tweedle dum and tweedle deeThe Department of Justice and Housing and Urban Development have just issued a guidance document concerning sober homes and other types of group living arrangements. It should help provide some clarity to cities and towns still wrestling with issues related to group living after decades of litigation. At the same, however, the document reminds us of the sobering reality that the Department of Justice and Housing and Urban Development believe they are above the law in their roles as advocates for the disabled, and will not hesitate to use their essentially unlimited resources to litigate intellectually unsustainable positions.

On the helpful side, the Joint Statement provides Title II entities and even home owners associations some specific guidance. HUD and DOJ agree that neutral restrictions on the number of unrelated residents in a single family residence do not, by themselves, violate the Fair Housing Act. The same is true of facially neutral health and safety regulations. Problems arise under the Fair Housing Act when the operators of a group home request exemptions from these requirements.

At the same time, the Joint Statement makes it clear that HUD and DOJ will oppose ordinances that set distance or density restrictions that limit group homes. The argument is that such restrictions will effectively exclude group homes from certain neighborhoods, which violates the principle that those with disabilities, like members of other races and ethnic groups, should be integrated into the community as a whole. For reasons explained below, the Joint Statement probably overstates its case, but at least communities know where they stand.

The Joint Statement also includes a brief explanation of reasonable accommodation as it applies to both zoning restrictions and health and safety laws. The recommendation is typically bureaucratic; that is, cities should create new processes and probably hire new employees to deal with requests for exemptions related to the Fair Housing Act. A better recommendation might be that political decision makers be better educated in the requirements of the FHA. Looking at decisions involving zoning challenges under the FHA there is a clear pattern of stubborn politicians following the demands of their constituents right up to the point that a federal court of appeals tells them they are wrong and that they will have to pay the plaintiffs tens or hundreds of thousands of dollars in legal fees. The Joint Statement properly reminds municipalities that if a zoning or health regulation has a discriminatory impact then there must be some rational non-discriminatory justification. Discrimination may get votes, but it won’t please the courts.

The Joint Statement does have a few defects. The most important is the lack of specificity about what will and will not pass muster. Zoning litigation concerning disability rights and group homes has long history, and given the time that has passed and the number of court decisions HUD and DOJ could have provided more specific guidance about what is and is not permitted.

Which brings me to the most serious problem with the Joint Statement. One reason HUD and DOJ do not discuss the abundant case law may be that they don’t agree with the courts and do not intend to follow the interpretations of the courts.  The Joint Statement claims, for example, that “density restrictions are generally inconsistent with the Fair Housing Act.” A determination of whether density restrictions violate the FHA involves a complex analysis of housing patterns both in a municipality and in its immediate surroundings. See, County of Westchester v. U.S. Dept. of Hous. and Urb. Dev., 802 F.3d 413 (2d Cir. 2015). There is also an element of intent, with cases concerning density usually turning on whether the zoning was intended to discriminate. See, Quad Enterprises Co., LLC v. Town of Southold, 369 Fed. Appx. 202, 207 (2d Cir. 2010)(unpublished). In short, density restrictions are not “generally inconsistent” with the Fair Housing Act. HUD and DOJ would like a rule that density zoning violates the FHA, but it is not the law.

In a similar vein, the Joint Statement asserts that: “‘Handicap’ has the same legal meaning as the term “disability” which is used in other federal civil rights laws.” This is a position completely at odds with the language of the Fair Housing Act and the relatively few relevant court decisions. The definition of “disability” in the Americans with Disabilities Act was amended in 2008 to specifically overrule certain Supreme Court decisions that limited the definition. The Fair Housing Act was not amended, and every ordinary canon of construction requires the conclusion that Congress expanded the definition of “disability” under the ADA and chose not to expand the definition of “handicap” under the Fair Housing Act. One can argue that amending the FHA would have been a good idea, but it didn’t happen.* Again, HUD and DOJ are not describing the law as it is, but the law as they wish it were.

Of course even with this overreaching the Joint Statement is helpful. Knowing where DOJ and HUD stand is important because they have essentially unlimited resources for advancing their agenda, and in many cases it will be easier to avoid the fight than to win it. The Joint Statement gives municipalities and others involved in this kind of decision a reasonably clear picture of what will not satisfy HUD and DOJ, and that has its own value.

* For more on the meaning of “handicap” see “Disability” and “Handicap” are not the same, and it matters.