I have posted on the Commission Forum, presented to the Finance Committee, and now post here, my review of the recent Law Director opinion on the Fair Housing Act and the radius amendment to the Minvilla contract.

This shows how the Law Director erred:
* Confusing disability with homelessness (and ignoring case law that would correct this error).
* Confusing a land use policy with a contract.
* Incorrect interpretation of the only case cited in the Law Director's memo.
* Failure to cite relevant law from other rulings, including one specifically upholding a radius requirement, and Supreme Court rulings that give guidance in the direction of permitting such an amendment.

The full text of my item may be found on the Commission Forum,
https://knoxgov. net/commission/ commissionforum/ viewtopic. php?f=2&t=92
, or after the break.

Full text here

In 2003 the American Planning Association lamented, but also recognized the reality of, proximity restrictions as related to housing projects for the homeless. It wrote:

“Supportive housing may be further restricted by covenants and special permitting requirements. Such permitting requirements may restrict the type and frequency of services provided on the site, the proximity of the supportive housing to other similar projects [emphasis added], and imposes additional special limitations on density or number of units that exceed those of the zoning district classification.” (APA 2003)

So how is it that the APA is lamenting the fact of proximity restrictions, restrictions the Knox County Law Director claims can’t exist under the Fair Housing Act? The answer, based on the following extensive review, is that the Law Director’s interpretation is wrong.
This review explains four major reasons why this is so: 1) incorrect statement of the terms of the effect of the “radius amendment,” 2) confusion of homelessness and disability, a mixing of those terms at odds with several court cases, 3) incorrect interpretation of the only court case cited in the Law Director’s memo, and 4) failure to cite relevant law from other rulings.

Problem # 1. Incorrect statement of the terms and effect of the “radius amendment.” The amendment reads as follows:

“Incorporate into both the resolution and the contract the following: Reallocation of these funds, $250,000.00, is contingent upon recipient's (including the Ten-Year Plan to End Chronic Homelessness) agreement not to seek additional government funds for any other permanent supportive housing projects within a two (2) mile radius of Minvilla." The amendment passed Knox County Commission by a 15-2 vote.

The Law Director in the first paragraph of his memo referred to this as “the issue relative to a buffer that would serve to limit the number of low & moderate income housing.” It is no such thing. Any private developer, any public entity, and any public-private partnership can establish low- and moderate-income housing in this area. The only restriction is on permanent supportive housing for the homeless, and that restriction applies only to the recipients of funds under this contract. Such potential recipients are free to reject the contract and reject the funds if those potential recipients cannot abide by the radius amendment. Such rejection would be odd, given that these potential recipients have said publicly and to many interested parties that their intent is to move homeless assistance services out into other areas of the community and not cluster such services.
The Law Director further states that, “Although the [Fair Housing] Act does not pre-empt local zoning laws, it does prohibit local government entities from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities.” The misinterpretation related to disability will be discussed in the next section, but here the misinterpretation is related to calling the radius amendment a zoning or land use decision. It is not. It is a provision in a contract, a provision not applicable to parties not a part of the contract, and a contract the potential fund recipients are free to refuse.

Problem #2. Confusion of Homelessness and Disability. The Law Director then refers, but does not give quotations or citations, to three zoning or land use provisions of the Fair Housing Act as it relates to disabilities. Homelessness, however, is not a disability. It may intersect with disability on many levels, just as it intersects with alcoholism and joblessness, but the terms homeless and disabled are not interchangeable or identical under law. Further, one must stress again that this is a contract matter not a land use or zoning policy.
Most importantly, the Law Director’s equation of homelessness with disability is directly in conflict with Hemisphere Building Co., Inc. v. Village of Richton Park, 171 F.3d 437, 440 (7th Cir.1999). It specifically states the Fair Housing Act bars discrimination against "handicapped people by reason of their handicap, rather than . . . by virtue of what they have in common with other people, such as a limited amount of money to spend on housing" [emphasis added]. This finding also was affirmed in Cody Smithers, et al. v. City of Corpus Christi, 2008. The quoted Hemisphere standard also was used in Bell v. Tower Management Service, 2008. A check of Shepard’s® Citations finds Hemisphere quoted 65 times, including the above quote in Footnote 24 of the only case (Tsombanidis) cited directly in the Law Director’s memo.

Problem #3. Incorrect interpretation of the only court case cited in the Law Director’s memo. The two previously noted confusions (land use v. contract, homeless v. disabled) continued when the Law Director wrote, “Federal Courts have consistently held that, local governments that use their zoning powers in a discriminatory manner toward persons with disabilities or who enact or enforce local zoning and land use laws that serve to treat groups of unrelated persons with disabilities less favorably than similar groups of unrelated persons without disabilities violate the Fair Housing Act.” The Law Director further noted, “Such violations need not be intentionally discriminatory, but merely discriminatory as applied to certain groups of people; therefore, if the impact of a land use policy adversely effects a protected group, notwithstanding the lack of discriminatory animus.”
The Law Director cites only one case, Tsombanidis v. West Haven Fire Dept., 273 F.Supp.2d 565 (2003). A close review of that case shows something different that what was inferred by the Law Director. The case concerned alleged discrimination against a group home for recovering alcoholics and drug addicts. The discrimination is asserted to occur in city and fire district application and enforcement of the zoning, building, and property maintenance codes and the State Fire Safety Codes. That situation is not remotely like the contractual matter involving the Minvilla grant.
The more relevant area is this “Finding of Fact” cited by the court: “Finding and staying in a healthy, functional environment, surrounded by people who are not abusing alcohol or drugs, away from people and situations that previously triggered substance use, with access to transportation and work opportunities, are essential elements to avoiding relapse” (Finding of Fact #14, Tsombanidis v. West Haven Fire Department). The court thus sided with community-based programs that are not clustered in one neighborhood or near a ghetto of despair and drugs, one of the purposes of the Minvilla radius amendment.

Problem 4. Failure to cite relevant law from other rulings.
Curiously, the Law Director either overlooked or did not think relevant a case in which a court specifically upheld a radius requirement for Community Residential Homes, Tracy P. et al v. Sarasota County, 2007. Even more significant are the Supreme Court cases that offer significant guidance on this matter.
Chief United States District Judge Robert J. Conrad, Jr. summarized the state of Supreme Court decisions on this matter of law quite succinctly on September 18, 2006 (Adams v. Village of Wesley Chapel, affirmed by 4th Cir. N.C., 2007), when he wrote:

Finally, the Court must consider the character of the governmental action. The Supreme Court has long recognized the legitimacy of local governments seeking to protect against overcrowding and preserving the character of their areas. Village of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365, 388, 47 S. Ct. 114, 71 L. Ed. 303, 4 Ohio Law Abs. 816 (1926); City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995).

The character of government action in this case is to protect against the overcrowding of homeless in one area, and preserve the character of nearby neighborhoods that already have borne more than their share of homeless services. The character of government action is also to spread future services across a greater geographic area, not to prevent such services or to discriminate against those receiving them. These goals are shared in the abstract by the neighborhood advocates and the grant recipients, and the radius amendment only puts that agreement in the contract for receipt of a grant.
For these clear and compelling reasons the Law Director’s guidance on this matter has proven to be incomplete and misleading. Knox County’s Mayor vetoed this amended contract based on the same faulty Law Director advice about the radius amendment. Thus, Knox County Commission, once again, should pass this contract with the radius amendment—or not pass the contract at all.

References

Robert D. Adams & Aileen S. Adams, Plaintiffs, v. Village of Wesley Chapel, a North Carolina Municipal Corporation & Albert W. Black, individually, Defendants. 3:03cv411, United States District Court For The Western District Of North Carolina, Charlotte Division, 2006 U.S. Dist. Lexis 72471, September 18, 2006, Decided, SUBSEQUENT HISTORY: Affirmed by Adams v. Village of Wesley Chapel, 2007 U.S. App. LEXIS 28621 (4th Cir. N.C., Dec. 11, 2007).

Adams v. Village of Wesley Chapel, 2007 U.S. App. LEXIS 28621 (4th Cir. N.C., Dec. 11, 2007).

American Planning Association, Policy Guide on Homelessness, Adopted by Chapter Delegate Assembly, March 29, 2003, Ratified by the Board of Directors, March 30, 2003, Denver, American Planning Association, p. 4.

Denise Bell, Plaintiff, v. Tower Management Service, L.P. et al., Defendants. Civil Action No.: 07-Cv-5305(Flw), United States District Court for the District Of New Jersey, 2008 U.S. Dist. Lexis 53514, July 15, 2008, Decided, July 15, 2008, Filed.

City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995).

Hemisphere Bldg. Co., Inc. v. Vill. of Richton Park, 171 F.3d 437, 440 (7th Cir.1999).

Cody Smithers, et al. v. City of Corpus Christi, Civ. No. CC-06-133, United States District Court for The Southern District of Texas, Corpus Christi Division, 2008 U.S. Dist. LEXIS 22170 March 19, 2008, Decided, March 19, 2008, Filed.

Tracy P., Ric Z., Richard A., Gerard O., and Renaissance Manor, Inc., Plaintiffs, vs. Sarasota County, Joseph and Maria Serna, Defendants. Case No. 8:05-Cv-927-T-27eaj United States District Court for the Middle District of Florida, Tampa Division. 2007 U.S. Dist. Lexis 22472. March 28, 2007, Decided.

Tsombanidis v. West Haven Fire Dept., 273 F.Supp.2d 565 (2003).

Village of Euclid, Ohio v. Amber Realty Co., 272 U.S. 365, 388, 47 S. Ct. 114, 71 L. Ed. 303, 4 Ohio Law Abs. 816 (1926).