SCOTT. This bill would not solve your concern.
Ms. GOLDING. It solves part of it.
Mr. SCOTT. OK.
Ms. GOLDING. Yes, it definitely solves part of it.
Mr. SCOTT. So your testimony, and this is the point I want to make, would apply to all of the situations, not just these in particular?
Ms. GOLDING. It applies to any facility wishing to locate where we cannot use our local zoning power, any facility like this where our local zoning power cannot be used at all.
Mr. BURNEY. What I was saying, excuse me, Mayor, is that under the ambit of group homes which were intended to help handicapped people, the definition of handicapped has been expanded beyond what I believe Congress intended.
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Ms. GOLDING. Right.
Mr. SCOTT. We have had some legislative and court interpretations that it would include those who are no longer using drugs, but used to use drugs.
Mr. BURNEY. Right. I suggested to you that juveniles under 18 years of age who are continuing to use drugs or who are finishing their sentences for various offenses could be argued, and are being argued to fall within the definition of familial status or handicapped, for the anecdote that I gave you.
Mr. SCOTT. How do you define family?
Mr. BURNEY. Family, I believe that it's a biological family. I believe that it's blood relations. It's not groups of unrelated persons who are institutionally supervised. Do you agree?
Mr. SCOTT. Do I agree?
Mr. BURNEY. Right.
Mr. SCOTT. Well, I think you have left out foster children. Are you going to kick them out of the community?
Mr. BURNEY. OK. That's a good addition.
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Mr. SCOTT. Adoption?
Ms. GOLDING. Mr. Scott, we have a lot of residential care facilities located in a lot of different kinds of communities in my city. I want to make that very clear. Because even the way you phrased your question to me implies that I don't want group homes or I don't want residential care facilities. That is just absolutely untrue. But if there is one that wishes to move into a community where the number of people living in a house, whether they are related or unrelated, is let's say approximately 7 people, and the facility wants to put 45 in this home and operate it as a business, it is a group home and what I don't understand is why we are preempted from the authority we had before, to say what is too many for this residence. Take the numbers down or your hours of operation ought to be x, because that's what is compatible.
Mr. SCOTT. Wait a minute. Do you feel that you do not have that authority under present law?
Ms. GOLDING. Correct. That's exactly right. That is what I am saying. No longer do we have that authority. That is why I am here.
Mr. SCOTT. Is that because of the Fair Housing Act or some other law?
Ms. GOLDING. Yes. It is, but it wasn't intended.
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Page 107 PREV PAGE TOP OF DOC Mr. SCOTT. Thank you, Mr. Chairman. The testimony we heard from the representative of the attorney general's office, the Department of Justice, was that group homes still have to go through the zoning process, that you are expected to make reasonable accommodations and too many people for parking, traffic, noise or whatever else would be an unreasonable expectation under the Fair Housing Act.
Now there may be some other State laws.
Ms. GOLDING. He must not be familiar with what has happened in certain cases, and I talked to him afterwards and there were some cases I cited to him that he was not personally familiar with.
Mr. SCOTT. So to the extent that we can clarify it to make, as has been testified, that you have to go through the normal process. When halfway through the process you would ask for a waiver, and the waiver would have to be a reasonable accommodation based on all of the considerations, that you would not have to grant the waiver if the accommodation were unreasonable.
Ms. GOLDING. That is no longer true, sir.
Mr. SCOTT. Well, you wouldn't have a problem with a process if it actually worked that way?
Ms. GOLDING. Your terms are a little bit different than what we use, so I am not quite sure what you mean by waiver. What we have is what we call a use permit, a conditional use permit if it's a business, where we can regulate hours of operation. In other words, attach reasonable requirements to the permit for operation such as number of people in the home, hours of operation, issues related to parking and traffic.
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I want to add that it's our inner-city neighborhoods, heavily minority inner-city neighborhoods, that are the most upset about this issue because they are becoming dumping grounds. The efforts to bring those neighborhoods back are being impacted because we have lost all ability to reasonably control these facilities.
Mr. SCOTT. You have suggested that you have to takeyou know, you have heard reference to persons in the criminal justice system, convicted felons and sex offenders are not given any protection under the Fair Housing Act. They may be given protection under some other act.
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. SCOTT. Thank you. You may have some protection under some other act, but not under the Fair Housing Act. The only thing this would effectively add as it's been explained, is ''recovering drug addicts.'' Everything else would be essentially the same if this bill were to pass.
Ms. GOLDING. This bill, I think, does what you say it does. It does not restore our zoning power.
Mr. SCOTT. Everything else would be the same except you would remove protection for ''recovering drug addicts''?
Mr. BURNEY. No. I don't agree. Ms. Clark has something to say. Ms. Clark has been trying to talk.
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Ms. CLARK. I didn't want to be rude and interrupt the dialogue.
Ms. GOLDING. No, go ahead.
Mr. SCOTT. I'm rude.
Ms. CLARK. Mr. Scott, in New Jersey, let's just take New Jersey for a minute, local municipalities have no control over siting of group homes. That is important. I think your original question to start the dialog was
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. SCOTT. Thank you, Mr. Chairman. I won't ask anymore questions. We'll just get these answers out. Thank you.
Ms. CLARK. I think your original question to start the dialogue had to do with whether it was just a certain group of group homes or all group homes. In New Jersey, local municipalities don't have any control over siting of any of them. I guess the beauty of our system is that it allows for amendments. It allows for us to look at legislation and broaden it and shape it and codify it and clarify it to make it cogent, and also to make it fair. Certainly if we would want to doI would think that we would want to make sure that H.R. 589 is as it's presently constituted, or we can strengthen it even to make sure that local zoning authority is not preempted.
Page 110 PREV PAGE TOP OF DOC As a member of the National League of Cities, representing some 1,500 elected officials from 1,600 cities across the United States, that is certainly something that is central and essential to our ability to govern at home. It's just essential. What winds up happening is, you know, people wind up piggybacking on something and broadly say, well, we can broadly expand this definition of the Fair Housing Act to do things that they really ought not do; i.e., circumvent local zoning authorities. I can't speak for the mayor, but I believe that as local elected officials, that that's kind of like where we are coming from.
We want to make sure that other agencies can't say you can't. You know, this is what the Federal Housing Authority Act meant. I think it's important for Congress to say, no, no, no, that's not what we meant. You know that you are wrong, shame on you for trying to circumvent.
Mr. SCOTT. I am going to have to be rude because I think the chairman has been overindulgent.
Mr. CANADY. The gentleman's time has expired.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott. I want to thank each of you for taking the time to be here today. We appreciate your testimony.
These are difficult issues. I think all of us recognize that. We are hearing different descriptions of reality. I mean if you listen to the Department of Justice, the world is very different from the world that's being described by the local officials that are out there day to day having to deal with these issues. So that's a matter that we are going ultimately have to resolve and ultimately as members of the committee, we have got to make a judgment about the reality of what is actually taking place and how that's operating.
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Let me just say that I think it is important for communities to have available places for group homes. When I was a member of the Florida Legislature, I voted for legislation in the Florida Legislature to require municipalities and counties in Florida to include an element in their comprehensive plans providing for the siting of group homes. I think that is essential. But I believe that it is also essential that local governments have some discretion in that process, and that they be given a range of options that they can deal with. Based on what I am hearing, I am not convinced that that is the case now.
I have a couple of requests which I think will help move us toward a resolution of this. Mayor Golding, I would appreciate if your office could provide us with specific legislative language that will address your concerns that are broader than the language of this bill. I think that would be helpful to us in understanding exactly what your concern is and how you think under this Federal law we can address those concerns.
Mr. Burney, I would ask that you provide us, if you are willing, specific legislative language with respect to the definitions that you talked about. Again, I think that would help illuminate your particular concerns and the way you believe those could be addressed. If you want to say something now about that
Mr. BURNEY. I'll be happy to do that. If I could, since Mr. Scott's time is already gone, to just say that you have been told by the Department of Justice the reasonable accommodation is the way of going. I say to you that in the context of this familial status, and I don't know exactly how far this is going to go, the reasonable accommodation that's been represented by the Department of Justice isn't an inquiry, that it's simply discrimination, intentional discrimination on the part of the municipalities.
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So I think that everyone needs to work together to be sure that we are on the same page that municipalities are dealing in a reasonable accommodation provision standpoint, because when you try to get these claims of discrimination into familial status as a protected class and expand the meaning of who are families and who are handicapped, you get back to what Ms. Clark is saying, is a preemption of municipal authority.
I'll be happy to provide you and your counsel with some proposed language. Mr. Scott's suggestions and brains, mind's better than ours, but to get back to what Congress meant by the term ''family.''
Mr. CANADY. That will be helpful to us.
[The information is in the subcommittee files.]
Mr. CANADY. Mr. Tews, I'll recognize you to speak, but I want to thank you for what you do. I think that the work that you are involved in is very important. I played some role in helping get property for a group home similar to the sort of group home that you have talked about in my own community, the area that I represent. I have got some property from HUD that had been foreclosed on that was made available for this purpose. I'm sure that's done in other places as well. I know that is meeting a real need for some people and it's helping turn the lives of some people around. That's important.
So with that, I thank you for your contribution today as well.
Page 113 PREV PAGE TOP OF DOC Mr. TEWS. That might just entitle you to one weekend at Serenity House. [Laughter.]
Mr. CANADY. I might take you up on that.
Mr. TEWS. But I don't know about any of your neighbors.
I just thought that, as you had mentioned, Mr. Scott, that the Justice Department certainly should also present the case why 589 should not exist, that there is enough laws on the books now to support the municipalities regarding the right that they already have, that they don't need another bill. That's where I'm from.
Mr. SCOTT. Mr. Chairman.
Mr. CANADY. Mr. Scott.
Mr. SCOTT. As the mayor presents, I think you asked her to present some specific cases, she indicated that there are laws that prohibit them from sending out the notices that are traditional and all zoning cases. If she could
Mr. CANADY. I think the mayor indicated that that was a State interpretation.
Ms. GOLDING. No, no. I can give you that, sir.
Mr. SCOTT. If you could, so that we can evaluate why that is, so we'll know what the deal is.
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Ms. GOLDING. I can do that.
Mr. SCOTT. In terms of the normal zoning process.
Ms. GOLDING. I can do that, sir.
Mr. CANADY. That would be very helpful because that example is a very troubling example of interference with the ordinary functioning of the zoning process.
Ms. GOLDING. I can provide that to you.
Mr. SCOTT. I would appreciate it.
[The information is in the subcommittee files.]
Mr. CANADY. Thank you very much. Again, we appreciate the participation of each of you and thank you for your patience with the delayed process today.
We would now like to ask the members of the final panel to come forward. On our final panel, we will hear testimony from Judith Browne. Ms. Browne is a managing attorney at the NAACP Legal Defense Fund. She has testified before Congress and the U.S. Civil Rights Commission regarding housing discrimination and Federal enforcement of the Fair Housing Act. She also monitors fair housing enforcement by both HUD and the U.S. Department of Justice.
Page 115 PREV PAGE TOP OF DOC We will also hear from Roger Conner. Mr. Conner is the executive director of the Center for the Community Interest. In the past, Mr. Conner has worked for the Brookings Institute and is well-published on the building of successful communities.
Without objection, your written statements will be made a part of the permanent record of this hearing. We would ask that you do your best to summarize your testimony in no more than five minutes. Again, we thank you for being with us.
STATEMENT OF JUDITH A. BROWNE, MANAGING ATTORNEY, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
Ms. BROWNE. Thank you, Mr. Chairman, Congressman Scott. On behalf of the Legal Defense Fund, I thank you for giving us an opportunity to weigh in on the important issues raised by section 821 of H.R. 589. I come before you today to tell you a story which illustrates why section 821 goes too far and will eviscerate protections against discrimination afforded to African-Americans, other minorities, families with children, and the disabled.
I tell you a story about Rev. Leon Harper, who is here today with us, seated over there with his wife, and who, unfortunately, due to health reasons, could not share his own story with you today. In May 1993, Reverend Harper, an African-American minister, purchased 12 townhouses in the predominantly white section of Croom in Upper Marlboro, MD. These houses were built in 1957 by the Army, and were occupied by military personnel until 1990. Reverend Harper purchased the houses with the intent to provide moderate income housing for members of his predominantly African-American congregation. Because the property was originally zoned for rural use, Reverend Harper had to seek a zoning permit to continue the use of these homes. That's where the trouble began.
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The white residents of Croom banned together and hired an attorney to oppose the permit application. White members complained to the planning board about pollution, traffic, and septic tank problems. Yet they were open with reporters. One white neighbor said there's going to be a lot of damned trouble bringing black people in here. Everything is nice and quiet down here. When asked about the housing, he said, I would like to see them burn it down. Other white neighbors said they were concerned that the apartments, the townhouses would attract drug dealers and crime.
Reverend Harper won his permit before the planning board, but the white residents pressed on, eventually requiring Reverend Harper to take his case all the way to the highest court in the State of Maryland. During this time, Reverend Harper also experienced acts of intimidation by unidentified persons. In the highest court in Maryland, Reverend Harper won his permit in early October 1994. However, someone decided to give this story a different ending.
On October 24, 1994, a mysterious fire burned five of the townhouses. It was ruled arson. Reverend Harper has no recourse under H.R. 589. These white residents will be protected for bringing this frivolous lawsuit which cost Reverend Harper a lot of money. There should be protection for those who are victims of discrimination for whom the Fair Housing Act was intended to protect, protection against lawsuits which are filed for an illegal objective, without reasonable basis in law or fact, or with an improper motive.
The Supreme Court has long protected persons exercising their civil rights from prosecution based upon ill motives such as discrimination. ''Black civil rights workers sitting at a lunch counter or registering voters have been protected from prosecution for illegitimate reasons such as race.'' H.R. 589 does not recognize this protection.
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The Fair Housing Act was passed with the purpose of providing fair housing in the United States within constitutional limits. ''The Fair Housing Act already must yield to a higher authority of the Constitution in the case of any actual conflict with the first amendment.'' In addition, HUD has gone further to protect even arguable first amendment concerns by issuing guidelines. ''First amendment interests must be weighed against the interests of equal housing opportunities on a case by case basis.'' This balance is presently occurring.
H.R. 589 acknowledges first amendment interests only which will operate to the grave detriment of persons for whom Congress provided protection from discrimination by passing the Fair Housing Act. Citizens should not be permitted to take otherwise illegal actions solely because they cloak themselves within the purview of the first amendment by attempting to influence governmental officials or by bringing legal action.
For these reasons, we would oppose H.R. 589. Thank you.
[The prepared statement of Ms. Browne follows:]
PREPARED STATEMENT OF JUDITH A. BROWNE, MANAGING ATTORNEY, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
The NAACP Legal Defense and Educational Fund(see footnote 2) appreciates this opportunity to address the critical fair housing issues that this Subcommittee is considering as part of H.R. 589: The Fair Housing Reform and Freedom of Speech Act of 1997.
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LDF is the oldest non-profit civil rights law firm in the United States. LDF has a long history of litigating cases involving civil rights issues which affect African Americans in areas such as education, employment, voting rights and capital punishment. In the area of housing, LDF has for many years litigated cases to ensure equal housing opportunities for all Americans. In addition, LDF played a major role in shaping the 1988 Amendments to the Fair Housing Act.
This Subcommittee is currently considering legislation that has broad implications for African Americans, as well as other classes protected under the Fair Housing Act. While Section 821 (Protection of Certain Activities) of PER. 589 seeks to preserve First Amendment rights of citizens, Congress must reach a delicate balance between those rights and the civil rights of all Americans. In considering the First Amendment rights of those who oppose particular occupants, such as African Americans or families with children or group homes for the disabled, we ask that you consider the interests of citizens that are adversely affected by these activities. This issue is important to LDF because of cases such as Reverend Harper's. (Attachment A is in the subcommittee files.)
In May 1993, Reverend Leon Harper, an African-American man, purchased twelve townhouses in Croom, a predominantly white section of Upper Marlboro, Maryland. Reverend Harper, the minister of the House of Prayer in Upper Marlboro, purchased the townhouses, hoping to provide affordable housing for twelve low and middle-income families from his congregation, which is predominantly black. The townhouses were built in 1957 by the Army, and occupied by military personnel until 1990. The property is selfcontained with its own water system and well, sidewalks, paved street, security lights, fire security system, recreational area, and sewage treatment plant. Each of the units has two or three bedrooms with a full bath, living room, dining room, kitchen and storage room. Although the land was originally zoned for rural use (5 acre lots), as a federal agency, the Army was permitted to deviate from local zoning laws. Because the homes were vacant when Reverend Harper purchased them, he was required to obtain a zoning permit from the Prince George's Planning Board, in order to continue their use. This is where Reverend Harper's troubles began.
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After Reverend Harper filed his application with the Planning Board, white neighbors circulated petitions and hired an attorney to stop the reopening of the twelve townhouses. A petition with over four hundred signatures and the testimony of several residents were presented to the Planning Board at a hearing on the zoning application in September 1993. White neighbors complained to the Planning Board about pollution, traffic and septic tank problems. Yet, when talking to reporters, the real reason for the opposition was revealedracial animus clearly inconsistent with the purposes of the Fair Housing Act. The white neighbor who lived next to the townhouses openly told a reporter, ''There's gonna be a lot of damn trouble bringing black people in here. Everything is nice and quiet down here. There are no problems.'' When asked about the housing, this neighbor said, ''I'd like to see them burn it down.'' Other white neighbors expressed their concerns in terms that clearly suggest racial bias. White neighbors expressed concerns that the development would attract drug dealers and crime to their neighborhood. One neighbor was quoted as saying that the low-income housing would ruin the neighborhood and would not attract ''prime citizens.'' Another resident expressed her concern that, ''We don't know who their friends and relatives are and we don't have any control over them.'' In fact, at one point, in an effort to quell these concerns about the ''type'' of tenants that would live in the development, it was suggested that Reverend Harper consult with the group prior to renting to anyone, providing the group with a list of the names of applicants, where they were from, their places of employment, and other information pertinent to determining whether they will be reasonable and quiet tenants.
Despite the white community's opposition, Reverend Harper's application was approved by the Planning Board. Unfortunately, the story does not stop here. The white neighbors then appealed the decision to the Prince George's County Council, which voted 4 to 4. It was determined that this tie vote meant that Reverend Harper's application was rejected. Thus, Reverend Harper was forced to take his case to state court. The Croom residents continued to oppose the permit in this legal action.(see footnote 3) In April, 1994, the Maryland Circuit Court granted Reverend Harper's zoning permit; however, the County and residents appealed to the Special Court of Appeals, where Reverend Harper was again victorious. The County, under the administration of a new County Executive, decided to drop the legal action, but the white residents pressed on, taking the case to Maryland's highest court. In early October, 1994, Reverend Harper was finally granted his permit by the Maryland Court of Appeals. However, before he could move tenants into the townhouses, someone decided to put an end to the controversy. On October 23, 1994, a mysterious fire destroyed five of the townhouses. Local officials ruled the fire an arson. Investigators found newspapers and flammable liquid scattered about the site. No arrests have been made.
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Reverend Harper suffered because of the bigotry of these white Croom residents. He suffered significant financial losses. In addition to the legal costs he incurred throughout this ordeal, Reverend Harper paid taxes on this vacant property, but had no rental income to offset such expenses. He continued to pour money into the development to assuage the neighbors' alleged concerns about the septic and water systems. After the fire, Reverend Harper was faced with the costs of cleaning the debris. Unfortunately, Reverend Harper did not receive replacement value from his insurance company, because the townhouses were vacant at the time of the fire.(see footnote 4) Of course, this experience also took a toll on Reverend Harper's health, which is the reason he is not able to share his story with you today. In January of this year, Reverend Harper unfortunately suffered a nearstroke, which was determined to be stress related.
Reverend Harper's story is cited for several reasons. First, Reverend Harper's story highlights that citizens who oppose particular land uses are not always pursuing legitimate or legal causes. Some residents of Croom were seeking to stop Reverend Harper solely because the potential tenants were African American. These white residents made pretextual claims about sewer capacity and water pollution before the Planning Board. The illegitimate concerns about drugs, crime, the ''type'' of tenants and their race were the real reasons for the opposition of white residents. PER. 589 appears to exempt pretextual activities not prohibited by any law other than the Fair Housing Actsuch as harassment and intimidationas long as the activity is aimed at ''achieving or preventing action by a governmental entity official.''
Second, Reverend Harper's experience demonstrates how far some people will go to stop African Americans, other minorities, families with children and the disabled, from moving into their neighborhoods. The illegal motivations of these white residents were not just expressed in statements to the press or local officials. These residents also waged a legal battle merely for the purposes of harassing Reverend Harper and interfering with his rights protected under the Fair Housing Act. In addition, this story makes clear that without any protections, persons pursuing equal housing opportunities may experience the ultimate interference with their rights, the loss of property or even worse, life.
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If H.R. 589 passes, it will provide no recourse for people in Reverend Harper's position, until it is too late and unless damage compensable under another law is available. There would be no legal recourse for those who are slapped with harassing lawsuits motivated by racism. Surely, Congress did not pass the Fair Housing Act with the intention of creating a loophole, i.e., filing lawsuits, for people motivated by illegal intentions based upon race, national origin, or other protected classes.
This situation also illustrates that current law already strikes more than a fair balance in favor of First Amendment concerns. In April, 1994, Reverend Harper filed a HUD complaint against the neighbors who had made overtly discriminatory statements. Pursuant to HUD's guidelines on complaints that may implicate the First Amendment, HUD determined that it could not pursue a complaint against the neighbors, except for those who made direct threats. In April, 1994, after the Prince George's County Council rejected his zoning application, Reverend Harper amended his HUD complaint to include the County Council. Although HUD investigated this complaint, it has done nothing to remedy Reverend Harper's situation or to obtain damages for harm caused by any illegally motivated actions taken by the Council.
In response to criticism of its investigations, HUD issued guidelines entitled ''Substantive and Procedural Limitation on Filing and Investigating Fair Housing Act Complaints That May Implicate the First Amendment.''(see footnote 5) (Attachment B is in the subcommittee files.) These guidelines ensure that Department investigations do not chill political speech, but recognize that there may be circumstances where rights established under the Fair Housing Act may be paramount. For example, the guidelines acknowledge that frivolous lawsuits can be a violation of the Fair Housing Act. Accordingly, HUD has taken the position that these cases must be viewed on a case-by-case basis so that competing interests must be weighed. This is the appropriate approach. H.R. 589 eliminates any balancing of interests and upholds only First Amendment interests.
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Take for example, lawsuits filed solely for harassment and discriminatory purposes. In Sofarelli v. Pinellas County, 931 F.2d 718 (11th Cir. 1991), in attempting to move a house by trailer to his property Mr. Sofarelli was obstructed by a neighbor. The neighbor filed a lawsuit to permanently enjoin the move and filed for a restraining order; other neighbors intervened in the lawsuit against Mr. Sofarelli. While the action was brought on grounds that the move caused a trespass to another's property, the neighbors' efforts were motivated by racial animus.(see footnote 6) The Eleventh Circuit held that Sofarelli's subsequent lawsuit against the neighbors stated a claim under the Fair Housing Act, as their actions, if proven true, were unlawful interferences with Sofarelli's aid and encouragement of rights granted under the Act. Sofarelli, 931 F.2d at 722. See also Casa Marie, Inc. v. Superior Court of Puerto Rice for Dist. of Arecibo, 752 F. Supp. 1152 (D.P.R. 1990) (holding that the filing by neighbors of an action seeking to permanently enjoin the renovation and use of property as a home for disabled elderly was an improper use of judicial system to exclude a protected class under the Fair Housing Act); Woods-Drake v. Lundy, 667 F.2d 1198 (5th Cir. 1982); Miller v. Towne Oaks East Opts., 797 F. Supp. 557 (E.D. Tex. 1992); Northside Realty Associates, Inc. v. Chapman, 411 F. Supp. 1195 (N.D. Ga. 1976).
The Supreme Court has long held under other civil rights statutes that the burden of having to defend prosecutions may itself cause the denial of civil rights. Georgia v. Rachel, 384 U.S. 780, 805 (1966). In Rachel, black civil rights workers were arrested for trespassing when they sought to obtain service at restaurants in Atlanta, Georgia. The Supreme Court reiterated its view that the Civil Rights Act of 1964 protects persons exercising their rights of equality not only from conviction but also from prosecution brought for the purpose of punishing those who exercise their civil rights. Further, in Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968), black citizens peacefully engaged in activity designed to encourage voter registration were arrested by police officials. The court held that a provision of the Voting Rights Act of 1965, similar to section 3617 of the Fair Housing Act, which prohibits intimidation and interference with rights established by the Fair Housing Act, does not permit spurious prosecutions for protected rights.(see footnote 7) As in the public accommodations case, Rachel, the court stated that the relevant question is whether the ''prosecutions were merely a handy name given by the state prosecutor for the federal preemptive right to engage in assisting others to register to vote.'' Whatley, 399 F. 2d at 526.
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As written, H.R. 589 would permit the filing of frivolous lawsuits brought to harass, discourage, or intimidate individuals pursuing housing opportunities. In a labor case, the Supreme Court stated that ''[s]tates have only negligible interest, if any, in having insubstantial claims adjudicated by their courts, particularly in the face of the strong federal interest in vindicating the rights protected'' under law. Bill Johnson's Restaurants Inc. v. NLRB, 461 U.S. 731, 73444 (1983). H.R. 589 would also permit the filing of lawsuits that do not comply with the standards announced in cases such as United States v. Wagner, 940 F. Supp. 972, 98082 (N.D. Tex. 1996). In Wagner, the court concluded that the lawsuit which sought to prevent the opening of a group home for six mentally retarded children was in violation of the Fair Housing Act. The court held that the lawsuit was not protected by the First Amendment because it was filed 1) for an illegal objective; 2) without a reasonable basis in law or fact; and 3) with an improper motive. See also Tizes v. Curcio, 1995 U.S. Dist. LEXIS 11368 (N.D. Ill. Aug. 9, 1995). H.R. 589 would ignore the question of whether a case was frivolous and permit unfettered activity disguised as free speech.
In addition, H.R. 589 is too broad because it permits ''any otherwise legal activity'' engaged in for the purposes of influencing governmental officials or receiving an interpretation of the Act. This ''any otherwise legal activity'' would permit any activity regardless of its harm, even if the Fair Housing Act was designed to prevent such harm. Thus, in Reverend Harper's case the statement, ''I'm going to burn them down,'' would be exempted if its purpose was to influence the zoning board to deny the permit. This statement clearly is a threat which intimidates those seeking to exercise their rights to equality in housing, and is now illegal under the Fair Housing Act. But H.R. 589, which amends the Fair Housing Act, would exempt this statement if it was said to influence the county council, regardless of the interests of the black families.
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Likewise, H.R. 589 would sanction the type of behavior which was the subject of People Helpers Foundation v. City of Richmond, 781 F. Supp. 1132 (E.D. Va. 1992). In that case, neighbors of a property in which disabled and black persons resided, engaged in acts of intimidation which stated a claim under the Fair Housing Act. The defendants picketed in front of the building and took pictures of the occupants. The court acknowledged that even if the defendants' conduct was not violent or illegal per se, it could still constitute interference, intimidation or coercion as prohibited by section 3617 of the Fair Housing Act. Id. at 1135. This is clearly the type of activity that Congress intended to prevent when it passed the Fair Housing Act.
Another concern that is raised by the Senate version of this bill, S. 142, is the use of this ''otherwise legal activity'' as evidence in a legal action. The Senate bill prohibits the use of such evidence in cases brought pursuant to the Fair Housing Act. This provision would gut the Fair Housing Act. This evidence is critical to demonstrating racial animus on the part of government officials, who may take actions in reliance upon the racial animus of constituents. In Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907 (N.D. Ill. 1969), a landmark housing discrimination case which challenged the segregated public housing system in Chicago, the court considered the statements of constituents to determine if the city's Aldermen were influenced by racial animus. The court stated that ''even if the Aldermen's informal surveys were correct in their uniform assessment of public opinion, they cannot acquiesce in the sentiment of their constituents to keep their neighborhoods white and to deny admission to [blacks] via the placement of public housing.'' Id. at 913. See also, United States v. City of Parka, Ohio, 494 F. Supp. 1049, 10771081 (N.D. Ohio 1980). This evidence is critical to assessing whether elected officials may have been illegally motivated in taking actions which deny housing opportunities. Congress could not have intended to permit city officials to act upon the racial animus of their constituents.
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The Fair Housing Act was passed with the purpose of providing fair housing in the United States, within constitutional limits. The Fair Housing Act already must yield to the higher authority of the Constitution in the case of any actual conflict with the First Amendment. In addition, HUD has (by its policy) gone further to protect even arguable First Amendment concerns. First Amendment interests must be weighed against the interests in equal housing opportunities on a case-by-case basis. This balancing is presently occurring. H.R. 589 acknowledges First Amendment interests only, which will operate to the grave detriment of persons for whom Congress provided protection from discrimination by passing the Fair Housing Act. Citizens should not be permitted to take otherwise illegal actions solely because they cloak themselves within the purview of the First Amendment by attempting to influence governmental officials or by bringing legal actions. For the foregoing reasons, we oppose H.R. 589.
Ms. BROWNE. Within my time.
Mr. CANADY. You will get an award.
Ms. BROWNE. Thank you. [Laughter.]
Mr. CANADY. It is duly noted that I think you are the only person today within the time limits.
Ms. BROWNE. Do I get rebuttal time? [Laughter.]
Mr. CANADY. Well, that probably could be arranged.
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Mr. Conner, please proceed.
STATEMENT OF ROGER L. CONNER, EXECUTIVE DIRECTOR, CENTER FOR THE COMMUNITY INTEREST
Mr. CONNER. Ms. Browne will be my role model. [Laughter.]
Mr. CANADY. You will both be our heroes.
Mr. CONNER. I am the director of the Center for the Community Interest, which is a project of the American Alliance for Rights and Responsibilities. We provide legal assistance and support to community groups around the country who are trying to deal with crime and problems in their communities.
Part of the reason you are having such difficulty is that in recent years, the Government has stopped providing services for people that historically the Government has cared for, the mentally ill, persons addicted to drugs and alcohol, orphans, children who have been abused by their families, and so on. It's instead starting to have these services provided by nongovernmental organizations, although it's typically with Government money. Increasingly, this is being done in communities and neighborhoods.
In our experience, because we tend to work with communities where there are crime and disorder problems, there has been a tremendous concentration of these social service facilities in low income neighborhoods. When you get no matter how well operated, these things together in one place, you can get a negative synergy that can be very harmful to the community. That's happening a lot.
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The problem is, some of these social service facilities are run by saints. You have heard a couple of them talked about today. Some of them are run by crooks. Some of them are run by ordinary folks that are just trying to get by and make a living and make a job. Some of them are run by community boards that are very closely tied to the communities where they are located. Some are run by boards of directors who live in the suburbs, leave things to the staff, never come around at night. Some of them are assets to the neighborhood, and some of them can be a disaster. All you need is a badly operated facility in your neighborhood, where the board isn't watching, the staff doesn't care what happens at night, and you can be in trouble.
But what all of these organizations have in common is this, none of them want to be controlled by the local government. None of them want to be controlled by their community, where they are. In this respect, they are no different from any other business or organization. They don't want to be controlled. So you have these disputes, and neighbors disagree either that the facility should be located there or frequently after it has been put in their community, they don't like the way it's being operated.
Now the committee needs to understand what is happening at the grassroots level day in and day out. Ordinary citizens coming to public meetings are being told to sit down and shut up. When they object to what is happening in their neighborhood, they are told that their petitions, their statements, their speeches, their organizing is violating Federal law and Federal agencies can be brought down on their necks, and that they can be subjected to Federal lawsuits and private lawsuits. They are having newspaper articles about $30,000 fines paid by community groups shoved at them and told to sit down and shut up. They are being told that if they make statements, they will be placed in the record, and the Federal Government will use them to make it impossible for their local government to act. This is not a good thing.
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The assurances of a lawyer from the Justice Department that, even though they did this in the past and are not doing it any more, doesn't help the ordinary citizen in Tuscaloosa, AL, who is trying to figure out what the heck is going on and whether in fact they have these rights. What has happened is the first amendment rights of ordinary people are being chilled all across this country. This is bad because sometimes these concerns of neighbors are legitimate and need to be heard.
Just as you are having difficulty figuring out what is really going on, is the mayor right or is Hancock right? We can't figure it out. The same thing at the local level. Local government officials are having trouble figuring out whether this is rank discrimination or whether in fact they got a bad apple, as was referred to by Mr. Tews a minute ago. They need the input and that's why the robust first amendment is needed.
It is also bad to tell people to sit down and shut up, because internal bleeding always makes you sick. When you let these things out in the open, often what comes out, as you Members know well because you have had experience at the local level. You know you work through these things, sometimes you come out the other side, don't you? People who have shouted at each other, talk to each other and they can work things out so that you have a facility that's accepted by the neighbors instead of it being shoved down their throat. That's what we are losing because of the way the Fair Housing Act is being waved in front of people and they are being told to sit down and shut up.
Now I am not talking about the first half of the Bilbray bill which refers to the single family. The first section talks about the single family and so on. We are not involved in that. I think that it's as written harmful because the communities where our experience is not that there are too many social service facilities in single-family neighborhoods, it's the mixed single-family and multifamily neighborhood that is having crime and disorder problems that's getting all of them.
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I am talking about the part of this legislation dealing with the first amendment. As written, we would not support it. We have written legislation which we have submitted to the committee, precise language which is included, Mr. Scott, in what I have presented to the committee. This bill was drafted by Bob Hoyt and Andy Volmer of Wilmer, Cutler & Pickering. It's very precise.
It says, No. 1, anybody who engages in traditional first amendment activities, that is not a violation of the act. You need this to make clear to everybody that their first amendment activities are not a violation of the act. But the reason you need this is, even if HUD and the Department of Justice back off, this law allows for a private right of action. Private individuals can still sue their neighbors for first amendment activities until you put a stop to it with legislation.
Now the second thing this bill does is addresses the concern Ms. Browne raised; that is, lawsuits or first amendment advocacy, it should be protected. But what about the frivolous lawsuit that is strictly thrown in for the purpose of throwing the burden onto the back of persons who go forward? We have got a simple solution. Rule 11 has been around a long time. People understand it. That ought to be the standard.
If it would be a lawsuit that would be frivolous under rule 11, then you can be subjected to the Department of Justice coming in and suing you, and getting attorneys' fees to give Ms. Browne's client. But we need one rule, and let me tell you why. The Justice Department has its own idea of what's frivolous and without foundation. They have got a case called the Robinson case out of New Haven, CT, where a Federal judge ruled that the case was not frivolous. A Federal judge ruled that it was not baseless, that it was a legitimate and unresolved issue that the plaintiffs were raising. Mr. Hancock and his associates in the Justice Department told those citizens that if they appealed that verdict, if they would try to get individually, pierce the corporate veil and bankrupt them.
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As a result those citizens who the judge said had filed a legitimate lawsuit were compelled to pay a $30,000 fine to settle that and get it behind them. Deval Patrick testified before the Senate, and his testimony is attached to Mr. Hancock's testimony right here, that they would bring the Robinson case again today under their current guidelines.
Now, folks, they've got a different idea of what's a frivolous and baseless lawsuit than I do. If we have a lawsuit that a Federal judge said has found was legitimately filed and not baseless, and they say we'll go after those guys because in their opinion it was not a well-founded lawsuitordinary folks out there that are trying to figure out what they can do and where they have to stop, and they are going to their lawyer at the very local level. This is not going to be a Supreme Court lawyer out here that they are talking to, saying, ''We don't agree with the way this place is being operated. People come and go at all times of the day or night. We think they are letting them use drugs and stuff. Can we sue?'' You need to have it clear in legislation that Joe lawyer can find or Jane lawyer can find, without finding the results of a colloquy between Mr. Canady and Mr. Hancock, that says what they have got a right to do, rule 11 is the only bright line I can think of that protects Ms. Browne's client, as Ms. Browne's client should be protected, but offers robust protection for the first amendment.
Mr. Canady and Mr. Scott, it seems to me that this issue is clear. What keeps happening is the Justice Department comes down and testifies to you, when you put enough pressure on, oh no, we won't do that any more. Then every time someone comes up with this simple legislative solution which we have now done three times in three sessions of Congress, they always come back and they will testify to you, it sounds good to me. Then back room, down she goes.
Page 131 PREV PAGE TOP OF DOC In our view, this needs to be resolved. The first amendment rights of people in neighborhoods need clear and unambiguous protection. The only way to get it is take the words that the Justice Department will give you in testimony, reduce them to legislative language such as that we have submitted, and pass it.
[The prepared statement of Mr. Conner follows:]
PREPARED STATEMENT OF ROGER L. CONNER, EXECUTIVE DIRECTOR, CENTER FOR THE COMMUNITY INTEREST
Mr. Chairman, members of the Subcommittee, we thank you for the opportunity to testify before you today concerning the implementation of the Fair Housing Act Amendments (FHAA) by the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ).
This testimony has been prepared jointly by Roger Conner, Executive Director of the Center for the Community Interest and Robert Hoyt of Wilmer, Cutler & Pickering. The Center for the Community Interest (''CCI'') is a non-partisan, national organization of citizens of many different political persuasions. CCI works to help citizens at the grass roots level regain control over their streets, parks and other public spaces from crime and disorder, and to defend public policies that strike a proper balance between individual liberties and community responsibility.
I have appeared before you in the past as Director of the American Alliance for Rights & Responsibilities. The work of AARR on crime and quality of life issues is now being carried out by this new entity, the Center for the Community Interest. Our principles and goals remain unchanged.
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Over the past four years the CCI has been contacted by neighborhood groups across the country who are concerned about the misuse of the FHAA to reinforce historic patterns of discrimination and discourage citizens from participating in decisions of their government on issues which directly affect their lives. CCI has investigated a number of these complaints, filed protests with DOJ and HUD, and circulated a petition to neighborhood groups across the country.
In the course of this work CCI has reached six principal conclusions.
1. We need an expansion in this country of shelter combined with support services for persons who are mentally ill and/or addicted to drugs and alcohol, especially those who have burned their bridges to friends and familythe ''homeless.''
There is an overwhelming consensus today that untreated mental illness, addiction to drugs and alcohol, and a combination of these maladies is the primary explanation for the persistent problem of visible, desperate, seemingly helpless people who make their lives on our city streets. We work with downtown business leaders and inner city neighborhood leaders who tell us they cannot address the quality of life problems which customers and residents complain of without expanding shelter combined with social services for people now living on the street.
For this reason, we applaud those in Congress and the Administration who have advocated plans to create a spectrum of facilities to provide treatment and support for this needy population. There has been a lot of talk about false victimization recently, but we should all recognize that many of the street people are victims in the truest sense. Nobody chooses to be a schizophrenic.
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2. Polices of DOJ and HUD are reinforcing historic patterns of discrimination. For over twenty years state and local governments have been in the process of deinstitutionalization and privatization of social services for exceptionally needy persons. Instead of mental institutions we have SRO's. Instead of orphanages we have group foster care homes. Instead of prisons we have half way houses. Instead of public hospitals or institutions for drug addicts we have drug rehabilitation facilities in residential neighborhoods.
For a variety of reasons, the for profit and not-for-profit organizations who operate these facilities have tended to concentrate them in neighborhoods which we classify as ''at risk.'' These are communities where an active struggle is underway between the community builders and the forces of social disintegration; neighborhoods closer to the center of the city than to the suburban fringe; places often integrated by social class, race and ethnicity. They are typically politically weak and poorly organized. And they carry a staggering percentage of the drug rehabilitation facilities, half way houses for released criminals, group homes for disabled or dysfunctional persons, SROs for mentally ill substance abusers, Hospices for AIDS sufferers, and so on.
In the past few years, citizens in these at risk neighborhoods have begun to fight back against crime and disorder, especially the threat represented by open drug markets. Roger Conner is co-author of The Winnable War, a Community Guide to Eradicating Street Drug Markets, which has sold over 15,000 copies across this country, and has been in touch with many of these neighborhoods in the course of his research.
Citizens in these neighborhoods believe that a high concentration of such facilities is harmful to the health of their neighborhoods. First, the operators are not uniformly able or accountable. Inevitably, some become the equivalent of slum landlords. Second, there is a very high recidivism rate among the addicted population. Drug dealers understand this, and by creating concentrations of group homes for addicts in some stage of treatment and recovery we inadvertently create a target for dealers. A badly managed facility which provides shelter or housing to mentally ill and addicted persons is a disaster for an at risk neighborhood. A high concentration of such facilities creates a negative synergism that drains the energy of neighborhood activists who have enough problems to cope with as it is.
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Non-profit providers and local government agencies have a tendency to target these neighborhoods, however, because, compared to other neighborhoods, residents are relatively weak politically, the property is relatively cheap, and the buildings tend to be relatively large. And providers who manage several sites, which is commonplace, gain efficiencies by clustering the facilities. From Columbia Heights in Washington D.C. to the lower east side in Manhattan to University Boulevard in Berkeley, the pattern is the same.
Because at risk neighborhoods are subjected to high concentrations if matters are left to the decisions of private non-profit organizations, the only way to prevent unfair concentrations is for cities to adopt and enforce explicit ''fair share'' or ''anti-concentration policies,'' which a few cities are starting to do. Or I should say were starting to do until officials in local HUD offices and also from DOJ concluded that ''fair share'' policies are inherently suspicious. What is worse, HUD and DOJ considers citizen complaints about unfair concentration so verboten that they will treat such statements in public hearings as evidence that any subsequent local decision to deny a rezoning or special use permit is motivated by discrimination.
Indeed, if you were a member of a city council or planning board instead of a Congressional Committee, and you voted to deny a special use permit using the arguments I just made about over concentration and the tendency of recovering addicts to backslide, complaints could be filed against you personally. HUD could investigate and demand that you enter a voluntary agreement to refrain from such conduct or face civil penalties. In at least one instance, very reliable sources have reported to Mr. Conner that a former governor's staff screened his mail to make sure he did not have a chance to read such politically incorrect input from his constituents, thanks to a consent agreement he entered into with HUD.
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It is hard for me to believe that the Congress, in passing the FHAA, intended for HUD to reinforce past patterns of discrimination against at risk neighborhoods, but that is precisely what they are doing.
3. The policies of HUD's and DOJ in the past seven years have had an enormous chilling effect on citizen participation across the U.S. I wish I could count the number of calls we have received in the past two years from citizens' groups that are afraid to organize, to speak at public hearings, or to gather signatures on petitions. They are being threatened, both publicly and privately, with the filing of HUD complaints or DOJ lawsuits. Publicity about the actual investigations has been devastating to groups which rely on volunteer citizen energy. HUD's newly published guidelines are welcome, but guidelines can be changed too easily.
More important, the HUD Guidelines do not purport to be an interpretation of the statutory rights of citizens of the U.S. under the FHAA. There are mere guidelines which describe the cases which the agency, in the exercise of its ''prosecutorial discretion'' will and will not investigate. The guidelines recognize that the FHAA gives a right of action to private persons and to DOJ; and explicitly state that they are not intended to prevent these other persons from filing civil lawsuits against the politically incorrect.
4. HUD's ambiguous policies on citizen suits and DOJ's inconsistent actions are creating confusion and a further chilling effect. Mr. Conner has received calls from a woman in Illinois who wanted to contest a re-zoning from commercial to multi-family on the basis that the re-zoning was in conflict with a recently adopted master plan. Her suit was permitted by state and local law. She said to him, ''we can afford to sue under the zoning law, but we couldn't afford to take on a federal suit, and the developer has promised to file a HUD complaint and if we go to court. Our lawyer says our suit is valid, but HUD might determine otherwise. He says HUD could investigate us, and that the Justice Department could sue for civil damages. If there is any risk of that, my neighbors and I must abandon our case because we are persons of very modest means.'' Mr. Conner had to tell her the developer was right, that she risked being attacked by her own government if she tried to vindicate local zoning laws in court.
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Why should HUD and DOJ hold this legal Sword of Damocles over the necks of citizens who disagree with its interpretation of federal law? HUD has many tools to resist lawsuits it does not like. The United States government can intervene or file amicus briefs in such cases, for example. As to sham lawsuits, there are rules now in almost every state to discipline lawyers who bring frivolous, abusive lawsuits.
5. HUD and DOJ's strategy is divisive and destructive to community-building. I realize that there are many of my colleagues who are involved in advocacy for juveniles, mentally handicapped, homeless children, and other worthy and needy populations who like the FHAA as it is. They like being exempted from local zoning, since they are suspicious of local government. And some of them enjoy being able to brandish the FHAA to silence their opponents in public meetings before local government agencies.
The Biblical admonition that ''he who sows the wind shall reap the whirlwind'' is operating with a vengeance in this field. Citizens who question new facilities for their neighborhoods are now routinely threatened with HUD complaints and DOJ lawsuits. Public officials who listen to their constituents are warned publicly that they will be investigated and fined as private citizens if they vote the wrong way. This strategy is the dead cat in the well of public support for FHAA enforcement and residentially based facilities. Because people are not very inclined to be trustful or to compromise when the threat of federal investigations is hanging over the room.
6. The Department of Justice's 11th Hour Conversion has not solved the problem created by its misinterpretation of the FHAA.
Page 137 PREV PAGE TOP OF DOC Last year, in the wake of hearings on this subject in which DOJ was required to respond to some very direct questioning by members of the House Subcommittee on the Constitution, General Patrick, who was at that time Assistant Attorney wrote to Representatives Canady and Frank to express DOJ's support for the HUD Guidelines. In the wake of that letter, some have suggested that there is no need for legislation protecting the rights of those who petition their government on housing issues. We respectfully disagree. While we welcome DOJ's newfound support for the Guidelines implemented by HUD, testimony submitted by DOJ representatives before the U.S. Senate, testimony which occurred after the letter was sent, reveals a constantly shifting position that requires legislation reinforcing these fundamental constitutional rights.
The background of the testimony is this. In 1992, DOJ filed United States v. Duncan Robinson, et al. The defendants in Robinson were neighbors who had sued their city government to compel the city to enforce a facially valid, neutral city zoning ordinance. The theory of the Justice Department's complaint was that the Robinson group's lawsuit was motivated by discrimination, and sought an illegal purpose, ''regardless whether the state court suit was well grounded in state law.'' United States Opposition and Response to Motions to Dismiss by Defendants Duncan and Elizabeth Robinson, United States of America v. Duncan Robinson et. al., Civ., Action No. 392CV00345, Nov. 23, 1992, at 10.
In September 1994, HUD issued its Guidelines, providing that only a ''lawsuit which is frivolous can be a violation of the Act.'' The memorandum from HUD announcing the Guidelines cites the Robinson case is cited with approval (at p. 5), even though the government's position in the Robinson case is contrary to the position set forth in the Guidelines. Indeed, in a brief opposing the a motion to dismiss, the DOJ had disavowed the ''frivolous'' standard adopted by HUD:
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Bill Johnson's and its progeny make clear that a lawsuit that seeks an illegal objective may be sanctioned pursuant to federal law regardless whether it is otherwise meritorious. such as when it states a valid claim under state law. and regardless what the petitioner's motivation for bringing it.... regardless whether the state court suit was well grounded in state law. Opposition and Response to Motions to Dismiss by Defendants, Nov. 23, 1992, at 10. (Emphasis in original.)
Indeed, as District Court Judge W.T. Gilroy Daly noted in his order dismissing the government's case, DOJ had ''disavowed any intent to rely on the sham exception. See Magistrate Judge's Opinion at 12 noting government's concession on issue at oral argument before Magistrate Judge.'' Ruling on Objections to Recommended Ruling, January 26, 1995, District Court Judge W.T. Gilroy Daly, at n. 13.
After the HUD guidelines were issued and (so it appeared) the government had declared that it would not consider the filing of a non-frivolous lawsuit to be a violation of the FHA, the Robinson defendants requested oral argument before the District Court Judge, to request that DOJ's lawsuit be withdrawn. The Justice Department responded by stating that HUD's guidelines did not apply to them (DOJ)''these are internal guidelines for investigation of complaints to HUD and therefore have no impact on this litigation,'' and further, notwithstanding the Guidelines, ''the position of the Justice Department has not changed.'' Response and Opposition to the Motion of Defendants Hodgson and Leventhal for Oral Argument, Sept. 16, 1994 at 2, 3.
On January 26, 1996, the District Court dismissed the Justice Department's complaint in the Robinson case. The opinion contains extensive discussion of the standard set forth in the Supreme Court's opinion in Bill Johnson's Restaurants Inc. v. NLRB, and rejects the DOJ's interpretation of Bill Johnson's. In the succeeding months, DOJ filed a notice of intent to appeal Robinson. Lawyers for DOJ made representations to the Robinson defendants that the appeal would be vigorously pursued. Facing escalating attorneys fees, the victorious defendants agreed to a settlement which required them to collect $30,000 from citizens in the community as a civil fine for activities which District Judge Daly had found were ''within the heartland of the Petition Clause.''
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Last year, before the House Subcommittee on the Constitution, the Justice Department reiterated the position it took in Robinsonthat it will pursue relief under the FHA against those who file lawsuits ''that are frivolous, harassing, malicious prosecution, an abuse of the legal process or seek an illegal objective.'' Statement of S. Ishimaru at 13 (emphasis added). In other words, even lawsuits that are not frivolous will be considered illegal by DOJ if; in the opinion of DOJ, the lawsuit ''seeks an illegal objective.'' This interpretation is a very broad and blunt weapon to intimidate the ''politically incorrect.''
It is disturbing enough that Justice would maintain this position more than two years after HUD took the opposite position in its Guidelines. What is worse, the Department has repeatedly cited to the Bill Johnson's case to justify its interpretation of the First Amendment rights of citizens who sue when the Supreme Court in that case took precisely the opposite position. There, the Court wrote ''The filing and prosecution of a well-founded lawsuit may not be enjoined ... even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the [National Labor Relations] Act.'' 461 U.S. at 743. Thus, the Bill Johnson's case does not permit the Justice Department to sue individuals for filing lawsuits solely because of their alleged intent to seek an illegal objective rather, it permits the Justice Department to sue only if the individual's lawsuit was ''objectively baseless'' and seeks an illegal objective.
Mr. Patrick's September 9, 1996 letter to the House Subcommittee offers the latest twist in its interpretation of the law and of the HUD Guidelines. Now, contrary to its position in the Robinson case, and contrary to DOJ's written and oral testimony before the House Subcommittee two weeks ago, Mr. Patrick states that DOJ operates according to the principles stated in HUD's Guidelines. Now, DOJ states, citizens lose their First Amendment protection only if they bring suits which are ''frivolous'' and seek an illegal objective. But nowhere does the letter discuss the standards by which DOJ will assess whether a lawsuit relating to housing issues is ''frivolous.''
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In the Robinson case discussed above, DOJ took the position that plaintiffs' case was ''frivolous'' even though a State Superior Court judge agreed with the citizens, even though no state appellate court had never ruled on the issue, and even though a Federal District Court Judge held that the citizens' legal theory was well grounded in state law. Indeed, the very preemption issue which led DOJ to characterize the state lawsuit frivolous was not settled until it reached the Supreme Court in the Edmonds case, and even then resulted in a decision by a divided Court.
Disturbingly, after Mr. Patrick's September 9, 1996 letter to this Subcommittee, DOJ changed its position once again. In testimony before the Senate Committee on Banking and Housing, Subcommittee on HUD Oversight, Mr. Patrick expressed his view that he would he would bring the Robinson lawsuit again today if the same conduct took place. Mr. Patrick also failed to clarify how his department would go about determining whether a lawsuit is ''frivolous.'' At the end of the last session of Congress, several members of the Senate urged the adoption of legislation that would have set a bright line to protect citizens who bring lawsuits against facilities arguably protected by the FHAA: Suits which would be objectively groundless within the meaning of what is popularly known as ''Rule 11'' of the Federal Rules of Civil Procedure could be the subject of DOJ lawsuits. All other citizen activities, including suits, would be protected from federal punishment. This plain legislation solution was not adopted because of an objection from DOJ.
Against this background, it is clear to us that even if DOJ is prepared to reiterate the position expressed in Mr. Patrick's September 9, 1996 letter before this Subcommittee, the Congress should adopt these guidelines into law. The sordid history of new positions and stretched interpretations of the lawwhich has left the First Amendment rights of many citizens trampled in its pathmust come to an end. While we welcome the Justice Department's apparent shift in position, we fear that it will evaporate with the next lawsuit, or the next Assistant Attorney General for Civil Rights, or the next Administration (the Subcommittee should recall that the policy from which the current Administration has retreated was initiated in the Bush Administration).
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Congress should make it clear that it is not within the Executive Branch's discretion to continue respecting the First Amendment rights of citizens.
Attached to this testimony as an appendix is draft legislation(see footnote 8) that the CCI has developed that takes a different approach than the HUD Guidelines and the Patrick letter. We believe this legislation strikes an appropriate balance between the First Amendment and the purposes of the Fair Housing Act by protecting ''the filing of an action an any federal or state court for damages or to enforce or seek enforcement of any federal, state, or local law, including regulations or ordinances; provided that the action satisfies the standards set forth in Federal Rule of Civil Procedure 11 (b).''
As the members of the Subcommittee may be aware, the language of ''Rule 11,'' as it is known, has been around for some years now, and has been the subject of considerable litigation. Consequently, the standard has the virtue of providing citizens and lawyers considerable guidance, something a new and ambiguous standard like ''frivolous'' does not. Our proposed language follows the mandate of the Supreme Court in the Bill Johnson's case, and is entirely consistent with the Justice Department's latest position on what its policy is.
Setting aside the question of which legal standard the Subcommittee prefers, we respectfully suggest that until the protection is placed in the statute itself, the uncertainty that has resulted from the Robinson case and others like it will continue to chill the First Amendment rights of many citizens, and will undermine the policies and protections of the Fair Housing Act. Assistant Attorney General Patrick will not be in office forever. The abuses outlined in this letter originated under a Republican administration, and were continued by the current one. A mere letter from Mr. Patrick will not bind the hands of any future person who holds his title. In addition, the FHAA provides for a private right of action, and the HUD guidelines are carefully written not to be an interpretation of the FHAA itself, but as an exercise of prosecutorial discretion. That is why it is all too common for citizens who appear at public meetings relating to FHAA-covered facilities to face the threat of litigation for simply exercising their First Amendment Rights.
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Congress has known about this problem for over four years. It has a simple legislative fix. The citizens of this country deserve an answer to this question: If a federal agency, acting under the authority of a law passed by Congress, has violated the First Amendment rights of citizens in the past and could do so again, if citizens can be brought to court today by non-profit organizations which operate with government money simply because the citizens exercised their First Amendment rights, why hasn't Congress done something about it?
Mr. CANADY. Thank you, Mr. Conner. I appreciate your comments. I want to thank you for your specific suggestion, which I realize has been submitted before. I would like to ask Ms. Browne, if you have had a chance to review this. I don't know if you have.
Ms. BROWNE. I have not.
Mr. CANADY. Since you haven't had a chance to review it, if you would give us your written comments on this, I think that would be helpful, because I intend to look closely at this. I think having your perspective on this specific proposal would be helpful.
[The information is in the subcommittee files.]
Ms. BROWNE. Mr. Chairman.
Mr. CANADY. Yes.
Ms. BROWNE. I have not had an opportunity to review it. However, I do have an idea of what has been put before you in the proposal. One of the problems with using rule 11 as a standard is that, although a lawsuit against Reverend Harper over sewer capacity may not be frivolous under rule 11, it was brought for under an illegal motive. The problem is that you have to do some balancing. What 589 does is that it puts all the weight on the side of the first amendment and forgets civil rights all together.
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What has to be done is that there has to be some balancing so that you look at whether or not we're going to protect people under the Fair Housing Act. Are we going to allow discrimination to exist. So the kind of standard that the court in United States v. Wagner enunciated is a better standard, which looks at illegal motive, illegal objective.
Mr. CANADY. Mr. Conner.
Mr. CONNER. Just a quick comment. That was the position the Justice Department took before this committee last year. It's important for the committee to understand that the court that Judge Gilroy said under his reading of the first amendment, that it must be a baseless lawsuit and an illegal motive, not or. Because if you put yourself in a situation where people that are bringing a lawsuit that is legitimately grounded, that is, they are saying the defendant is breaking the law with say putting in a facility without going before the zoning board, we can probe their motives and say well, if we determine they have an illegal motive even though they are right that the law is being violated, they have no first amendment right to advance that.
What the Justice Department has now collapsed to is ''and'' instead of ''or.''
Mr. CANADY. I think that's a good point. I can imagine circumstances where there would be a group of people pursuing a lawsuit. There may be some rogue person who says some things that are despicable, and then all of a sudden, those statements are attributed to all the other people in the lawsuit that kind of taints the whole lawsuit in the view of some.
Page 144 PREV PAGE TOP OF DOC Let me ask you this, Ms. Browne. Under your view of this, would it be a violation for someone to come before this subcommittee and testify in favor of repealing the Fair Housing Act?
Ms. BROWNE. No, it would not.
Mr. CANADY. OK. Just wanted to check. I want to make sure everybody is safe here today anyway.
Ms. BROWNE. Is there someone that's going to say that?
Mr. CANADY. Although no one has suggested repealing the Fair Housing Act, and I don't think anyone here would support that.
Mr. SCOTT. Thank you, Mr. Chairman. First, Mr. Conner, did I understand your testimony to be that you did not support the first half of the bill?
Mr. CONNER. We do not. It seems to me there's an extremely complex issue here that you have heard talked about. It has been reduced to a very simple proposition, which is that three types of facilities can be placed in single-family neighborhoods without protection of the Fair Housing Act.
It is our view that the inability of mixed income, mixed residential neighborhoods to protect themselves from facilities which are badly operated, are all put in one place, is a much bigger problem than these facilities being placed in single-family neighborhoods. I mean go to Berkeley and you will find 1 mile that has 80 percent of all the social services facilities of the entire county. It happens to be the neighborhood with the highest minority concentration, highest concentration of poverty, blah, blah, blah. We see it over and over.
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So I think your approach, although we're not experts in the field, but your approach of Congress going back and restating more precisely what Congress meant, sort of taking my approach on the first amendment. Listen to what Mr. Hancock says, take him at his word. Write it down in the legislative language and say for everybody, not just for single-family neighborhoods, but for mixed neighborhoods of single-family and multifamily as well, that when these facilities come in, they have got to apply and go through the process, and reasonable restrictions can be placed.
I think it is especially important for you by legislation, if you work in this area, to ensure that your neighborhood that's receiving many of these facilities have the capacity to impose reasonable conditions of operation. That the facility, I mean the classic example is a facility that says we're a drug rehab facility, but they refuse to do drug testing of the people that are in the facility. The neighbors claim that people are coming and going at all hours of the day and night, and people selling drugs out of it. But there is no way to prove that they are no longer within the protection of the Fair Housing Act because you can't prove that anybody is using drugs. So the neighborhood is in a catch-22. Then when they complain, they are told no, we can't do it because of the Fair Housing Act.
So I would say we need to protect everybody, not just single-family neighborhoods.
Mr. SCOTT. I have just done a quick reading of your language.
Mr. CONNER. Yes, sir.
Page 146 PREV PAGE TOP OF DOC Mr. SCOTT. Do I understand that you would not want evidence submitted at the public hearings to be used as evidence in subsequent cases? Did I read that right?
Mr. CONNER. Yes, I have. Mr. Scott, here is why. This is a difficult area.
Mr. SCOTT. Let me just put it in context. There have been a lot of lawsuits filed on redistricting where a lot of comments of legislators have been used to get the districts thrown out.
Mr. CONNER. Oh no. That is not what I'm talking about. Mr. Scott, imagine you are a city counsel member and you receive mail from your constituents that states their reasons for objecting. Currently, the Justice Department will come in, subpoena your mail from your constituents and use that mail to say that even though you stated publicly that your reasons for objecting to the facility was that the management had a bad track record, they will use that public statement and those letters to you to impute motives to you and put you on the witness stand to make you testify.
We are saying that's the chilling effect on the first amendment here. Any public statement by the person making the decision, you know, you are in the soup.
Mr. SCOTT. Well, what about the testimony at the hearing where I would imagine if you have got witness testimony about the feelings about race, and then you have a subsequent case where racial discrimination is alleged. See this just isn't in group homes. This language goes to the entire act. You might be able to catch the landlord up here testifying about exposing his ideas and then come and use that as a rebuttal against his suggestion that he didn't rent to these people because they were uncredit worthy.
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Mr. CONNER. OK, now read the predicate here, because we're not talking about landlords. We are talking here, if you look at subsection two, the only thing that applies to, is where the action or proceeding is against a governmental official or member exercising a government function. So we are talking about a lawsuit against the mayor, not a housing provider.
Mr. SCOTT. OK. I need to read the language a little closer.
Mr. CONNER. So we're only talking about the situation, Mr. Scott
Mr. SCOTT. Let me ask another question to Ms. Browne. I did not get a clear answer before on what activities are now covered by the act that would be exempted by the language, nothing that will actually be construed to apply to any otherwise lawful activity, that what is unlawful under the Fair Housing Act. I mean if it's unlawful only because it's in the Fair Housing Act, that language would exempt it.
Could I have an additional minute?
Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.
Mr. SCOTT. So my question is what activities are covered now by the act which would be no longer covered because of the expansive language that any otherwise lawful activity would remain?
Ms. BROWNE. I mean you could imagine a situation where a person, again the case of Reverend Harper, says I am going to burn down the houses if the zoning board allows this permit to go forward. That person is now saying it to influence the governmental official, and therefore it would be exempted. Even though it constitutes some kind of possible threat, he's cloaking himself within petitioning the Government.
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Mr. SCOTT. Are there any other? What about just discriminating? I mean, but for the act, you can discriminate on race.
Ms. BROWNE. Right. Unless you are under section 1981 and section 1982, and you would have to show intent in those kinds of cases. Clearly, this goes, I mean that otherwise
Mr. SCOTT. So any discriminatory practice that is illegal only because it's in the Fair Housing Act would now be released because any otherwise lawful activity, this act shall not be construed to apply to any otherwise lawful activity.
Ms. BROWNE. Right. It's very broad. It goes way beyond what it has to to effectuate the purposes of this bill.
Mr. CONNER. Mr. Scott, that's the reason in our draft legislation we get right down to any speech activity, belief or membership protected by the first amendment, rather than this very broadly inclusive all activity.
Ms. BROWNE. Congressman Scott, if I could also justmy rebuttal time?
Mr. CANADY. The light is still green.
Ms. BROWNE. Just to pick up on your question to Mr. Conner, excluding evidence of statements before governmental officials and bodies would just wipe out the Fair Housing Act. What it would do is, I mean, if you look at cases like Gautreaux v. Chicago Housing Authority, where Alderman was saying, well, I was just giving into the
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Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Ms. BROWNE [continuing]. Thank youI was just giving into the wants of my constituents, and the constituents were going before those bodies to influence them on the basis of raceif you look at the case in Parma City, OH, I mean we're going back to the 1960's. This kind of activity is still going on.
The only way that you can get at the motive of the body is to look at what they were considering at the time that they made their decision.
Mr. SCOTT. Mr. Chairman, I thank you for your indulgence.
Mr. CANADY. Thank you, Mr. Scott. Again, Ms. Browne and Mr. Conner, we appreciate your contribution to the discussion on this very important and complex subject. Ms. Browne, if you do have more specific reactions to the language that Mr. Conner has provided, that would be helpful to us. We thank you. This hearing of the subcommittee stands adjourned.
[Whereupon, at 2:33 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
PREPARED STATEMENT OF SUSAN M. FORWARD, DEPUTY ASSISTANT SECRETARY, ENFORCEMENT AND INVESTIGATIONS, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
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Thank you for the opportunity to present testimony on H.R. 589, the Fair Housing Reform and Freedom of Speech Act of 1997.
The Department was asked to testify with respect to similar legislation introduced in both the House of Representatives and the Senate in the 104th Congress. Former Assistant Secretary for Fair Housing Betsy Julian testified at that time that such legislation was unnecessary. The Department's recommendation is the same with respect to H.R. 589.
In 1994 it became apparent to the Department that special enforcement problems were presented by complaints alleging that neighborhood opposition to the placement or use of group homes for people with disabilities violated the Fair Housing Act. The most problematic cases involved instances where the disability of the intended residents apparently motivated the people opposed to the group homes to undertake activities protected by the First Amendment, including distribution of pamphlets, speaking out in public forums, and other forms of political expression. The opposition sometimes took the form of a lawsuit to block the proposed use of the housing.
Where opposition to a group home for persons with disabilities was the subject of a Fair Housing Act complaint filed by the group wishing to occupy a dwelling, the Department had ordinarily disposed of such cases by investigating the allegations and dismissing those portions of the complaint that relied on activities protected by the First Amendment.
However, it became clear that some subjects of these complaints felt intimidated by the investigations in and of themselves, and believed the investigations had a chilling effect on their First Amendment rights to petition the government. Upon evaluating these concerns, Secretary Henry Cisneros and Assistant Secretary for Fair Housing Roberta Achtenberg determined that the Department would make every possible effort to protect citizens' right to free speech.
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Therefore, in September 1994, the Department issued a formal directive to staff that instituted HUD procedures affirming the primacy of First Amendment guarantees of free speech and the right of citizens to petition the government for redress of grievances. Absent force, physical harm, or a clear threat of physical harm, the directive recognizes that speech such as leafletting, petition signing, picketing, or statements or testimony made at public hearings directed toward achieving action by a governmental entity or government official is protected by the First Amendment. This is the case even when the speech is hostile, bigoted, or distasteful.
The directive also acknowledges that the filing of a lawsuit, or the threat to file a lawsuit, is generally also protected by the First Amendment, since it is a means of petitioning the government for redress of grievances.
The directive requires Headquarters approval by the Assistant Secretary prior to the acceptance of any complaint that might implicate First Amendment rights. Moreover, the directive states that those complaints against individuals, or portions of such complaints, based in whole or in part on allegations with a First Amendment nexus, will not be accepted for filing. Those pending at the time the guidance was issued were dismissed.
Since issuing the 1994 guidance, the Department has made instructing staff on compliance with this directive a top priority. First Amendment issues have been incorporated into fair housing staff training and management officials have been regularly briefed and reminded of the directive. I, along with former Assistant Secretaries Roberta Achtenberg and Betsy Julian have personally addressed staff on several occasions on this specific issue and its import for almost three years now.
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The Department believes its current policy on the First Amendment and the Fair Housing Act and its continued application has worked well and has comprehensively addressed all the difficulties inherent in this issue.
To put this issue in some numerical perspective, of more than 12,000 cases processed since the guidance was issued in 1994, only 55 have raised issues which related to First Amendment activities. All of the potential complaints were analyzed in accordance with the standards set forth in the policy directive and handled accordingly. If after all the efforts we have made, we discover that a complaint has been erroneously accepted for filing, the mistake will be corrected immediately, and appropriate action will be taken toward those who made the error.
The Department is gratified that its steadfast adherence to the directive was recognized by the judge who dismissed a lawsuit against HUD arising from the ''Berkeley 3'' investigation. The judge held that the plaintiffs had failed to establish a reasonable expectation that an investigation against them for engaging in activities protected by the First Amendment would ever recur. (White v. Julian, No. C 951757 MHP, August 7, 1996.) The Judge wrote: ''In light of HUD's new policy, plaintiffs have failed to establish a reasonable expectation that an investigation against them for engaging in activities protected by the First Amendment will recur.'' (P. 10.)
Given the Department's success in addressing the First Amendment issue, the language of H.R. 589 exempting lawsuits ''solely for the purpose of ... achieving or preventing action by a governmental entity or official'' or for ''receiving an interpretation of any provision of this Act in a court of competent jurisdiction'' attempts to fix something that is no longer broken, and in so doing creates new problems of its own.
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HUD's policy for handling cases involving the filing of lawsuits is in accord with all applicable case law and is based on Supreme Court precedent.(see footnote 9) The Department relies on the standard established in Bill Johnson's Restaurants, Inc. v. HERB.
The Department will continue to follow well-developed precedent in its handling of lawsuits designed to achieve or prevent governmental action and will modify its guidance to incorporate cases decided in the future which interpret the First Amendment. Attempts to codify the treatment of such lawsuits in new legislation is inadvisable, as it might allow the filing of baseless lawsuits which would interfere with the exercise of an individual's rights under the Fair Housing Act. HR589 does not describe such conduct as ''otherwise unlawful.''
The provisions in H.R. 589 governing occupancy restrictions in single family neighborhoods are also problematic. With regard to the legal ramifications of land use-type occupancy restrictions, the Department generally defers to the judgment of the Department of Justice as the agency charged with investigating and litigating land use cases. However, the Department would like to call your attention to our concern that the language in H.R. 589 limits the protections available for one group currently covered by the Fair Housing Act.
There is currently no protection in the Fair Housing Act for active users, sellers, and manufacturers of illegal drugs. The singling out of recovering drug addictspersons struggling to make a new life for themselvesfrom those persons with other disabilities protected by the Fair Housing Act is unfair. Without the ability to live together in small group homes, many drug abusers could not afford the services they need to recover from drug addiction or the effects of drug abuse, and society could not afford to help them achieve a full and productive life.
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Additionally, there is no protection in the Fair Housing Act for convicted felons or sex offenders. Therefore, that provision is unnecessary.
In summary, the Department urges that this bill not be adopted. It is unnecessary because the free speech issue it seeks to address has already been resolved by formal directives issued by HUD that are demonstrably effective, have been upheld by the courts, and are flexible enough to incorporate future interpretations of the First Amendment. Further, its other provisions would threaten civil rights protections currently available.
Congress of the United States,
House of Representatives,
Washington, DC, April 22, 1997.
Hon. CHARLES T. CANADY,
Chairman, Subcommittee on the Constitution,
House of Representatives, Washington, DC.
DEAR CHARLES: As a follow up to my March 13, 1997, letter concerning the problems faced by the Mayor and City Council of the City of Litchfield Park when trying to address concerns of frustrated citizens faced with a group home going into their residential neighborhood, I am forwarding for your consideration a letter to you from Mayor Richard W. Vasiloff. I respectfully request that you review the Mayor's letter and add it to the record of the hearing on H.R. 589.
I appreciate your efforts to work for efficient and fair federal housing laws. As you and the members of the Subcommittee work to improve the Fair Housing Act, I hope that you will take into account the situation experienced by the residents of the City of Litchfield Park. I am certain that the frustration experienced by the Mayor, City Council and residents of the City of Litchfield Park is shared by people in communities across our nation. I ask that you make every effort to address the unfair group housing provisions of the Fair Housing Act, and invite you to let me know if I can be of assistance in this effort.
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BOB STUMP, Member of Congress.
City of Litchfield Park,
Litchfield Park, AZ, April 17, 1997.
Hon. CHARLES T. CANADY,
Chairman, Subcommittee on the Constitution,
DEAR CONGRESSMAN CANADY: The Fair Housing Act as originally drafted and passed by Congress has created a situation where the ''rights'' of one group of people are pitted against the ''rights'' of othersalways under the premise that it is being done to avoid ''discrimination.''
As Mayor of the City of Litchfield Park, Arizona, allow me to relate to you how one small community was impacted by this law. Before going further let me explain that Litchfield Park is a small city, 3 1/2\ square miles with 3700 people located roughly 20 miles west of Phoenix. The community was started early in this century but did not become a city until 1987. It is a very diverse city, and has very little commerce except for The Wigwam Resort located in the middle of the city. Homes vary in size and most were built long before we were officially a city. Most people would refer to Litchfield Park as a ''bedroom'' community. Several years ago a shelter for battered women was opened and the residents of Litchfield Park have adopted an extremely supportive role in the Shelter's operation and it has been very successful. There may be room in our city for facilities such as a group home however, establishing the location needs careful consideration to protect the rights of all involved. Here is a summary of the events that have occurred in our city since last year:
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Without consultation a woman purchased a home in Litchfield Park in a very quiet neighborhood, and began to make changes to this three-bedroom home to accommodate the conversion to a group home.
The new owner applied for a Use Permit to operate the home as a group home for disabled and elderlylikely Alzheimer's patients. The homes in this area are close in proximity and have streets but not sidewalks.
As responsible City officials, prior to the hearing on the Use Permit, we did a preliminary investigation into other group homes and others operated by this applicant. Generally we found that well-run group homes don't appear to have problemspoorly run group homes bring big problems to the entire city.
A more detailed study was performed to review the operations of the applicant and some serious issues were raised about the applicant's other businesses. The study included an evaluation of the records of the state agency responsible for overseeing this type of operation. (It should be noted that agency may not be adequately staffed to handle the extensive growth in this industry.)
Planning and Zoning Commission meetings were held to evaluate the application and these sessions were heavily attended by the public (hundreds of people in some cases). After several hearings the Planning and Zoning Commissioners voted to recommend to the City Council that the application be denied.
The process then moved to the City Council for a final decision. Once again there was a large public objection to the application based on the safety issues raised during the evaluation. After considerable debate and legal advise, the Council voted 4 to 3 to deny the application. The attorney for the applicant was then quoted as saying it was his intent to sue the four members of the Council that voted to deny the Use Permit.
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After considerable discussion with the City's legal staff on this question, the same issue was placed on the agenda for the next Council meeting for clarification. At that time a second vote was taken and the permit was granted, with several stipulations, on a vote of 6 to 1. While I cannot say for certain, there were strong indicators that the change in vote was influenced by the threat of legal action to the individual members under the Fair Housing Act. (Note: The City Council members, including the Mayor, are voluntary positions without pay.)
Following the second meeting a very angry public elected to go directly to the public on our decision by having the issue addressed by referendum. The petition drive was successful and the Council voted on April 16th to place the issue on the ballot for the next election.
The process I have described was time consuming and very expensive. Thousands of dollars were spent and thousands more will be spent in the future. All this in an effort to live by the laws and regulations that requires the City to provide ''reasonable accommodation'' to group homes. There is nothing ''reasonable'' about being personally threatened for civil law violations with no protection. There is nothing ''reasonable'' about being required to allow a for-profit business be established in a quiet neighborhood. There is nothing ''reasonable'' about not being able to voice one's opinion under the threat of fines and jail. There is nothing ''reasonable'' about a public official being subject to abuse from their neighbors because they cannot vote their true feelings. There is nothing ''reasonable'' about this aspect of the Fair Housing Act.
I urge you to pass H.R. 589, and recognize that the local communities need more flexibility and less threat in the application of ''reasonable accommodation''.
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RICHARD W. VASILOFF, Mayor.
PREPARED STATEMENT OF DON CARLSON, REPRESENTATIVE OF THE 49th Legislative District, Washington State House of Representatives
I would like to thank you for this opportunity to express some serious concerns brought to me by members of my local community in Vancouver, Washington and from many others towns and cities throughout the state of Washington. We would like to bring to your attention the enormous negative impact the siting and clustering of group homes for disabled persons, alcoholics, and drug addicts is having on single family neighborhoods. I would like to preface my comments by stating that I strongly believe that aging and disabled populations deserve the opportunity to live in mainstream community family-like settings. It is a residential care option that On facilitate a positive homelike and nurturing environment. I have worked closely with members of the disabled community and have enjoyed their cooperation throughout our attempt to address our concerns on this issue. However, forcing communities to accept any and all group homes and an unlimited number of adults in these homes is both unfair to the local family neighborhood. and often inappropriate for meeting the needs of disabled persons.
Local jurisdictions should be provided the opportunity to preserve the delicate residential character of their single family neighborhoods by being allowed, within reason, to regulate the type, amount, and proximity of group homes and the total number of individuals who live in them. Of paramount concern to me and my constituents is allowing for a fair balance of needed group homes and the clustering of such homes simultaneously maintaining the safety, viability, and family-like character of single family neighborhood communities. My expressed goal is for all families to enjoy and benefit from this important institution. A well balanced family neighborhood is the heart and soul of the community. Its preservation is paramount to the survival and success of any city or town. Currently, the untethered siting of group homes is seriously threatening the very fabric of family neighborhoods and deserves serious and immediate congressional attention. I have sponsored several legislative measures to remedy this concern. However, provisions in the Fair Housing Act, supported by many court rulings on the Act, have repeatedly served to undermine passage of our family neighborhood centered legislative solutions.
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On behalf of my constituents in Vancouver, Washington and other concerned communities throughout Washington State, I urge you to support the amendment to the Fair Housing Act contained in H.R. 589. This amendment will provide protection for disabled populations needing residential housing alternatives while giving local communities more leverage towards maintaining their family neighborhood character. We further recommend that you also strongly consider further expanding this measure by regulating the clustering of these group home facilities and directly limit the ability of residential care facilities or group hones for recovering substance abusers to be sited in residential neighborhoods. There should also be clear health and safety guidelines directing the number of individuals can live within one residential institution.
THE FORMAL CONCERN
The deinstitutionalization of persons with mental and physical disabilities has occurred rapidly throughout the United States in the last few years. This is especially true in Washington State, where recent state legislation required a significant reduction in the nursing home population in favor of community home options such as group and adult family homes. Similar deinstitutionalization has also occurred for the mentally ill, developmentally disabled, and for recovering alcoholics and drug addicts. We recognize that for many of these populations the group home concept can potentially represent a very beneficial living arrangement if implemented properly. At the same time we recognize that it also provides an economic incentive for government programs looking for less expensive alternatives.
However, the overwhelming 50 percent increase in the number of adult family homes in our state over the past two years, facilitated by corporate ownership of multiple adult family homes, has raised some very serious concerns as to the benefits of such corporate sponsored clustered housing options for these vulnerable populations. At the very heart of this issue for the vulnerable populations is the question ''at what point do clustered group home facilities located in family neighborhoods, become mini institutions that now serve to insulate disabled individuals from mainstream society and destroy the composition and character of family neighborhoods?'' The government encouraged clustering of group homes for the disabled places us in the exact opposite position of what the Fair Housing Act and the requirement of making ''reasonable accommodation'' is trying to solve. The rationale behind this policy of ''reasonable accommodation'' is that by requiring group homes to be distributed throughout the community, disabled persons are able to live in mainstream residential neighborhoods rather than in a cluster of group homes segregated artificially from the rest of the community.
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In addition to the clustering problem, Ye are also facing considerable neighborhood opposition to the siting of residential care facilities or group homes that provide residential services specifically to recovering substance abusers. The problems seem to stem from the high number of individuals who reside within the same addiction rehabilitation residence facility and the overall negative impact such facilities have on the value of surrounding real estate and the family neighborhood environment. These are real issues that impact real people trying to raise families and protect their moderate assets in neighborhood communities.
I believe that there is a compelling argument for government to reach an appropriate balance between deinstitutionalization of disabled populations and the prevention of the inappropriate isolation of these vulnerable populations. State and local governments should have the ability to enact policies against clustering and inappropriate isolation of group homes for the disabled, drug addicts, and for alcoholics in order to further the legitimate interests of their integration into the mainstream of society and to maintain the integrity of family neighborhoods. I recommend that the authority to implement reasonable zoning and other land use regulations such as determining the occupancy number, location, and composition of all residential care facilities be given back to local governments where they rightfully belong. Local jurisdictions should have the right to enforce restrictions that will preserve and maintain the integrity and neighborhood character of family neighborhoods and protect the public safety, health, welfare, and rights of all citizens.
The City of Vancouver,
Page 161 PREV PAGE TOP OF DOCVancouver, WA, April 15, 1997.
Hon. CHARLES T. CANADY,
Chairman, Subcommittee on the Constitution
Committee on the Judiciary,
DEAR CHAIRMAN CANADY: It has been brought to my attention that your subcommittee will hear H.R. 589 on Thursday of this week. On behalf of the 126,453 residents of our city, I am writing to register our strong support for this measure, sponsored by Mr. Bilbray and now cosponsored by our representative, Congresswoman Smith.
During recent meetings in Washington, DC with several members of Congress, I made clear the need for changes in the Federal Fair Housing Act to give cities like Vancouver greater zoning authority to control the siting of group homes, and H.R. 589 is a good step in the right direction. I want to make it clear that group homes are welcome in our city. However, it is the clustering of multiple group homes in residential neighborhoods that is most problematic for us. Efforts by our city and other cities here in Washington State to regulate multiple group home sitings have been overturned by the courts.
In this regard, I would encourage the subcommittee to consider broadening the scope of H.R. 589 beyond the three categories of facilities specifically included. We would prefer language that would grant cities greater authority in terms of dispersal and spacing on all categories of group homes and facilities. Legitimate local government regulations, when performed in the name of public health, safety and community welfare, should not be preempted by the Federal Fair Housing Act.
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Enclosed with this letter is a paper authored by our city attorney, Ted Gathe, on the subject of ''Local Control and Regulation Versus Federal and State Fair Housing Laws'' that you, your staff and other members of the subcommittee may find of interest.
Thank you for your time and attention to this pressing matter. If our City can provide you or your committee with any assistance in this matter, please let us know.
ROYCE E. POLLARD, Mayor.
cc: Congresswoman Linda Smith,
Mark Brown, Director of Governmental Relations.
PREPARED STATEMENT OF TED H. GATHE,(see footnote 10) Vancouver City Attorney, Vancouver, WA
In September, 1996, the Mayors of Palatine, Illinois and Edmonds, Washington testified before a subcommittee of the House Judiciary Committee. These local officials asked Congress to legislatively remedy a series of judicial interpretations of the Fair Housing Act Amendments of 1988 that severely restrict the ability of cities to decide how and where group homes can be located.
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This plea for a legislative response symbolizes the frustrations of many city officials who have, over the last few years, waged a mostly losing battle with group home and fair housing advocates who have been strongly supported by the Federal Government through the Departments of Housing (HUD) and Justice. Lawsuits involving Palatine and Edmonds have run the gauntlet of the federal judiciary and in so doing have established significant precedents favorable to group home advocates.
This article is intended to provide a review and update on the Fair Housing Act as last reviewed in the 1993 ELUL Mid-Year Seminar. In particular, it will examine the conflict between the federal policy of supporting the unrestricted location of residential group homes for the handicapped and cities' interests in protecting and preserving the residential character of single family neighborhoods. Last, it will examine the most recent case law and proposed federal and state legislation in this area.
The deinstitutionalization of persons with mental and physical handicaps has rapidly occurred throughout the country in the last several decades. This has resulted in a proliferation of alternate living arrangements commonly referred to as ''group homes.'' Such homes allow handicapped individuals to live together in a residential setting with the advantages of a family like structure. For many such individuals, group living arrangements are beneficial for integrating into society as well as economically necessary. In recent years, the group home concept has included a number of unsupervised, self-governing homes that provide housing for recovering alcoholics and drug addicts. A prime example are the Oxford Houses found in many communities throughout the country.
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The rapid increase of group homes has been controversial. In the past, a number of municipalities took a ''not in my backyard'' approach in regulating such housing often bowing to local neighborhood opposition by restricting their location, placement and operation. For a variety of reasons including the actions of some local governments, in 1988, amended the Fair Housing Act.(see footnote 11)
A. Overview of 1988 Amendments to the Fair Housing Act
The amendments to the Fair Housing Act (''FHAA'') prohibit discrimination against people with disabilities and on account of familial status in public as well as private housing. The 1988 Act also strengthened existing enforcement mechanisms by providing HUD with the power to refer cases involving breaches of conciliation agreements to the Department of Justice.
In construing the Act, courts have given it broad application in order to prohibit discriminatory housing practices, and have required ''a generous construction ... in order to carry out a policy that Congress considered to be of the highest priority.''(see footnote 12)
It is possible for municipalities to violate the Act in two different areas. First, the original Fair Housing Act invalidates ''any law of a State, a political subdivision, or any other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this [Act].''(see footnote 13) The Federal Courts have repeatedly interpreted this provision to prohibit municipal zoning and land use policies that affect the availability of housing for individuals protected by the Act.(see footnote 14) Second, the 1988 Amendments specifically define discrimination against the handicapped to include ''a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.''(see footnote 15)
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In response to the FHAA, the Washington State Legislature added a new section to chapter 35.63 RCW during the 1993 session. It reads:
No city may enact or maintain an ordinance, development regulation, zoning regulation or official control, policy, or administrative practice which treats a residential structure occupied by persons with handicaps differently than a similar residential structure occupied by a family or other unrelated individuals.(see footnote 16) [Emphasis added.]
As a result, Washington has established an anti-discrimination policy that supports individuals who fall under the FHAA definition of ''handicapped,'' by prohibiting land use regulations and policies which treat such individuals differently than the non-handicapped. Whether or not this provision prohibits regulations that prevent the clustering of group homes and promote community integration, is uncertain. However, as discussed herein, in light of various judicial decisions interpreting the FHAA, it does seem clear that municipal regulations may ''treat a residential structure occupied by persons with handicaps differently,'' only if there are legitimate state and local interests properly tailored to achieve valid regulatory goals.(see footnote 17)
Page 166 PREV PAGE TOP OF DOCB. Definition of Handicapped
The FHAA adopted the definition of ''handicap'' used in section 504 of the Rehabilitation Act of 1973.(see footnote 18) ''Handicap'' with respect to a person means that such person has a ''physical or mental impairment which substantially limits one or more major life activities; a record of such an impairment, or is regarded as having such an impairment.''(see footnote 19) ''Major life activities'' include caring for oneself, walking, seeing, hearing, speaking, breathing, learning and working. Thus, any person suffering from a physiological, neurological or mental disorder or disability of any type will be protected by the Act. This broad application is further expanded by including individuals who are perceived to be handicapped either by appearance or because of a history of some impairment covered by the Act.
C. Application of the FHAA to Zoning and Land Use Regulations
Prior to passage of the FHAA, the Supreme Court had already outlawed overt discrimination against the handicapped.(see footnote 20) In Cleburne, the Court held that a requirement of a special use permit for group homes for the mentally retarded and not for any other type of commercial living arrangement such as nursing homes and boarding houses violated equal protection because there was no rational basis for the separate requirement. Thus, it would appear that Congress' intent in passing the 1988 Amendments was to provide broader legal protection to handicapped individuals in addition to prohibiting intentional discrimination.
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The legislative history of the FHAA clearly indicates that Congress intended that municipal land use as well as health and safety regulations comply with its provisions. ''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 such individuals to live in the residence of their choice in the community.''(see footnote 21) What is less clear is the application of facially neutral laws that may have some effect on the siting and operation of group homes. An example of this is the exemption in the FHAA which permits ''reasonable ... restrictions regarding the maximum number of occupants permitted to occupy a dwelling.''(see footnote 22) In a recent decision, however, the U.S. Supreme Court has brought more clarity to this issue. (See discussion in Section III (B)(1) below.)
Because the Act provides additional protection to the handicapped, their ability to successfully litigate against what are viewed as restrictive zoning and land use laws has increased dramatically. Under the FHAA, litigants need not argue that zoning and land use restrictions fail the rational relation test. Nor are they required to show discriminatory intent in order to invalidate a challenged ordinance. Such litigants need only show that restrictions in question discriminate against them because of their status. Although the language in the Act is somewhat ambiguous, in a series of decisions, the courts have applied any one of three tests to scrutinize such regulations. These include: 1) discriminatory intent, 2) discriminatory impact and 3) failure to make reasonable accommodation.
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In construing municipal regulations challenged under the pre-1988 Fair Housing Act, the courts frequently included an analysis of such regulations' discriminatory intent against and discriminatory effect on protected classes. Today, however, under the FHAA such cases usually find only discriminatory effect because municipalities rarely enact laws that overtly discriminate against a particular type of use or user.
III. METHODS OF MUNICIPAL REGULATION
A number of different methods have been utilized by municipalities to regulate the location, size and use of group homes. Some of these methods have been found to be invalid. Others have been the subject of conflicting judicial decisions. This section discusses these types of regulations and the judicial responses thereto.
A. Licensing and Registration
There are a number of valid reasons to require the registration and/or licensing of group homes: 1) protecting group home residents from individuals who may take advantage of them; 2) maintaining adequate health and safety standards for protection of the occupants and 3) identifying and facilitating appropriate responses to homes whose residents may require special assistance during an emergency.
So far, however, regulations based on such policies have not fared well. Many states have extensive licensing schemes for such homes that preempt any local regulation. (See, for example, the provisions in Washington State law (Chap. 70.128 RCW) that establish adult family homes, regulate their operation and preempt local zoning.) Even registration requirements asking for no more than the submission of basic information regarding the proposed group home has been the subject of legal challenge. In Oxford House, Inc. v. Township of Cherry Hill,(see footnote 23) the court construed as discriminatory mere application procedures for obtaining use permits. Likewise, other litigants have successfully argued that any application or permitting process violates their right to ''reasonable accommodation'' in zoning practices.(see footnote 24)
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Even seemingly valid public safety concerns have been viewed as overly paternalistic in nature. Advocates for the handicapped argue that health and safety concerns of local government simply perpetuates public misconceptions about the handicapped that the FHAA attempts to neutralize.(see footnote 25) Based on the above, it seems unlikely that a registration requirement would survive judicial scrutiny under the Act unless it is clearly health and safety related and is applied equally to all group living arrangements in a community.
B. Density Limitations
Prior to passage of the FHAA, the U.S. Supreme Court considered several cases where municipalities attempted to limit the number of persons living together in a single-family dwelling.
In Village of Belle Terre v. Borass,(see footnote 26) the Supreme Court upheld Belle Terre's zoning ordinance against a challenge brought by six unrelated students who lived in a single family house. The ordinance in question defined family in such a way that no more than two of the unrelated students could live in the house. The Court found that the ordinance was not an unconstitutional violation of equal protection or the rights of association, travel, and privacy, and concluded that the regulation was a reasonable legislative decision.
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In 1977, the Court was confronted with a challenge to a municipal ordinance that defined ''family'' in a way that included only a narrow category of individuals who were directly related to one another and thereby excluded the Plaintiffs family from residing together.(see footnote 27) The Court distinguished East Cleveland from Belle Terre noting that the ordinance in Belle Terre affected only unrelated individuals. The Court further held that the East Cleveland ordinance interfered with the freedom of personal choice in family living arrangements in violation of the Due Process Clause of the Fourteenth Amendment. Following the Belle Terre and East Cleveland, cases, many cities regulated the size of group living arrangements by distinguishing between related and nonrelated individuals using a restrictive definition of ''family.''
However, after passage of the FHAA, group home advocates challenged such restrictions with support from HUD and the Department of Justice. A series of cases worked their way through the federal judiciary resulting in two conflicting opinions rendered by the Circuit Courts, one of which relied on the distinction the U.S. Supreme Court had drawn in the Belle Terre case. Ultimately the Supreme Court accepted review of a Ninth Circuit appeal involving the City of Edmonds.(see footnote 28)
1. Numerical and Occupancy Limitations and the Definition of ''Family''
Page 171 PREV PAGE TOP OF DOC As clarified by the Supreme Court in City of Edmonds v. Oxford House, Inc., there is a distinction between municipal land use restrictions and maximum occupancy limits.(see footnote 29) Whereas land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded (such as categories of single-family residences versus commercial zones), maximum occupancy limits cap the number of occupants per dwelling, relative to the available floor space or number of rooms. Maximum occupancy limits are supposed to apply uniformly to all residents of all dwelling units, since the purpose is to protect health and safety by preventing overcrowding. However, it is argued that municipalities often mask land use restrictions as maximum occupancy limits through restrictive definitions of ''family'' and family composition rules.
That was the crux of the Edmonds case. In Edmonds, the Supreme Court held that a zoning provision governing an area zoned for single-family dwelling units, which defined a ''family'' as, ''persons related by genetics, adoption, or marriage, of a group of five or fewer persons who are not related,'' described who made up a family unit, not the maximum number of occupants the unit could house. Therefore, it did not fall within the FHAA's exemption for total occupancy limits.
Municipal zoning rules that cap the total number of occupants in order to prevent overcrowding of a dwelling are designed to protect public safety. Because these are nondiscriminatory, legitimate government interests, maximum occupancy limits are exempted from scrutiny under the FHAA. However, the City of Edmonds' regulation described who could compose a family unit, and not the maximum number of occupants each unit may have.
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In answering the question of whether the Edmonds' family composition rule qualified under the maximum occupancy exemption, the court explained the distinction between land use restrictions and maximum occupancy limits. Justice Ginsburg noted that the provisions of the Edmonds Community Development Code as invoked against a group home for recovering substance abusers are ''classic examples of a use restriction and complementing family composition rule. These provisions do not cap the number of people who may live in a dwelling. In plain terms, they direct that dwellings be used only to house families.''(see footnote 30) The court went to state:
But Edmonds' family composition rule surely does not answer the question: ''What is the maximum number of occupants permitted to occupy a house?'' So long as they are related ''by genetics, adoption, or marriage,'' any number of people can live in a house.... Family living, not living space per occupant, is what [the code] describes.(see footnote 31)
Finally, the Court emphasized that the scope of their holding was limited to concluding that the Edmonds' family composition rule did not qualify for an exemption permitting limit on the maximum number of occupants under the FHAA. It remanded to the lower courts the issue of whether Edmonds' actions against Oxford House violate the FHAA's prohibitions against discrimination.
As usual, cases in this area often raise as many questions as they answer. If Edmonds family composition rule is invalid, on what basis can the state defend R.C.W. 70.128.010(1) which limits the number of residents of state licensed adult family homes to a maximum of six? Likewise, could municipalities in Washington ''piggyback'' on this state law provision to support similar municipal density limitations?
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2. The Requirement of Making ''Reasonable Accommodation''
In a suit alleging violations of the FHAA, a court must address two main questions: First, is the litigant ''handicapped'' within the meaning of the FHAA. As discussed above, this includes not only physically and mentally disabled individuals, but also recovering addicts, who are not currently using drugs or alcohol. If a litigant is not handicapped, he or she will not be protected under the FHAA. If the litigant is handicapped, the court moves onto its second tier of analysis: whether the government regulation or activity is discriminatory. This includes a review of the challenged zoning practices for discriminatory intent, discriminatory effects or impacts, and the ''reasonable accommodations'' test. While zoning regulations may be discriminatory, they may still be upheld if, on balance, they serve legitimate government interests and are rationally related to the goals of health, safety and community welfare.
The FHAA requires that governments provide a, ''reasonable accommodation'' for the handicapped if necessary to afford an equal opportunity to use and enjoy housing. The 1988 Amendments declare that discrimination includes: ''a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.''(see footnote 32) The reasonable accommodation provision of the FHAA requires that municipalities be flexible when applying zoning restrictions to handicapped persons living in group homes. Government officials are required to tailor certain zoning provisions to the needs of the handicapped and the establishment of group homes, especially where it would not impose an undue burden on the local government. Often, a group home operator or handicapped individual will request a ''reasonable accommodation'' in the local ordinance, using the FHAA requirement as leverage. Any refusal to make ''reasonable accommodations'' may constitute illegal discrimination under the FHAA.
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The implication of the reasonable accommodation requirement is that a jurisdiction must sufficiently broaden its zoning rules and regulations to allow the establishment of sufficient community residences to accommodate handicapped citizens who want to live in a ''homestyle'' setting, rather than in an institutional environment. A city can reasonably accommodate group homes by not enforcing an exclusionary definition of ''family'' or other such illegitimate zoning restrictions, or by changing its Code. A reasonable accommodation, according to a majority of courts, is one which would not impose an undue hardship or burden upon the entity making the accommodation and would not undermine the basic purpose which the requirement seeks to achieve.(see footnote 33)
It is important to note that the courts have upheld legitimate government zoning regulations where they intentionally promote public health and safety, and are narrowly designed to reach specific ends. While the ''reasonable accommodations'' requirement in the FHAA takes away some municipal zoning power, it does so only to the extent that government regulations conflict with the policy behind the FHAA: to protect the handicapped from baseless stereotyping, and assist in their ability to achieve normalization and community integration.
C. Dispersion or Spacing Requirements
Requiring a mandatory minimum distance between group homes would seem to limit the number of housing opportunities available to handicapped persons in a community and thus violate the FHAA. Surprisingly, however, some advocates for group homes promote dispersion and a number of states have enacted statutory dispersion requirements.(see footnote 34) The rationale behind this kind of policy is that by requiring group homes to be distributed throughout the community, the residents are able to live in mainstream residential neighborhoods rather than in a cluster of group homes segregated from the rest of the community.
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In an early reported decision involving group homes under the FHAA, a federal district court upheld the refusal of the City of St. Paul, Minnesota to renew special use permits for three of plaintiff's group homes, because such homes would violate a local zoning provision requiring spacing between each facility.
Familystyle of St. Paul, Inc. v. City of St. Paul(see footnote 35) addressed the appropriateness of a spacing requirement in a Minnesota statute applicable to facilities which provide residential services to handicapped individuals. In order to obtain a license for a residential program, applicants had to comply with several conditions, including a 1,320 foot spacing requirement between existing residential facilities. These special conditions were in place to, ''effectuate the Minnesota policy of deinstitutionalization of the mentally ill,'' and to ''allow them the benefits of normal residential surroundings.''(see footnote 36) The City of St. Paul Zoning Code also provided for the minimum distance requirement of 1, 320 feet between zoning lots for community residential facilities.
Familystyle, which provided residential living homes for the handicapped, purchased properties in St. Paul in order to operate new facilities. However, three of its permits were denied on the grounds that the facilities did not meet the 1,320 foot spacing requirement of the zoning code. On appeal to the Planning Commission, Familystyle argued that the spacing requirement had the effect of reducing the number of residents it could house, limiting a handicapped person's choice of where to live, and thus was invalid as a discriminatory housing practice under section 3615 of the FHAA.
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In response, the City denied the charge and asserted that federal, state, and city laws all had the same purpose, i.e. increasing the housing options available to all handicapped people by integrating them into the mainstream of the community, through a policy of deinstitutionalization. The City further argued that, even if spacing requirements were discriminatory, they were valid because handicapped people are not a ''suspect class'' under Cleburne v. Cleburne Living Center,(see footnote 37) and second, that even under strict scrutiny, the policy of deinstitutionalization and prevention of ''ghettoization'' is a compelling government interest which is narrowly tailored to achieve its ends through zoning dispersal.
The court agreed with the City. In its holding, the court explained that, ''[t]here is a significant difference between laws which directly regulate individuals and laws which regulate institutions.'' It explained:
Surely the Congress intended states to maintain some control over such facilities. The spacing requirements are a part of Minnesota's licensing process and the zoning code [of St. Paul] builds on those requirements in implementing its system. Because the handicapped are not directly prohibited from residing at these residences, and because states must maintain some authority over such institutions, the state and local laws are not ''preempted'' by section 3615.(see footnote 38)
Next, the court analyzed the spacing requirement to determine whether it had a discriminatory effect within the meaning of Title VIII and the equal protection clause of the Constitution. In holding that the spacing requirement was not discriminatory under a rational basis standard of scrutiny, the court concluded that because the Attorney General, the Legislature, the courts, Congress and the state of Minnesota had all promoted the policy of integration of the handicapped into the mainstream of the community, St. Paul's dispersion requirement was not discriminatory. In finding that dispersal furthers a compelling government interest, the court reasoned,
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Forcing new residential facilities to locate at a distance from other facilities by its very terms prevents the clustering of homes which could lead the mentally ill to cloister themselves and not interact with the community mainstream. Because the state and local laws prohibit this clustering effect, the do further the goal of integrating the handicapped into the community.(see footnote 39)
Last, the court was unwilling to find that a distance requirement of less than 1,320 feet would be a less drastic means of attaining the policy of deinstitutionalization, thereby finding the city zoning law narrowly drawn to promote a compelling government interest.
On appeal, the Eighth Circuit affirmed the district courts findings that the challenged state laws and local ordinances were not preempted by the FHAA. It noted that, ''Congress did not intend to abrogate a state's power to determine how facilities for the mentally ill must meet licensing standards,'' and that, ''the challenged state laws and city ordinance do not affect or prohibit a retarded or mentally ill person from purchasing, renting, or occupying a private residence or dwelling.''(see footnote 40)
2. Horizon House
In contrast to Familystyle, Horizon House Developmental Services, Inc. v. Township of Upper Southampton found that a distance requirement of 1000 feet between group homes was a violation of the Fair Housing Act and the equal protection clause of the Constitution. In Horizon House, Southampton enacted an ordinance, requiring a 1000 foot spacing requirement between group homes for the handicapped. However, this was the fourth ordinance of its kind to be drafted by the township, beginning with a 3000 foot distance requirement which was ultimately reduced to 1000 feet. These ordinances grew out of community opposition to Horizon House's intent to open up group homes, evidenced by ''NIMBY'' testimonials voiced at public meetings. In one of its findings of fact, the court explained that, ''like its predecessors, the spacing requirement in Ordinance No. 300 is grounded in community opposition, stereotyping and prejudice against people with handicaps.''(see footnote 41)
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The court did not believe the Township's rationale that the group homes ordinance was a well-intentioned effort to, ''avoid potential clustering of homes for people with mental retardation and to promote their integration into the neighborhood.''(see footnote 42) The court based its skepticism on the fact that the city provided no evidence how the ordinance would promote integration to support the reasonableness and legitimacy of their motives. As a result, it held that the spacing requirement was facially invalid under the FHAA, because it created an explicit classification based on handicap with no rational basis or legitimate government interest and that it was unnecessary for plaintiffs to prove bad motives on the part of the City's legislative body in enacting the group homes ordinance, instead the court found that it was sufficient that plaintiffs prove the City meant and aimed to restrict housing opportunities for people with handicaps.
While the Horizon House court found both facial invalidity and purposeful discrimination on the part of the Township, it also concluded that the 1000 foot distance requirement violated the FHAA because it has a disparate impact or effect on the housing choices of people with handicaps. It stated, ''the spacing requirement limits the numbers of people with handicaps within the Township, limits their choices on where to live, limits their access to essential community resources, and thwarts the efforts to treat people with handicaps equally in the community negatively affecting their self-esteem.''(see footnote 43) Because the city did not provide any evidence that clustering is detrimental to the health, safety and welfare of the community, and did not substantiate any legitimate government interest in enacting the spacing requirement, the court found that there are less discriminatory ways to accomplish these goals.
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Had the city provided a rational basis for dispersing occupants of group homes that was narrowly tailored to advance its' objectives, the court might have found a legitimate interest in enacting the spacing requirement. Ultimately, however, ''the City was prohibited by the Fair Housing Act from using its concern for the safety and health of its disabled citizens as a pretext for actions that are actually based on outdated and unfounded prejudices and stereotypes about the abilities and limitations of handicapped persons.''(see footnote 44)
3. Comparative Analysis in Light of Recent Cases
There are two main distinctions between Familystyle and Horizon House that help explain the difference in their treatment of spacing requirements. First, there seems to be a significant difference between when a State enacts a broad policy against clustering and ''ghettoization'' of group homes in order to further the legitimate interests of integration, and when a municipality enacts a local ordinance without a supporting state policy. Second, even if a municipality could enact a dispersal ordinance without such a state policy or statute, it cannot do so without having legitimate public health and safety objectives in mind at the outset when drafting such an ordinance. It must show a sincere desire to further the policy of integration, and not merely assert apparent neutrality while actually acting upon the fears and NIMBY attitudes of its non-handicapped citizens.
Some commentators distinguish the Familystyle and Horizon House holdings based on the fact that in Familystyle, the municipality acted as a result of guidance from a State regulatory policy favoring integration, rather than independently.(see footnote 45) In familystyle, both the state and city were able to demonstrate that their motives were based on findings that spacing requirements prevents clustering, and produced evidence that clustering of group homes hinders rather than promotes FHAA policies to prevent discrimination of the handicapped.
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There seems to be less scrutiny of statewide polices, since states regulate ''institutions'' rather than ''individuals.'' As was stated in Familystyle, because the state did not have any individuals in mind when enacting its dispersal regulation, it could not have violated the FHAA which prohibits discrimination against handicapped individuals. Another way to rationalize the holding of Horizon House in light of Familystyle is that the municipality there acted, not only without state regulatory guidance, but also without asserting legitimate government interests in defending its exclusionary zoning practices.
Where a municipality acts without authorization or guidance from the State, its motives are more likely to be viewed as suspect and potentially discriminatory. Additionally, the thrust of the holding in Familystyle was that States do not regulate individuals when enacting policy regulations, but instead, monitor institutions in the interest of public health, welfare, and safety. When a municipality enacts spacing requirements, however, eventually only a finite number of group homes will be able to locate within its boundaries. Therefore, dispersal zoning comes closer to regulating individuals, rather than group homes as ''institutions,'' by eventually limiting the housing choices available to the handicapped.
Recent cases have also helped to clarify the reason for the disparate holdings of Familystyle and Horizon House. In Charter Township of Plymouth v. Department of Social Services, et al. the Michigan Court of Appeals following the decision of Familystyle, upheld the validity of a municipal dispersal requirement.(see footnote 46) The Department of Social Services was enjoined from issuing any further licenses for the operation of adult foster care facilities for failure to comply with the requirement that facilities be spaced at least 1,500 feet from each other, among other requirements. The defendant claimed it was not required to comply because the FHAA preempted those statutes. The Court of Appeals disagreed. By comparing its case with Familystyle, the court explained,
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[W]e note that the challenged statutory requirements pertaining to notice, ''excessive concentration,'' and the distance between adult foster care facilities regulate commercial institutions or enterprises ... and make no attempt to prohibit handicapped or mentally ill people from residing wherever they choose. While we recognize that the clear intent of the FHAA is to prohibit discrimination handicapped individuals in the housing market, we decline to read the remedial purposes of the act broadly to apply to profitoriented enterprises operating adult foster care facilities for handicapped people.(see footnote 47)
Even though the adult home in question would have accommodated six or fewer residents, the court still found that the government interest in regulating group homes outweighed any claims of discrimination in this case.
In Bangerter v. Orem City Corporation,(see footnote 48) the plaintiff, a mentally retarded man, attempted to live in a group home operated by Chrysalis Enterprises. Because the home did not obtain a conditional use permit as required by local law, he was transferred to a different group home. The conditional use permit criteria required group homes to provide assurances that there was 24-hour supervision of the residents, and that the facility establish a community advisory committee through which neighborhood concerns could be addressed. Bangerter challenged the requirements as violations of the FHAA.
Page 182 PREV PAGE TOP OF DOC Using Familystyle as authority, the court found that, while the conditions were discriminatory in that they treat handicapped people differently than the non-handicapped, they were nonetheless valid because they were rationally related to legitimate government purposes. The court held that the Orem City ordinance was based on a state statute that is targeted specifically at residential facilities which accommodate handicapped individuals, who require, ''a combination or sequence of special interdisciplinary or generic care, treatment, or other services that are individually planned and coordinated to allow the person to function in and contribute to, a residential neighborhood.''(see footnote 49) Because the statute reflected legislative concerns that the handicapped be integrated into normal surroundings, yet recognizing their special needs, it found the ordinance to be sufficiently tailored to meet legitimate state and local interests.
By contrast, North Shore-Chicago Rehabilitation Inc. v. Village of Skokie refused to uphold a group homes ordinance which required that residents live in the home on a ''permanent basis.''(see footnote 50) Because the ordinance did not make reasonable accommodation for brain-injured individuals, it was discriminatory. Additionally, Skokie failed to present evidence establishing a legitimate, non-discriminatory reason for its refusal to grant North Shore's application, and proving that a reasonable accommodation was impossible. The court asserted,
Skokie's justification for the state licensing requirement arises out of its concern for the welfare of the residents of the proposed facility. There is no doubt that the state is better equipped to maintain oversight agencies to assure proper care of persons in rehabilitation facilities than is Skokie. To this extent, as a general matter, local municipalities should be free in forming their zoning ordinances to require that certain rehabilitation facilities obtain available state certification or licensing.... In the instant case, however, the two restrictions seized upon by Skokie bear no rational relationship to the general welfare or safety of the proposed North Shore residents.(see footnote 51)
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While the North Shore-Chicago court recognized the importance of state and local regulation of group homes under the appropriate circumstances, it refused to follow Familystyle since the municipality enacted its own regulation, unlike the state's, imposing both discriminatory and non-accommodating requirements against the handicapped.
4. Dispersion of Group Homes in Washington
One possible solution to the problem of regulating group homes by location is through adoption of a state statute or policy that prescribes dispersal of such facilities in a manner similar to the Minnesota provisions discussed herein. Legal support for such a statute would have to be based on the Familystyle and related decisions with the caveat that the practical effect of any such proposed statute or policy must not result in the prohibition of group homes within a community and must recognize the necessity of providing for reasonable accommodation.
This was the approach taken by sponsors of House Bill 1049 which was introduced in the 1997 Washington Legislature. The Bill amends the Washington Housing Policy Act (RCW 35.63.220) and authorizes local governments to ''promote the nondiscriminatory integration of persons with disabilities and medically frail individuals who live in group homes by regulating the dispersion of group homes in residential neighborhoods.'' The policy rationale for this Bill is to: 1) promote mainstreaming of the handicapped into community life; 2) avoid overconcentration of similar facilities that create an artificial i.e. institutional environment; 3) insure that dispersion does not create artificial quotas on group homes and 4) require that any regulations in this area provide for reasonable accommodation to handicapped individuals in choosing their housing options.
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The drafters of the legislation felt that because of the conflicting decisions in the federal judiciary, a bill which used as its cornerstone the integration of the handicapped into the community was more likely to be found in compliance with FHAA and State Housing Laws. In addition, Washington state courts have not yet dealt with whether group home dispersion laws are valid and enforceable. A 1992 Attorney General's opinion discussed dispersion.(see footnote 52) While acknowledging potential issues with the Fair Housing Act, the opinion suggests that in those cases, other than adult family homes, where the State licenses group residential facilities, such licensing authority does not preempt cities from enforcing dispersion type ordinances. This opinion, however, was issued prior to passage of the 1993 Washington Housing Policy Act which includes a provision restricting cities from regulating housing occupied by handicapped persons differently than housing occupied by non-handicapped individuals.(see footnote 53)
A 1995 decision by the Washington Supreme Court concluded that abused or neglected teenagers were not considered handicapped under the provisions of the Washington Housing Policy Act (RCW 35.63.220).(see footnote 54) As a result, the Court did not consider the question of whether a municipality could, under State and Federal fair housing laws, require a crisis residential center for teens to go through a siting procedure.
IV. RECENT FEDERAL CASELAW AND PROPOSED LEGISLATION
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House Bill 1049 discussed above was abandoned shortly after its sponsors were notified of a January 8, 1997, decision rendered by U.S. District Court Judge Thomas S. Zilly in the matter of The Children's Alliance, et al. v. City of Bellevue.(see footnote 55) This case arose from attempts by the City of Bellevue to regulate group homes. The City enacted three ordinances between 1994 to 1996. One was repealed in 1996, a second which was invalidated by a Growth Management Hearings Board and the third became the subject of the Children's Alliance litigation.
The last ordinance established two classes of group care facilities. Class I facilities included adult family homes (which are authorized permitted uses in all residential zones by state law). See Ch. 70.128 RCW, homes for the handicapped, domestic violence shelters and foster family homes. All other facilities were grouped into Class II.
Class I facilities can locate in residential zones however, Class II homes are restricted from residential areas if 1) there is no resident staff, 2) residencies in such homes are for less than 30 days and 3) residents are non-handicapped individuals who constitute a potential danger to the community because of violence, sexual deviancy, current substance abuse or felony status. Class II facilities must also go through a permitting system which includes public comment. The Ordinance imposes occupancy limits (six residents) on all group facilities within single family residential zones and requires at least 1000 foot distance between group facilities of the same type. As a result of these restrictions, the Court found that Bellevue had little if any available housing for homeless youth and no Class II Facilities anywhere within the City.
Page 186 PREV PAGE TOP OF DOC Even though Bellevue attempted to craft its ordinance to be in compliance with the FHAA and its various exemptions, the Court found it to be invalid. At the time of this article, it is not known if Bellevue has appealed the Children's Home decision to the Ninth Circuit Court of Appeals. Based on the Ninth Circuit's previous ruling in Edmonds supra, which strongly supported the FHAA in striking down family composition restrictions, it would seem unlikely that this ruling would be overturned. Therefore, Judge Zilly's decision may be instructive on what, if any, remaining authority Washington cities have to regulate group home facilities under the FHAA.
In his decision, Judge Zilly chose to analyze Bellevue's Ordinance under the disparate impact theory after finding that the Ordinance was discriminatory on its face. As an example of such facial invalidity, the Court pointed out that while the Ordinance's definition of ''family'' includes group homes, the Ordinance also defines ''group facility'' based on the presence of ''staff.'' Where a group home fits both definitions, the later controls. This results in separate restrictions being applied to the ''group facility'' such as the 1000 foot dispersion requirement and a limitation on the number of residents. This was found to be violative of the FHAA because the Court determined that the use of the term ''staff'' to differentiate between types of group facilities ''is a proxy for a classification based on the presence of individuals under eighteen and the handicapped as both groups require supervision and assistance.''(see footnote 56)
The Court also pointed out the disparity in treatment of youth between Class I and II facilities. Adult family homes with resident staff are class I facilities while family homes for youth with resident staff are not. Thus, the additional burdens on Class II facilities described above fall on such youthful residents while adult residents can locate throughout the City's residential zones. The Court found that these provisions facially discriminate on the basis of familial status thus avoiding the issue of whether abused or neglected youth are handicapped under the FHAA.(see footnote 57)
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Bellevue appropriately argued that the disparity in treatment discussed above was based on its general police power authority to provide for public health, tranquillity and safety and that under the standard of review adopted in the Familystyle case,(see footnote 58) a court should only apply the rational basis test to review its Ordinance. The Court recognized that the Ninth Circuit has not yet adopted a standard of review in these types of cases but declined to use the rational basis test. Instead, it chose the method of analysis used in the Sixth and Tenth circuits in part because it found that the FHAA makes both children and the handicapped protected classes. That standard requires that to rebut a finding of facial discrimination, the defendant must show either 1) the ordinance benefits the protected class or 2) it responds to legitimate safety concerns raised by the individuals affected rather than being based on stereotypes.(see footnote 59) In reviewing the factual claims, the Court found that Bellevue could not demonstrate that its group home regulations met the Larkin test.
With regard to the 1000 foot dispersion requirement, the Court was not impressed with Bellevue's rationale. The Court found that language purporting to help members of a protected class (similar to that discussed in House Bill 1049 regarding community integration etc.) should be scrutinized to determine whether its ''benefits'' clearly outweigh its burdens. In Bellevue's case, the Court found no factual justification to support the separation requirements.
The Court also made short work of the reasonable accommodation defense (i.e. that so long as an ordinance requires that a municipality make reasonable accommodation in dealing with individuals protected under the FHAA, the court cannot find the ordinance to be facially discriminatory) and instead adopted the rule that the thrust of a reasonable accommodation claim is that a defendant must make an affirmative change in an otherwise valid law or policy.(see footnote 60)
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The Court did not consider constitutional challenges to the Ordinance since the FHAA (specifically 42 USCA 3615) authorizes courts to invalidate any laws deemed to be found discriminatory under the Act.
As a result of a number of federal court decisions like Children's Home, local and state legislators have been lobbying Congress to make changes in the FHAA. House Bill 589, also known as the Fair Housing Reform and Freedom of Speech Act was introduced in February, 1997 and attempts to amend the FHAA in several different areas.
Part of its impetus comes from a series of incidents that occurred several years ago involving individuals and community groups who protested against the placement of certain housing projects. In a number of cases, HUD either sued or threatened suit against individuals under the FHAA claiming that their statements opposing the location of group homes constituted discrimination against the handicapped. Amid claims of first amendment violations and political pressure, HUD eventually backed off these cases.
These free speech cases together with lobbying efforts of local governmental officials has created a political climate that could lead to Fair Housing Act amendments. House Bill 589 is intended to allow local government to exercise reasonable zoning and other land use regulations in determining the occupancy, number, location and composition of residential group homes located in single family neighborhoods. This legislation, however, is limited to ''the occupancy of a dwelling by a convicted felon, sex offender, or recovering drug addict ...'' and does not deal with the more common type of group home facilities found in many communities.
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In interpreting the Fair Housing Act, it is clear that the federal judiciary including the Supreme Court will not tolerate restrictive definitions of ''family'' masked as maximum occupancy limitations, where they actually serve to define who constitutes a family, rather than to cap the number of individuals per dwelling in the interest of public safety.
Additionally, the courts have generally prohibited licensing and registration schemes on the basis that the permitting process has been misused by prejudicially denying permits to build and locate group homes in residential neighborhoods. Licensing requirements have been found to violate the rights of handicapped individuals to ''reasonable accommodations'' in zoning practices. However, conditional use permits issued not to discriminate against the handicapped, but to protect their safety as well as the safety of the community in general, may be valid in situations where handicapped individuals with well defined special needs require adequate supervision, and a condition of the issuance of the permit is the assurance of that adequate oversight.
Dispersion or spacing requirements once seen as one possible remaining method of municipal land use regulations in this area are also unlikely to be upheld by the courts despite the acknowledged importance of community integration of the handicapped.
Good public policy, however, dictates that legitimate state and local government regulations, when performed in the name of public health, safety and community welfare, should not be preempted by the Fair Housing Act. Unreasonable government actions born out of outmoded stereotypes against the disabled, disguised as legitimate land use regulations, will be suspect and will not pass the constitutional and statutory standards prohibiting discrimination. As stated by Peter Salsich Jr., founder of Oxford House, in his proposed model ordinance for group homes:
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The ordinance was drafted to provide assistance to communities which are willing to accept appropriate forms of shared living arrangements, but which also have a legitimate concern that stable neighborhoods not be overwhelmed by facilities that are physically incompatible with existing housing arrangements.
Whether local communities will be allowed to govern on that basis remains to be seen.
INSERT OFFSET RING FOLIOS 36 TO 38 HERE
[St. Petersburg Times, Mar. 4, 1996]
THE THOUGHT POSSE
Instead of upholding the U.S. Constitution, the Justice Department is mocking it. In an effort to squelch neighborhood opposition to group homes for troubled residents, federal prosecutors have turned themselves into what columnist Nat Hentoff correctly calls ''a posse of thought police.''
Nothing tests a neighborhood's character like the news that someone wants to open a group home for the mentally retarded or people recovering from drug or alcohol abuse. Instead of showing tolerance and a spirit of welcome, some residents fight these homes, speaking out at public meetings, passing out leaflets, filing lawsuits, and generally heaping misery on the private individuals and government agencies trying to make a home for the unfortunate.
You don't have to admire such protests to recognize that they enjoy full protection under the First Amendment. The right to free speecheven if it's unpleasantis a bedrock principle of American society. It's also one the thought posse has forgotten.
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First, agents of the Department of Housing and Urban Development threatened group home protesters with prosecution and heavy fines for what officials termed illegal acts of discrimination. After coming under fire, HUD backed off, issuing a promise to fulfill its obligation to enforce the Fair Housing Act in a manner that fullyand correctlyprotects the rights of all Americans to speak freely on issues of public concern.
That sounded swell, until HUD's pals at the Justice Department picked up the dirty work. Proclaiming themselves unaffected by the HUD pledge, Justice officials began unapologetically harassing citizen protesters.
In one case, 11 Texas residents filed a lawsuit claiming that a proposed group home would violate local restrictions. Although the group dropped its suit days later, Justice insisted on suing over what it called a ''frivolous, baseless and discriminatory'' action. The residents are now facing more than $200,000 in legal bills and potential damagesa financial penalty sure to scare others away from exercising their right to speak publicly or seek a peaceful solution in the courts.
After columnist Hentoff criticized this intimidation, Assistant Attorney General Deval Patrick expressed no regret. In a letter to the Washington Post, he compared protesters' free speech rights to baseball bats. ''Baseball bats are perfectly legal too,'' Patrick wrote. ''But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws.''
Patrick's comparison couldn't be more wrong. A baseball bat sends its victims to the hospital; spoken words invite a healthier result, a debate over the pros and cons of opening a group home in a given neighborhood. That kind of free dialogue between citizens and officials is the essence of free society. Where is Attorney General Janet Reno on this issue? Surely, she does not believe her staff should be silencing the dialogue of democracy.
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[The Washington Post, Feb. 4, 1996]
WATCH WHAT YOU SAY; THE GOVERNMENT IS
(By Nat Hentoff)
For several years, stories had been appearing in newspapers around the country about a new specialty of the Department of Housing and Urban Developmentassaulting the First Amendment rights of citizens who objected to the placement in their neighborhoods of rehabilitation facilities for drug and alcohol abusers as well as group homes for the mentally retarded.
HUD, acting under the anti-discrimination provisions of the Fair Housing Act, charged these objectors with violating that law with their discriminatory leaflets, public meetings, newsletters and lawsuits. Agents of HUD threatened individuals and members of protesting associations with prosecution and formidable fines. They commandeered their reports and correspondence as a prelude to actual prosecution.
Embarrassed at last by the insistent press reports, HUD issued a set of guidelines in September 1994, which solemnly pledged that ''HUD will fulfill its obligation to enforce the Fair Housing Act in a manner that fullyand correctlyprotects the rights of all Americans to speak freely on issues of public concern.... HUD recognizes that, for many private citizens, being subject to a federal investigation can be inherently and unavoidably 'chilling.' ''
Page 193 PREV PAGE TOP OF DOC Since then, however, HUDunder the continued leadership of Secretary Henry Cisneroshas been selective in its devotion to its First Amendment guidelines. The heavy hand of HUD against protesters has been evident in California, Michigan and Texas. Some of the cases have been settled but not without considerable legal fees for defendants who had been exercising their rights of speech and access to the courts.
A Texas caseUnited States v. W.J. and Ann Wagner, et al.is a particularly ominous illustration of HUD's inability to control its authoritarian impulses. In 1991, 11 Fort Worth residents learned that a couple in the neighborhood planned to sell their house to a county agency that was going to turn it into a group home for the mentally retarded. The complainants charged that this move would violate local restrictions. When they filed suit, state judge gave them a temporary injunction against the sale.
They also distributed leaflets that proclaimed the new facility would be a ''disaster both for social reasons and property values.'' Another leaflet prophesied that once the retarded came into the neighborhood, ''drug disabled adults'' would not be far behind.
People with prejudices are not without First Amendment rights.
These apprehensive residents dropped their lawsuit eight days after it was filed when their attorneys discovered a Texas statute that excluded group homes from deed restrictions on sales of single family homes.
Four years later, the U.S. Justice Departmenton referral from HUDhas sued the residents who opposed the group home but then withdrew from combat. In an editorial, the Fort Worth Star-Telegramwhich had supported the group homehas now attacked HUD's current pursuit of the resisters for ''riding roughshod over basic constitutional rights of citizens and trying to punish people for disagreeing with its dictates.... Someone at HUD needs to read the Constitution.''
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The majestic U.S. government charges that the lawsuit filed four years ago was ''frivolous, baseless and discriminatory'' and was intended to keep retarded people out of the neighborhood. By ''filing and maintaining that lawsuit, the defendants coerced, threatened or interfered'' with the owners of the home that was to be sold to the county.
The Civil Rights Division of the Justice Department adds that the First Amendment does not grant immunity to lawsuits that seek illegal objectives and that are improperly motivated. While the Justice Department now concedes that the leaflets in this case are protected speech, they can be used at trial to indicate improper motives.
This makes HUD and the Justice Department a posse of thought police deciding who has sufficiently worthy motives to file a lawsuit.
Should the defendantsnow down to eightlose, they are likely to be hit for some $12,000 in actual damages, together with possible punitive damages. Their legal fees will be more than $200,000.
One of the defense lawyers, Rick Disney, says that a loss for the defendants would be a powerful deterrent to other homeowners who once thought they had access to the courts for relief.
''Two of my clients,'' Disney says, ''are naturalized citizens who believed that in this country, they would have a right to an opinion. They are now afraid.''
Page 195 PREV PAGE TOP OF DOC Henry Cisneros and Janet Reno might send that troubled couple an autographed Copy of the Bill of Rights.
FAIR HOUSING REFORM AND FREEDOM OF SPEECH ACT OF 1997
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
Page 196 PREV PAGE TOP OF DOC
FAIR HOUSING REFORM AND FREEDOM OF SPEECH ACT OF 1997
APRIL 17, 1997
Serial No. 20
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
Page 197 PREV PAGE TOP OF DOCBOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
Page 198 PREV PAGE TOP OF DOCSTEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
Page 199 PREV PAGE TOP OF DOC
C O N T E N T S
April 17, 1997
TEXT OF BILL
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
Bilbray, Hon. Brian P., a Representative in Congress from the State of California
Browne, Judith A., managing attorney, NAACP Legal Defense and Education Fund, Inc.
Burney, Thomas R., attorney, Village of Palatine
Clark, Carol Y., city councilmember, East Orange, NJ, and member, National League of Cities Board of Directors
Conner, Roger L., executive director, Center for the Community Interest
Golding, Susan, mayor, City of San Diego
Hancock, Paul F., Acting Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice
Tews, Henry, president, Serenity House, Inc.
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bilbray, Hon. Brian P., a Representative in Congress from the State of California: Prepared statement
Page 200 PREV PAGE TOP OF DOC Browne, Judith A., managing attorney, NAACP Legal Defense and Education Fund, Inc.: Prepared statement
Burney, Thomas R., attorney, Village of Palatine: Prepared statement
Clark, Carol Y., city councilmember, East Orange, NJ, and member, National League of Cities Board of Directors: Prepared statement
Conner, Roger L., executive director, Center for the Community Interest: Prepared statement
Golding, Susan, mayor, City of San Diego: Prepared statement
Hancock, Paul F., Acting Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice: Prepared statement
Harman, Hon. Jane, a Representative in Congress from the State of California: Prepared statement
Patrick, Deval L., Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, before the Subcommittee on HUD Oversight and Structure, Committee on Banking, Housing, and Urban Affairs, U.S. Senate, concerning S. 1132, a bill to amend the Fair Housing Act and for other purposes, September 18, 1996
Tews, Henry, president, Serenity House, Inc.: Prepared statement
Material submitted for the hearing
(Footnote 1 return)
The Children's Alliance, et al. v. The City of Bellevue, Z.959052 (W.D. Wash., January, 1997).
(Footnote 2 return)
Judith A. Browne is Managing Attorney of the Washington, DC, office of the NAACP Legal Defense and Educational Fund, Inc. (Ms. Browne's Curriculum Vitae is included as Attachment C, which is in the subcommittee files.)
(Footnote 3 return)
During this period, Reverend Harper also experienced acts of intimidation by unidentified persons. On one occasion, someone turned a dog loose on the property while Rev. Harper was visiting. The dog confronted Reverend Harper in one of the townhouse units. On a separate occasion, two men in a black pick-up truck with a dog in the back, parked in front the property and observed Reverend Harper's actions. On a separate visit, gunshots were fired near Reverend Harper's property. The mailboxes on the property were destroyed by vandals.
(Footnote 4 return)
The estimated loss due to the fire was $450,000; however, Reverend Harper only received $52,000 in insurance proceeds.
(Footnote 5 return)
HUD has trained its staff with regard to the guidelines. Of the more than 12,000 complaints the Office of Fair Housing and Equal Opportunity handled since 1994, only 50 raised First Amendment issues. (Statement of Elizabeth K. Julian, Assistant Secretary of Fair Housing and Equal Opportunity, HUD, before the Senate Banking Housing and Urban Affairs Subcommittee on HUD Oversight and Structure (Sept. 10, 1996).)
(Footnote 6 return)
These neighbors also left a note threatening ''to break [Sofarelli] in half'' if he did not get out of the neighborhood. They also ran up to one of Sofarelli's trucks hitting it, shouting obscenities and spitting at him, which constituted intimidation and coercion. Id. at 722.
(Footnote 7 return)
Section 3617 provides: ''It shall be unlawful to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of his having aided or encouraged any person in the exercise or enjoyment of, any right granted under or protected by Sections 3603, 3604, 3605, or 3606 of this Title.''
(Footnote 8 return)
Draft legislation is in the subcommittee files.
(Footnote 9 return)
See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), U.S. v. Wagner, 940 F. Supp. 972 (N.D. Tex. 1996), U.S. v. Scott, 788 F. Supp. 1555 (D. Ran. 1992).
(Footnote 10 return)
The views expressed in this article are those of the author and not those of the City of Vancouver.
(Footnote 11 return)
Fair Housing Act, 42 U.S.C. 3601 et seq.
(Footnote 12 return)
United States v. Columbus Country Club, 915 F.2d 877, 883 (3rd Cir. 1990).
(Footnote 13 return)
42 U.S.C. 3615.
(Footnote 14 return)
See, e.g., Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977).
(Footnote 15 return)
42 U.S.C. 3604(f)(3)(B).
(Footnote 16 return)
1993 Wash. Laws, 478, 20 (also known as the Washington Housing Policy Act); see also Wash. Admin. Code 365195860; Wash. Rev. Code 35.63.220, 35A.63.240.
(Footnote 17 return)
See supra Section III.
(Footnote 18 return)
See 29 U.S.C. 701794.
(Footnote 19 return)
24 C.F.R. 100.201; see also 42 U.S.C. 3602(h).
(Footnote 20 return)
See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249 (1985).
(Footnote 21 return)
H.R. Rep. No. 711, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 2173, 2185 (''House Report'').
(Footnote 22 return)
42 U.S.C. 3602(h).
(Footnote 23 return)
Oxford House, Inc. v. Township of Cherry Hill, 799 F.Supp. 450, 462 (D.N.J. 1992).
(Footnote 24 return)
See United States v. Village of Palatine, 37 F.3d 1230,1234 (7th Cir. 1994).
(Footnote 25 return)
See Oxford House, Inc. v. City of St. Louis, 843 F.Supp. 1556, 1581 (E.D. Mo. 1994).
(Footnote 26 return)
Village of Belle Terre v. Borass, 94 S.Ct. 1536 (1974).
(Footnote 27 return)
Moore v. City of East Cleveland, 97 S.Ct. 1932 (1977).
(Footnote 28 return)
Elliot v. City of Athens, 960 F.2d 975 (11th Cir. 1992); City of Edmonds v. Wash. State Bldg. Code Council, 18 F.3d 802 (9th Cir. 1994).
(Footnote 29 return)
City of Edmonds v. Oxford House, Inc., 115 S.Ct. 1776 (1995).
(Footnote 30 return)
Id. at 1782.
(Footnote 31 return)
Id. at 17823.
(Footnote 32 return)
42 U.S.C. 3604(f)(3)(B) (1988).
(Footnote 33 return)
United States v. Village of Marshall, 787 F. Supp. 872, 878 (W.D. Wis. 1991).
(Footnote 34 return)
See Kevin Zenner, Note, Dispersion Requirements for the siting of group homes: Reconciling New York's Padvian Law with the Fair Housing Amendments Act of 1988, 44 BUFF. L.REV. 249 (1996).
(Footnote 35 return)
Familystyle of St. Paul, Inc. v. City of St. Paul, 728 F. Supp. 1396 ( ).
(Footnote 36 return)
Id. at 1398.
(Footnote 37 return)
473 U.S. 432 (1985).
(Footnote 38 return)
Id. at 1401.
(Footnote 39 return)
Id. at 1404.
(Footnote 40 return)
923 F.2d 94.
(Footnote 41 return)
Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F.Supp. 683, 690 (E.D. Pa. 1992).
(Footnote 42 return)
(Footnote 43 return)
Id. at 697.
(Footnote 44 return)
Id. at 699.
(Footnote 45 return)
Zenner, supra note 25, at 275278.
(Footnote 46 return)
501 N.W.2d 186 (1993).
(Footnote 47 return)
Id. at 188.
(Footnote 48 return)
797 F.Supp. 918 (D. Utah 1992), rev'd, 46 F.3d 1491 (10th Cir. 1995).
(Footnote 49 return)
Id. at 922.
(Footnote 50 return)
Norht Shore-Chicago Rehabilitation Inc. v. Village of Skokie, 827 F.Supp. 497 (N.D. III. 1993).
(Footnote 51 return)
Id. at 922.
(Footnote 52 return)
AGO 1992, No. 25.
(Footnote 53 return)
Wash. Rev. Code 35.63.220; 35A.63.240.
(Footnote 54 return)
Sunderland v. City of Pasco, 127 Wn. 2d 782 (1995).
(Footnote 55 return)
W.D. Wash. Case No. C95905Z.
(Footnote 56 return)
Children's Alliance, Order at page 10.
(Footnote 57 return)
Sunderland v. City of Pasco, 127 Wn.2d 782 (1995).
(Footnote 58 return)
See Section III(C)(1).
(Footnote 59 return)
See Larkin v. State of Michigan Dept. of Social Services, 89 F.3d 285, 290 (6th Cir. 1996).
(Footnote 60 return)
The Court specifically rejected the approach taken by the 5th Cir. in the case of Elderhaven Inc. v. City of Lubbock, 98 F.3d 175 (1996).