Fair Housing Advocates Ass'n v. City of Richmond Heights

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0132P (6th Cir.) File Name: 00a0132p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  FAIR HOUSING ADVOCATES  ASSOCIATION, INC.,  Plaintiff-Appellant,  No. 98-3523

 v. >  CITY OF RICHMOND HEIGHTS,   Defendant,  OHIO,   CITY OF WARRENSVILLE    HEIGHTS, OHIO; CITY OF

 FAIRVIEW PARK, OHIO; CITY

Defendants-Appellees.  OF BEDFORD HEIGHTS, OHIO,

 1 Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 96-01438—James S. Gwin, District Judge. Argued: August 3, 1999 Decided and Filed: April 13, 2000 Before: JONES, BATCHELDER, and COLE, Circuit Judges.

2 Fair Housing Advocates v. City of No. 98-3523 Warrensville Heights, et al.

_________________ COUNSEL ARGUED: Andrew L. Margolius, Cleveland, Ohio, for Appellant. Alan E. Johnson, WARD & ASSOCIATES, Cleveland, Ohio, Charles E. Merchant, CITY OF BEDFORD HEIGHTS DEPARTMENT OF LAW, Bedford Heights, Ohio, for Appellees. ON BRIEF: Andrew L. Margolius, Cleveland, Ohio, for Appellant. Alan E. Johnson, Leo R. Ward, WARD & ASSOCIATES, Cleveland, Ohio, Charles E. Merchant, CITY OF BEDFORD HEIGHTS DEPARTMENT OF LAW, Bedford Heights, Ohio, for Appellees. Stephen M. Dane, Michael L. Stokes, COOPER, WALINSKI & CRAMER, Toledo, Ohio, for Amicus Curiae. JONES, J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 23-34), delivered a separate opinion concurring in the judgment. _________________ OPINION _________________ NATHANIEL R. JONES, Circuit Judge. Plaintiff-appellant Fair Housing Advocates Association, Inc. (“Housing1 Advocates”) filed a complaint against defendants-appellees the City of Warrensville Heights, Ohio; the City of Fairview Park, Ohio; and the City of Bedford Heights, Ohio (collectively “the Cities”) asserting that each city’s occupancy ordinance discriminated against certain individuals based on familial status, thereby violating the Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq. Conversely, the Cities argue that their ordinances are reasonable occupancy

1 Housing Advocates also named the City of Richmond Heights, Ohio as a defendant. However, Housing Advocates thereafter filed a stipulation voluntarily dismissing Richmond Heights.

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III. ordinances, enacted in full compliance with the FHA. The district court, after a bench trial, entered judgment on behalf In summary, although I concur in the majority’s ultimate of the Cities. See Fair Hous. Advocates Ass’n, Inc. v. City of judgment that the ordinances at issue here were reasonable, I Richmond Heights, 998 F. Supp. 825 (N.D. Ohio 1998). For believe that the rationale it uses to reach that result severely the reasons that follow, we AFFIRM the district court’s undermines the respect we owe to states’ and localities’ use judgment. of their police powers. Requiring cities to prove their neutral, numerically based maximum occupancy restrictions to be I. reasonable flies in the face of the wealth of precedent according a presumption of reasonableness and constitutional Housing Advocates is a “non-profit private fair housing validity to enactments based on these historically non-federal corporation whose mission is to eliminate housing powers. discrimination and promote equal opportunities in housing.” J.A. at 321. Toward that end, Housing Advocates conducts seminars and workshops for housing providers and the general public, investigates possible FHA violations, and monitors various housing markets to ensure FHA compliance. In 1993, while investigating another fair housing matter, Housing Advocates discovered that each of the Cities’ housing codes contained what it considered to be unusually restrictive occupancy standards. Housing Advocates conducted further tests and investigations in each of the Cities, and determined that the occupancy ordinances were unduly restrictive and discriminated against families. Defendants-appellees are suburban cities located in Cuyahoga County, Ohio, adjacent to the City of Cleveland. None of the Cities own, operate or rent any apartments. On July 3, 1996, Housing Advocates filed a complaint against the Cities asserting that each city enacted an occupancy ordinance which impermissibly discriminates against individuals based on family status in violation of the FHA. On March 16, 1998, the district court conducted a bench trial, during which the parties presented testimony from various expert witnesses. In addition, the parties stipulated that the deposition testimony of several other witnesses could be submitted to the court in lieu of live testimony. The parties also stipulated to the admission of various exhibits.

4 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 33 Warrensville Heights, et al. Warrensville Heights, et al.

The specific evidence presented at trial by the Housing Legislature * * *.' E.g., Sproles v. Binford, 286 U.S. 374, Advocates can be summarized as follows: 388, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932). * * * Bedford Heights Our past cases leave no doubt that appellants [challenging the ordinance] had the burden on Bedford Heights enacted its first occupancy ordinance in ‘reasonableness.’ February 1989. The 1989 version of the ordinance required a minimum of 300 square feet of habitable floor space2 for the Goldblatt, 369 U.S. at 594-95, 596. This is the same test we first occupant and an additional 200 square feet for each applied in Kutrom Corp. See 979 F.2d at 1174 (“The additional occupant. Codified Ordinance § 1387.14, the Supreme Court has stated repeatedly that an ordinance or version of the ordinance now being challenged by Housing statute directed toward economic or social welfare regulation Advocates was adopted in September 1991. The 1991 adopted in exercise of police powers is presumptively valid, occupancy ordinance requires a minimum of 200 square feet and the burden on the issue of reasonableness lies with the of habitable space for the first occupant and 150 additional party challenging such an enactment”). The Court in City of square feet for each additional occupant. The ordinance Edmonds suggested that the FHA’s reasonableness further requires a minimum of 650 square feet of habitable requirement is no more demanding than this lenient test. See space for dwellings having four occupants. 514 U.S. at 734. n. 8 (quoting legislative history suggesting that a reasonable ordinance is one that is applied evenly and The deposition testimony of John Marrelli, the Bedford does not discriminate on a basis regulated by the FHA); id. at Heights Building Commissioner at the time the ordinance 737 (“this contention . . . exaggerates the force of the FHA’s was enacted, was presented at trial. Marrelli testified that the antidiscrimination provisions. [W]hen applicable, [they] ordinance was passed, in part, due to residents’ concerns require only ‘reasonable’ accommodations”). about too many people living in one apartment, unsupervised children, children playing in unsafe environments (e.g., For these reasons, I read the City of Edmonds decision and balconies, parking lots, hallways, elevators), noise, and the FHA’s text and legislative history as affirming the overcrowding. Further, in response to plaintiff’s counsel’s propriety of presuming local maximum occupancy restrictions question of whether “[t]he law was directed towards based on police powers to be valid. At the very least, they problems associated with children and problems that other remove the FHA’s anti-discrimination policy considerations tenants, adult tenants, were experiencing in relation to these from our analysis, in which case the majority’s rationale for denying the traditional presumption of validity disappears. Applying this presumption ipso facto requires us to place the 2 Although each city defines habitable floor space slightly differently, burden of disproving the ordinances’ reasonableness on the the term in general is defined as “the floor area in any room in any challengers, for by definition a presumption is a rule of law multiple dwelling . . . which floor area is required to be contained within creating “an inference in favor of a particular fact” until such dwelling . . . in order to meet the minimum requirements of this rebutted. BLACK’S LAW DICTIONARY 822 (Abr. 6th ed. Housing Code.” Fair Hous. Advocates Ass’n, 998 F.Supp. at 827. Similarly, a “habitable room” is defined as “a room or enclosed floor 1991); see also Fed. R. Evid. 301. space used or intended to be used for living, sleeping, or eating purposes.” Id. Hallways, bathrooms, laundries, pantries and boiler rooms are typically excluded from the definition of a “habitable room.” See id. at 826-27.

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1176, 1179 (8th Cir. 1992) (same); Doe v. City of Butler, children,” Marrelli answered, “Yes.” J.A. at 126. However, Penn., 892 F.2d 315, 324 n. 5 (3d Cir. 1989) (recognizing Marrelli also stated that in passing the ordinance, the city “did distinction by refusing to express opinion on whether HUD not look at [the ordinance] as having an impact on any regulations are applicable to governmental as opposed to specific group of persons. . . .We weren’t trying to define who private occupancy limits); United States v. Tropic Seas, Inc., could live in the suites, but how many.” J.A. at 129. He 887 F.Supp. 1347, 1361 (D. Hawai´i 1995) (applying stricter further stated that the ordinance was passed to address standard to private limits); United States v. Lepore, 816 “[h]ealth, safety, and sanitation” problems that could result F.Supp. 1011, 1021 (M.D. Penn. 1991) (same). While the from overcrowding. J.A. at 137. According to Marrelli, the majority’s assignment of the burden of proof to the party ordinance was enacted as a result of the 1988 amendments to claiming § 3607(b)(1)’s exemption may be appropriate when the FHA, and in response to landlords’ and tenants’ the restriction is privately initiated, it is inappropriate here. complaints regarding overcrowding. Thus, after the FHA amendments were passed, information regarding these Section 3607(b)(1)’s proviso limiting its exception to only amendments, along with a draft of the proposed ordinance, “reasonable” restrictions is also consistent with a presumption was submitted to local apartment landlords/owners. Bedford of the ordinances’ validity. The presumption in favor of a Heights, working with the landlords/owners, developed the police power-based ordinance has never been irrebuttable, and square footage requirements included in the final version of its constitutional validity has always hinged on the the ordinance. ordinance’s reasonableness: In addition, B. Allen Clutter, Vice-President and General The term 'police power' connotes the time-tested Manager of Owners Management Company, testified at trial.3 conceptional limit of public encroachment upon private Clutter stated that although using a square footage occupancy interests. Except for the substitution of the familiar standard is not unreasonable, for consistency purposes, standard of 'reasonableness,' this Court has generally Owners Management imposes a two-person-per- bedroom refrained from announcing any specific criteria. The standard. Clutter further admitted that he was aware that classic statement of the rule in Lawton v. Steele, 152 U.S. Owners Management was in violation of Bedford Heights’s 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894), is still occupancy ordinance due to the company’s two-person-per- valid today: bedroom standard. A letter Clutter wrote to the Mayor of Bedford Heights shortly before enactment of the 1989 'To justify the state in * * * interposing its authority occupancy ordinance was also presented at trial. This letter in behalf of the public, it must appear--First, that the referenced the 1988 FHA Amendments and pointed out that interests of the public * * * require such Bedford Heights did not have an occupancy ordinance. interference; and, second, that the means are Clutter indicated in his letter that he knew “there [would] be reasonably necessary for the accomplishment of the a great demand for family housing in this area because of the purpose, and not unduly oppressive upon school system,” and thus, he “urge[d] [the Mayor] to consider individuals.' Even this rule is not applied with strict precision, for this Court has often said that 'debatable questions as to 3 Owners Management Company is a subsidiary of a company which reasonableness are not for the courts but for the owns, develops and manages apartment buildings in several states and cities, including Bedford Heights.

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proposing such [occupancy] standards so that over crowding Moreover, at least one case cited by the majority stands does not occur.” J.A. at 523. merely for the proposition that ambiguous terms will be construed according to the statute’s remedial purpose and Fairview Park against the party claiming the exemption. See Hogar Agua y Vida en el Desierto, Inc. v. Suarez-Medina, 36 F.3d 177, 181, Fairview Park has had an occupancy ordinance in place 186 (1st Cir. 1994). City of Edmond’s holding that numerical since 1967, and the challenged version of the ordinance, occupancy limits such as those at issue here “plainly and Codified Ordinance § 1357.03(d), was enacted in November unmistakably” qualify for the exception leaves little 1989. Fairview Park’s occupancy ordinance requires each ambiguity to construe. Additionally, reliance on cases dwelling to have a minimum of 300 square feet of habitable construing exemptions in federal laws governing private floor area for the first occupant and an additional 150 square individuals does nothing to address whether the Cities’ feet of habitable floor area for each additional occupant. ordinances retain their presumption of validity—and thus Further, a minimum of 750 square feet is required for a whether the burden remains on the challengers—under the dwelling unit with four occupants. Fairview Park’s FHA. See Grancare, 137 F.3d 372 (NLRA); Herman v. Palo occupancy ordinance also imposes a minimum square footage Group Foster Home, 183 F.3d 468 (6th Cir. 1999) (Fair Labor requirement regarding “habitable bedroom floor area.” Standards Act); Jones v. FBI, 41 F.3d 238, 244 (6th Cir. Pursuant to this provision, each bedroom in a dwelling unit 1994) (Freedom of Information Act). must have a minimum of 80 square feet of habitable floor area for each bedroom4 for the first occupant and a minimum of 50 Most of the cases cited by the majority which place the square feet for each additional occupant. burden on parties claiming an exemption involve private parties and not localities. By its own terms, however, The deposition testimonies of David Cook, President of the § 3607(b)(1) applies only to “local, State, or Federal Fairview Park City Council at the time the occupancy restrictions.” This is consistent with the accordance of a ordinance was passed, and William Minek, City Council presumption of validity to police power-based ordinances. A member at the time, were also presented at trial. Both Cook number of courts, as well as HUD, have taken note of this and Minek testified that they could not recall specific distinction, and applied a much higher scrutiny to occupancy discussions about the hearings the city held in relation to limits based on private rules rather than local ordinances. passing the ordinance, nor could they specifically recall why See, e.g., Pfaff v. United States Dept. of Housing and Urban they voted for the ordinance. However, Cook stated that Development, 88 F.3d 739, 746 (9th Cir. 1996) (“this “[t]here [was] never . . . a discussion of children” at any of the provision [lessens] the burden of the fair housing laws on occupancy ordinance meetings, J.A. at 77, and Minek stated government entities as compared to private landlords”) (citing that he did not recall whether “overcrowding or children- H.R. Rep. No. 711, 100th Cong., 2d Sess., at 31 (1988), related issues” were discussed at any of the meetings, J.A. at reprinted in 1988 U.S.S.C.A.N. 2173, 2192); id. at 748 (“the 89. Department will carefully examine any such nongovernmental restriction” (quoting HUD’s original interpretation of the 1988 Amendments in Implementation of the Fair Housing 4 Amendments Act of 1988, 54 Fed. Reg. 3232, 3237 (Jan. 23, Fairview Park’s ordinance defines a “bedroom” as “a habitable 1989))); Brandt v. Village of Chebanse, Ill., 82 F.3d 172, 174 room designed for sleeping purposes, and which has a minimum habitable (7th Cir. 1996) (same); United States v. Badgett, 976 F.2d floor area of 80 square feet.” J.A. at 33.

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§ 3607(b)(1)’s breadth, and it is undisputed that the In addition, the deposition testimony of James Thompson, ordinances here fall within it. City of Edmonds therefore also Fairview Park’s Assistant Building Commissioner, was also commands that the FHA, exemption or not, is no longer presented at trial. Thompson stated that his office receives relevant to the inquiry. To the extent that the authorities cited only a few complaints each year from city residents alleging by the majority suggest otherwise, they are, in my opinion, that certain dwellings are in violation of the ordinance, i.e., mistaken. For the same reason, the majority’s emphasis on overcrowded. According to Thompson, upon investigating the fact that the FHA is a remedial statute is also irrelevant these complaints, he found that there were no violations and once we decide that the exemption applies. that there were never more occupants of a dwelling than were allowed by the ordinance. I also find the majority’s reasoning undermined by its omission of several critical elements in the cases it cites for Warrensville Heights this proposition. Most glaringly, the majority blatantly misrepresents our holding in Grancare, Inc. v. National Warrensville Heights adopted its current occupancy Labor Relations Board, 137 F.3d 372, 378 (6th Cir. 1998). ordinance, Codified Ordinance § 1377.03(d), in March 1989. There, a nursing care facility asserted an exemption to the This ordinance requires 350 square feet of habitable floor area National Labor Relations Act that excluded “supervisors” for the first occupant and an additional 100 square feet for from joining collective bargaining units with other employees. each additional occupant. Further, the occupancy ordinance Consistent with our precedent, see NLRB v. Beacon Light requires a minimum of 650 square feet of habitable space for Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir. dwellings with four occupants. 1987), we held through Judge Surheinrich that the NLRB bore the burden of proving that the employees were not Williams Pegues, President of the Warrensville Heights supervisors, and that it had impermissibly shifted that burden City Council at the time the ordinance was passed, testified in to the employer. See Grancare, 137 F.3d at 375. Judge his deposition that he did not recall specific discussions about Moore filed an opinion concurring in the result but the ordinance. He did, however, recall that residents had disagreeing with the placement of the burden on the Board, expressed some concerns to him regarding problems with and it is a passage from that opinion—which is contrary to overcrowding, and indicated that they had moved to that case’s actual holding—that the majority now cites as the Warrensville Heights in order to have more space. However, proposition Grancare stands for. See id. at 378. The according to Pegues, none of the residents expressed any majority’s citation to Judge Moore’s concurrence is made concern about children. Pegues also stated that it was even more troubling by the fact that Judge Jones, the author unlikely that landlords provided any input into the city’s of today’s majority opinion, solidified Grancare’s actual decision to enact the ordinance. The deposition testimony of holding in a separate opinion “concur[ring] in [Judge Nathaniel Harris, Warrensville Heights’s Chief Housing Surheinrich]’s well-reasoned opinion.” Id. at 376. Judge Inspector at the time, was also presented at trial. Harris Jones’s Grancare concurrence sympathized with Judge provided general information regarding the enforcement of Moore’s concerns, but agreed that “we are clearly bound by the city’s occupancy ordinance. Further, the deposition Sixth Circuit precedent which places the burden on the Board testimonies of three Warrensville Heights landlords were also to prove that employees are not supervisors.” Id. at 377. presented at trial. Two of the landlords testified that their apartment management companies imposed two-person-per- bedroom restrictions, but were unaware of whether their

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standards violated the more specific square footage its holding was a narrow one limited to this question only. requirements set forth in Warrensville Heights’s occupancy See id. at 728, 731, 738. City of Edmonds decided that ordinance. The third landlord stated that his apartment § 3607(b)(1) exempted only “numerical ceilings that serve to complex followed the occupancy ordinance, and due to the prevent overcrowding in living quarters,” and not the type of ordinance, the complex allowed a maximum of three ordinance at issue there, which defined what composed a occupants for two bedroom dwellings. None of the landlords family unit and applied different occupancy rules on that recalled being approached by any Warrensville Heights basis. Id. at 731. The Court differentiated land-use official regarding possible violations of the occupancy restrictions that are necessarily based on value judgments ordinance. from numerical occupancy limits that are neutral and evenly applied. See id. at 732-34. These latter ordinances “plainly Housing Advocates and unmistakably fall within § 3607(b)(1)’s absolute exemption from the FHA’s governance.” Id. at 735 (internal Housing Advocates submitted evidence regarding model quotations omitted, emphasis added). The section “entirely occupancy standards established by the Building Officials and exempts [such ordinances] from the FHA’s compass.” Id. at Code Administrators (“BOCA”). All three Cities were 728 (emphasis added). members of BOCA at the time they enacted their respective occupancy ordinances. The BOCA model code, which was The majority purports to follow City of Edmonds’s lead in formulated by housing experts from around the country, set construing the exemption narrowly to promote the FHA’s forth the following minimum occupancy standards: a broader policy. In actuality, by narrowly construing both the minimum 70 square feet of habitable space per person in a breadth and effect of the exemption, the majority ignores both bedroom for the first occupant and 50 square feet of habitable the legislative intent of § 3607(b)(1) to protect numerical space in a bedroom for two or more occupants. For dwellings occupancy limits and the Court’s express admonition that with three to five occupants, BOCA requires a minimum of once an ordinance is determined to be such a neutral, 120 square feet in a living room, 80 square feet in a dining numerical law—a fact the majority freely concedes here—it room, and 50 square feet in a kitchen. Housing Advocates is no longer subject to the FHA’s anti-discrimination regime. presented evidence that two other groups, the Ohio Apartment Association and the Northeast Ohio Apartment Association, The majority also cites general principles of statutory had not adopted square footage requirements, but merely construction and a string of cases for the generic proposition determined that a two-person per-bedroom occupancy that a party claiming an exemption from a statute has the standard is appropriate. Housing Advocates further burden of proving its applicability. This is not an established that the Cities did not conduct any formal studies objectionable concept in the abstract. The Supreme Court before enacting their respective ordinances. itself said as much in City of Edmonds in a preface to its discussion of the family-defining ordinance at issue there. Housing Advocates consulted several land planners and See 514 U.S. at 731-32. But that decision and each case cited housing experts, each of whom testified at trial that the Cities’ by the majority were concerned with the types of restrictions occupancy ordinances are unreasonable. See Fair Hous. that would qualify for the exemption, not the scrutiny to be Advocates Ass’n, 998 F. Supp. at 829. For example, Martin given after deciding that the exemption in fact applies. The Jarret, a land planner and city planning consultant, stated that breadth of the exemption and its effect are wholly separate the restrictions included in each city’s ordinance were more questions. City of Edmonds settled the question of

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significance in a case involving a historic police power, we restrictive than BOCA standards. Jarret believed that the nonetheless presume that exercise of power to be Cities’ restrictions were not reasonable due to the Cities’ constitutionally valid. The idea that we should give that deviation from the BOCA standards, and the Cities’ failure to degree of deference to police power ordinances in specifically analyze an appropriate square footage constitutional arenas but not in the context of statutory requirement. On cross-examination, however, Jarret admitted regimes such as the FHA is entirely unsupported by the that the issue of reasonableness was debatable. majority’s bare observation that this is an FHA case and Kutrom Corp. involved the Due Process Clause. Indeed, the Following the bench trial, the district court filed its findings idea is simply unsupportable. of fact and conclusions of law. The district court concluded that Housing Advocates had the burden of proving that the II. Cities’ occupancy ordinances were unreasonable, and that Housing Advocates failed to meet its burden. See Fair Hous. Beginning from these precedents, it seems plain to me that Advocates Ass’n, 998 F. Supp. at 830-31. The district court neither the FHA’s text, its legislative history, the Supreme also concluded that the ordinances were health, safety and Court’s City of Edmonds decision, nor any “general principles welfare measures, and were thus entitled to a presumption of of statutory construction” mandate a departure from our validity. See id. at 830. As a result of these conclusions, the standard practice of according police power ordinances a district court granted judgment for the Cities on each of presumption of validity and placing the burden on the Housing Advocates’ claims. See id. at 831. Housing challenger to prove otherwise. The pertinent sentence of 42 Advocates thereafter filed this timely appeal. U.S.C. § 3607(b)(1) reads: “Nothing in this subchapter limits the applicability of any reasonable local, State, or Federal II. restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” As the majority has noted, The FHA was originally enacted in 1968 and prohibited the Court in City of Edmonds found it “[t]elling” that this discrimination based on race, color, religion and national provision was added simultaneously with the 1988 origin. Congress thereafter amended the FHA to prohibit Amendments broadening the FHA’s scope to prohibit housing discrimination based on gender. In 1988, Congress discrimination based on family status. “Section 3607(b)(1) passed the Fair Housing Amendments Act (“FHAA”), thereby makes it plain that, pursuant to local prescriptions on extending the FHA’s protections, and prohibiting maximum occupancy, landlords legitimately may refuse to discrimination based on disability and familial status. stuff large families into small quarters.” City of Edmonds, Specifically, the FHAA makes it unlawful to refuse to sell or 514 U.S. at 735 n. 9. Clearly this section was intended to rent or to “make unavailable or deny, a dwelling to any person prevent overzealous judicial application of the FHA’s broad, because of . . . familial status[.]” 42 U.S.C. § 3604(a). The anti-discrimination policy from having the unintended FHAA defines “familial status” as: consequence of invalidating legitimate anti-overcrowding ordinances. The Court did continue to read § 3607(b)(1)’s [O]ne or more individuals (who have not attained the age exemption narrowly in order to preserve the primary of 18 years) being domiciled with– operation of the FHA’s policy, see id. at 731-32, but it did this (1) a parent or other person having legal custody of such only in measuring the breadth of the exception, not its effect individual or individuals; or on laws falling within it. The Court repeatedly stressed that

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(2) the designee of such parent or other person having Inc., 166 F.3d 1236, 1237 (D.C. Cir. 1999) (following Rice’s such custody, with the written permission of such parent presumption against preemption). The presumptive validity or other person. of historic police powers, then, is not a peculiarity of due process case law, but a crucial doctrine underlying our entire 42 U.S.C. § 3602(k). In addition, the FHA also includes federalist system of governance. Cf. Railroad Comm’n of several exemptions; the one at issue in the case sub judice Texas v. Pullman Co., 312 U.S. 496, 500-01 (1941) (“Few provides that “[n]othing in this subchapter limits the public interests have a higher claim upon the discretion of a applicability of any reasonable local, State, or Federal federal chancellor than the avoidance of needless friction with restrictions regarding the maximum number of occupants state policies. [It is wise for federal courts to] restrain their permitted to occupy a dwelling.” 42 U.S.C. § 3607(b)(1). authority because of scrupulous regard for the rightful Although we have not previously interpreted this occupancy independence of the state governments and for the smooth exemption, we are substantially aided in our resolution of this working of the federal judiciary” (internal quotations issue by legislative history, applicable administrative omitted)); Brown v. Tidwell, 169 F.3d 330,332 (6th Cir. 1999) regulations, and the Supreme Court’s decision in City of (same). Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995). Second, the majority’s statement is premised upon the A. Legislative History assumption—an unfathomable one, in my view—that federal courts should somehow be less concerned with potential A review of the relevant legislative history regarding the constitutional deficiencies in local ordinances than possible FHA indicates that Congress was concerned that “families violations of the Fair Housing Act. It is elementary to our with children, like the other classes protected by title VIII, judicial system that constitutional law is “the law of the land,” have been the victims of unfair and discriminatory housing and that no legislation—federal, state, or local—will stand if practices.” H.R. Rep. No. 100-711, at 13 (1988). Despite its it contradicts constitutional provisions. A corollary to this broad goal of eradicating discrimination in housing based on principle is that we should be hesitant to accord constitutional familial status, however, Congress also recognized the significance to our pronouncements, choosing instead to base legitimate interests local and state governments have in our holdings on less significant statutory or even procedural enacting non-discriminatory occupancy restrictions. grounds whenever plausible. Thus, we will presumptively Accordingly, Congress made clear that: interpret statutes in such a way as to avoid constitutional defects, see, e.g., Pak v. Reno, 196 F.3d 666, 673 (6th Cir. These provisions are not intended to limit the 1999) (majority opinion by Cole, J., and joined by Jones, J.); applicability of any reasonable local, State, or Federal Callier v. Gray, 167 F.2d 987, 992 (6th Cir. 1999), and not restrictions on the maximum number of occupants reach the constitutional issues raised in a case unless they are permitted to occupy a dwelling unit. A number of necessary to the case’s proper resolution. See Spector Motor jurisdictions limit the number of occupants per unit based Co. v. McLaughlin, 323 U.S. 101, 105 (1944) ("If there is one on a minimum number of square feet in the unit or the doctrine more deeply rooted than any other in the process of sleeping areas of the unit. Reasonable limitations by constitutional adjudication, it is that we ought not to pass on governments would be allowed to continue, as long as questions of constitutionality [...] unless such adjudication is they were applied to all occupants, and did not operate to unavoidable”). And yet, as I discussed above, whenever we do choose to reach the questions of law with constitutional

26 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 11 Warrensville Heights, et al. Warrensville Heights, et al.

of proof on reasonableness to the challengers. Once invoked, discriminate on the basis of race, color, religion, sex, “the force of the presumption of validity [rendered any national origin, handicap or familial status. further] justification for [the] regulatory ordinance unnecessary.” Id. at 1175. Id. at 31; see also Edmonds, 514 U.S. at 735 n.8 (quoting legislative history). In light of the degree to which the presumptive validity of police power ordinances is ingrained in our jurisprudence, the B. Administrative Regulations majority’s offhand distinction of these cases on the basis that they were decided in the context of constitutional due process Pursuant to the 1988 amendments, HUD was authorized to challenges instead of the FHA is astounding. First, contrary issue regulations implementing the FHA. Accordingly, HUD to the majority’s assertion, Fourteenth Amendment Due issued the Implementation of the Fair Housing Amendments Process law is not the only context in which this respect for Act of 1988, 54 Fed. Reg. 3232 (1989), which includes the historic police powers has been accorded. As we pointed out following discussion: in Kutrom Corp., the Supreme Court, in upholding a Sunday closing law in the face of an Equal Protection Clause While the statutory provision providing exemptions to challenge, commented that “a statutory discrimination will the [FHA] states that nothing in the law limits the not be set aside if any set of facts reasonably may be applicability of any reasonable Federal restrictions conceived to justify it.” Id. at 1174-75 (quoting McGowan v. regarding the maximum number of occupants, there is no Maryland, 366 U.S. 420, 426 (1961)). Indeed, the Court has support in the statute or its legislative history which made it quite clear that only classifications based on a few indicates any intent on the part of Congress to provide for suspect or quasi-suspect groups will get any higher level of the development of a national occupancy code. This Equal Protection scrutiny. The Court has also stated plainly interpretation is consistent with Congressional reliance that, notwithstanding an apparent conflict, it will presume that on and encouragement for States and localities to become federal laws do not preempt exercises of traditional state and active participants in the effort to promote achievement local police powers under the Constitution’s Supremacy of the goal of Fair Housing. Clause “unless that was the clear and manifest purpose of Congress.” Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 Id. at 3237. The HUD regulations further provide that: (1978) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. Many jurisdictions limit the number of occupants per 218, 230 (1947)); see also Hill v. State of Florida ex. rel. unit based on a minimum number of square feet in the Watson, 325 U.S. 538, 552 (Frankfurter, J., dissenting) (“The unit or the sleeping areas of the unit; HUD also issues principle is thoroughly established that the exercise by the occupancy guidelines in its assisted housing programs. state of its police power, which would be valid, if not Reasonable limitations do not violate the Fair Housing superseded by federal action, is superseded only where the Act as long as they apply equally to all occupants. A repugnance or conflict is so direct and positive that the two substantial number of comments were received asking acts cannot be reconciled or consistently stand together . . . . that the Department adopt occupancy restrictions that Deviations from this policy . . . have been so rare all these housing providers can apply in jurisdictions that do not decades, despite the changes in the Court, because of fidelity have governmentally-adopted occupancy restrictions, and to the purposes of this vital aspect of our federalism” (internal in jurisdictions where the governmentally-adopted quotations omitted)); Geier v. American Honda Motor Co., restrictions are tantamount to no restrictions.

12 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 25 Warrensville Heights, et al. Warrensville Heights, et al.

Id. at 3253; see also 24 C.F.R. § 115.202(c)(1999)(“The (1977) (upholding denial of building permit for multi-family, requirement that the state or local law prohibit discrimination low income housing as part of rational zoning plan); Memphis on the basis of familial status does not require that the state or v. Green, 451 U.S. 100 (1981) (upholding against a racial local law limit the applicability of any reasonable local, state discrimination claim an ordinance diverting traffic from or Federal restrictions regarding the maximum number of residential neighborhood); Tower Realty, 196 F.2d at 724 occupants permitted to occupy a dwelling.”). (“Every reasonable presumption or intendment must be indulged in favor of the validity of the ordinance; and, in case C. City of Edmonds Decision of doubt, every presumption not clearly inconsistent with the language and subject matter is to be made in favor of its In addition to the foregoing legislative history and constitutionality”); Lakewood, Ohio Congregation of administrative materials, the Supreme Court also has Jehovah’s Witnesses, Inc. v. City of Lakewood, Ohio, 699 addressed the issue. In Edmonds, the Supreme Court F.2d 303, 308 (6th Cir. 1983) (upholding denial to build considered whether the City of Edmonds’s residential zoning church in areas zoned as exclusively residential); Curto v. provision limiting the maximum number of unrelated City of Harper Woods, 954 F.2d 1237, 1242 (6th Cir. 1992) occupants allowed in a single-family dwelling violated the (per curiam) (holding that ordinances, whether zoning or FHA’s provision prohibiting discrimination against disabled regulatory, “which represent[] an exercise of the individuals. 514 U.S. at 728. The City of Edmonds’s zoning municipality’s police powers [are] presumed to be code provided that occupants of single-family dwellings must constitutionally valid, with the burden of showing compose a “family.” The code defined “family” as an unreasonableness being cast upon those who challenge the unlimited number of related persons or a group of five or ordinance . . . . [S]uch presumptions are entitled to as much fewer unrelated persons. Id. force and effect under summary judgment procedure as elsewhere” (internal quotations omitted)). All exercises of In reviewing the zoning provision, the Court noted that police powers are entitled to an equal level of respect. See “rules that cap the total number of occupants in order to Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529 (1959). prevent overcrowding of a dwelling plainly and unmistakably fall within § 3607(b)(1)’s absolute exemption from the FHA’s Few of our cases articulate this basic doctrine more clearly governance.” Id. at 735 (internal citation and quotations than Kutrom Corp. v. City of Center Line, 979 F.2d 1171 (6th omitted). The Court further noted the following: Cir. 1992), to which the majority gives only passing obeisance. The question presented in that case was whether Tellingly, Congress added the § 3607(b)(1) exemption summary judgment was properly granted on the basis of the for maximum occupancy restrictions at the same time it ordinance’s presumptive validity without requiring the city, enlarged the FHA to include a ban on discrimination as the moving party, to provide any affirmative evidence of based on “familial status.” The provision making it the law’s reasonableness. See id. at 1171-72. Holding that illegal to discriminate in housing against families with mere reliance on the presumption of validity was proper, we children under the age of 18 prompted fears that noted that the “lenient ‘rational basis’ test finds its least landlords would be forced to allow large families to stringent application in cases involving a governmental unit’s crowd into small housing units . . . (remarks of Rep. exercise of its police powers.” Id. at 1174. We required the Edwards) (questioning whether a landlord must allow a city merely to invoke the presumption and identify a possible, family with 10 children to live in a two-bedroom legitimate basis for the ordinance in order to shift the burden

24 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 13 Warrensville Heights, et al. Warrensville Heights, et al.

majority does not disturb the district court’s finding that the apartment). Section 3607(b)(1) makes it plain that, maximum occupancy ordinances at issue are in fact exercises pursuant to local prescriptions on maximum occupancy, of police powers intended to prevent overcrowding in landlords legitimately may refuse to stuff large families apartment buildings, and the Supreme Court has confirmed into small quarters. that such laws are enacted to protect the health and safety of citizens. See City of Edmonds v. Oxford House, Inc., 514 Id. at 735 n.9 (internal citations omitted). After reviewing the U.S. 725, 733-34 (1995). Health and safety concerns are at legislative history and applicable regulations, however, the the very heart of local police powers, and our respect for Supreme Court concluded that the city’s zoning provision did ordinances controlling uses of land for these reasons extends not fall within the occupancy exemption set forth in far back into our jurisprudence. See, e.g., Tower Realty v. § 3607(b)(1) because the provision did not limit the number City of Detroit, 196 F.2d 710, 722 (6th Cir. 1952) (quoting of occupants that were allowed to occupy a dwelling, but Fischer v. City of St. Louis, 194 U.S. 361, 370 (1904)) (“The rather “describe[d] who may compose a family unit.” Id. at power of the legislature to authorize its municipalities to 728. The Court held that § 3607(b)(1) “removes from the regulate and suppress all such places . . . as, in its judgment, FHA’s scope only total occupancy limits, i.e., numerical are likely to be injurious to the health of its inhabitants, or to ceilings that serve to prevent overcrowding in living disturb people living in the immediate neighborhood . . . , is quarters,” not “provisions designed to foster the family so clearly within the police power as to be no longer open to character of a neighborhood.” Id. question”). Such enactments have long been accorded a presumption of validity. See, e.g., Village of Euclid v. Ambler Despite the obvious deference afforded to maximum Realty Co., 272 U.S. 365, 395 (1926) (requiring zoning laws occupancy restrictions, however, the Court made clear that to be upheld as valid exercises of police power unless “clearly such restrictions are not simply “rubber stamped” by the arbitrary or unreasonable, having no substantial relation to the courts, but instead, require some level of scrutiny. The public health, safety, morals or general welfare”); Goldblatt Supreme Court noted that courts must remain “‘mindful of v. Town of Hempstead, New York, 369 U.S. 590, 593 (1962) the Act’s stated policy to provide, within constitutional (“If this ordinance is otherwise a valid exercise of the town’s limitations, for fair housing throughout the United States.’” police powers, the fact that it deprives the property of its most Edmonds, 514 U.S. at 731 (quoting § 3601). Further, the beneficial use does not render it unconstitutional . . . . The Court noted that exceptions to the FHA’s “general statement power which the states have of prohibiting such use . . . as of policy” must be “read narrowly in order to preserve the will be prejudicial to the health, the morals, or the safety of primary operation of the policy.” Id. at 731-32 (internal the public, is not, and consistently with the existence and quotations and alteration omitted). With this clear guidance safety of organized society, cannot be, burdened with the in mind, we consider whether the Cities’ occupancy condition that the state must compensate such individual ordinances qualify for the § 3607(b)(1) exemption. owners for pecuniary losses they may suffer” (internal quotations omitted)); Village of Belle Terre v. Boraas, 416 III. U.S. 1, 9 (1974) (acknowledging a village’s police power as “ample to lay out zones where family values, youth values, Based on the plain language of § 3607(b)(1), and the and the blessings of quiet seclusion and clean air make the standards articulated in the legislative history, the area a sanctuary for people”); Village of Arlington Hts. v. administrative regulations and Edmonds, we find that in order Metropolitan Housing Development Corp., 429 U.S. 252 to qualify for a §3607(b)(1) exemption, each city’s ordinance

14 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 23 Warrensville Heights, et al. Warrensville Heights, et al.

must be a (1) reasonable; (2) “local, State, or Federal ______________________ restrictio[n];” (3) regarding “the maximum number of occupants permitted to occupy a dwelling.” 42 U.S.C. CONCURRENCE § 3607(b)(1). The occupancy ordinances at issue here clearly ______________________ meet prongs two and three because they are ordinances enacted by municipalities that set restrictions on the number ALICE M. BATCHELDER, Circuit Judge, concurring in of occupants permitted to occupy an apartment. Thus, we judgment. I agree with the majority that the maximum must determine whether these occupancy ordinances are occupancy regulations at issue here are valid exercises of the “reasonable,” and whether Housing Advocates or the Cities Cities’ police powers that withstand the scrutiny of the Fair bear the burden of proving that these ordinances are Housing Act, but I cannot concur in its reasoning. In my reasonable. Housing Advocates contends that because the opinion, the majority gives far too little respect to the Cities are attempting to invoke an exemption to the FHA, the traditional police powers of states and localities. Requiring Cities bear the burden of proving that their ordinances fall the Cities to prove their ordinances reasonable not only turns within this exemption, and must therefore establish that their the traditional notion of federalism on its head, but contradicts ordinances are reasonable. Conversely, the Cities respond the basic assumption of our legal system that plaintiffs in civil that the ordinances are valid, non-discriminatory efforts to litigation bear the burden of making out each element of their limit occupancy, and therefore, Housing Advocates must claims. I do not read anything in the Fair Housing Act as prove that the ordinances are unreasonable. requiring this result. I therefore respectfully object to the majority’s characterization of the controlling law in Part III of A. Allocation of Burdens of Proof its opinion. The district court concluded that “Plaintiff has the burden I. to show that the ordinance[s] [are] unreasonable.” Fair Hous. Advocates Ass’n, 998 F. Supp. at 830 (citing Kutrom The majority relies heavily on “general principles of Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir. statutory construction” for its conclusion that the Cities 1992)). Housing Advocates contends that it is well-settled should have to prove that their ordinances are “reasonable,” that the party seeking an exemption to the FHA bears the because that term is found in an “exemption” to the FHA. It burden of proving that it is entitled to the exemption, and also dismisses in a single paragraph the concept that thus, the district court erroneously placed the burden on ordinances enacted pursuant to historic, local police powers Housing Advocates. We agree with Housing Advocates, and are entitled to a presumption of validity in federal courts with find that the district court improperly allocated the burden of the observation that this idea emanates from cases involving proof. constitutional due process challenges, not potential FHA violations. In my view, this is exactly the wrong approach. Federal courts have repeatedly concluded that the party claiming the exemption “carries the burden of proving its Instead, we should begin by recognizing the traditional eligibility for the exemption,” and that “[e]xemptions from deference given to exercises of a locality’s police power. This the [FHA] are to be construed narrowly, in recognition of the presumption of validity stems from a recognition that federal important goal of preventing housing discrimination.” courts should be wary to tread on the spheres of authority that Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d were never given up by state and local governments. The

22 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 15 Warrensville Heights, et al. Warrensville Heights, et al.

V. 1472, 1475 (11th Cir. 1993), cert. denied 513 U.S. 808 (1994); see also Hogar Agua y Vida en el Desierto v. Suarez- Based on the foregoing, we AFFIRM the district court’s Medina, 36 F.3d 177, 182 (1st Cir. 1994)(“exemptions from grant of judgment for the defendants, although we reject its the requirements of a remedial statute–like the FHA–are to be allocation of the burden of proof and presumption of validity. construed narrowly to limit exemption eligibility”)(citing Because the record in this case is thorough, and provides Massaro)(discussing “single-family house” exemption to sufficient evidence from which we conclude that the Cities FHA); United States v. City of Hayward, 36 F.3d 832, 837 satisfied their burden of proving that their respective (9th Cir. 1994)(same); Rogers v. Windmill Pointe Village occupancy ordinances were “reasonable” as required to Club Ass’n, Inc., 967 F.2d 525, 527 (11th Cir. 1992)(“Under invoke the § 3607(b)(1) exemption, we find a remand general principles of statutory construction, one who claims unnecessary. the benefit of an exception from the prohibition of a statute has the burden of proving that his claim comes within the exception.”)(alterations, citations and internal quotations omitted); United States v. Columbus Country Club, 915 F.2d 877, 882 (3rd Cir. 1990)(noting that the defendant bears the burden of proving that it fits within the FHA’s “religious organization” exemption, § 3607(a)). We further conclude that placing the burden on the defendants in this case comports with our caselaw discussing exemptions from other statutes, and holding that the party seeking to invoke the exemption bears the burden of proving that it is entitled to that exemption. For example, in Grancare, Inc. v. NLRB, 137 F.3d 372 (6th Cir. 1998) we concluded that: [R]eviewing courts must take care to assure that exemptions from NLRA coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach . . . In an effort to effectuate Congress’s purpose that the exclusion of supervisors from the Act’s protections be a limited one, the Board places the burden of proving supervisory status upon those invoking the exemption. In contrast, placing the burden of proof on the Board presumes that all employees simply asserted by employers to be supervisors are exempt from the Act’s coverage until proven otherwise.

16 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 21 Warrensville Heights, et al. Warrensville Heights, et al.

Id. at 378 (internal quotations and citations omitted); see also 1990 WL 97490, at *4 (6th Cir. July 13, 1990)(same). Herman v. Palo Group Foster Home, __ F.3d __, No. 97- However, we conclude that based on the evidence presented, 2102, 1999 WL 498932, at *2 (6th Cir. 1999)(holding that Housing Advocates has failed to satisfy either of these tests, Fair Labor Standards Act exemptions are to be narrowly and the district court thus properly denied Housing construed and employer claiming exemption has burden of Advocates’ claim on this ground.7. proving that exemption applies); Jones v. FBI, 41 F.3d 238, 244 (6th Cir. 1994)(exemptions under Freedom of In support of its discrimination argument, Housing Information Act are to be narrowly construed and “burden is Advocates notes that the population was decreasing in each on the defendant agency to demonstrate, not the requester to city; the ordinances were passed shortly after enactment of the disprove, that the materials sought may be withheld due to an FHA amendments extending protections to families; the exemption”)(internal quotations and citations omitted). ordinances were more restrictive than BOCA’s standards; and the ordinances would prohibit many families from finding Based on the foregoing caselaw, we find that the district housing. We find this evidence insufficient to establish that court erred in concluding that Housing Advocates was the Cities’ intended to discriminate against families. The required to establish that the ordinances were unreasonable, ordinances are facially neutral and apply equally to families as opposed to requiring the Cities to establish that the and unrelated individuals who occupy dwellings in the ordinances were reasonable. respective Cities. Further, Housing Advocates conceded in the parties’ joint stipulations that “[n]one of the square B. Presumption of Validity footage restrictions in the occupancy ordinances of the defendant municipalities facially discriminate on a familial Citing Kutrom, the district court also concluded that the basis.” Fair Hous. Advocates Ass’n, 998 F. Supp. at 826. Cities’ occupancy ordinances are “an exercise of the local Housing Advocates has also failed to establish that the government’s police power on social legislation enacted to occupancy ordinances had a discriminatory effect on families protect the public health, safety and welfare and, [are] as required by the discriminatory impact analysis. Further, as therefore, entitled to a presumption of validity.” Fair Hous. the Cities point out, families of four, as opposed to families Advocates Ass’n, 998 F. Supp. at 830 (citing Kutrom, 979 of three, are not protected classes. F.2d at 1174). Housing Advocates also challenges the district court’s conclusion in this regard, arguing that FHA exemptions are to be read narrowly, and thus, the district court erred in finding that the occupancy ordinances were presumptively valid. Housing Advocates’ position on this point is also well-taken. We find the district court’s reliance on Kutrom to be misplaced, for the Cities are not entitled to 7 the presumption of validity where they attempt to invoke an We note that Housing Advocates’s argument is strongest against exemption under the FHA. Bedford Heights’s ordinance, because there was evidence in the record that, to some extent, the issue of children was discussed in conjunction In Kutrom, the plaintiff challenged an ordinance regulating with that city’s decision to enact the ordinance. This may suggest that Bedford Heights’s decision was not completely motivated by issues of massage parlors in the city, claiming that the ordinance overcrowding. Despite this evidence against Bedford Heights, we find violated the due process clauses of the Fifth and Fourteenth that Housing Advocates has not established discriminatory intent or impact with regard to that city.

20 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 17 Warrensville Heights, et al. Warrensville Heights, et al.

restricting the number of unrelated individuals who may Amendments. The city enacted the ordinance in order to limit occupy a single family residence are reasonably related the hours during which massage parlors could be open, to to these legitimate goals. The City does not need to regulate the attire of each masseuse, and to eliminate assert a specific reason for choosing eight as the cut-off prostitution that was allegedly occurring in such parlors. See point, rather than ten or twelve. Every line drawn by a 979 F.2d at 1172. We held that such an ordinance was a valid legislature leaves some out that might well have been health, safety and welfare measure, and was therefore included. That exercise of discretion, however, is a presumptively valid. The presumption of validity standard we legislative, not a judicial, function. applied in Kutrom was based on the “rational basis” test utilized in addressing constitutional challenges to “economic Id. at 252 (emphasis added)(internal quotations and citations or social welfare regulation adopted in exercise of police omitted). The rationale of Oxford House applies with equal powers.” Id. at 1174; see also Goldblatt v. Town of force here. The “exercise of discretion” as to whether to Hempstead, 369 U.S. 590, 595-96 (1962); Bibb v. Navajo require a minimum of 650 square feet for an apartment of four Freight Lines, Inc., 359 U.S. 520, 529 (1959)(“The various people, as opposed to a minimum of 500 square feet or 800 exercises by the States of their police power . . . are entitled square feet, is a legislative, not a judicial function.6 to the same presumption of validity when challenged under the Due Process Clause of the Fourteenth IV. Amendment.”)(emphasis added). By contrast, the Cities in this case are attempting to invoke an exemption under the Finally, Housing Advocates contends that the Cities’ FHA, and thus Kutrom is inapposite. Accordingly, the occupancy ordinances were invalid because they (1) were district court’s reliance on Kutrom, and its conclusion that the enacted to discriminate against families of four; and (2) had Cities’ occupancy ordinances are presumptively valid, was a discriminatory impact on families of four. We have applied erroneous. the discriminatory treatment and impact analyses to FHA claims. See Arthur v. City of Toledo, 782 F.2d 565, 574-75 C. Reasonableness Inquiry (6th Cir. 1986); Blaz v. Barberton Garden Apt., No. 91-3896, 1992 WL 180180, at *3 (6th Cir. July 29, 1992)(“[A] As set forth above, the Cities bear the burden of proving violation of the [FHA] can be established by a showing of that the ordinances are reasonable. However, at trial, the discriminatory intent or discriminatory effect.”)(citing district court placed that burden on Housing Advocates. Due Arthur); Troy v. Suburban Management Corp., No. 89-1282, to the district court’s incorrect allocation of the burden, Housing Advocates urges us to conclude that the ordinances violate the FHA, or, in the alternative, to remand and order 6 the district court to review the matter using the correct Housing Advocates also contends that the ordinances were unreasonable because the population in each city declined over a 20-year allocation of the burden of proof. Despite the district court’s period. However, as the Cities point out, the fact that the population of improper allocation of the burden of proving reasonableness, each city has declined over the past twenty years is not dispositive. As the we find that based on the ample evidence presented in the Supreme Court noted in Edmonds, the purpose of many occupancy record, the Cities have presented evidence sufficient to restrictions is to “protect health and safety by preventing dwelling overcrowding.” Edmonds, 514 U.S. at 733 (emphasis added). Thus, the establish that their ordinances fall within the exemption set purpose of the ordinance does not have to be to prevent overcrowding of a particular apartment complex, an area of the city, or the entire city, but simply to prevent overcrowding of each dwelling.

18 Fair Housing Advocates v. City of No. 98-3523 No. 98-3523 Fair Housing Advocates v. City of 19 Warrensville Heights, et al. Warrensville Heights, et al.

forth in § 5 3607(b)(1), thereby rendering a remand were required to establish that the ordinances were unnecessary. “reasonable.” As an initial point, we reject the Cities’ assertion that We find that the following evidence indicates that the Cities because Edmonds held that “rules that cap the total number of satisfied that burden. First, the Cities’ occupancy ordinances occupants in order to prevent overcrowding of a dwelling “apply uniformly to all residents of all dwelling units.” plainly and unmistakably fall within § 3607(b)(1)’s absolute Edmonds, 514 U.S. at 733. Second, the Cities have presented exemption from the FHA’s governance,” Edmonds, 514 U.S. convincing evidence that the ordinances were enacted “to at 735 (citation omitted), we need not undertake any further protect health and safety by preventing dwelling analysis as to the reasonableness of their occupancy overcrowding,” not to impermissibly limit the family ordinances. A review of the plain language of § 3607 (b)(1) composition of dwellings. Id. Third, Jarret and other illuminates the fallacy of the Cities’ argument on this point. Housing Advocates’ experts testified that there were several The exemption specifically requires that the ordinances be options for determining maximum occupancy requirements–a “reasonable,” and in interpreting that exemption, we must minimum square feet per-person standard; a minimum give effect to this requirement. Thus, despite the Cities’ number of square feet per-bedroom-per-person standard; and suggestion to the contrary, the mere fact that the ordinances a two-person-per-bedroom standard. The Cities were surely are municipal occupancy ordinances does not remove them permitted to choose which of these standards was the most from the reasonableness requirement set forth in the appropriate for that particular city, particularly in light of the § 3607(b)(1) exemption. Further, the Supreme Court in fact that Congress made clear that there is no national Edmonds did not suggest such a result. Indeed, in Edmonds, occupancy standard. Housing Advocates suggests that only the Court reiterated that the FHA, and the policies reflected the two-person-per-bedroom standard or a different minimum therein, are to be construed broadly, while exemptions to the square foot per-person standard would be appropriate. FHA must be “narrowly” and “sensibly read . . . to preserve However, the fact that the Cities used a square footage the primary operation of the [policy].” Edmonds, 514 U.S. at calculation, as opposed to a total number per apartment 732. Thus, in order to establish that the ordinances were valid calculation, does not make the ordinances unreasonable. measures entitled to the § 3607(b)(1) exemption, the Cities Similarly, the fact that the ordinances differed from the standards in the BOCA model code and the standards suggested by the apartment associations does not make the 5 ordinances unreasonable. Finally, the Eighth Circuit We reiterate that even if this matter were remanded to require the considered the issue of whether the City of St. Louis violated district court to determine whether the Cities are able to prove that they are entitled to the § 3607(b)(1) exemption, on any resulting appeal, we the FHA by enforcing the city’s zoning code to limit the would review the district court’s determination de novo. See Kildea v. number of residents in group homes to eight individuals, and Electro-Wire Prods., Inc., 144 F.3d 400, 404 (6th Cir. 1998)(noting that concluded that the code did not violate the FHA. See Oxford although we review the district court’s findings of fact for clear error, we House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996). review legal conclusions and mixed questions of law de novo); Razavi v. The Eighth Circuit concluded that the rule was rational and C.I.R., 74 F.3d 125, 127 (6th Cir. 1996)(same). Thus, we would “draw our own inferences and legal conclusions from the record.” Smith v. Wal- noted that: Mart Stores, 167 F.3d 286, 289 (6th Cir. 1999). Moreover, on appeal, we may affirm a district court’s judgment for an alternate reason. See Russ’ Cities have a legitimate interest in decreasing congestion, Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th traffic, and noise in residential areas, and ordinances Cir.1985) (per curiam).