Geraldine Larkin sought a license to operate an adult foster care (AFC) facility which would provide care for up to four handicapped adults in Westland, Michigan. The Michigan Adult Foster Care Licensing Act (MAFCLA), M.C.L. §§400.701 et seq., governs the issuance of such licenses. It prevents the issuance of a temporary license if the proposed AFC facility would "substantially contribute to an excessive concentration" of community residential facilities within a municipality. M.C.L. §400.716(1). Moreover, it requires compliance with section 3b of the state's zoning enabling act, codified as M.C.L. §125.583b. M.C.L. §400.716(3). Section 3b of the zoning act provides in part:

At least 45 days before licensing a residential facility [which provides resident services or care for six or fewer persons under 24-hour supervision], the state licensing agency shall notify the council ... or the designated agency of the city or village where the proposed facility is to be located to review the number of existing or proposed similar state licensed residential facilities whose property lines are within a 1,500-foot radius of the property lines of the proposed facility. The council of a city or village or an agency of the city or village to which the authority is delegated, when a proposed facility is to be located within the city or village, shall give appropriate notification . . . to those residents whose property lines are within a 1,500-foot radius of the property lines of the proposed facility. A state licensing agency shall not license a proposed residential facility if another state licensed residential facility exists within the 1,500-foot radius of the proposed location, unless permitted by local zoning ordinances or if the issuance of the license would substantially contribute to an excessive concentration of state licensed residential facilities within the city or village.

M.C.L. §125.583b(4). MAFCLA also requires notice to the municipality in which the proposed AFC facility will be located. M.C.L. §400.732(1).

Michigan Department of Social Services (MDSS) notified Westland of Larkin's application in accordance with MAFCLA. Westland determined that there was an existing AFC facility within 1,500 feet of the proposed facility and so notified MDSS. It also notified MDSS that it was not waiving the spacing requirement, so that MDSS could not issue a license to Larkin. When MDSS informed Larkin of Westland's action, Larkin withdrew her application.

Larkin filed suit in the United States District Court for the Eastern District of Michigan, alleging that Michigan's statutory scheme violates the Fair Housing Act (FHA) as amended by the Fair Housing Amendments Act (FHAA). Larkin also alleged that MAFCLA violates the equal protection clause of the fourteenth amendment to the constitution. In addition, Larkin named Westland as a defendant, alleging that it had violated the FHAA by not waiving the 1500-foot requirement. Michigan Protective and Advocacy Services (MPAS) moved to intervene as of right on the ground that it had a federal mandate to protect the rights of the handicapped. The district court granted that motion.¹

The parties agreed that there were no disputed issues of material fact and filed cross-motions for summary judgment. After oral argument, the district court ruled that the 1500-foot spacing requirement and the notice requirements of M.C.L. §125.583b(4), as incorporated into MAFCLA by M.C.L. §400.716(3), were preempted by the FHAA because they were in conflict with it. The court also ruled that these statutes violated the equal protection clause of the fourteenth amendment. Accordingly, the court enjoined the defendants from enforcing §§125.583b(4) & 400.716(3).² MDSS appeals this decision....

[The court also held that Westland did not violate the FHAA because it lacked the authority to waive the 1500-foot requirement under Michigan law. Plaintiffs did not appeal this ruling. The court also clarified its ruling to hold that M.C.L. §400.732(1), which requires MDSS to notify the municipality of the proposed facility,also violated the FHAA and the equal protection clause, and enjoined its enforcement. The defendants also appealed this order. As the appeal was from a summary judgment, and as there were no disputes about material facts, the only question was whether plaintiffs were entitled to judgment based on the agreed upon facts.]

Congress passed the federal Fair Housing Act (FHA) as Title VIII of the Civil Rights Act of 1968 to prohibit housing discrimination on the basis of, inter alia, race, gender, and national origin. In 1988, Congress passed the Fair Housing Amendments Act (FHAA), which expanded the coverage of the FHA to include people with disabilities. The FHA, as amended by the FHAA, makes it unlawful to:

discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of--

* * *

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available.

42 U.S.C. §3604(f)(1) (emphasis added). It is well-settled that the FHAA applies to the regulation of group homes. Moreover, Congress explicitly intended for the FHAA to apply to zoning ordinances and other laws which would restrict the placement of group homes. See H. Rep. No. 711, 100th Cong., 2d Sess. 24, reprinted in 1988 U.S.C.C.A.N. 2173, 2185.

A. Preemption... [The court held the FHAA preempts state laws with which it conflicts.]

B. Discrimination

This brings us to the crux of the case: whether the statutes at issue discriminate against the disabled in violation of the FHAA. The district court held that two different aspects of MAFCLA violate the FHAA: (1) the 1500-foot spacing requirement of M.C.L. §125.583b(4); and (2) the notice requirements of M.C.L. §§125.583b(4) & 400.732(1). ...

[The court noted that courts apply either a discriminatory treatment or discriminatory impact test to violations of the Fair Housing Act.] Some courts have identified a third type of case where a challenged practice discriminates against the handicapped on its face. However, facially discriminatory actions are just a type of intentional discrimination or disparate treatment, and should be treated as such. ...

Here, the challenged portions of MAFCLA are facially discriminatory. The spacing requirement prohibits MDSS from licensing any new AFC facility if it is within 1500 feet of an existing AFC facility. M.C.L. §125.583b(4). The notice requirements require MDSS to notify the municipality of the proposed facility, and the local authorities to then notify all residents within 1500 feet of the proposed facility. M.C.L. §§125.583b(4) & 400.732(1). By their very terms, these statutes apply only to AFC facilities which will house the disabled, and not to other living arrangements. As we have previously noted, statutes that single out for regulation group homes for the handicapped are facially discriminatory.

MDSS argues that the statutes at issue cannot have a discriminatory intent because they are motivated by a benign desire to help the disabled. This is incorrect as a matter of law. The Supreme Court has held in the employment context that "the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect." [International Union, United Auto. Aerospace & Agricultural Implement Workers v.] Johnson Controls, 499 U.S. [187] at 199 [(1991)]. Following Johnson Controls, all of the courts which have considered this issue under the FHAA have concluded the defendant's benign motive does not prevent the statute from being discriminatory on its face. MDSS relies on Familystyle of St. Paul, Inc. v. City of St. Paul, 728 F. Supp. 1396 (D. Minn. 1990), aff'd, 923 F.2d 91 (8th Cir. 1991), for the proposition that proof of a discriminatory motive is required for a finding of discriminatory intent. However, both decisions in Familystyle preceded the Supreme Court's opinion in Johnson Controls. Thus, they have been implicitly overruled by Johnson Controls in this regard.

Because the statutes at issue are facially discriminatory, the burden shifts to the defendant to justify the challenged statutes. However, it is not clear how much of a burden shifts. MDSS urges us to follow the Eighth Circuit and rule that discriminatory statutes are subject to a rational basis scrutiny, i.e., they will be upheld if they are rationally related to a legitimate government objective. See Oxford House-C v. City of St. Louis, 77 F.3d 249, 252 (8th Cir. 1996). Plaintiffs urge us to reject the rational basis test and adopt the standard announced by the Tenth Circuit, which requires the defendant to show that the discriminatory statutes either (1) are justified by individualized safety concerns; or (2) really benefit, rather than discriminate against, the handicapped, and are not based on unsupported stereotypes. Bangerter [v. Orem City Corp.], 46 F.3d [1491] at 1503-04 [10th Cir. 1989].

Although we have never explicitly decided the issue, we have held that in order for special safety restrictions on homes for the handicapped to pass muster under the FHAA, the safety requirements must be tailored to the particular needs of the disabled who will reside in the house. Marbrunak, [Inc. v. City of Stow, 974 F.2d [43] at 47 [(6th Cir. 1992)]. We rejected the ordinances at issue in that case because they required

nearly every safety requirement that one might think of as desirable to protect persons handicapped by any disability--mental or physical; and all the requirements applied to all housing for developmentally disabled persons, regardless of the type of mental condition that causes their disabilities or of the ways in which the disabilities manifest themselves.

Id. Therefore, in order for facially discriminatory statutes to survive a challenge under the FHAA, the defendant must demonstrate that they are "warranted by the unique and specific needs and abilities of those handicapped persons" to whom the regulations apply. Id.

MDSS has not met that burden. MDSS claims that the 1500-foot spacing requirement integrates the disabled into the community and prevents "clustering" and "ghettoization." In addition, it argues that the spacing requirement also serves the goal of deinstitutionalization by preventing a cluster of AFC facilities from recreating an institutional environment in the community.

As an initial matter, integration is not a sufficient justification for maintaining permanent quotas under the FHA or the FHAA, especially where, as here, the burden of the quota falls on the disadvantaged minority. [citing, inter alia, United States v. Starrett City Associates, 840 F.2d 1096 (2d Cir. 1988), which held a quota adopted for a private housing project violated the Act.] The FHAA protects the right of individuals to live in the residence of their choice in the community. If the state were allowed to impose quotas on the number of minorities who could move into a neighborhood in the name of integration, this right would be vitiated.

MDSS argues that the state is not imposing a quota because it is not limiting the number of disabled who can live in a neighborhood, it is merely limiting the number of AFC facilities within that neighborhood. However, as we have previously noted, disabled individuals who wish to live in a community often have no choice but to live in an AFC facility. Alternatively, if the disabled truly have the right to live anywhere they choose, then the limitations on AFC facilities do not prevent clustering and ghettoization in any meaningful way. Thus, MDSS's own argument suggests that integration is not the true reason for the spacing requirements.

Moreover, MDSS has not shown how the special needs of the disabled warrant intervention to ensure that they are integrated. MDSS has produced no evidence that AFC facilities will cluster absent the spacing statute. In fact, this statute was not enforced from 1990 to 1993, and MDSS has offered no evidence that AFC facilities tended to cluster during that period.

Instead, MDSS simply assumes that the disabled must be integrated, and does not recognize that the disabled may choose to live near other disabled individuals. The result might be different if some municipalities were forcing the disabled to segregate, or cluster, in a few small areas. However, Michigan already prohibits such behavior:

In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of a normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.

M.C.L. §125.583b(2) (emphasis added). The only clustering or segregation that will occur, then, is as the result of the free choice of the disabled. In other words, the state's policy of forced integration is not protecting the disabled from any forced segregation; rather, the state is forcing them to integrate based on the paternalistic idea that it knows best where the disabled should choose to live.

In contrast, deinstitutionalization is a legitimate goal for the state to pursue. However, MDSS does not explain how a rule prohibiting two AFC facilities from being within 1500 feet of each other fosters deinstitutionalization in any real way. Two AFC facilities 500 feet apart would violate the statute without remotely threatening to recreate an institutional setting in the community. In fact, the spacing requirement may actually inhibit the goal of deinstitutionalization by limiting the number of AFC facilities which can be operated within any given community.

MDSS relies again on Familystyle, where both the district court and the Eighth Circuit found that the goal of deinstitutionalization justified facially discriminatory spacing requirements. However, Familystyle is distinguishable from the present case. In Familystyle, the plaintiff already housed 119 disabled individuals within a few city blocks. The courts were concerned that the plaintiffs were simply recreating an institutionalized setting in the community, rather than deinstitutionalizing the disabled.

Here, however, Larkin seeks only to house four disabled individuals in a home which happens to be less than 1500 feet from another AFC facility. The proposed AFC facility, and many more like it that are prohibited by the spacing requirement, do not threaten Michigan's professed goal of deinstitutionalization. Because it sweeps in the vast majority of AFC facilities which do not seek to recreate an institutional setting, the spacing requirement is too broad, and is not tailored to the specific needs of the handicapped.³

In summary, MDSS's justifications do not pass muster under the standard announced in Marbrunak. Therefore, the 1500-foot spacing requirement violates the FHAA and is preempted by it.

MDSS also has failed to provide an adequate justification for the notice requirements. MDSS merely offers the same justifications for the notice requirements as it offers for the spacing requirements, i.e., integration and deinstitutionalization. Notifying the municipality or the neighbors of the proposed AFC facility seems to have little relationship to the advancement of these goals. In fact, such notice would more likely have quite the opposite effect, as it would facilitate the organized opposition to the home, and animosity towards its residents. Furthermore, MDSS has offered no evidence that the needs of the handicapped would warrant such notice. We find that the notice requirements violate the FHAA and are preempted by it.

By this holding, we in no way mean to intimate that the FHA, as amended by the FHAA, prohibits reasonable regulation and licensing procedures for AFC facilities. As was stated in Marbrunak, "the FHAA does not prohibit the city from imposing any special safety standards for the protection of developmentally disabled persons." Marbrunak, 974 F.2d at 47 (emphasis in original). Rather, it merely prohibits those which are not "demonstrated to be warranted by the unique and specific needs and abilities of those handicapped persons." Id. ...

For the foregoing reasons, the judgment of the district court is AFFIRMED.

¹ For ease of reference, Larkin and MPAS will be referred to collectively as "plaintiffs."

² Although the district court referred to the excessive concentration provisions in M.C.L. §§125.583b(4) & 400.716(1), it did not hold that they violated the FHAA or the equal protection clause, and it did not enjoin the enforcement of M.C.L. §400.716(1).

³ We express no opinion on whether a more narrowly tailored law prohibiting such a concentration would pass muster under the FHAA.

1. Applying the Fair Housing Act to zoning. The 1988 amendments to the Fair Housing Act prohibit a number of disability-specific practices in the sale or rental of housing. These prohibitions do not explicitly include zoning, but they prohibit acts that "otherwise make unavailable or deny" a dwelling because of a handicap. Similar language appears in other parts of the Act, and the courts have applied it to prohibit discriminatory zoning.

The House Judiciary Committee Report quoted in the Larkin decision had the following to say about discriminatory zoning practices:

The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land-use regulations,... and conditional or special permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.

Does this language have any bearing on the problem in the Larkin case? The Fair Housing Act thus adds a new dimension to zoning when the disabled are affected. Do you agree with this approach to the disability problem, or is it a one-dimensional solution to difficult issues that ignores the complexities of zoning for the disabled?

2. Standards for violation and burden of proof. Notice that the Larkin decision held that the statute raised a discriminatory treatment problem. Why do you suppose the court declined to apply the discriminatory effect standard, which is easier to satisfy? The court also made it more difficult to show a justification for the statute by rejecting the rational basis standard. It held the statutes must be "warranted by the unique and specific needs and abilities of those handicapped persons" to which they apply. Do you believe this ruling is justified by the policy of the Act?

3. Spacing requirements. In Familystle, which is distinguished in the Larkin case, the court upheld a requirement that there be at least one-quarter mile between group homes for the mentally handicapped. It held the requirement was consistent with the objectives of the Fair Housing Act because it guaranteed that group homes would be integrated into the community. The court also applied the discriminatory impact standard, and accepted the integration objective as a basis for holding the spacing requirement did not have a discriminatory impact on the disabled. Recent cases have followed the Larkin decision, e.g., Children's Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997); ARC of New Jersey, Inc. v. State of New Jersey, 950 F. Supp. 637 (D.N.J. 1996).

Spacing requirements are sometimes used in other situations in zoning ordinances, such as spacing requirements for gasoline filling stations. Courts sometimes strike down these requirements as anticompetitive.

4. Conditional uses. The conditional use is frequently utilized in zoning ordinances as a method of reviewing uses that might be problematic at their location unless a special review is provided, with the opportunity to attach mitigating conditions. Problems have arisen when municipalities adopt conditional use provisions for group homes for the handicapped and then apply them to deny applications for conditional use approval.

One problem arises from a provision of the Act that makes it discriminatory to refuse to make "reasonable accommodation" in rules, policies and practices when such accommodations are necessary in order to afford handicapped persons an opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(3)(B). This provision applies only to discrimination against the handicapped. United States v. Village of Palatine, 37 F.3d 1230 (7th Cir. 1994) rejected an argument that a conditional use provision violated the "reasonable accommodation" requirement because it placed an unacceptable burden on disabled persons and owners of group homes who were required to go through the conditional use review process. The argument was that the conditional use requirement was not a "reasonable" practice.

The court held that any burdens residents of a group home might suffer from going through the conditional use process did not outweigh the municipality's interest in applying the conditional use requirement to all applicants for conditional use approval. Public input, it held, is an important element in municipal decision making. Can you think of any reasons why the policy of the Act should exempt group homes from this requirement?

When a municipality has refused to give conditional use approval to a group home for the handicapped, the courts have usually reversed when the reasons for the refusal were clearly discriminatory. Baxter v. City of Belleville, 720 F. Supp. 720 (S.D. Ill. 1989), is an early and leading case. The city refused a special use permit for a hospice for terminally ill AIDS patients, who are considered handicapped under the Act. The court found evidence of discriminatory intent, noting the evidence showed that "irrational fear of AIDS was at least a motivating factor in the City's refusal to grant Baxter's special use permit," and that the city's actions were "specifically and intentionally" designed to prevent people with AIDS from living in the hospice.

The court also held the city's refusal had a discriminatory impact on people with AIDS. The city's claimed zoning interests in denying the special permit were a pretext because "the City's actions were based on fear of HIV, and not a legitimate zoning interest."

Can you think of any reason why a municipality would be entitled to deny a special use permit for a group home for the handicapped, such as a group home for persons with AIDS? In Erdman v. City of Fort Atkinson, 84 F.3d 960 (7th Cir. 1996), the court upheld the city's decision to reject a conditional use application for a group home for the elderly handicapped because it did not cover the entire parcel, and because a proposed culsac was inconsistent with the city's master zoning plan. The court was influenced by the plaintiff's failure to counter the city's statement of facts as required by the district court's rules.

The court also considered, but did not decide, a claim that the city's refusal was a denial of equal opportunity in housing in the city. The court expressed skepticism about the district court's holding that equal opportunities must be provided within the city, and then rejected this claim because the plaintiff had built his group home on an adjoining parcel in a neighboring town. How would you have decided this case? Compare this case with the exclusionary zoning decisions reviewed in Chapter 2? What is the difference? Should there be an inclusionary zoning rule for group homes? If so, what should it be? For discussion of the Act as it applies to group homes for the handicapped see D. Mandelker, J. Gerard & T. Sullivan, Federal Land Use Law § 3.08 (updated annually).

Questions/comments? Email mandelker@wulaw.wustl.edu. Technical problems? Email Karl Eck.