|Legal Opinion: |
Text of Document: From: Ashburn, Melissa Ann
Sent: Monday, April 09, 2012 9:53 AM
Subject: RE: homeless statute
After reviewing the CA city ordinance you forwarded, I do think that will be upheld if challenged, due to the fact it is an exercise of emergency powers, and essentially opens up areas of the city in which such shelters would not have been permitted before the emergency. Therefore, it actually increases the number of zones in which these emergency shelters for homeless can operate.
If the Council member is asking about controlling the location of homeless housing in general, in my opinion the only method which may be used to control or limit the location of homeless housing is through density restrictions only, much like zoning for multi-family housing. Focusing on density is constitutional, and it applies to any population. Identifying homeless people as a class to be regulated by zoning is unconstitutional, violating the equal protection clause. Cities are permitted to identify businesses and regulate and limit the location of businesses such as adult oriented establishments (strip clubs), as there is no equal protection violation for such classifications of business activities. However, people may not be classified for purposes of zoning or other city regulations. [the CA ordinance will be upheld, in my opinion, as it actually opens up more areas for homeless housing than their density restrictions would have allowed, in emergencies for limited periods]
There are no cases on the specific issue of regulating the location of homeless housing in Tennessee. There are, however, some cases from other states. If the homeless housing or support is provided by a church, then the cases are typically won by those churches based on religious freedom and expression rights. Following are some case notes:
City of Woodinville v. Northshore United Church of Christ, 166 Wash. 2d 633, 211 P.3d 406 (2009) (Wash. Const. art. I, § 11 provides greater protection for religious uses than federal constitution; church need only show (1) belief is sincere and (2) that government action burdens exercise of religion, then burden shifts to government to show is has used narrow means for achieving compelling goal; here, city's six-month moratorium on issuance of land use permits pending completion of study on sustainable development, would prevent church from hosting Tent City—a movable encampment of homeless people—violated church rights because it substantially burdened exercise of religion, and city had not argued moratorium was narrow means to achieve compelling goal)
Abbott v. City of Fort Lauderdale, 783 So. 2d 1213 (Fla. Dist. Ct. App. 4th Dist. 2001) (under Florida Religious Freedom Restoration Act, Fla. Stat. §§ 761.03(1)(a) to (b), city was obligated to provide an alternative public property site for operation of feeding program for the homeless that was at least minimally suitable for such purposes).
Western Presbyterian Church v. Board of Zoning Adjustment of District of Columbia, 862 F. Supp. 538 (D.D.C. 1994) (zoning out homeless meals facility operated by church violates free exercise of religion).
Johnson v. City of Dallas, 860 F. Supp. 344 (N.D. Tex. 1994), rev’d in part, vacated in part, 61 F.3d 442 (5th Cir. 1995) (ordinance prohibiting sleeping in public unconstitutional as applied against homeless persons because sleeping in public is concomitant of their status as homeless persons).
Support Ministries For Persons With AIDS, Inc. v. Village of Waterford, N.Y., 799 F. Supp. 272 (N.D. N.Y. 1992) (state officials have parens patriae standing to sue village for denying zoning approval for residence for homeless persons with AIDS).
City of New York v. Town of Blooming Grove Zoning Bd. of Appeals, 305 A.D.2d 673, 761 N.Y.S.2d 241 (2d Dep't 2003), leave to appeal dismissed, 100 N.Y.2d 614, 767 N.Y.S.2d 396, 799 N.E.2d 619 (2003) (local regulations of homeless shelters preempted by state laws and regulations); Abbott House v. Village of Tarrytown, 34 A.D.2d 821, 312 N.Y.S.2d 841 (2d Dep't 1970)
Family Life Church v. City Of Elgin, 561 F. Supp. 2d 978 (N.D. Ill. 2008).
A city ordinance requiring conditional use permit to operate homeless shelter in the city center district was facially neutral for purposes of the church's challenge to ordinance under the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (RLUIPA), in that the ordinance applied to both religious-based and nonreligious-based shelters and also applied to many other types of land uses including billiard parlors, child day care centers, and food stores.
Homes of Hope v Mount Holly Township Zoning Bd of Adjustment (1989) 236 NJS 584, 566 A2d 575.
In requesting a variance to convert a large single family home to a two family residence for low income or homeless persons, the purpose satisfies the special reasons necessary. Since there are additional two family buildings within 200 ft of the proposed property, there would be no detriment to the public health and welfare to raise the negative criteria. The purpose of the housing for low income and homeless persons is a public purpose despite being carried on by a nonprofit semi-private organization. Grant of permanent parking spaces on the church parking lot satisfies the negative criteria of inadequate parking.
Gillen v Zoning Bd of Appeals of Cortlandt (1988) 144 AD2d 433, 533 NYS2d 1003. The use of a former summer bungalow colony for temporary housing for homeless people is valid. The housing colony is a permitted use due to its preexistence. The use falls within density requirements of the ordinance due to its seasonal nature; the ordinance otherwise does not preclude use of the housing on a year-round basis. The housing is temporary since occupancy lasts an average of six to eight months while tenants seek other, permanent housing in the area. Since there are no prohibitions against the use of stoves in the ordinance, denial of the use on this basis is arbitrary.
Market Street Mission v. Zoning Bd. of Adjustment of City of Asbury Park, 2010 WL 3834409 (N.J.Super.A.D.,2010).
A city should have granted a nonprofit mission that addressed the needs of the homeless in the community its request for use variances. The variances were needed for the mission to be able to operate a soup kitchen, a residential living space, a place of worship, and a business. The city did not produce sufficient evidence that allowing the mission to build these structures would create harm for the city, because of the type of people that the city anticipated would use the mission, i.e., people with criminal backgrounds, people with drug and alcohol abuse issues, etc. The mission's proposal was an inherently beneficial use, and should have been granted.
Based on my research, in my opinion you can’t limit the location of homeless housing or homeless services through any means other than density restrictions in zoned areas. If you get some information about the specific regulations the Councilmember is interested in, let me know and I’ll do further research.
I hope this helps. [I’ll get back to you later in the week with research on your other question]
Melissa A. Ashburn
University of Tennessee
Institute for Public Service
Municipal Technical Advisory Service