Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF EDMONDS, Petitioner v. OXFORD HOUSE, INC., ET AL.

No. 94-23

March 1, 1995

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:10 a.m.

APPEARANCES:

W. SCOTT SNYDER, ESQ., City Attorney, Seattle, Washington on behalf of the Petitioner.

WILLIAM F. SHEEHAN, Washington, D.C.; on behalf of the Private Respondents.

PAUL BENDER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Federal Respondent.

PROCEEDINGS

11:10 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 94-23, The City of Edmonds v. Oxford House, Inc.

Refrain from talking till you get outside the courtroom. The Court remains in session.

Mr. Snyder.

ORAL ARGUMENT OF W. SCOTT SNYDER ON BEHALF OF THE PETITIONER

MR. SNYDER: Mr. Chief Justice, may it please the Court:

This case presents the Court with one question. Are traditional zoning schemes, which set aside a portion of the community for the exclusive use of the family, as defined in accordance with the decisions of this Court, exempt from the reasonable accommodation requirements of the Fair Housing Act Amendments under section 3607(b)(1), exempting any reasonable local restriction on the maximum number of occupants who may occupy a dwelling?

If Congress is to overturn over 70 years of Federal deference to local zoning decisions, and to limit communities' ability to set aside a portion of the community for the exclusive use of the family, we believe it should be required to do so in clear, unequivocal language stated on the face of the statute.

As Justice Marshall stated in his dissent in Belle Terre, zoning is the most important function performed by local government.

The city believes that the Eleventh Circuit's decision in the City of Athens case, using the exemption to permit a threshold inquiry into the reasonableness of local zoning ordinances, furthers a number of important policy considerations and meets the intent of Congress.

First, to do so preserves the traditional deference which this Court and the Federal courts have given to local zoning decisions and legislative decisions allocating portions of the community.

Secondly, such an interpretation prevents the FHA from coming into conflict, potentially, with constitutional concerns raised by the amicus Pacific Legal Foundation.

Third, to do so permits the Federal courts to continue to prohibit exactly the type of discrimination referenced in the joint committee report, that is, Cleburne-type discrimination, in which groups of disabled persons are judged on a different basis or subjected to differing requirements than groups of other unrelated individuals.

Finally, using the reasonableness standard, as opposed to the reasonable accommodation standard, prevents the Federal courts from having to make inquiries, individual fact-based inquiries, into the individual siting decisions of group homes based in large part upon the specific characteristics of a particular program.

We believe that the Ninth Circuit was wrong in their decision in our case when it asserted that the vast majority of zoning ordinances would go unreviewed. The reasonableness standard which the Court has applied in a variety of constitutional cases, beginning with Euclid, provide a structural review of zoning ordinances which is consistent with the pattern of decisionmaking of this Court.

QUESTION: Well, are you saying that the statute does nothing more than impose the constitutional standard on municipalities?

MR. SNYDER: The Fair Housing Act Amendments accomplished many things. For example, it set up a conciliation and review process. What I point to, particularly in the joint committee report, is that the only case cited, and the only evil described with respect to what the Congress was trying to cure with respect to local zoning ordinances, was Cleburne-type discrimination. Cleburne is cited twice, both in the general comments and the specific section-by-section comments.

There are other things, obviously, that the act did. For example, having the conciliation process provides an administrative structure, potentially lessens the burdens on the courts, and allows a way for disabled individuals to have their problems addressed with the assistance of HUD investigators.

QUESTION: Mr. Snyder, I may not understand your argument, but if all the -- if the act's objective was limited to avoiding Cleburne, or Cleburne kind of discrimination, why would it also have put in the requirement of reasonable adjustment of the zoning ordinances to achieve the objects of the act?

MR. SNYDER: The reasonable accommodation standard is most frequently discussed in the comments as they address structural issues: exiting, entrances, stairs, the same sort of barrier-free removal which have occurred in -- through the ADA, for example.

QUESTION: So you're saying the reasonable accommodations are just as you put, structural, physical, not doctrinal, certainly.

MR. SNYDER: I guess the city's position would rely, perhaps, on a stronger point, we believe, and that's the plain meaning of the statute itself, and particularly the exemption.

In our reply brief we cite Rice v. the Board of Trade case, which was a situation in which there was a general prohibition of a certain type of regulation, and then an exemption created for reasonable rules created in a certain area, the breadth of the exemption itself, which refers to any reasonable local limitation.

Secondly, this Court and the Federal courts, as they've discussed --

QUESTION: But that isn't quite right.

MR. SNYDER: -- excuse me.

QUESTION: It say, any reasonable. It says, any -- doesn't it limit it to ordinances that control the maximum number of occupants?

MR. SNYDER: Correct.

QUESTION: So at least we've got to decide whether it's that kind of ordinance.

MR. SNYDER: Yes, sir.

QUESTION: Yes. You haven't said --

QUESTION: Well, it says any reasonable local ordinance imposing a maximum. Is "reasonable" determined in accordance with the purposes of the act, or is it reasonable from the standpoint of general zoning laws, or do we know?

MR. SNYDER: Well, I think there are probably two sources of law. When you see the word "reasonable," it implies a balancing test, obviously. We think that the first level of inquiry in terms of structural review would be to resort to the decisions of this Court, which in four or five decisions have looked at local zoning ordinances and determined certain attributes to be reasonable in a constitutional sense.

QUESTION: You mean reasonable under the Due Process Clause? Is that the point?

MR. SNYDER: That would be one of the standards. Again, I -- the --

QUESTION: Well, I assume that's -- that must be assumed.

MR. SNYDER: Yes.

QUESTION: I mean, any zoning ordinance has to pass due process muster, or --

MR. SNYDER: Yes, sir.

QUESTION: So that doesn't help us much.

MR. SNYDER: I think, as I said, there are several levels of inquiry. The second level of inquiry, probably an analogy would be best. There's a community immediately south of the City of Edmonds which is comprised solely of single family zoning, but which has an identical definition of family to that of the City of Edmonds.

Applied -- the same ordinance, or the same definition of family in that community, would work to exclude the disabled from the community. The key difference in the City of Edmonds' structure is that Edmonds affirmatively amended its ordinance to remove the Cleburne-type discrimination and to open other zoning districts of the city to group home use.

QUESTION: Well, my only question is, does "reasonable" in the exceptions clause set forth at page 2 of your brief, do we determine "reasonable" with reference to the objectives of this act?

MR. SNYDER: I believe it has a broader significance, looking to the structure and history of the purposes of zoning ordinances as developed over the past 70 years. The very nature of a zoning ordinance --

QUESTION: If it has a broader purpose, does it also include the purposes of this act, or do we only reach the purposes of this act after we have found out that this is somehow a valid, reasonable zoning ordinance with reference to standards that are outside the act?

MR. SNYDER: The latter, with a qualification, sir. I think, again, reasonableness implies a balancing test, looking at both the law and the facts. It's not the depth of inquiry, that individualized fact-based inquiry that reasonable accommodation has been given under the ADA and other statutes.

The very essence of a zoning ordinance is the ability of a community to distinguish and classify uses. An ordinance which set up unreasonable categories would be exclusionary in that sense. An ordinance which categorizes on a reasonable basis is definitional in nature and also is the very purpose of zoning.

QUESTION: It seems to me that's the threshold question -- maybe I'm missing something -- that it's a particular kind of ordinance. It has to be one that relates to the maximum number of people that occupy the property.

MR. SNYDER: That's correct.

QUESTION: That's the only exemption, isn't it?

MR. SNYDER: Yes, sir.

QUESTION: So you have to convince us, and maybe you're right, that this is such an ordinance, even before we decide whether it's reasonable.

MR. SNYDER: Yes, sir.

QUESTION: Yes.

MR. SNYDER: The respondents assert that because the Uniform Housing Code, which the City of Edmonds has adopted, is specifically mentioned in the comments, that that is the only, the sole and only type of occupancy limit that can be asserted. As we know --

QUESTION: Well, Edmonds, the city does have and has adopted a provision that would limit the maximum number of occupants based on the square footage per person available in the dwelling, right?

MR. SNYDER: Yes.

QUESTION: And the argument of the other side is, that's the kind of ordinance this Federal law refers to.

MR. SNYDER: Yes, Justice O'Connor.

QUESTION: And not your definition of family.

MR. SNYDER: That's correct, and I think that's the key distinction in the case. Three reasons or examples, I think, would be helpful at this point.

The UHC, the Uniform Housing Code, is directly mentioned in the comments, but the plain meaning of the statute goes on to use "any reasonable limitation," to me clearly implying that there are other reasonable occupancy limits that can be employed.

If they had meant to say, the UHC and square footage limitations they could -- are the only type that could have been permitted, they should have said so.

QUESTION: So you concede, then, that if it didn't have the provision for five unrelated members, if the definition of family in the Edmonds provision just meant individuals married, related by genetics, et cetera, and there was no provision for five or fewer, you wouldn't have a prayer of coming within this exemption. You'd have to work it out under the basic thou shalt not discriminate and thou shall make reasonable accommodations.

MR. SNYDER: In addition to having Belle Terre problem, that's correct, Your Honor.

QUESTION: Well, I -- I'm sorry, I'm so far behind the curve on this one, I don't even understand what violation you need an exemption from. You come in arguing that you come in within the exemption. What is the violation that you have to be exempted from?

MR. SNYDER: It is asserted by the Government, and has been since 1990, that the mere existence of a definition of family in the City of Edmonds which sets a limit on the number of individuals who may occupy a dwelling --

QUESTION: Yes.

MR. SNYDER: -- is in violation of the FHAA, because a group home --

QUESTION: What provision does it violate, is what I'm concerned about. The only provision I can find is the provision that says its unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental because of a handicap, and then it defines discriminate to include a refusal to make reasonable accommodations in rules, policies, practices, or services.

It doesn't mention laws, ordinances -- I note the Government in its brief in this case constantly refers to zoning rules. I never heard the expression, zoning rules. We always say zoning ordinances, zoning laws, but suddenly there's this category of zoning rules. Do you acknowledge that a refusal to make reasonable accommodation in laws comes within that phrase, in rules, policies, practices, or services? It's a very strange way to put it, isn't it?

MR. SNYDER: The city gladly embraces your viewpoint.

(Laughter.)

MR. SNYDER: I think that's a question better for my brothers.

QUESTION: Do you think a law is not a rule?

(Laughter.)

QUESTION: An ordinance is not a rule?

MR. SNYDER: In a technical sense there are at State law and in Federal case law very clear distinctions between rulemaking. An ordinance typically implies an enactment --

QUESTION: In the general category of rules, do you think ordinances do not fall within that category? You've never advanced that rather radical suggestion, have you?

MR. SNYDER: I have not, sir.

QUESTION: I thought your point was when you get so specific as to list things, rules, policies, practices, services, if you meant laws and ordinances, you would have said them.

MR. SNYDER: I think that's correct. Let me come at it from a slightly different -- let me agree with you in a different way, if you will.

QUESTION: Isn't there some experience with this language in Federal legislation and accommodations, let's say in the employment area, where it has not been limited to something lesser than law?

MR. SNYDER: I'm not aware of that distinction, Your Honor.

QUESTION: Reasonable accommodations, say the notion with respect to religion in title VII, isn't this a familiar qualification, that you sometimes are permitted to make distinctions if it costs too much if the accommodation isn't reasonable? Does that just exclude the realm of a law that would have to have -- a local law that would have an exception?

MR. SNYDER: A difficult question for me to answer. Again, the context is so much different from what is presented here.

QUESTION: In any event, you might get to that. You say we don't even have to bother with what this provision about reasonable accommodation means, because we are just totally out of it.

MR. SNYDER: Yes.

QUESTION: We're out of it under the exemption, so Justice Scalia's point might be a live, active point if you're wrong about the exemption, but you said -- say this legislation doesn't touch us for reason A. Maybe it doesn't touch you for reason B, but we're here arguing about what this 3607(b)(1) means.

MR. SNYDER: That's correct. Again, 3607(b)(1), and this is the second part to my answer to Justice Scalia, sets up three categories. It discusses Federal, State, and local limitations. The traditional role of zoning authorities has been top-down categorizations, dividing communities into districts, categorizing on the basis of common attributes, in effect setting aside portions of the community, the basic building block of which is the single family zone --

QUESTION: And we had gotten to the point where you said, if we had as the definition of the family simply related people, then you would not have a prayer of coming within this exemption, whatever else might take you out of the act.

MR. SNYDER: Yes, Your Honor.

QUESTION: So you are depending on what is a tag-on to the definition of family, in this case five or fewer people -- in Belle Terre, what was it, two people?

MR. SNYDER: Correct.

QUESTION: You're saying that that little tail on the basic provision which defines family is what gets you into this exemption.

MR. SNYDER: It makes it a -- an occupancy limit, that's correct.

QUESTION: Why is it that you concede that a requirement that persons be related is not a maximum?

MR. SNYDER: Simply because --

QUESTION: It's true that it's not a knowable number.

MR. SNYDER: I take your point.

It's basically Moore v. East Cleveland and the constitutional limitation on the city's ability --

QUESTION: Is it not because the statute says maximum number, and definition of family is limitless as far as number is concerned?

MR. SNYDER: It's correct that it's limitless as far as the definition is defined. As the record shows --

QUESTION: But it is one way of describing a numerical limit, isn't it?

MR. SNYDER: Yes, sir.

QUESTION: We ascertain whether the people are related.

MR. SNYDER: Yes, sir.

QUESTION: And that sets the numerical limit, because anybody that's not related takes it over the numerical limit.

MR. SNYDER: I take your point. I would also believe that the record shows an associated basis --

QUESTION: Well, so do you think that this is a maximum, then, under the definition of (b)(1)?

MR. SNYDER: As written, yes, sir, I do. I think --

QUESTION: What would Congress' purpose -- I can understand why Congress wanted -- might have said, look, we're not even going to go into a local zoning rule that says don't crowd people into a single house. Don't take a little house and stuff 10 people into it. You do that, you're okay.

But what would have been the point of Congress wanting to exempt from all of this a law, a rule, a local zoning rule that said single family housing? Why would they? I mean, I can understand why they would have wanted the interpretation, don't stuff people into a house.

MR. SNYDER: I think --

QUESTION: It means that.

But if all the city did was just say, we're going to have single families in this place, whether it's one person or 50 people in the family -- it would be a big family -- why would Congress want to exempt all those from the fair housing law? I mean, from the handicapped law?

MR. SNYDER: I think it would be a matter of deference to the traditional role that local government has placed in defining the use of lots and homes.

QUESTION: I take it nothing in the legislative history that suggests Congress wanted to do that, but there's quite a lot that suggests that what they wanted to do was give way to antistuffing rules, if you like.

MR. SNYDER: That is one evil -- or, I'm sorry, that's one form of regulation that they explicitly indicated they wished to preserve.

QUESTION: And did they indicate anywhere that they wanted to -- worried about anything else?

MR. SNYDER: I think there's a danger in relying particularly on the comments of individual legislators. That may have been their view, but if they didn't have the votes to bring it forward on the basis of things in the statute --

QUESTION: There is nothing else, I take it. There is nothing else.

MR. SNYDER: Nothing that I can cite at this time, sir.

QUESTION: Yes, okay.

QUESTION: Well, I guess if you're going to rely on the legislative history -- the House report, was it? -- then you'd have to say that the whole thing is only limited to the family discrimination provision anyway, and not to the discrimination against the handicapped, because that whole thing is under that title, as I recall.

MR. SNYDER: The city does not rely on the legislative history. We believe that our position is covered by the plain meaning of the statute as written.

QUESTION: No, I understand, but the other side does, without bringing in with the legislative history the limitation that it was -- that it speaks as though this provision only goes to the discrimination on the basis of family stats rather than on the basis of handicap.

MR. SNYDER: If that was their intent, sir, the statute is extremely poorly written and structured.

QUESTION: Why? It seems to me that this releases a town from certain restrictions. You can't discriminate on the basis of family status. That's apart from the handicapped, isn't that true? That's one of the bases, proscribed bases, familial status, right?

MR. SNYDER: Yes.

QUESTION: And this whole thing seems to be an exemption to permit you to discriminate on family status. The first sentence takes care of stuffing too many children into a small apartment, and the second sentence takes care of keeping the kids out of a retirement community, so the statute is totally logical if it's looked at as having nothing to do with the handicapped, having only to do with not stuffing too many children in a tiny apartment and letting the retirement -- letting older people be free from the noise of children.

MR. SNYDER: Yes, Justice Ginsburg.

QUESTION: And then it would just not relate to the handicapped at all. You'd have to make your case or not on the basis of the statutory proscription plus the reasonable accommodation.

MR. SNYDER: I think your reading would achieve the purpose that the city looks to protect, which is the traditional deference of the courts to local zoning structures. Traditionally --

QUESTION: It would -- my reading would say that you don't come under this exemption at all, because the exemption is not dealing with the handicapped. The exemption has to do with overcrowding in small apartments, too many children in one apartment. It's an exemption that deals only with familial status discrimination.

MR. SNYDER: If that was the intent of Congress, placing a general exemption without any limitation as to section it seems to me applies the exemption to the Fair Housing Act Amendments as a whole. It's not limited in any way to the specific section. It's not an exemption to the section on familial status. It's an exemption to the Fair Housing Act Amendment, which as you have noted --

QUESTION: Well, the second sentence certainly is limited to familial status, is it not? What does the second sentence -- what is the purpose of the provision that says, nothing in the provisions on familial status apply with respect to housing for older people?

MR. SNYDER: That's certainly what it says, yes, ma'am.

QUESTION: Your response is precisely, thereby emphasizing that the first sentence isn't limited just to families. Doesn't that make it seem even clearer?

MR. SNYDER: I appreciate the assistance, sir.

(Laughter.)

MR. SNYDER: The traditional role of local governments in zoning has been, again, to categorize, and we believe that it's the interplay of the Uniform Housing Code which limits square footage from the bottom up, looking at rooms, bedrooms, and specific square footage requirements, as well as the traditional top-down role of local government to set aside zoning districts and regulate occupancy per lot per building per structure, and the interplay of those two specific types of rules and regulations work to establish the local government's role in occupancy limitation.

State and Federal Governments have -- may have different roles depending upon their specific interest in a subject.

Again, I think the key from the city's perspective is the 70 years of deference to this type of decisionmaking. It's very difficult, or -- communities assign and create zones and make classifications based upon a specific understanding of their particular demographic nature.

As the record indicates, the average unit, family unit size or dwelling unit in the City of Edmonds is 2.41 individuals. The five or fewer unrelated individuals creates -- it's basically double that number. It creates an area in which groups of unrelated individuals with or without disabilities can come together and establish household arrangements.

The traditional role, as established by Euclid, for local governments has been to make those distinctions so that it can plan, so that we can make reasonable assumptions about the number of people who reside in a neighborhood, in a lot, and make density decisions, thereby planning, sizing water pipes, sizing sewers, knowing where the locate a precinct house or a fire station.

QUESTION: As far as what Edmonds can do now, it's under a further restriction from State law, from Washington State law, and I would be interested in knowing what you understand to be the command in this recent Washington statute.

MR. SNYDER: I believe that the purpose of the statute, which was enacted at the same time that the Fair Housing Act was incorporated into State law, was to paraphrase a city's obligations under the Fair Housing Act Amendments.

This Court's assistance in interpreting what those obligations are would give the Washington courts great assistance. There is no case pending in the State of Washington. The provision has never been interpreted.

As far as mootness goes, as long as there are damage claims against he City of Edmonds pending with respect to actions which may have occurred in 1990, 3 years before the statute, we believe that the issue should be resolved by the court.

QUESTION: Whether -- one thing is to say your case is not moot, but you are also saying this doesn't give you any clear State command for the future? I thought that the statute meant that from henceforth you were to treat handicapped dwellings the same way you treat family units.

MR. SNYDER: Well, the phrase is residential structure, which further confuses the issue.

QUESTION: Yes, but how -- what should we do about that? That is, what is the appropriate thing?

It looks, if you read this provision, the city may not enact any zoning regulation occupied by persons with handicaps differently from a similar residential structure occupied by a family or other unrelated individuals.

On its face, that seems as if it means that you can't treat these people differently, because they have handicaps, than you would treat a family, but it might not mean that. That's what -- so what should we do?

MR. SNYDER: I suggest that the meaning of that particular phrase in the State statute be -- that there be deferral to the State courts to determine it.

This Court's ruling on what the city's obligations are under the Fair Housing Act Amendments --

QUESTION: Would help. How would it help?

MR. SNYDER: It would provide direction to the court as to what was the intent -- or the Washington State courts as to what was the general purpose of the Fair Housing Act Amendments, remembering that this provision was enacted at the State legislature in conjunction with an adoption of the Fair Housing Act Amendments.

It's been incorporated in the Growth Management Act for the State of Washington, RCW Chapter 3670A, or 36A.70, which also requires each local community to annually conduct a special needs population assessment to determine what the needs of the disabled are in each community and to plan for them.

Now, we believe that that's the proper role of local government, is to take that big picture approach, determine how many group homes require siting, how much of a community needs to be set aside, and then to properly categorize those, where they belong in the community based on a neutral criteria as to how many residents they would have and what the other physical characteristics of a particular group home are.

I'd like, Mr. Chief Justice, to reserve the remainder of my time.

QUESTION: Very well, Mr. Snyder.

Mr. Sheehan, we'll hear from you.

ORAL ARGUMENT OF WILLIAM F. SHEEHAN ON BEHALF OF THE PRIVATE RESPONDENTS

MR. SHEEHAN: Mr. Chief Justice --

QUESTION: Sometime during your presentation, Mr. Sheehan, will you tell us what you think is the section of the statute that makes it applicable to zoning regulation?

MR. SHEEHAN: Yes, I will indeed.

Mr. Chief Justice, may it please the Court:

I can start with that question initially, Mr. Chief Justice. I think it may be the same question that's on the mind of some of the other justices.

We contend -- you'll understand that I'm now jumping ahead to the merits of the argument that we will make if we prevail here on remand in the lower courts.

We contend that the statute requires a reasonable accommodation --

QUESTION: May I just anticipate --

MR. SHEEHAN: Yes.

QUESTION: It's related to the chief Justice's question. Am I correct in assuming that the district court and the court of appeals merely held that the exemption didn't apply, and they did not reach the merits of whether there was a violation of the rules, or discrimination, or anything else?

MR. SHEEHAN: That is exactly right.

QUESTION: So all of that would be open on remand.

MR. SHEEHAN: That is exactly right. The Ninth Circuit in its opinion said so expressly.

We will contend, if we prevail here, on remand we will contend that the city will discriminate against us if it refuses to make, in the words of the statute, a reasonable accommodation in rules, policies, practices, or services.

We believe that local zoning ordinances fall within the language of rules, policies, practices, or services, and so do the half-dozen decisions cited at footnote 7 of our brief, including decisions out of the Tenth and the Third Circuits.

QUESTION: None from this Court, I take it.

MR. SHEEHAN: None from this Court.

QUESTION: More than that, you have to say that the city is discriminating in the terms, conditions, or privileges of sale or rental of a dwelling.

MR. SHEEHAN: That's correct.

QUESTION: It's law is a privilege of sale or rental.

MR. SHEEHAN: We will contend that the effect of the city's law is to work a discrimination that is prohibited by the statute.

QUESTION: And your assertion is that rules is meant to preempt State laws and ordinances.

MR. SHEEHAN: That's correct, Your Honor. We have --

QUESTION: Even though a provision concerning the effect on State law is much more specific later on and refers to State laws, and even though section 36 -- what is it, 3610(g) --

MR. SHEEHAN: Refers zoning matters to the attorney general --

QUESTION: -- (2)(C) says if the Secretary determins that the matter involves the legality of any State or local zoning or other land use law or ordinance. It refers specifically to law or ordinance.

MR. SHEEHAN: Yes, it does, Your Honor, which is one of the reasons why we think zoning ordinances are covered by the act, because cases involving the legality of zoning ordinances are referred to the Attorney General, and the legislative history, I'm reading from page 148 of the Joint Appendix, provides -- states that the committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices.

QUESTION: Did the Congress intend that, or just the committee? Was that a House committee or a Senate committee?

MR. SHEEHAN: That was a House committee report, Your Honor. In 1988 --

QUESTION: But just to clarify, it is your position that there has not been a first view on any of those issues, so the only thing that's here for us to review is the interpretation of 3607?

MR. SHEEHAN: That is correct, Your Honor. That is correct.

In 1988, Congress extended the Fair Housing Act to handicapped persons Congress knew must live in group homes in residential areas. If the city's construction of the statute is correct, it means that all local governments across the country can entirely exclude all group homes entirely from their cities. Now, that is true not only for single family zoning, but it's for multifamily zones as well. All group homes for handicapped can be excluded.

The city takes the position that its ordinance comes within the exemption because it's constitutional. So was the ordinance in the Village of Belle Terre case, which defined a family to mean two or fewer unrelated people. If the city is correct, every local government can adopt a Village of Belle Terre ordinance and exclude group homes for the handicapped completely.

QUESTION: Well, I suppose every local government could adopt a maximum, which could exclude group homes, if it's a maximum. The only question is, is it a maximum? That's what the statute said.

MR. SHEEHAN: The statute requires -- the statute exempts a restriction on the maximum occupancy of the number of persons who can occupy a dwelling. The city construes that statute to allow the exclusion of all group homes. It would be remarkable if -- in our view, if in a statute meant to extend the protective embrace of the Fair Housing Act to handicapped persons who Congress knew must live in group homes --

QUESTION: Well, the definition of family for the city that we're looking at does in one sense establish a maximum number of unrelated people who can live in a single family home, and the district court judge, Judge Dwyer, found that that established a maximum. The Ninth Circuit disagreed, but why was the district court's interpretation wrong under the statute?

MR. SHEEHAN: It was wrong for several reasons, Your Honor. In the first place, it construed the exemption, as the city does, in isolation from the rest of the statute.

Just yesterday in the Gustafson decision, this Court said that it's duty is to construe statutes, not isolated provisions. The city can point you to nothing else in the statute, or the legislative history, or its purposes and policies, that gives any indication that Congress meant to exclude group homes.

A second reason, Your Honor, is, as you described the ruling of the district court, and as you described the city's position, you said that the city's definition of a family does provide a maximum.

QUESTION: Oh, you mean no maximum can exclude a group home? Is that your -- no matter if the ordinance is a maximum or isn't, a group home cannot be excluded?

MR. SHEEHAN: Your Honor, if the maximum is written in terms of the kind of health and safety restrictions that housing codes typically impose, a group home can be excluded.

QUESTION: That means you could build, you know, 80-story group homes in otherwise single family areas.

MR. SHEEHAN: No, Your Honor, but I have to jump ahead again to the merits to say why that's not correct.

An 80-story group home would not be entitled to a reasonable accommodation, but the ordinance that would be subject to the 80-story group home would not be exempt from a merits review under the statute unless it were written in the terms that we say Congress meant to exempt, namely, proscriptions on -- I mean to say, restrictions on the number of people who can occupy a particular dwelling based on health and safety concerns related to the space of that dwelling.

Our construction of the exemption lives happily with the statute. It also lives happily with the Antidrug Abuse Act in which Congress mean to promote, to finance group homes like Oxford House for six or more people.

QUESTION: Well, can you tell me why this isn't a maximum? Is it because the family definition is openended as to numbers? It is controlled by related? Is that what makes this not a maximum?

MR. SHEEHAN: What makes this -- what makes the city's ordinance fall outside the exception is that it doesn't fit into the language of the exception and it doesn't fit into the rest of the structure of the Fair Housing Act or the Antidrug Abuse Act.

QUESTION: Does it not fit within the language of the exception because it's not a maximum?

MR. SHEEHAN: It does not -- if you stand in front of a house in Edmonds, if you walk inside that house, if you stand next to two identical houses in Edmonds, you can't tell how many people can reside in that house under the city zoning ordinance. You can under its housing code.

So the city's zoning ordinance with -- looking strictly at the words of the statute and thinking of nothing else, does not identify the maximum number of people who can occupy --

QUESTION: Well, because maximum is in terms of occupants, and of course I guess you can't tell the number of occupants till you go in the house. That's the way it's written.

MR. SHEEHAN: Well, I'm talking about an empty house, Your Honor. If you stand in front of an empty house --

QUESTION: But you're saying you have to be able to look at that, determine from the outside of the house how many occupants are in it?

MR. SHEEHAN: No. I'm just saying that the city's ordinance may impose a maximum number on some groups of people but not on other groups, and it does not, within the words of the statute, identify the maximum number of people who can --

QUESTION: Well, it does identify the maximum number of unrelated people --

MR. SHEEHAN: It does.

QUESTION: -- who can live --

MR. SHEEHAN: It does.

QUESTION: -- in a house in that part of the city.

MR. SHEEHAN: That's correct, it does.

QUESTION: And in that sense, it is a maximum.

MR. SHEEHAN: In that sense, Your Honor, it is a maximum.

QUESTION: And so the question is, why don't we read it as being within the meaning of 3607(b)(1) --

MR. SHEEHAN: Because --

QUESTION: -- because it does establish a maximum.

MR. SHEEHAN: Because it would --

QUESTION: I'd assumed that you were arguing because of the legislative history, and because of the general structure of the Federal law in general, but if you just look at this provision, 3607, it does appear to fall within it, doesn't it, which certainly could explain the district court's ruling.

MR. SHEEHAN: Well, Your Honor, the district court's ruling can be explained by its refusal to consider the exemption in the context of the overall statute.

The ordinance does -- the ordinance does define --

QUESTION: Mr. Sheehan, some of us are having trouble hearing you. Maybe if you raised the lectern a little bit with that crank over -- now you're lowering it.

Thank you.

MR. SHEEHAN: The ordinance does identify a maximum. It identifies a maximum number of some kinds of people who can live in a dwelling. It does not identify the maximum number. The ordinance is not written in the way that one might expect if Congress had meant to exempt a zoning ordinance. It sounds very much like the way one would write an exception -- I meant to say the exception, not the ordinance. The exception is not written in the way you'd expect if Congress was intending to exempt zoning laws.

QUESTION: Looking at the ordinance for a second, I guess we have a normal legal animal that's difficult. Part of it seems to have a maximum called five unrelated, part of it doesn't seem to have a maximum, called single family. You could have a little family or a big family. All right.

So then I guess I'd like to look to the basic purpose of this particular zoning reg. Was it to prevent overcrowding? Was it to do something else? Why did they pass this reg? What's the point of it, or the zoning rule?

MR. SHEEHAN: Your Honor, zoning laws are concerned with the character of neighborhoods. Housing code density restrictions are concerned with the health and safety of individuals inside a dwelling.

A zoning code restriction on the number of individuals who may live in a house is not concerned with the health and safety of those individuals inside the house, because the restriction applies whether the house has 2 rooms or 20.

Zoning is concerned with neighborhoods. Housing codes are concerned with density of particular dwellings.

QUESTION: Well, can you say anything -- what is the concern of this particular zoning rule before us? Why did they pass it?

MR. SHEEHAN: Because they wanted to preserve the character of single family zoned areas.

QUESTION: Mr. Sheehan you refer to health and safety reasons several times in connection with the ordinance requirements, but the statute doesn't say that. It says, Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling. It doesn't say for what reason the maximum may be imposed.

MR. SHEEHAN: No, it doesn't, and the reason that we believe that Congress intended to exempt only health and safety related rules such as you find in a housing code is in part because of the origin of the exception, and it stems, as was noted earlier, from the concern that large families might insist upon living in small quarters, and the legislative history suggests that, in order to allay that concern, Congress enacted this exemption.

QUESTION: Is it your position that this exception doesn't apply at all to a handicapped exclusion?

MR. SHEEHAN: It isn't. It is not. We have not contended that. I understand --

QUESTION: Well, if you're going to buy the legislative history, it seems you just pick the portion of it you like and omit the portion you don't like?

MR. SHEEHAN: Well, Your Honor --

QUESTION: I mean, the legislative history makes clear that all they had in mind was family status, so if you're going to use legislative history for the one, I don't know why you don't use it for the other.

MR. SHEEHAN: Well, if in fact the legislative history, if we were to rely on that legislative history and this Court were to agree, we would win, so I'm not shy on relying on it for that reason. I just think it doesn't make sense to argue that handicapped -- groups of handicapped people can overcrowd dwellings and cause health and safety problems that housing code restrictions are meant to avoid.

QUESTION: Alternatively, if the committee report could be so mistaken about whether this provision applies to the handicapped at all, then it may be equally mistaken about what the provision means as far as maximum is concerned.

MR. SHEEHAN: I --

QUESTION: I mean, it seems to me you either buy the whole report, in which case you say it doesn't apply to handicapped at all, or if you say, oh yes, it does apply to handicapped, then you're looking at a committee report that is very ignorant, that just makes a botch of the whole thing, to think that it only applies to family status.

MR. SHEEHAN: No, Your Honor, I have never said that the committee report states that the restriction does not apply to handicapped people. We don't take that position. We haven't --

QUESTION: It says that, though.

MR. SHEEHAN: It does not, Your Honor. It suggests that the restriction was designed to alleviate concerns about family discrimination issues, but it does not say that it does not apply to handicapped, to concerns involving overcrowding by handicapped individuals.

QUESTION: I will get it, and we will see.

MR. SHEEHAN: Let me say one other thing about the way the statute is written. We have cited at page 28 of our brief a model housing code which is promulgated by the American Public Health Association and the Center for Disease Control. This is a model housing code, and it says that the permissible occupancy of a dwelling "is the maximum number of individuals permitted to reside in a dwelling unit."

That sounds an awful lot like our restriction.

QUESTION: Thank you, Mr. Sheehan.

Mr. Bender, we'll hear from you.

ORAL ARGUMENT OF PAUL BENDER ON BEHALF OF THE FEDERAL RESPONDENT

MR. BENDER: Thank you, Mr. Chief Justce, and may it please the Court:

The only question before the Court in this case is, as both other counsel have said, the question whether Edmonds' definition of family that limits the number of unrelated persons who may live together in certain areas of the city, is a law regarding the maximum number of occupants permitted to occupy a dwelling.

The questions that were raised, have been raised during oral argument by Justice Scalia and others about whether zoning provisions are covered and about whether this kind of restriction can constitute a discrimination, are ones on which the Government has taken a uniform position and ones on which the decisions below are uniform. There have been no decisions in this Court.

But those questions are not in this case. This is the threshold issue of, do you even get to those questions, or does the exemption just take it completely out of scrutiny under the Fair Housing -- end of this case.

Congress could easily have written this to also exempt this kind of unrelated persons provision. They're very common. Many communities around the country, a large percentage, have this kind of provision, and they simply could have said, the maximum number of unrelated persons, or the maximum number of occupants permitted to occupy a dwelling. By using the language --

QUESTION: Is it not true, Mr. Bender, that most of those cities that have a provision like this also have a maximum occupancy provision?

MR. BENDER: Right, and this clearly -- those maximum occupancy provisions, the language you just used, Justice Stevens, is -- are terms that are commonly used in the industry, and they are thought to refer to the kind of thing that Edmonds has and most communities have. Edmonds, I think, is that for each person in a bedroom you need an additional 50 feet.

It's to stop overcrowding. It's for health and safety reasons. They're overcrowding provisions. They're density provisions. They're maximum occupancy provisions. That's clearly what this was intended to refer to.

We don't think there's any need to look at the legislative history, but if you do look at the legislative history, it's entirely clear as well, because the only reason -- this exemption came into the statute along with, in 1988, along with the prohibitions on discrimination against the handicapped and discrimination on grounds of family status.

It wasn't in there before, and the reason it's in there is because it was feared that without this kind of exemption people with large families who sought to live in small apartments so that they would have five or six people in a bedroom, when told you can't do that because the bedroom isn't large enough for five or six people, would say, but you can't tell us that, because that would be a discrimination against us on grounds of family status, and this was put in there to make sure that people could not use the housing act to insulate themselves, to immunize themselves against their violation of health and safety regulations.

QUESTION: But the Government doesn't take that position, does it, that the exemption only applies to what it was, you tell us it was intended to cover, and that is, the family status provision, so you didn't have to bring in someone with eight children if the apartment doesn't have room for eight children.

MR. BENDER: No, I -- we do not take that position.

QUESTION: Well, but --

MR. BENDER: We think it applies to the entire statute.

QUESTION: But then you're picking and choosing in the legislation. You're saying it's authoritative for one purpose, it's not authoritative for the other, because that provision, the legislative history of the House report says section 3607(b)(1) amends the act to make additional exemptions relating to the familial status provisions.

MR. BENDER: Right.

QUESTION: And, in fact, the first sentence relates not just to the familial status provision but, you're telling us, to the handicapped provision.

MR. BENDER: We do not rely on the legislative history to tell us what this exemption means.

QUESTION: But I mean, my goodness, no one would ever look only to legislative history, would they?

MR. BENDER: Right.

QUESTION: I mean, they'd look to position, structure, language, and legislative history where it's helpful, I guess.

MR. BENDER: Well, and --

QUESTION: So in some of these things might be helpful, but on others not.

MR. BENDER: Right, and I think -- if you think about it, try to think of, are there other provisions of the housing act that people might use to defend themselves against overcrowding limitations, and it's a stretch to think of them, but it would be possible.

Somebody might say, somebody -- a member of a minority group with a large family might say, large families are more prevalent in minority groups than anywhere else, and therefore you can't use your overcrowding limitation against me, because it has a discriminatory impact. The housing act, remember, includes discriminatory impact. It's not --

QUESTION: Perhaps they might say that having a large family was a handicap.

(Laughter.)

MR. BENDER: That, too.

QUESTION: I vote for that one.

(Laughter.)

MR. BENDER: So that I think if somebody tried to use the handicapped provision or the race discrimination provision, or perhaps a religion would say that people should have very large families, and somebody would say well, my religion tells me I have to have all these children, and I can't afford a larger apartment, and therefore I'm entitled to violate the overcrowding provisions.

I think Congress meant to say you couldn't use that provision of the statute, either, and that's because they thought that these overcrowding provisions and the debates in Congress are full of this, that these overcrowding provisions are so important, because they relate to disease, they relate to fire, they relate to epidemics, those kinds of things. They're so important that they should not be trumked. They should not be overruled.

QUESTION: Well, the reason for the overcrowding provision in a normal municipal ordinance applies equally whether the people are handicapped or not.

MR. BENDER: That's right, and the reason is so strong that it overcomes the effects protection on discrimination against any of these, handicapped or others, if it applies.

And I think that's also important, that principle is also important whether you look to see whether the city's view in this case is tenable, is being consistent with Congress' purpose and I think, as has been said, it's not, because if this ordinance were permitted to come within the exception, that would mean that cities could fence out handicapped people from living in certain areas of the city in those circumstances where handicapped people needed to live in congregate living arrangements in order to be able to live.

No more than one would say that a city could, through a no-animals rule, or a no-pets rule, fence out blind people from living in that part of the city because they need to have a guide dog, would Congress have wanted to say that cities can say, handicapped people who need congregate living arrangements -- and there are lots of groups of handicapped that do. The elderly handicapped, for example, mentally retarded people, AIDS victims, often need to live in these arrangements.

They need the support of a minimum number of people in order to be able to live, especially with economic factors that mean that they have to share the costs, and so they need a minimum number of people to get the sufficient --

QUESTION: Mr. Bender, is it your position that any numerical limitation that has an exception is not a numerical limitation, because I mean, you know, you could read this ordinance, or you could write it differently. You could say, no house in this area of the city shall have more than five occupants unless it is a family. You know, make that one exception, so it's a five-occupant limit, but an exception for families.

MR. BENDER: That's basically the same as this.

QUESTION: It's basically the same as this, and you say the exception causes it to not be a numerical limitation.

MR. BENDER: Yes. I think --

QUESTION: What if you say, no more than a hundred people in the apartment building unless in extraordinary situations that's necessary.

MR. BENDER: That's slightly different. If there were something about extraordinary situations, and it indicated what those extraordinary situations were, and they were fairly limited --

QUESTION: It has to be extraordinary --

MR. BENDER: It would be --

QUESTION: -- and the difference here is that families are not extraordinary.

MR. BENDER: The basic rule, Justice Scalia, I think is you have to be able to look at the ordinance and see a limit on the maximum number of occupants, and the reason why we think that is because the reason for this exception was to permit local and State and Federal laws that limited occupancy for reasons that have nothing to do with what kind of occupants they are. They have to do with overcrowding, and so as long as the ordinance doesn't deal with overcrowding, it doesn't come within this exception.

QUESTION: But doesn't the single family limitation basically deal with that, don't you think?

MR. BENDER: No, I don't think so.

QUESTION: It doesn't deal with population density?

MR. BENDER: Well, look at the definition of what's family in the Edmonds ordinance.

QUESTION: Well --

MR. BENDER: It's anybody who's genetically related.

QUESTION: That's because you don't want to put down, you know, limits on the number of children people can have, but basically, when you have a single family limitation, isn't it -- doesn't it deal with overcrowding in the area?

MR. BENDER: It's --

QUESTION: You don't want a whole lot of people.

MR. BENDER: No, I don't think it deals with overcrowd -- it's overcrowding of the dwelling that this is concerned with, not with overcrowding of the area. I think that's quite clear in the exception itself. It's a maximum number of occupants permitted to occupy a dwelling, not the maximum density of occupants in the neighborhood. That's not within the meaning of this.

And also, it's not only families. You could have the -- you could have the Oxford House here --

QUESTION: But it doesn't matter how big that dwelling is, isn't it?

MR. BENDER: No.

QUESTION: You can only have one family.

MR. BENDER: If -- I don't understand the question. Under the Edmonds ordinance you can have a family and up to five unrelated people, but a family can be infinitely large.

Remember, a family is not defined here as parents and children, or even parents, children, and grandchildren. It's anyone genetically related. We don't know what that means. There's nothing in the record to suggest it.

But you could have five -- three sisters and two brothers, each of whom are married, who get together in a congregate living arrangement. Apparently, they could live in a house, and then you could have a house exactly the same size next to it, and the 10 people in the Edmonds Oxford -- in Oxford Edmonds House could not live there.

That's exactly the kind of discrimination that Congress intended to prohibit by the Fair Housing Act, and that's exactly the kind of discrimination that would be permitted if this ordinance came within this exception.

If there are no other questions --

QUESTION: Thank you, Mr. Bender.

Mr. Snyder, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF W. SCOTT SNYDER ON BEHALF OF THE PETITIONER

MR. SNYDER: Mr. Chief Justice, two points. This case has never been about whether disabled persons should be excluded from the City of Edmonds, but simply where within the community they should reside, given the numbers and institutional nature of the use.

We believe that the Eleventh Circuit's position, or decision in the Athens case, applying a reasonable standard and looking at the factual basis for the ordinance structure, the overall structure of the scheme, is the proper way to approach it. It protects the rights of the disabled, and assures that they have a place in the community.

Secondly, we believe that -- as counsel stated a few minutes ago for Oxford House, he says the city can point to nothing in the statute which supports a portion of its position. We believe this is one of those legislative situations of someone trying to keep an elephant in their living room. It's simply impossible to ignore.

We believe that the better interpretation would have been that had Congress intended to overrule traditional single family zoning, that it should have done so, and should have done so on the basis of the statute.

We believe that there weren't the votes for that, that had this issue been addressed directly it might not have happened, that the Court should look to the plain meaning of the statute and determine what Congress did, not what policies or programs it might have promoted in a different statute.

In 1990, citizens -- pardon me, officials of the City of Edmonds sat with the HUD conciliator. They were told that their definition of family, because it had no limit on the number of related individuals, was a violation of the Fair Housing Act Amendment.

Their question is the same question I put to the Court today. As they asked the HUD investigator, where in the statute does it say so?

Thank you for this opportunity to participate in a unique national institution. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Snyder.

The case is submitted.

(Whereupon, at 12:07 p.m., the case in the above-entitled matter was submitted.)