720 F.2d 1126 (9th Cir. 1983), 82-3199, J.W. v. City of Tacoma, Wash.

Docket Nº:82-3199.
Citation:720 F.2d 1126
Party Name:J.W., K.W., L.J., T.S., L.S., F.S., P.G., and Else Blount, Plaintiffs-Appellees, v. CITY OF TACOMA, WASHINGTON; Mike Parker, Mayor of the City of Tacoma: Tim Strege, Barbara Bischel, John Hawkins, Douglas Sutherland, Jack Hyde, Steve Kirby, Hal Nielsen and Peter Rasmussen, Members of the Tacoma City Council; Erling Mork, City Manager of the City of
Case Date:November 25, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1126

720 F.2d 1126 (9th Cir. 1983)

J.W., K.W., L.J., T.S., L.S., F.S., P.G., and Else Blount,

Plaintiffs-Appellees,

v.

CITY OF TACOMA, WASHINGTON; Mike Parker, Mayor of the City

of Tacoma: Tim Strege, Barbara Bischel, John Hawkins,

Douglas Sutherland, Jack Hyde, Steve Kirby, Hal Nielsen and

Peter Rasmussen, Members of the Tacoma City Council; Erling

Mork, City Manager of the City of Tacoma; Robert Hamilton,

City Attorney of the City of Tacoma; Ben Thompson, Chief,

Building Division of the City of Tacoma; in their official

capacities and their officers, agents, employees and

successors, Defendants-Appellants.

No. 82-3199.

United States Court of Appeals, Ninth Circuit

November 25, 1983

Argued and Submitted Jan. 7, 1983.

Page 1127

Lonnie Davis, Tacoma, Wash., for plaintiffs-appellees.

Kyle Crews, Tacoma, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, and FLETCHER and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

The City of Tacoma appeals from a declaratory judgment concerning the city's refusal to issue a special use permit authorizing persons formerly institutionalized for mental health treatment to be included in a group home located in a residential district. The district court held that the denial of the permit was arbitrary and violated the due process clause of the 14th amendment. We affirm.

I

BACKGROUND

Else Blount, appellee in this action, operates a group home in the City of Tacoma, Washington. No more than eight residents live in the home at any given time. Among Blount's residents are former patients in mental institutions. For purposes of its zoning ordinance, Tacoma defines Blount's home as a "Group Care Home Class II," because it is a "state approved dwelling for persons leaving mental institutions." Tacoma, Wash., Code Sec. 13.06.010(34.1) (1983). Blount's home is located in a district of the city designated "R-2" residential by the city zoning ordinance. Under the ordinance, a Group Care Home Class II may be operated in an R-2 district with a special use permit. Id. Sec. 13.06.375(B)(m) (1982). An identical group home that did not include newly-released mental patients would be classed as a "Group Care Home Class I" and could be operated without a permit.

Soon after she began operating the residence as a Group Care Home Class II, Blount was informed that she was required to obtain a special use permit. She promptly applied. Following a hearing, and acting partly on the basis of an adverse recommendation by the Tacoma Department of Planning, a municipal Hearings Examiner denied the permit. Blount appealed the decision to the Tacoma City Council, which affirmed the denial of the permit by a 5-2 vote.

Blount then commenced this action in federal court. She challenged the ordinance both on its face, as unlawful discrimination

Page 1128

against persons who have suffered from mental illness, and as applied. The district court, without reaching the facial challenge to the ordinance, ruled that the permit scheme had been applied to Blount's home in an arbitrary and unconstitutional manner. The court granted Blount's request for a declaration to that effect, and also entered a permanent injunction against application of the ordinance to Blount. The form of this relief has not been challenged on appeal. 1

The City of Tacoma now appeals from the district court ruling in Blount's favor.

II

DISCUSSION

Generally, a municipal zoning ordinance will not be held unconstitutional if its wisdom is at least fairly debatable and it bears a rational relationship to a permissible state objective. Village of Belle Terre v. Boraas, 416 U.S. 1, 4, 8, 94 S.Ct. 1536, 1538, 1540, 39 L.Ed.2d 797 (1974); Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926). Constitutional scrutiny of zoning regulations is heightened, however, when the regulations infringe a fundamental interest, see, e.g., Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981); Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (opinion of Powell, J.); Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1347 (9th Cir.1982), or discriminate against a suspect class, see, e.g., Buchanan v. Warley, 245 U.S. 60, 74, 82, 38 S.Ct. 16, 18, 20, 62 L.Ed. 149 (1917); Kennedy Park Homes, Inc. v. City of Lackawanna, 436 F.2d 108, 114 (2d Cir.1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546 (1971). The question here presented is whether an ordinance that imposes special disabilities upon residences for former mental patients must receive heightened review.

The Supreme Court has recently restated the basis for determining whether a given legislative action must be subjected to more than ordinary rationality review:

The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus we have treated as presumptively invidious those classifications that disadvantage a "suspect class," or that impinge upon the exercise of a "fundamental right." With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State.

Plyler v. Doe, 457 U.S. 202, 216-18, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982) (footnotes omitted). The Plyler opinion applied heightened scrutiny to legislation in the third category. The legislative classification at issue in Plyler affected a group that was not a suspect class and did not impinge on the exercise of a...

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