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Kelly & Lemmons, P.A. ATTORNEYS A T L A W ^ Trevor S. Oliver toliver@kellyandlemmons.com August 26, 2008 Joel Hansen, City Administrator Steve Grittman, City Planner Re: Proposed Amendments to Little Canada Zoning Code Gentlemen: I have reviewed the proposed changes to the Little Canada Zoning Code, and subject to the comments below have no legal objection to theit• adoption. 1 Fair Housing Act Issues (Definition of Family, Day Care Regulations) A. "Family" In Section 902, the pt•oposal is to define "family" to restrict occupancy of a dwelling to 2 unrelated people as part of a common household. Regardless of the intent of such a provision, courts across the country have struck down municipal attempts to define a "family" in this context. The Fait• Housing Act, 42 U.S.C. § 3601 et. seq. overrides and invalidates any State or local law which has a discriminatory effect upon fair access to housing. Through 20 years of litigation, commonly on behalf of the developmentally disabled or the "sober house" community, Fedet•al courts have routinely disfavored attempts to control housing occupancy tluough definitions of "family." The three most recent reported Federal court decisions, following this general trend, have categorically declared similar definitions to be facially discriminatory under the Fair Housing Act. The intent of the cities adopting the definitions has not mattered in the most recent round of decisions, which struck down "maximums" of three to five umelated adults. A consensus has built through the 20 years of decisions that maximum occupancy based on square footage, under a city-wide or state-wide fire code, is the appropriate means to control overcrowding. Thus, the courts strictly scrutinize any other kind of numerical cap on occupancy, usually requiring that the "family" definition have some significant, non-discriminatory advantage over basic occupancy limits in order to be legal. So far, no "family" definition has survived this scrutiny on its own merits. Finally, it is worth noting that the FHA grants attorney's fees to successful plaintiffs, raising both the probability of suit and the risks of defending this section of ordinance. ~ Some courts in the late 1990s threw out challenges because the plaintiff failed to apply for a permit or otherwise give the city a chance to grant a waiver or otherwise fix the problem. Cases in the last three years have done away with even this defense for cities, finding that the burden of having to get a lawyer and fight the permit or variance decision in itself illegally resp icts fair access to housing. 444 CEDAR STREET, SOTTE 2350 ^ SAINT PAUL, MINNESOTA 55101 TELEPHONE 651-224-3781 :: FACSIMILE 651-223-8019 kellyandlemmons.com