United States v. 2012-02-17 | 10-55563 | PUTNAM FAMILY PARTNERSHIP V. CITY OF YUCAIPA | precedential…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 PUTNAM FAMILY PARTNERSHIP;
MISSION VALLEY OAKS, LLC; No. 10-55563
CARAVAN ESTATES, LLC; and D.C. No. DEJAGER CHILDRENS TRUST, 5:09-cv-02203-  Plaintiffs-Appellants, VAP-OP
v. OPINION
CITY OF YUCAIPA, CALIFORNIA,
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
November 8, 2011—Pasadena, California
Filed February 17, 2012
Before: Ferdinand F. Fernandez, Karen Nelson Moore,* and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Moore
*The Honorable Karen Nelson Moore, Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
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COUNSEL
Elliot L. Bien and Amy E. Margolin, Bien & Summers,
Novato, California; Terry R. Dowdall, Dowdall Law Offices,
APC, Orange, California, for the appellants.
Michael Estrada, City Attorney, City of Yucaipa, Yucaipa,
California; Rochelle Browne and Steven L. Flower, Richards,
Watson & Gershon, Los Angeles, California, for the appellee.
OPINION
KAREN NELSON MOORE, Circuit Judge:
Four mobilehome park owners in Yucaipa, California
appeal the dismissal of their suit under the Fair Housing
Amendments Act of 1988 (“FHAA”) challenging a city zon-
ing ordinance prohibiting any mobilehome park currently
operating as senior housing from converting to all-age hous-
ing. Because the FHAA is silent on whether such senior-
housing zones are permissible and because federal regulations
allow for them, we AFFIRM the judgment of the district
court.
I. BACKGROUND
In September 2009, the City of Yucaipa, California (“the
City”) adopted Ordinance Number 289 (“the Ordinance”),
which amended the City’s land-use plan by creating a Senior
Mobilehome Park Overlay District (the “Overlay District”).
The Ordinance prohibits any of the twenty-two mobilehome
parks in the City that currently operate as senior housing,
defined as a park in which either eighty percent of the spaces
are occupied by or intended for occupancy by at least one per-
son who is age fifty-five or older or one hundred percent of
the spaces are occupied by or intended for occupancy by peo-
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ple who are age sixty-two or older, from converting to all-age
housing. Yucaipa, Cal., Ordinance 289 §§ 7, 8 (Sept. 28,
2009). Specifically, the Ordinance requires that “[a]t least
80% of the spaces in mobilehome parks in the Senior Mobile-
home Park Overlay District shall be occupied by at least one
person 55 years of age or older,” and that “[t]he signage,
advertising, park rules, regulations, rental agreements and
leases for spaces in a Senior Mobilehome Park in the MHP2
Overlay District shall state that the park is a senior park.” Id.
§ 9. Among its findings accompanying the Ordinance, the
Yucaipa City Council described the need to preserve afford-
able housing and independent living options for the City’s
significant senior population,1 as well as to protect the reli-
ance interests of those seniors who had purchased homes in
existing senior-housing parks.
Plaintiffs-Appellants Putnam Family Partnership, Mission
Valley Oaks, Caravan Estates, and Dejager Children’s Trust
(collectively, “Putnam”), mobilehome park owners that cur-
rently operate senior-housing parks in Yucaipa, filed suit,
alleging that the Ordinance violated the FHAA by forcing
them to discriminate on the basis of familial status, see 42
U.S.C. § 3604, and by interfering with their ability to “aid[ ]
or encourage[ ]” families with children in the enjoyment of
fair housing rights, id. § 3617. Putnam also argued that the
Ordinance was preempted by the FHAA because it required
Putnam to take action that the FHAA prohibited. See id.
§ 3615. In addition to these federal-law claims, Putnam
alleged violations of California housing law. The City filed a
motion to dismiss for failure to state a claim, arguing that the
Ordinance fell within the FHAA’s senior exemption, which
allows communities that provide “housing for older persons”
to exclude families with children. Id. § 3607(b)(1). The City
contended that, as amended by the Housing for Older Persons
1Twenty-four percent of the City’s population is age fifty-five or older,
as compared to just under fifteen percent of the population of San Bernar-
dino County as a whole.
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Act of 1995 (“HOPA”) and as interpreted by Department of
Housing and Urban Development (“HUD”) regulations in
1999, the senior exemption applied to city-zoned senior hous-
ing like the Overlay District. Putnam argued that the senior
exemption did not apply because the senior exemption
requires that the housing provider intend to operate senior
housing, and Putnam lacked this intent.
The district court granted the City’s motion to dismiss,
holding that the Ordinance was covered by the federal senior
exemption because, under the HOPA amendments, the
required intent to provide senior housing need not be that of
the private property owner. Because the City enacted the
Ordinance, the court held, the required intent to provide
senior housing was that of the City rather than Putnam. The
court rejected Putnam’s arguments to the contrary as based on
pre-HOPA language requiring that the owner or manager of
the housing entity intend to provide senior housing for the
senior exemption to apply. For similar reasons, the court held
that the Ordinance was not preempted. After dismissing the
federal claims, the court declined to exercise supplemental
jurisdiction over the state-law claims. Putnam timely
appealed, repeating its argument that the decision whether to
operate senior housing belongs exclusively to the housing
provider and, thus, that the intent to provide senior housing
which the senior exemption requires must be that of Putnam,
not the City. In addition, Putnam contends that the HUD regu-
lations on which the district court relied are inconsistent with
the statute or otherwise outside the scope of the agency’s
authority.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s dismissal for failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Decker v. Advantage Fund Ltd., 362 F.3d 593, 595-
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96 (9th Cir. 2004). Dismissal is proper when, even if all mate-
rial factual allegations in the complaint are taken as true,
plaintiffs “can prove no set of facts in support of the claim
that would entitle [them] to relief.” Aguayo v. U.S. Bank, 653
F.3d 912, 917 (9th Cir. 2011). We likewise review de novo
questions of statutory interpretation and of preemption. Id.
B. The Federal Senior Exemption
[1] As originally enacted, the federal Fair Housing Act
prohibited, inter alia, discrimination in the rental or sale of a
dwelling on the basis of race, color, religion, sex, or national
origin. 42 U.S.C. § 3604(a) (1968). In 1988, Congress enacted
the FHAA, which amended the Fair Housing Act to prohibit
discrimination on the basis of familial status. 42 U.S.C.
§ 3604; see also id. § 3602(k) (defining “familial status” as
children younger than eighteen living with a parent or legal
custodian). The FHAA also provided two exemptions to the
new prohibition against familial-status discrimination: the
prohibition would not affect local, state, or federal restrictions
on maximum occupancy and would not apply to “housing for
older persons.” Id. § 3607(b)(1). The senior exemption “per-
mit[s] communities satisfying certain requirements to discrim-
inate on the basis of familial status.” Balvage v. Ryderwood
Improvement & Serv. Ass’n, 642 F.3d 765, 769 (9th Cir.
2011). The senior exemption is an affirmative defense, for
which the defendant has the burden of proving eligibility. Id.
at 776 (citing Massaro v. Mainlands Section 1 & 2 Civic
Ass’n, 3 F.3d 1472, 1475 (11th Cir. 1993)). Moreover, the
defendant must show that all requirements for the senior
exemption were met at the time of the alleged discriminatory
act. Id.
Under the senior-exemption provision as originally enacted
in the FHAA, “housing for older persons” included housing
“intended and operated for occupancy by at least one person
55 years of age or older per unit.” 42 U.S.C. § 3607(b)(2)(C)
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(1988), amended by 42 U.S.C. § 3607(b)(2)(C) (1995). The
FHAA further stated that,
In determining whether housing qualifies as housing
for older persons under this subsection, the [HUD]
Secretary shall develop regulations which require at
least the following factors:
(i) the existence of significant facilities and
services specifically designed to meet the
physical or social needs of older persons, or
if the provision of such facilities and ser-
vices is not practicable, that such housing is
necessary to provide important housing
opportunities for older persons; and
(ii) that at least 80 percent of the units are
occupied by at least one person 55 years of
age or older per unit; and
(iii) the publication of, and adherence to,
policies and procedures which demonstrate
an intent by the owner or manager to pro-
vide housing for persons 55 years of age or
older.
Id.
Focusing on the language in subpart (iii) that eligibility for
the senior exemption requires that the owner or manager
intend to provide senior housing, several district court cases
held that a city could not interfere with a private housing enti-
ty’s decision whether to meet the senior exemption. Mobile
Home Vill. Inc. v. Twp. of Jackson, 3 Fair Hous.–Fair Lending
(P-H) ¶ 16,018 (D.N.J. 1995) (holding senior-housing zoning
ordinance invalid as applied); Cedar Hills Developers, Inc. v.
Twp. of Wyckoff, 2 Fair Hous.–Fair Lending (P-H) ¶ 15,675
(D.N.J. 1990) (same); see also United States v. City of Hay-
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ward, 805 F. Supp. 810, 812-14 (N.D. Cal. 1992) (city rent-
control board’s decision to reduce rent when mobilehome
park owners opened the park to families with children vio-
lated the FHAA), rev’d in part on other grounds, 36 F.3d 832
(9th Cir. 1994).
[2] In 1995, Congress amended the requirements to qualify
for the senior exemption. Under HOPA, “housing for older
persons” remains exempt from the prohibition against
familial-status discrimination. HOPA replaced the FHAA’s
definition of “housing for older persons” with a provision
defining “housing for older persons” as housing
(C) intended and operated for occupancy by persons
55 years of age or older, and—
(i) at least 80 percent of the occupied units
are occupied by at least one person who is
55 years of age or older;
(ii) the housing facility or community pub-
lishes and adheres to policies and proce-
dures that demonstrate the intent required
under this subparagraph; and
(iii) the housing facility or community com-
plies with rules issued by the Secretary for
verification of occupancy, which shall—
(I) provide for verification by reliable
surveys and affidavits; and
(II) include examples of the types of pol-
icies and procedures relevant to a deter-
mination of compliance with the
requirement of clause (ii). Such surveys
and affidavits shall be admissible in
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administrative and judicial proceedings
for the purposes of such verification.
42 U.S.C. § 3607(b)(2)(C).2
[3] The legislative history reveals that the central purpose
of the HOPA amendments was the elimination of the FHAA’s
“significant facilities and services” requirement. See, e.g., S.
Rep. No. 104-172, at 2 (1995) (“The purpose of H.R. 660 is
to eliminate the burden of the ‘significant facilities and ser-
vices’ requirement in the seniors housing exemption of the
Fair Housing Act.”), reprinted in 1995 U.S.C.C.A.N. 778,
779. The House and Senate Judiciary Committee Reports crit-
icized administrative interpretations of that provision that
made compliance with the senior exemption difficult and thus
limited the availability of senior housing. Id. at 5-6; H.R. Rep.
No. 104-91, at 2-4 (1995), 1995 WL 136513, at *2-4. The
Senate Report also expressed Congress’s desire to clarify
whether housing qualifies for the senior exemption and its
general purpose “to preserve housing for older persons.” S.
Rep. No. 104-172, at 2, 6.
[4] HOPA also removed the FHAA’s requirement that the
intent to provide senior housing demonstrated in published
policies and procedures must be that of the “owner or manag-
er.” In addition, HOPA specified that the duty to publish and
adhere to such policies and procedures lies with the “housing
facility or community.” 42 U.S.C. § 3607(b)(2)(C)(ii). Unlike
with the elimination of the “significant facilities and services”
requirement, however, the legislative history does not offer a
reason for the deletion of the reference to “owner or manag-
2The senior exemption also applies to housing “provided under any
State or Federal program that the Secretary determines is specifically
designed and operated to assist elderly persons (as defined in the State or
Federal program)” or “intended for, and solely occupied by, persons 62
years of age or older.” 42 U.S.C. § 3607(b)(2)(A), (B). Neither of these
situations is presented in this case.
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er.” Nor do the statute or the committee reports define “hous-
ing facility or community” or otherwise explain why that
phrase was added.
In 1999, HUD issued regulations interpreting the amended
senior exemption. The agency defined “housing facility or
community” as “any dwelling or group of dwelling units gov-
erned by a common set of rules, regulations or restrictions.”
24 C.F.R. § 100.304(b). As non-exclusive examples, HUD
listed a condominium association, a cooperative, property
governed by a homeowners’ association, leased property
under common private ownership, a mobile home park, a
manufactured housing community, and, most notably for this
case, “[a] municipally zoned area.” Id. The HUD regulations
also explained how a housing facility or community could sat-
isfy the senior exemption’s requirement that it “publish and
adhere to policies and procedures that demonstrate its intent
to operate as [senior] housing.” Id. § 100.306. In an appendix
to the final rule intended “to provide guidance to housing
facilities or communities in applying these HUD require-
ments,” the agency listed specific examples of how various
facilities and communities could meet this intent requirement.
64 Fed. Reg. 16324, 16331, 16332 (Apr. 2, 1999). One such
example dealt with a zoned area:
An area zoned by a unit of local government as “se-
nior housing” satisfies the intent requirement if:
(1) Zoning maps containing the “senior housing”
designation are available to the public;
(2) Literature distributed by the area describes it as
“senior housing”;
(3) The “senior housing” designation is recorded in
accordance with local property recording stat-
utes; and
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(4) Zoning requirements include the 55-or-older
requirement or a similar provision.
Id. at 16332 ex.2. The appendix also explained that, overall,
the regulations were intended to reflect HOPA’s goal of “pro-
tect[ing] senior housing.” Id. at 16325.
C. The Validity of the City of Yucaipa’s Ordinance 289
1. Does the Ordinance Violate the FHAA?
Putnam contends that the Ordinance violates the FHAA by
requiring that Putnam discriminate against families with chil-
dren and by interfering with its ability to aid such families in
the exercise of their fair housing rights. As described above,
however, discrimination on the basis of familial status does
not violate the FHAA if the federal senior exemption applies
because the FHAA’s ban on such discrimination does not
apply to “housing for older persons.” 42 U.S.C. § 3607(b)(1).
If the requirements for the senior exemption are met, any lim-
its that the Ordinance places on Putnam’s ability to sell units
in its mobilehome park are lawful under the FHAA and Put-
nam has thus failed to state a claim for violation of the
FHAA.
Putnam contends that the federal senior-exemption require-
ments are not met if the “on-site housing provider” lacks the
intent to operate senior housing, and, thus, that the senior
exemption does not apply when a city forces an unwilling
housing provider to operate senior housing.3
3Although it is uncontested that Putnam currently meets the require-
ments for the federal senior exemption and operates as senior housing, see
First Amended Complaint (“Compl.”) at 3, 6-7 (noting that, as of the filing
of the complaint, none of the park owners had “actually cho[sen] to amend
their rules and regulations to allow for ‘familial status’ housing”), Putnam
asserts that it has the right to convert to all-age housing. See id. at 3. Even
if Putnam’s litigation position signals an abandonment of its historical
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The City counters that the senior exemption does not
require that the housing provider has the intent to operate
senior housing; when a city seeks to provide senior housing
through the exercise of its zoning authority, the intent to pro-
vide senior housing can be that of the city itself. As long as
the other requirements for the senior exemption are met, the
City asserts that any discrimination against families with chil-
dren that results from the Ordinance does not violate the
FHAA.
a. The Relevant Intent
[5] The question of whether the federal senior exemption
can apply when the intent to provide senior housing is that of
a city is apparently one of first impression in the courts of
appeals. By including “[a] municipally zoned area” as an
example of a “housing facility or community” that can qualify
for the senior exemption, the HUD regulations clearly allow
city-zoned senior housing like the City’s Overlay District. See
24 C.F.R. § 100.304(b). Further, HUD has explained that a
housing facility or community satisfies the senior exemption’s
intent requirement if, inter alia, “[z]oning requirements
include the 55-or-older requirement” and “[z]oning maps con-
taining the ‘senior housing’ designation are available to the
public.” 64 Fed. Reg. at 16332 ex. 2. These actions reflect the
intent to operate as senior housing, it is still uncontested that the other
requirements—an eighty-percent senior population, adherence to pub-
lished policies and procedures, and compliance with HUD age-verification
rules—are currently met.
A different question may be presented if the Ordinance required parks
that did not already maintain an eighty-percent senior population or
describe themselves as senior parks to do so, but we leave that question
for another day. We do note, however, that the fact that Putnam already
operates as senior housing in compliance with the federal senior exemp-
tion further distinguishes this case from our pre-HOPA decision in City of
Hayward, 36 F.3d at 836-38.
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City’s intent to provide senior housing, because they are
actions that the City undertakes.
We will defer to an agency’s interpretation of a statute that
it is charged with implementing if the statute is ambiguous
and the agency’s interpretation is reasonable. Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984). A statute is ambiguous if Congress has not
“directly spoken to the precise question at issue.” Id. at 842.
We routinely “defer to HUD’s reasonable interpretation of the
FHA[A].” Balvage, 642 F.3d at 775 (citing Meyer v. Holley,
537 U.S. 280, 287-88 (2003)).4
In determining whether a statute is ambiguous, we apply
the traditional tools of statutory construction, including look-
ing to the plain meaning of the text or the underlying purpose
of the statute. See Chevron, 467 U.S. at 843 n.9.
The FHAA’s senior-exemption provision, as amended by
HOPA, refers to “intent” in two places. First, the statute
requires that housing be “intended and operated for occu-
pancy by persons 55 years of age or older,” 42 U.S.C.
§ 3607(b)(2)(C), but does not explain whose intent to provide
senior housing is required. Second, the statute requires that
“the housing facility or community publishes and adheres to
policies and procedures that demonstrate the intent required
4Although the appendix containing Example 2 was not codified as part
of the final rule in the Code of Federal Regulations, it was included in the
notice of proposed rulemaking and was thus subject to notice and com-
ment. See 62 Fed. Reg. 2000, 2005 (Jan. 14, 1997). Even if the appendix
lacks the force of law and does not merit Chevron deference, it is HUD’s
interpretation of HUD’s own regulation and is thus “controlling unless
‘plainly erroneous or inconsistent with the regulation.’ ” Auer v. Robbins,
519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 359 (1989)). The appendix is also worthy of Skid-
more deference “according to its persuasiveness.” United States v. Mead
Corp., 533 U.S. 218, 221 (2001) (citing Skidmore v. Swift & Co., 323 U.S.
134 (1944)).
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under this subparagraph,” id. § 3607(b)(2)(C)(ii). This second
reference to “intent” clarifies that the intent to provide senior
housing must be that of the “housing facility or community.”5
Putnam contends that, as a linguistic matter, a city cannot
qualify as a “housing facility or community.” Whatever the
lexical merits of this argument, it is not dispositive of the
issue of whether a city’s intent to provide senior housing can
trigger the federal senior exemption. Even if the city as a
whole is not a housing facility or community, a municipally
zoned area which the city created can be. Further, as the dis-
trict court recognized, “[b]ecause the Ordinance creating the
municipally zoned area was enacted by the City, the relevant
inquiry is the intent of the City.” Dist. Ct. Op. at 8-9. Just as
the intent of a mobilehome park might be the intent of the
company that owns the park or the intent of the residents who
live there, the intent of a municipally zoned area is the intent
of the city that created it. The City made the decision to zone
the area as senior housing and provided the common set of
rules that made it a community. Thus, the more precise ques-
tion is whether the Overlay District which the City created
can qualify as a “housing facility or community.”
Neither the statute nor the committee reports on HOPA
define “housing facility or community.” We need not consider
what this phrase could mean in the abstract, however, as the
5We note that the text is actually somewhat ambiguous on this point.
The statute does not require “policies and procedures that demonstrate an
intent by the housing facility or community,” but rather requires “policies
and procedures that demonstrate the intent required under this subpara-
graph,” 42 U.S.C. § 3607(b)(2)(C)(ii), a reference to housing “intended
and operated for occupancy by persons 55 years of age or older,” id.
§ 3607(b)(2)(C). In regulations explaining how a housing facility or com-
munity can meet the “policies and procedures” requirement, however,
HUD states that “a housing facility or community . . . must publish and
adhere to policies and procedures that demonstrate its intent to operate as
housing for persons 55 years of age or older.” 24 C.F.R. § 100.306(a)
(emphasis added).
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text and history of the senior-exemption provision provide
some clarification as to what it means in this context. A
“housing facility or community” must be able to “publish[ ]
and adhere[ ] to policies and procedures that demonstrate the
intent” to provide senior housing, 42 U.S.C.
§ 3607(b)(2)(C)(ii), and must be able to “compl[y] with rules
issued by the Secretary for verification of occupancy,” id.
§ 3607(b)(2)(C)(iii). Further, the universe of entities that can
qualify as housing facilities or communities must be broader
than the owners or managers of the housing that will be oper-
ated as senior housing, because HOPA added “housing facil-
ity or community” when it deleted the FHAA’s requirement
that “an intent by the owner or manager to provide [senior]
housing” be demonstrated for the senior exemption to apply.
The natural reading of “housing facility or community” is
a group of dwellings bound together by shared characteristics,
such as a common set of rules or a shared governing structure.
In the context of the senior exemption, the relevant shared
characteristic would be a common set of rules that determine
who can rent or buy one of the dwellings. As amended by
HOPA, the FHAA does not address whether the residency
rules for the dwellings within the housing facility or commu-
nity must be adopted internally or can instead be imposed by
a city through the exercise of its zoning authority. Moreover,
the statute is silent as to situations in which various actors
affiliated with the housing disagree over whether it should
operate as senior housing—for example, when a condomin-
ium association wants to operate as senior housing but some
of the individual owners of the condominiums do not.
[6] The senior-exemption provision’s requirement that “the
housing facility or community publishes and adheres to poli-
cies and procedures that demonstrate the intent” to provide
senior housing makes clear that “housing facility or communi-
ty” also refers to the entity with the power to issue and
enforce age restrictions. Id. § 3607(b)(2)(C)(ii).6 The statute
6Putnam argues that zoning laws are not “policies and procedures,” but
we believe that the age restriction is the relevant policy, regardless of how
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does not place limits on or otherwise explain what kind of
entity can exercise this power; we know that entities other
than the owners or managers of the housing that will be oper-
ated as senior housing can do so, but Congress has provided
no further guidance.7
As amended by HOPA, the FHAA thus does not expressly
address whether a city’s intent can qualify housing for the
senior exemption. Nothing in the text or the relevant legisla-
tive history either clearly permits or precludes a determination
that the required intent comes from a city.8
it is promulgated. Moreover, a law certainly sets forth policies and proce-
dures. The other FHAA provision which Putnam identifies that specifi-
cally refers to local laws is distinguishable. Section 3604(f)(5)(A) provides
that housing entities are deemed to comply with required federal accessi-
bility standards by complying with state or local laws that incorporate the
federal standard. This provision refers exclusively to governmental
requirements, while the senior exemption refers to actions that could be
taken by either private entities or local governments. The latter’s use of
the more inclusive phrase “policies and procedures” rather than “laws”
thus does not clearly exclude zoning ordinances.
Putnam also points to § 3607(b)(1), which explains that other provisions
in the FHAA do not limit the applicability of “reasonable local, State, or
Federal restrictions regarding the maximum number of occupants permit-
ted to occupy a dwelling.” If local laws can be “restrictions,” however, we
believe that they can also be “policies and procedures.”
7Even before HOPA, when the senior exemption required the intent of
the owner or manager to provide senior housing, the Eleventh Circuit held
that a neighborhood association that did not own, rent, sell, or advertise
the housing could claim the senior exemption because the association “re-
gulate[d] the use of the homes . . . by amending the [age] restrictions” and
“ha[d] the power to enforce the [age] restrictions and thus[ ] to exclude
persons from occupancy in the homes.” Massaro, 3 F.3d at 1477. Because
the association “perform[ed] functions which are relevant to the goals of
the [FHAA],” it was subject to the FHAA’s prohibition on familial-status
discrimination and was also eligible for the FHAA’s senior exemption. Id.
Like the association in Massaro, the City has the power to issue and
enforce age restrictions that comply with the FHAA and with HOPA.
8Putnam emphasizes the lack of express authorization for senior-
housing zones in the statute or legislative history as support for its posi-
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The public policy underlying the FHAA does not conclu-
sively favor one reading of the statute. As a general matter,
the primary goal of the FHAA is to limit discrimination in the
housing arena, and senior housing is a permissible exception
to the rule. Yet the FHAA created the senior exemption at the
same time as the prohibition on familial-status discrimination.
Furthermore, HOPA, which passed both Houses of Congress
nearly unanimously, focused on the “need to preserve housing
for older persons” in expanding the availability of the federal
senior exemption. S. Rep. No. 104-172, at 6. Finally, defer-
ence is particularly appropriate when we are dealing with
interpretive decisions that Congress would likely have chosen
to delegate to the agency. Congress may well prefer to dele-
gate the task of balancing competing policies and interests,
especially when (as with seniors and families), both are popu-
lar.
[7] Considering both the text and the underlying purpose
of the FHAA, as amended by HOPA, we conclude that Con-
gress has not “directly spoken to the precise question at
issue.” Chevron, 467 U.S. at 842. Instead, Congress likely
“did not actually have an intent,” id. at 845, regarding senior-
housing zones when it enacted HOPA. Therefore, we defer to
HUD’s definition of “housing facility or community” as “any
dwelling or group of dwelling units governed by a common
set of rules, regulations or restrictions,” and its inclusion of a
“municipally zoned area” as an example, to the extent that the
definition is reasonable. See 24 C.F.R. § 100.304(b).
Municipally zoned senior housing is consistent with Con-
gress’s efforts in enacting HOPA to “preserve housing for
tion. Although the “dog that didn’t bark” may have helped Sherlock
Holmes solve the case in “Silver Blaze,” legislative silence is generally a
tenuous basis for statutory construction. See Freeman v. DirecTV, Inc.,
457 F.3d 1001, 1007 (9th Cir. 2006) (“[W]e do not apply a ‘dog that
didn’t bark’ theory of statutory construction . . . .”) (quoting Patenaude v.
Equitable Life Assurance Soc’y, 290 F.3d 1020, 1025 (9th Cir. 2002)).
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older persons.” S. Rep. No. 104-172, at 6. Further, such zon-
ing policies do not undermine the FHAA’s protection of fami-
lies with children. Especially when the housing entities within
the zoned area already operate as senior housing, municipal
zoning does not represent as significant an expansion of the
federal senior exemption as Putnam fears. Here, the City must
ensure that the Overlay District meets the fairly rigorous stat-
utory requirements of maintaining an eighty-percent senior
population, publishing and adhering to policies, and comply-
ing with occupancy verification rules, see 42 U.S.C.
§ 3607(b)(2)(C), and that the Overlay District does so in
advance of engaging in what would otherwise be discrimina-
tory conduct, see Balvage, 642 F.3d at 776.
Allowing the intent to provide senior housing to be that of
a city still ensures that such operation is, in fact, intentional—
that the true reason for the exclusion of families with children
is to provide senior housing, rather than animus against fami-
lies with children. As long as the decision to provide senior
housing is intentional, whether that intent belongs to a city or
a housing provider is irrelevant. Moreover, the most important
aspect of the intent requirement is that the intent be demon-
strated in published policies, see 42 U.S.C.
§ 3607(b)(2)(C)(ii), which give notice to tenants and potential
tenants and ensure that age requirements are applied consis-
tently. Ordinance 289 satisfies this purpose.
b. HUD’s Authority
Putnam also argues that, apart from issues of ambiguity or
reasonableness, we should not consider the HUD regulations
because Congress did not grant the agency authority to define
“housing facility or community.” Congress has invested the
HUD Secretary with rulemaking authority, id. § 3535(d), and
with the general “authority and responsibility for administer-
ing this Act,” id. § 3608(a). Although Congress did not
expressly direct HUD to define “housing facility or communi-
ty,” Congress did not define that phrase itself, and as the
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Supreme Court recognized in Chevron, “[s]ometimes the leg-
islative delegation to an agency on a particular question is
implicit rather than explicit,” 467 U.S. at 844. Moreover,
HOPA instructed HUD to illustrate how a housing facility or
community could demonstrate the intent to provide senior
housing. 42 U.S.C. § 3607(b)(2)(C)(iii)(II). HUD’s Example
2, which explains that a housing community satisfies the
intent requirement if, inter alia, “[z]oning requirements
include the 55-or-older requirement,” 64 Fed. Reg. at 16332
ex 2., is an exercise of this expressly delegated authority.
Moreover, HOPA did not limit HUD’s regulatory authority
regarding the senior exemption to the extent that Putnam con-
tends. HOPA deleted language directing HUD to develop reg-
ulations to “determin[e] whether housing qualifies as housing
for older persons,” but the amended law still provides for
agency involvement in setting qualifications for the senior
exemption by directing HUD to issue rules for verification of
occupancy and to provide examples of policies and proce-
dures that would satisfy the intent requirement. 42 U.S.C.
§ 3607(b)(2)(C)(iii). Although the legislative history shows
that a major purpose of the HOPA amendments was to over-
turn administrative interpretations of the FHAA’s “significant
facilities and services” requirement that Congress believed
were unduly limiting eligibility for the senior exemption, the
remedy was removing that requirement rather than cabining
HUD’s general authority to issue regulations.
c. Age Verification
Putnam’s final argument is that, even if senior-housing
zones are permissible as a general matter, the City’s Overlay
District does not qualify for the federal senior exemption
because the Ordinance does not contain a mechanism for
meeting HUD’s occupancy-verification rules. See id.; 24
C.F.R. § 100.307. Putnam raises this issue for the first time on
appeal. We generally do not review issues that the parties did
not raise below, and will do so only in narrow circumstances.
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Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1488 (9th
Cir. 1995). Putnam asserts that such circumstances are met
here because the age-verification issue presents a pure ques-
tion of law. See id. However, whether the Overlay District has
complied with age-verification rules involves questions of
fact. Even though the Ordinance does not mandate compli-
ance with these rules, we cannot determine solely by reading
the Ordinance whether such rules were in fact complied with.
The issue is therefore waived, and we will not address it.
2. Does the FHAA Preempt the Ordinance?
Putnam’s second claim—that the FHAA preempts the
Ordinance—is a variation on the theme of its first claim. In
light of our analysis above, Putnam’s preemption arguments
likewise fail.
Putnam contends that the FHAA expressly preempts the
Ordinance because the Ordinance requires Putnam to exclude
families with children and “any [state or local] law . . . that
purports to require or permit any action that would be a dis-
criminatory housing practice under [the FHAA] shall to that
extent be invalid.” 42 U.S.C. § 3615. As explained above,
however, any discrimination against families that results from
the Ordinance is not a discriminatory housing practice under
the FHAA because Ordinance’s Overlay District falls within
the federal senior exemption.
[8] Federal law impliedly preempts a state or local law if
“it is ‘impossible for a private party to comply with both
[local] and federal requirements,’ ” PLIVA, Inc. v. Mensing,
___ U.S. ___, 131 S. Ct. 2567, 2577 (2011) (quoting Freigh-
tliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)), or if the
local law “ ‘stands as an obstacle to the accomplishment and
execution of the full purposes and objectives’ of a federal
law,” Williamson v. Mazda Motor of Am., Inc., ___ U.S. ___,
131 S. Ct. 1131, 1136 (2011) (quoting Hines v. Davidowitz,
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312 U.S. 52, 67 (1941)).9 Because the FHAA permits the
senior housing which the Ordinance requires, compliance
with the Ordinance does not violate the FHAA. Likewise, the
Ordinance does not interfere with the operation of the FHAA
or the execution of its objectives because the FHAA allows
for zoning laws like the Ordinance. Therefore, the FHAA nei-
ther expressly nor impliedly preempts the Ordinance.
III. CONCLUSION
[9] Because the FHAA, as amended by HOPA, is silent on
the issue of whether municipally zoned senior housing can
qualify for the senior exemption, we defer to HUD regulations
allowing for such housing as a reasonable interpretation of the
statute. We therefore AFFIRM the district court’s judgment.
AFFIRMED.
9Federal law also impliedly preempts state or local law when “ ‘the
scheme of federal regulation is so pervasive as to make reasonable the
inference that there is no room for state action.’ ” Aguayo, 653 F.3d at 921
(quoting Ray v. Atl. Richfield Co., 435 U.S. 151, 157 (1978)). Putnam does
not argue and therefore we do not consider such implied “field preemp-
tion” here.
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