Oxford House, Inc. v. City of Virginia Beach, Va., Civ. A. No. 2:92CV980.

• Decision Date: 02 July 1993
• Docket Number: Civ. A. No. 2:92CV980.
• Citation: 825 F. Supp. 1251
• Court: U.S. District Court — Eastern District of Virginia
• Parties: OXFORD HOUSE, INC., a Delaware not-for-profit corporation; Oxford House — Virginia Beach, an unincorporated association; Oxford House — Chicks Beach, an unincorporated association; Oxford House — Lake Shores, an unincorporated association; and Oxford House — Tidewater, an unincorporated association, Plaintiffs, v. CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Defendant.

825 F. Supp. 1251

OXFORD HOUSE, INC., a Delaware not-for-profit corporation; Oxford House — Virginia Beach, an unincorporated association; Oxford House — Chicks Beach, an unincorporated association; Oxford House — Lake Shores, an unincorporated association; and Oxford House — Tidewater, an unincorporated association, Plaintiffs, v. CITY OF VIRGINIA BEACH, VIRGINIA, a municipal corporation, Defendant.

Civ. A. No. 2:92CV980.

United States District Court, E.D. Virginia, Norfolk Division.

July 2, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stephen Barkai Pershing, ACLU Foundation of Virginia, Frank Morris Feibelman, Feibelman & Erdmann, Richmond, VA, for plaintiffs.

Lawrence Steven Emmert, William M. Macali, Office of the City Atty., Virginia Beach, VA, for defendant.

MEMORANDUM OPINION AND ORDER

PAYNE, District Judge.

This action arises as a consequence of plaintiffs' efforts to maintain group housing for recovering alcohol and drug abusers in areas zoned for "single family" dwellings in Virginia Beach, Virginia (the "City"). The City's zoning ordinance defines a "family" to include groups of no more than four people unrelated by blood or marriage, see Va. Beach Code Zoning Ordinance § 111, but provides that group homes of more than four unrelated persons are permitted uses in each of the City's ten residential districts upon the award of a conditional use permit. See Va. Beach Zoning Ordinance § 501. Because the group homes maintained by plaintiffs all house more than four unrelated people, the City informed plaintiffs that, in order to comply with applicable zoning law, they either would have to reduce to four the number of persons living in the homes or apply for a conditional use permit. See Va. Beach Zoning Ordinance §§ 221, 501.

Plaintiffs refused to pursue either option and instead commenced this action for declaratory and injunctive relief, claiming that the City's zoning scheme, as applied to them, violates their rights under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., as amended by the Fair Housing Amendments Act of 1988 (the "FHAA"), the Rehabilitation Act of 1973, 29 U.S.C. § 794, as amended (the "Rehabilitation Act"), and the Americans With Disabilities Act (the "Disabilities Act"), 42 U.S.C. §§ 12132 et seq. The City has moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). Alternatively, the City claims that plaintiffs' claims are not ripe, and hence present no "case or controversy," until plaintiffs apply for conditional use permits.

To the extent that plaintiffs claim that they are exempt from the requirement that they apply for a conditional use permit, which applies to all private groups of more than four unrelated persons, the court grants the motion to dismiss. The court further holds that, until requests for conditional use permits are made and acted upon by the City, plaintiffs' challenge to the City's zoning scheme as applied to them is premature.

STATEMENT OF FACTS

The salient facts alleged in the complaint are as follows. Plaintiff Oxford House, Inc. is a Delaware not-for-profit corporation whose primary purpose is to provide recovery programs for recovering former alcohol and drug abusers. Oxford House, Inc. assists the approximately 400 Oxford Houses nationwide with, among other things, obtaining start-up loans and providing various program-related support services. In this regard, Oxford House "maintains a contractual relationship with the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services under which the Commonwealth provides revolving loan funds obtained through federal grants ... under the terms of § 2036(a)(1) of the Anti-Drug Abuse Act of 1988." See 42 U.S.C. § 300x — 4a (Compl. ¶ 5). The "Oxford House model" recovery program has as its centerpiece the establishment of "self-governing units of from four to fifteen persons who form coherent and disciplined households chartered as `Oxford Houses.'" (Compl. ¶ 4). There are no resident counsellors or staff at any of the Oxford Houses. According to the Oxford House charter, any resident of an Oxford House who uses drugs or alcohol is expelled from the program. Each resident is required to be employed and to contribute funds toward the maintenance of the group home.

In accord with this program, plaintiffs Oxford House — Virginia Beach, Oxford House — Chicks Beach, Oxford House — Lake Shores, and Oxford House — Tidewater, all unincorporated associations chartered by Oxford House, Inc., rented single-family dwellings at various locations in the City for the purpose of establishing group homes for recovering former substance abusers. More than four persons unrelated by blood or marriage currently reside in each of the plaintiff houses, though the complaint does not specify the exact number of residents.

The City's zoning ordinance permits group homes to operate in any of the City's ten residential districts only if they obtain a conditional use permit. See Va. Beach Zoning Ordinance § 501. Applications for conditional use permits must be filed with the planning director, reviewed by the planning commission, and ultimately approved by the city council. See id. at § 221. The zoning ordinance requires notice of the proposed conditional use and a public hearing before the planning commission and the city council. Prompted by complaints from the Lake Shores Civic League concerning the operation of Oxford House — Lake Shores, a City zoning inspector visited Oxford House — Lake Shores in September 1991 to verify the home's compliance with local zoning requirements. Thereafter, zoning officials issued a notice of violation on the ground that the house contained an impermissible number of unrelated persons. Upon learning of this notice, Oxford House, Inc., lodged a complaint with the United States Department of Housing and Urban Development ("HUD") under the Fair Housing Act on behalf of Oxford House — Lake Shores. After an administrative investigation, HUD found no violation of the Fair Housing Act because the City applies its "unrelated persons" restriction to all unrelated individuals, whether or not they are handicapped.

After HUD concluded its investigation, City zoning officials wrote to the four local Oxford Houses and informed them of the City's intention to take legal action against them unless they complied with the City's zoning code by "`either ... reducing the number of unrelated adults in the Oxford House residences ... to no more than (4) or ... applying for a conditional use permit.'" (Compl. ¶ 18). Rather than pursue either option, plaintiffs filed this action. Specifically addressing the City's suggested modes of complying with the zoning ordinance, the complaint essentially alleges that for financial and therapeutic reasons, the number of residents cannot be reduced to four.¹ Compl. ¶ 19. The complaint also alleges that it is not "fair or feasible" to require plaintiffs to apply for a conditional use permit because the application process will expose the residents "to effectively unrestricted public scrutiny of their personal lives and histories" that "can be expected by itself to cause plaintiff households to disintegrate." (Compl. ¶ 21).

In broad and conclusory terms, the complaint alleges that the City's inspection, and subsequent citation, of Oxford House — Lake Shore and Oxford House — Chicks Beach constitutes intentional discrimination against plaintiffs because of their members' handicap, and hence violates the Fair Housing Act. The complaint further alleges that the conduct of the City in notifying all four local Oxford Houses that they were violating the zoning ordinance, and in insisting that plaintiffs comply with the ordinance or reduce the number of occupants to four (which plaintiffs call a "citation"), has the effect of discriminating against them by reason of their members' handicap and also violates the Fair Housing Act. Finally, plaintiffs allege that the City's refusal to waive its four "unrelated persons" limitation, together with its insistence that plaintiffs apply for conditional use permits, constitute a failure to make "reasonable accommodations" in the enforcement of the City's zoning ordinance in violation of the Fair Housing Act, the Rehabilitation Act, and the Disabilities Act.

The City moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). After oral argument on the motion to dismiss, the court requested the parties to submit briefs on whether plaintiffs have standing to pursue this action and on whether plaintiffs' failure to apply for conditional use permits renders their attack on the City's zoning scheme, as applied to them, premature.²

DISCUSSION

In ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must ascertain whether the factual allegations in the complaint, taken as true and viewed in the light most favorable to the plaintiff, "constitute `a short and plain statement of the claim showing that the pleader is entitled to relief.'" Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir.1992). The court is not required, however, to accord a presumption of truthfulness to legal conclusions or deductions that are alleged or drawn from pleaded facts. E.g., Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 432 (7th Cir.1978); Albany Welfare Rights Org. Day Care Center, Inc. v. Schreck, 463 F.2d 620, 623 (2d Cir.1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973); see also 2A Moore's Federal Practice ¶ 12.072.5, pp. 12-65, 12-66 (2d ed. 1993). In reviewing the sufficiency of the complaint, the court is mindful that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief." Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

The court first considers the...