Tempe claims “federal case law” prevents it from enforcing its zoning laws.

In September, at the Pyle House, I asked Lauren Kuby why the city does not use its consanguinity ordinance to stop Holbrook House (see neighboring posts) from functioning as a rooming house. She replied “federal case law” and instructed her chief of staff, Elizabeth Higgins, to explain that to me. I received Ms Higgins’s answer on February 7, reproduced here.

Ms Higgins cites the Fair Housing Act and three Supreme Court decisions plus two Arizona laws to make the case that Tempe’s consanguinity law cannot be enforced. Here are her citations, links to the texts of the statutes or decisions, with brief comments by me.

The Fair Housing Act (FHA) is Title VIII of the Civil Rights Act (1968, as amended 1988), statute linked here. The FHA sought to prevent discrimination in real estate and housing due to “race, color, religion, sex, familial status, or national origin.” In 1988, Congress amended the FHA to add “handicapped” to these protected classes and to prevent discrimination against families with children under 18. It carves out an exemption for everyone who is not in the real estate business, such as individuals selling or renting to other individuals. It exempts from liability any “reasonable” restriction on maximum occupancy. It is unclear how Holbrook House comes under the FHA. The renting is a private transaction between individuals and neither the landlord nor the tenants belong to a protected class.

Village of Belle Terre v Boraas (1974), SCOTUS decision (including dissent) linked here. A house in Belle Terre, Long Island was rented to 6 unrelated students attending a local college. Belle Terre sued the occupants under an ordinance which outlawed more than two unrelated persons living together. The case eventually reached the Supreme Court which upheld Belle Terre. Even writing in dissent, Thurgood Marshall wrote that zoning “may indeed be the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life.”

Moore v City of East Cleveland (1977), SCOTUS decision linked here. East Cleveland had an ordinance which defined “family” in such a way that it barred a grandmother from living with her son and two grandsons. The Supreme Court ruled against East Cleveland.

City of Edmunds v Oxford House (1995), SCOTUS decision (including dissent) linked here. Oxford House, a charity, housed 12 recovering drug addicts in a house in a single family neighborhood in Edmunds, WA. The city of Edmunds sued Oxford House under an ordinance which set a limit of 5 unrelated persons in a household. Oxford House defended itself with the FHA, claiming its residents were handicapped and therefore protected. The city of Edmunds responded by citing 3607(b)(1): “Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” Ruth Ginsburg, writing for the majority, argued that, since the FHA was intended to end discrimination, exceptions to the Act should be very narrowly read. Since Edmunds’s occupancy limit of 5 contained an exception for actual families, it was not simply an occupancy limit and therefore not entitled to exemption from the FHA. Clarence Thomas (joined by Antonin Scalia) wrote in dissent (1) that statutes don’t have intentions or spirits, (2) that there is only the language of the statute, and (3) that the FHA statute exempts from liability cities using reasonable maximum occupancy zoning rules. If a similar case were to come to the Supreme Court now, the city would likely be upheld.

Ms Higgins goes on to cite Article II of the Arizona Constitution and Prop 207 (now ARS Article 2.1) as examples of state laws preventing “takings.” She seems to believe that, if Tempe were to enforce its zoning laws, Juan Pulido, the owner of Holbrook House, would be able to claim to be the victim of such a taking; however, the true victims of a taking are Pulido’s neighbors, whose house values have all declined. Section 12-1134 of Article 2.1 specifically does not require compensation by the government if the taking is “for the protection of the public’s health and safety,” that is, for zoning purposes.

Ms Higgins’s citations actually make the case for local zoning, including consanguinity laws. It remains unclear why the City of Tempe claims to be powerless in the face of a rooming house in a single family neighborhood.