From: Ashburn, Melissa Ann
Sent: Monday, April 09, 2012 9:53 AM
Subject: RE: homeless statute
Dear Sir,
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 multifamily 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 nonreligiousbased 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
Melissa A. Ashburn
Legal Consultant
University of Tennessee
Institute for Public Service
Municipal Technical Advisory Service
(865)974-0411