Fair Housing Advocates Association , Inc. v. City of Richmond Heights, Ohio

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0132P (6th Cir.)
File Name: 00a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FAIR HOUSING ADVOCATES
ASSOCIATION , INC.,
Plaintiff-Appellant,
v.
C ITY OF R ICHMOND HEIGHTS,
OHIO ,
Defendant,
C ITY OF W ARRENSVILLE
HEIGHTS, OHIO ; C ITY OF
FAIRVIEW P ARK, OHIO ; C ITY
OF BEDFORD HEIGHTS, OHIO ,
Defendants-Appellees.
;>

1
No. 98-3523
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 96-01438—James S. Gwin, District Judge.
Argued: August 3, 1999
Decided and Filed: April 13, 2000
Before: JONES, BATCHELDER, and COLE, Circuit
Judges.

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2 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
1Housing Advocates also named the City of Richmond Heights, Ohio
as a defendant. However, Housing Advocates thereafter filed a
stipulation voluntarily dismissing Richmond Heights.
_________________
COUNSEL
ARGUED: Andrew L. Margolius, Cleveland, Ohio, for
Appellant. Alan E. Johnson, WARD & ASSOCIATES,
Cleveland, Ohio, Charles E. Merchant, CITY OF BEDFORD
HEIGHTS DEPARTMENT OF LAW, Bedford Heights,
Ohio, for Appellees. ON BRIEF: Andrew L. Margolius,
Cleveland, Ohio, for Appellant. Alan E. Johnson, Leo R.
Ward, WARD & ASSOCIATES, Cleveland, Ohio, Charles E.
Merchant, CITY OF BEDFORD HEIGHTS DEPARTMENT
OF LAW, Bedford Heights, Ohio, for Appellees. Stephen M.
Dane, Michael L. Stokes, COOPER, WALINSKI &
CRAMER, Toledo, Ohio, for Amicus Curiae.
JONES, J., delivered the opinion of the court, in which
COLE, J., joined. BATCHELDER, J. (pp. 23-34), delivered
a separate opinion concurring in the judgment.
_________________
OPINION
_________________
NATHANIEL R. JONES, Circuit Judge. Plaintiff-appellant
Fair Housing Advocates Association, Inc. (“Housing
Advocates”) filed a complaint against defendants-appellees1
the City of Warrensville Heights, Ohio; the City of Fairview
Park, Ohio; and the City of Bedford Heights, Ohio
(collectively “the Cities”) asserting that each city’s occupancy
ordinance discriminated against certain individuals based on
familial status, thereby violating the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601, et seq. Conversely, the Cities
argue that their ordinances are reasonable occupancy

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34 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
III.
In summary, although I concur in the majority’s ultimate
judgment that the ordinances at issue here were reasonable, I
believe that the rationale it uses to reach that result severely
undermines the respect we owe to states’ and localities’ use
of their police powers. Requiring cities to prove their neutral,
numerically based maximum occupancy restrictions to be
reasonable flies in the face of the wealth of precedent
according a presumption of reasonableness and constitutional
validity to enactments based on these historically non-federal
powers.
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
3
ordinances, enacted in full compliance with the FHA. The
district court, after a bench trial, entered judgment on behalf
of the Cities. See Fair Hous. Advocates Ass’n, Inc. v. City of
Richmond Heights, 998 F. Supp. 825 (N.D. Ohio 1998). For
the reasons that follow, we AFFIRM the district court’s
judgment.
I.
Housing Advocates is a “non-profit private fair housing
corporation whose mission is to eliminate housing
discrimination and promote equal opportunities in housing.”
J.A. at 321. Toward that end, Housing Advocates conducts
seminars and workshops for housing providers and the
general public, investigates possible FHA violations, and
monitors various housing markets to ensure FHA compliance.
In 1993, while investigating another fair housing matter,
Housing Advocates discovered that each of the Cities’
housing codes contained what it considered to be unusually
restrictive occupancy standards. Housing Advocates
conducted further tests and investigations in each of the
Cities, and determined that the occupancy ordinances were
unduly restrictive and discriminated against families.
Defendants-appellees are suburban cities located in Cuyahoga
County, Ohio, adjacent to the City of Cleveland. None of the
Cities own, operate or rent any apartments.
On July 3, 1996, Housing Advocates filed a complaint
against the Cities asserting that each city enacted an
occupancy ordinance which impermissibly discriminates
against individuals based on family status in violation of the
FHA. On March 16, 1998, the district court conducted a
bench trial, during which the parties presented testimony from
various expert witnesses. In addition, the parties stipulated
that the deposition testimony of several other witnesses could
be submitted to the court in lieu of live testimony. The parties
also stipulated to the admission of various exhibits.

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4 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
2Although each city defines habitable floor space slightly differently,
the term in general is defined as “the floor area in any room in any
multiple dwelling . . . which floor area is required to be contained within
such dwelling . . . in order to meet the minimum requirements of this
Housing Code.” Fair Hous. Advocates Ass’n, 998 F.Supp. at 827.
Similarly, a “habitable room” is defined as “a room or enclosed floor
space used or intended to be used for living, sleeping, or eating purposes.”
Id. Hallways, bathrooms, laundries, pantries and boiler rooms are
typically excluded from the definition of a “habitable room.” See id. at
826-27.
The specific evidence presented at trial by the Housing
Advocates can be summarized as follows:
Bedford Heights
Bedford Heights enacted its first occupancy ordinance in
February 1989. The 1989 version of the ordinance required
a minimum of 300 square feet of habitable floor space2 for the
first occupant and an additional 200 square feet for each
additional occupant. Codified Ordinance § 1387.14, the
version of the ordinance now being challenged by Housing
Advocates was adopted in September 1991. The 1991
occupancy ordinance requires a minimum of 200 square feet
of habitable space for the first occupant and 150 additional
square feet for each additional occupant. The ordinance
further requires a minimum of 650 square feet of habitable
space for dwellings having four occupants.
The deposition testimony of John Marrelli, the Bedford
Heights Building Commissioner at the time the ordinance
was enacted, was presented at trial. Marrelli testified that the
ordinance was passed, in part, due to residents’ concerns
about too many people living in one apartment, unsupervised
children, children playing in unsafe environments (e.g.,
balconies, parking lots, hallways, elevators), noise, and
overcrowding. Further, in response to plaintiff’s counsel’s
question of whether “[t]he law was directed towards
problems associated with children and problems that other
tenants, adult tenants, were experiencing in relation to these
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
33
Legislature * * *.' E.g., Sproles v. Binford, 286 U.S. 374,
388, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932).
* * *
Our past cases leave no doubt that appellants
[challenging the ordinance] had the burden on
‘reasonableness.’
Goldblatt, 369 U.S. at 594-95, 596. This is the same test we
applied in Kutrom Corp. See 979 F.2d at 1174 (“The
Supreme Court has stated repeatedly that an ordinance or
statute directed toward economic or social welfare regulation
adopted in exercise of police powers is presumptively valid,
and the burden on the issue of reasonableness lies with the
party challenging such an enactment”). The Court in City of
Edmonds suggested that the FHA’s reasonableness
requirement is no more demanding than this lenient test. See
514 U.S. at 734. n. 8 (quoting legislative history suggesting
that a reasonable ordinance is one that is applied evenly and
does not discriminate on a basis regulated by the FHA); id. at
737 (“this contention . . . exaggerates the force of the FHA’s
antidiscrimination provisions. [W]hen applicable, [they]
require only ‘reasonable’ accommodations”).
For these reasons, I read the City of Edmonds decision and
the FHA’s text and legislative history as affirming the
propriety of presuming local maximum occupancy restrictions
based on police powers to be valid. At the very least, they
remove the FHA’s anti-discrimination policy considerations
from our analysis, in which case the majority’s rationale for
denying the traditional presumption of validity disappears.
Applying this presumption ipso facto requires us to place the
burden of disproving the ordinances’ reasonableness on the
challengers, for by definition a presumption is a rule of law
creating “an inference in favor of a particular fact” until
rebutted. BLACK’S LAW D ICTIONARY 822 (Abr. 6th ed.
1991); see also Fed. R. Evid. 301.

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32 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
1176, 1179 (8th Cir. 1992) (same); Doe v. City of Butler,
Penn., 892 F.2d 315, 324 n. 5 (3d Cir. 1989) (recognizing
distinction by refusing to express opinion on whether HUD
regulations are applicable to governmental as opposed to
private occupancy limits); United States v. Tropic Seas, Inc.,
887 F.Supp. 1347, 1361 (D. Hawai´i 1995) (applying stricter
standard to private limits); United States v. Lepore, 816
F.Supp. 1011, 1021 (M.D. Penn. 1991) (same). While the
majority’s assignment of the burden of proof to the party
claiming § 3607(b)(1)’s exemption may be appropriate when
the restriction is privately initiated, it is inappropriate here.
Section 3607(b)(1)’s proviso limiting its exception to only
“reasonable” restrictions is also consistent with a presumption
of the ordinances’ validity. The presumption in favor of a
police power-based ordinance has never been irrebuttable, and
its constitutional validity has always hinged on the
ordinance’s reasonableness:
The term 'police power' connotes the time-tested
conceptional limit of public encroachment upon private
interests. Except for the substitution of the familiar
standard of 'reasonableness,' this Court has generally
refrained from announcing any specific criteria. The
classic statement of the rule in Lawton v. Steele, 152 U.S.
133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894), is still
valid today:
'To justify the state in * * * interposing its authority
in behalf of the public, it must appear--First, that the
interests of the public * * * require such
interference; and, second, that the means are
reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon
individuals.'
Even this rule is not applied with strict precision, for this
Court has often said that 'debatable questions as to
reasonableness are not for the courts but for the
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
5
3Owners Management Company is a subsidiary of a company which
owns, develops and manages apartment buildings in several states and
cities, including Bedford Heights.
children,” Marrelli answered, “Yes.” J.A. at 126. However,
Marrelli also stated that in passing the ordinance, the city “did
not look at [the ordinance] as having an impact on any
specific group of persons. . . .We weren’t trying to define who
could live in the suites, but how many.” J.A. at 129. He
further stated that the ordinance was passed to address
“[h]ealth, safety, and sanitation” problems that could result
from overcrowding. J.A. at 137. According to Marrelli, the
ordinance was enacted as a result of the 1988 amendments to
the FHA, and in response to landlords’ and tenants’
complaints regarding overcrowding. Thus, after the FHA
amendments were passed, information regarding these
amendments, along with a draft of the proposed ordinance,
was submitted to local apartment landlords/owners. Bedford
Heights, working with the landlords/owners, developed the
square footage requirements included in the final version of
the ordinance.
In addition, B. Allen Clutter, Vice-President and General
Manager of Owners Management Company, testified at trial.3
Clutter stated that although using a square footage occupancy
standard is not unreasonable, for consistency purposes,
Owners Management imposes a two-person-per- bedroom
standard. Clutter further admitted that he was aware that
Owners Management was in violation of Bedford Heights’s
occupancy ordinance due to the company’s two-person-per-
bedroom standard. A letter Clutter wrote to the Mayor of
Bedford Heights shortly before enactment of the 1989
occupancy ordinance was also presented at trial. This letter
referenced the 1988 FHA Amendments and pointed out that
Bedford Heights did not have an occupancy ordinance.
Clutter indicated in his letter that he knew “there [would] be
a great demand for family housing in this area because of the
school system,” and thus, he “urge[d] [the Mayor] to consider

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6 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
4Fairview Park’s ordinance defines a “bedroom” as “a habitable
room designed for sleeping purposes, and which has a minimum habitable
floor area of 80 square feet.” J.A. at 33.
proposing such [occupancy] standards so that over crowding
does not occur.” J.A. at 523.
Fairview Park
Fairview Park has had an occupancy ordinance in place
since 1967, and the challenged version of the ordinance,
Codified Ordinance § 1357.03(d), was enacted in November
1989. Fairview Park’s occupancy ordinance requires each
dwelling to have a minimum of 300 square feet of habitable
floor area for the first occupant and an additional 150 square
feet of habitable floor area for each additional occupant.
Further, a minimum of 750 square feet is required for a
dwelling unit with four occupants. Fairview Park’s
occupancy ordinance also imposes a minimum square footage
requirement regarding “habitable bedroom floor area.”
Pursuant to this provision, each bedroom in a dwelling unit
must have a minimum of 80 square feet of habitable floor area
for each bedroom4 for the first occupant and a minimum of 50
square feet for each additional occupant.
The deposition testimonies of David Cook, President of the
Fairview Park City Council at the time the occupancy
ordinance was passed, and William Minek, City Council
member at the time, were also presented at trial. Both Cook
and Minek testified that they could not recall specific
discussions about the hearings the city held in relation to
passing the ordinance, nor could they specifically recall why
they voted for the ordinance. However, Cook stated that
“[t]here [was] never . . . a discussion of children” at any of the
occupancy ordinance meetings, J.A. at 77, and Minek stated
that he did not recall whether “overcrowding or children-
related issues” were discussed at any of the meetings, J.A. at
89.
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
31
Moreover, at least one case cited by the majority stands
merely for the proposition that ambiguous terms will be
construed according to the statute’s remedial purpose and
against the party claiming the exemption. See Hogar Agua y
Vida en el Desierto, Inc. v. Suarez-Medina, 36 F.3d 177, 181,
186 (1st Cir. 1994). City of Edmond’s holding that numerical
occupancy limits such as those at issue here “plainly and
unmistakably” qualify for the exception leaves little
ambiguity to construe. Additionally, reliance on cases
construing exemptions in federal laws governing private
individuals does nothing to address whether the Cities’
ordinances retain their presumption of validity—and thus
whether the burden remains on the challengers—under the
FHA. See Grancare, 137 F.3d 372 (NLRA); Herman v. Palo
Group Foster Home, 183 F.3d 468 (6th Cir. 1999) (Fair Labor
Standards Act); Jones v. FBI, 41 F.3d 238, 244 (6th Cir.
1994) (Freedom of Information Act).
Most of the cases cited by the majority which place the
burden on parties claiming an exemption involve private
parties and not localities. By its own terms, however,
§ 3607(b)(1) applies only to “local, State, or Federal
restrictions.” This is consistent with the accordance of a
presumption of validity to police power-based ordinances. A
number of courts, as well as HUD, have taken note of this
distinction, and applied a much higher scrutiny to occupancy
limits based on private rules rather than local ordinances.
See, e.g., Pfaff v. United States Dept. of Housing and Urban
Development, 88 F.3d 739, 746 (9th Cir. 1996) (“this
provision [lessens] the burden of the fair housing laws on
government entities as compared to private landlords”) (citing
H.R. Rep. No. 711, 100th Cong., 2d Sess., at 31 (1988),
reprinted in 1988 U.S.S.C.A.N. 2173, 2192); id. at 748 (“the
Department will carefully examine any such nongovernmental
restriction” (quoting HUD’s original interpretation of the
1988 Amendments in Implementation of the Fair Housing
Amendments Act of 1988, 54 Fed. Reg. 3232, 3237 (Jan. 23,
1989))); Brandt v. Village of Chebanse, Ill., 82 F.3d 172, 174
(7th Cir. 1996) (same); United States v. Badgett, 976 F.2d

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30 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
§ 3607(b)(1)’s breadth, and it is undisputed that the
ordinances here fall within it. City of Edmonds therefore also
commands that the FHA, exemption or not, is no longer
relevant to the inquiry. To the extent that the authorities cited
by the majority suggest otherwise, they are, in my opinion,
mistaken. For the same reason, the majority’s emphasis on
the fact that the FHA is a remedial statute is also irrelevant
once we decide that the exemption applies.
I also find the majority’s reasoning undermined by its
omission of several critical elements in the cases it cites for
this proposition. Most glaringly, the majority blatantly
misrepresents our holding in Grancare, Inc. v. National
Labor Relations Board, 137 F.3d 372, 378 (6th Cir. 1998).
There, a nursing care facility asserted an exemption to the
National Labor Relations Act that excluded “supervisors”
from joining collective bargaining units with other employees.
Consistent with our precedent, see NLRB v. Beacon Light
Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir.
1987), we held through Judge Surheinrich that the NLRB bore
the burden of proving that the employees were not
supervisors, and that it had impermissibly shifted that burden
to the employer. See Grancare, 137 F.3d at 375. Judge
Moore filed an opinion concurring in the result but
disagreeing with the placement of the burden on the Board,
and it is a passage from that opinion—which is contrary to
that case’s actual holding—that the majority now cites as the
proposition Grancare stands for. See id. at 378. The
majority’s citation to Judge Moore’s concurrence is made
even more troubling by the fact that Judge Jones, the author
of today’s majority opinion, solidified Grancare’s actual
holding in a separate opinion “concur[ring] in [Judge
Surheinrich]’s well-reasoned opinion.” Id. at 376. Judge
Jones’s Grancare concurrence sympathized with Judge
Moore’s concerns, but agreed that “we are clearly bound by
Sixth Circuit precedent which places the burden on the Board
to prove that employees are not supervisors.” Id. at 377.
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
7
In addition, the deposition testimony of James Thompson,
Fairview Park’s Assistant Building Commissioner, was also
presented at trial. Thompson stated that his office receives
only a few complaints each year from city residents alleging
that certain dwellings are in violation of the ordinance, i.e.,
overcrowded. According to Thompson, upon investigating
these complaints, he found that there were no violations and
that there were never more occupants of a dwelling than were
allowed by the ordinance.
Warrensville Heights
Warrensville Heights adopted its current occupancy
ordinance, Codified Ordinance § 1377.03(d), in March 1989.
This ordinance requires 350 square feet of habitable floor area
for the first occupant and an additional 100 square feet for
each additional occupant. Further, the occupancy ordinance
requires a minimum of 650 square feet of habitable space for
dwellings with four occupants.
Williams Pegues, President of the Warrensville Heights
City Council at the time the ordinance was passed, testified in
his deposition that he did not recall specific discussions about
the ordinance. He did, however, recall that residents had
expressed some concerns to him regarding problems with
overcrowding, and indicated that they had moved to
Warrensville Heights in order to have more space. However,
according to Pegues, none of the residents expressed any
concern about children. Pegues also stated that it was
unlikely that landlords provided any input into the city’s
decision to enact the ordinance. The deposition testimony of
Nathaniel Harris, Warrensville Heights’s Chief Housing
Inspector at the time, was also presented at trial. Harris
provided general information regarding the enforcement of
the city’s occupancy ordinance. Further, the deposition
testimonies of three Warrensville Heights landlords were also
presented at trial. Two of the landlords testified that their
apartment management companies imposed two-person-per-
bedroom restrictions, but were unaware of whether their

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8 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
standards violated the more specific square footage
requirements set forth in Warrensville Heights’s occupancy
ordinance. The third landlord stated that his apartment
complex followed the occupancy ordinance, and due to the
ordinance, the complex allowed a maximum of three
occupants for two bedroom dwellings. None of the landlords
recalled being approached by any Warrensville Heights
official regarding possible violations of the occupancy
ordinance.
Housing Advocates
Housing Advocates submitted evidence regarding model
occupancy standards established by the Building Officials and
Code Administrators (“BOCA”). All three Cities were
members of BOCA at the time they enacted their respective
occupancy ordinances. The BOCA model code, which was
formulated by housing experts from around the country, set
forth the following minimum occupancy standards: a
minimum 70 square feet of habitable space per person in a
bedroom for the first occupant and 50 square feet of habitable
space in a bedroom for two or more occupants. For dwellings
with three to five occupants, BOCA requires a minimum of
120 square feet in a living room, 80 square feet in a dining
room, and 50 square feet in a kitchen. Housing Advocates
presented evidence that two other groups, the Ohio Apartment
Association and the Northeast Ohio Apartment Association,
had not adopted square footage requirements, but merely
determined that a two-person per-bedroom occupancy
standard is appropriate. Housing Advocates further
established that the Cities did not conduct any formal studies
before enacting their respective ordinances.
Housing Advocates consulted several land planners and
housing experts, each of whom testified at trial that the Cities’
occupancy ordinances are unreasonable. See Fair Hous.
Advocates Ass’n, 998 F. Supp. at 829. For example, Martin
Jarret, a land planner and city planning consultant, stated that
the restrictions included in each city’s ordinance were more
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
29
its holding was a narrow one limited to this question only.
See id. at 728, 731, 738. City of Edmonds decided that
§ 3607(b)(1) exempted only “numerical ceilings that serve to
prevent overcrowding in living quarters,” and not the type of
ordinance at issue there, which defined what composed a
family unit and applied different occupancy rules on that
basis. Id. at 731. The Court differentiated land-use
restrictions that are necessarily based on value judgments
from numerical occupancy limits that are neutral and evenly
applied. See id. at 732-34. These latter ordinances “plainly
and unmistakably fall within § 3607(b)(1)’s absolute
exemption from the FHA’s governance.” Id. at 735 (internal
quotations omitted, emphasis added). The section “entirely
exempts [such ordinances] from the FHA’s compass.” Id. at
728 (emphasis added).
The majority purports to follow City of Edmonds’s lead in
construing the exemption narrowly to promote the FHA’s
broader policy. In actuality, by narrowly construing both the
breadth and effect of the exemption, the majority ignores both
the legislative intent of § 3607(b)(1) to protect numerical
occupancy limits and the Court’s express admonition that
once an ordinance is determined to be such a neutral,
numerical law—a fact the majority freely concedes here—it
is no longer subject to the FHA’s anti-discrimination regime.
The majority also cites general principles of statutory
construction and a string of cases for the generic proposition
that a party claiming an exemption from a statute has the
burden of proving its applicability. This is not an
objectionable concept in the abstract. The Supreme Court
itself said as much in City of Edmonds in a preface to its
discussion of the family-defining ordinance at issue there.
See 514 U.S. at 731-32. But that decision and each case cited
by the majority were concerned with the types of restrictions
that would qualify for the exemption, not the scrutiny to be
given after deciding that the exemption in fact applies. The
breadth of the exemption and its effect are wholly separate
questions. City of Edmonds settled the question of

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28 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
significance in a case involving a historic police power, we
nonetheless presume that exercise of power to be
constitutionally valid. The idea that we should give that
degree of deference to police power ordinances in
constitutional arenas but not in the context of statutory
regimes such as the FHA is entirely unsupported by the
majority’s bare observation that this is an FHA case and
Kutrom Corp. involved the Due Process Clause. Indeed, the
idea is simply unsupportable.
II.
Beginning from these precedents, it seems plain to me that
neither the FHA’s text, its legislative history, the Supreme
Court’s City of Edmonds decision, nor any “general principles
of statutory construction” mandate a departure from our
standard practice of according police power ordinances a
presumption of validity and placing the burden on the
challenger to prove otherwise. The pertinent sentence of 42
U.S.C. § 3607(b)(1) reads: “Nothing in this subchapter limits
the applicability of any reasonable local, State, or Federal
restrictions regarding the maximum number of occupants
permitted to occupy a dwelling.” As the majority has noted,
the Court in City of Edmonds found it “[t]elling” that this
provision was added simultaneously with the 1988
Amendments broadening the FHA’s scope to prohibit
discrimination based on family status. “Section 3607(b)(1)
makes it plain that, pursuant to local prescriptions on
maximum occupancy, landlords legitimately may refuse to
stuff large families into small quarters.” City of Edmonds,
514 U.S. at 735 n. 9. Clearly this section was intended to
prevent overzealous judicial application of the FHA’s broad,
anti-discrimination policy from having the unintended
consequence of invalidating legitimate anti-overcrowding
ordinances. The Court did continue to read § 3607(b)(1)’s
exemption narrowly in order to preserve the primary
operation of the FHA’s policy, see id. at 731-32, but it did this
only in measuring the breadth of the exception, not its effect
on laws falling within it. The Court repeatedly stressed that
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
9
restrictive than BOCA standards. Jarret believed that the
Cities’ restrictions were not reasonable due to the Cities’
deviation from the BOCA standards, and the Cities’ failure to
specifically analyze an appropriate square footage
requirement. On cross-examination, however, Jarret admitted
that the issue of reasonableness was debatable.
Following the bench trial, the district court filed its findings
of fact and conclusions of law. The district court concluded
that Housing Advocates had the burden of proving that the
Cities’ occupancy ordinances were unreasonable, and that
Housing Advocates failed to meet its burden. See Fair Hous.
Advocates Ass’n, 998 F. Supp. at 830-31. The district court
also concluded that the ordinances were health, safety and
welfare measures, and were thus entitled to a presumption of
validity. See id. at 830. As a result of these conclusions, the
district court granted judgment for the Cities on each of
Housing Advocates’ claims. See id. at 831. Housing
Advocates thereafter filed this timely appeal.
II.
The FHA was originally enacted in 1968 and prohibited
discrimination based on race, color, religion and national
origin. Congress thereafter amended the FHA to prohibit
housing discrimination based on gender. In 1988, Congress
passed the Fair Housing Amendments Act (“FHAA”), thereby
extending the FHA’s protections, and prohibiting
discrimination based on disability and familial status.
Specifically, the FHAA makes it unlawful to refuse to sell or
rent or to “make unavailable or deny, a dwelling to any person
because of . . . familial status[.]” 42 U.S.C. § 3604(a). The
FHAA defines “familial status” as:
[O]ne or more individuals (who have not attained the age
of 18 years) being domiciled with–
(1) a parent or other person having legal custody of such
individual or individuals; or

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10 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
(2) the designee of such parent or other person having
such custody, with the written permission of such parent
or other person.
42 U.S.C. § 3602(k). In addition, the FHA also includes
several exemptions; the one at issue in the case sub judice
provides that “[n]othing in this subchapter limits the
applicability of any reasonable local, State, or Federal
restrictions regarding the maximum number of occupants
permitted to occupy a dwelling.” 42 U.S.C. § 3607(b)(1).
Although we have not previously interpreted this occupancy
exemption, we are substantially aided in our resolution of this
issue by legislative history, applicable administrative
regulations, and the Supreme Court’s decision in City of
Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995).
A. Legislative History
A review of the relevant legislative history regarding the
FHA indicates that Congress was concerned that “families
with children, like the other classes protected by title VIII,
have been the victims of unfair and discriminatory housing
practices.” H.R. Rep. No. 100-711, at 13 (1988). Despite its
broad goal of eradicating discrimination in housing based on
familial status, however, Congress also recognized the
legitimate interests local and state governments have in
enacting non-discriminatory occupancy restrictions.
Accordingly, Congress made clear that:
These provisions are not intended to limit the
applicability of any reasonable local, State, or Federal
restrictions on the maximum number of occupants
permitted to occupy a dwelling unit. A number of
jurisdictions limit the number of occupants per unit based
on a minimum number of square feet in the unit or the
sleeping areas of the unit. Reasonable limitations by
governments would be allowed to continue, as long as
they were applied to all occupants, and did not operate to
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
27
Inc., 166 F.3d 1236, 1237 (D.C. Cir. 1999) (following Rice’s
presumption against preemption). The presumptive validity
of historic police powers, then, is not a peculiarity of due
process case law, but a crucial doctrine underlying our entire
federalist system of governance. Cf. Railroad Comm’n of
Texas v. Pullman Co., 312 U.S. 496, 500-01 (1941) (“Few
public interests have a higher claim upon the discretion of a
federal chancellor than the avoidance of needless friction with
state policies. [It is wise for federal courts to] restrain their
authority because of scrupulous regard for the rightful
independence of the state governments and for the smooth
working of the federal judiciary” (internal quotations
omitted)); Brown v. Tidwell, 169 F.3d 330,332 (6th Cir. 1999)
(same).
Second, the majority’s statement is premised upon the
assumption—an unfathomable one, in my view—that federal
courts should somehow be less concerned with potential
constitutional deficiencies in local ordinances than possible
violations of the Fair Housing Act. It is elementary to our
judicial system that constitutional law is “the law of the land,”
and that no legislation—federal, state, or local—will stand if
it contradicts constitutional provisions. A corollary to this
principle is that we should be hesitant to accord constitutional
significance to our pronouncements, choosing instead to base
our holdings on less significant statutory or even procedural
grounds whenever plausible. Thus, we will presumptively
interpret statutes in such a way as to avoid constitutional
defects, see, e.g., Pak v. Reno, 196 F.3d 666, 673 (6th Cir.
1999) (majority opinion by Cole, J., and joined by Jones, J.);
Callier v. Gray, 167 F.2d 987, 992 (6th Cir. 1999), and not
reach the constitutional issues raised in a case unless they are
necessary to the case’s proper resolution. See Spector Motor
Co. v. McLaughlin, 323 U.S. 101, 105 (1944) ("If there is one
doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on
questions of constitutionality [...] unless such adjudication is
unavoidable”). And yet, as I discussed above, whenever we
do choose to reach the questions of law with constitutional

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26 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
of proof on reasonableness to the challengers. Once invoked,
“the force of the presumption of validity [rendered any
further] justification for [the] regulatory ordinance
unnecessary.” Id. at 1175.
In light of the degree to which the presumptive validity of
police power ordinances is ingrained in our jurisprudence, the
majority’s offhand distinction of these cases on the basis that
they were decided in the context of constitutional due process
challenges instead of the FHA is astounding. First, contrary
to the majority’s assertion, Fourteenth Amendment Due
Process law is not the only context in which this respect for
historic police powers has been accorded. As we pointed out
in Kutrom Corp., the Supreme Court, in upholding a Sunday
closing law in the face of an Equal Protection Clause
challenge, commented that “a statutory discrimination will
not be set aside if any set of facts reasonably may be
conceived to justify it.” Id. at 1174-75 (quoting McGowan v.
Maryland, 366 U.S. 420, 426 (1961)). Indeed, the Court has
made it quite clear that only classifications based on a few
suspect or quasi-suspect groups will get any higher level of
Equal Protection scrutiny. The Court has also stated plainly
that, notwithstanding an apparent conflict, it will presume that
federal laws do not preempt exercises of traditional state and
local police powers under the Constitution’s Supremacy
Clause “unless that was the clear and manifest purpose of
Congress.” Ray v. Atlantic Richfield Co., 435 U.S. 151, 157
(1978) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947)); see also Hill v. State of Florida ex. rel.
Watson, 325 U.S. 538, 552 (Frankfurter, J., dissenting) (“The
principle is thoroughly established that the exercise by the
state of its police power, which would be valid, if not
superseded by federal action, is superseded only where the
repugnance or conflict is so direct and positive that the two
acts cannot be reconciled or consistently stand together . . . .
Deviations from this policy . . . have been so rare all these
decades, despite the changes in the Court, because of fidelity
to the purposes of this vital aspect of our federalism” (internal
quotations omitted)); Geier v. American Honda Motor Co.,
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
11
discriminate on the basis of race, color, religion, sex,
national origin, handicap or familial status.
Id. at 31; see also Edmonds, 514 U.S. at 735 n.8 (quoting
legislative history).
B. Administrative Regulations
Pursuant to the 1988 amendments, HUD was authorized to
issue regulations implementing the FHA. Accordingly, HUD
issued the Implementation of the Fair Housing Amendments
Act of 1988, 54 Fed. Reg. 3232 (1989), which includes the
following discussion:
While the statutory provision providing exemptions to
the [FHA] states that nothing in the law limits the
applicability of any reasonable Federal restrictions
regarding the maximum number of occupants, there is no
support in the statute or its legislative history which
indicates any intent on the part of Congress to provide for
the development of a national occupancy code. This
interpretation is consistent with Congressional reliance
on and encouragement for States and localities to become
active participants in the effort to promote achievement
of the goal of Fair Housing.
Id. at 3237. The HUD regulations further provide that:
Many jurisdictions limit the number of occupants per
unit based on a minimum number of square feet in the
unit or the sleeping areas of the unit; HUD also issues
occupancy guidelines in its assisted housing programs.
Reasonable limitations do not violate the Fair Housing
Act as long as they apply equally to all occupants. A
substantial number of comments were received asking
that the Department adopt occupancy restrictions that
housing providers can apply in jurisdictions that do not
have governmentally-adopted occupancy restrictions, and
in jurisdictions where the governmentally-adopted
restrictions are tantamount to no restrictions.

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12 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
Id. at 3253; see also 24 C.F.R. § 115.202(c)(1999)(“The
requirement that the state or local law prohibit discrimination
on the basis of familial status does not require that the state or
local law limit the applicability of any reasonable local, state
or Federal restrictions regarding the maximum number of
occupants permitted to occupy a dwelling.”).
C. City of Edmonds Decision
In addition to the foregoing legislative history and
administrative materials, the Supreme Court also has
addressed the issue. In Edmonds, the Supreme Court
considered whether the City of Edmonds’s residential zoning
provision limiting the maximum number of unrelated
occupants allowed in a single-family dwelling violated the
FHA’s provision prohibiting discrimination against disabled
individuals. 514 U.S. at 728. The City of Edmonds’s zoning
code provided that occupants of single-family dwellings must
compose a “family.” The code defined “family” as an
unlimited number of related persons or a group of five or
fewer unrelated persons. Id.
In reviewing the zoning provision, the Court noted that
“rules that cap the total number of occupants in order to
prevent overcrowding of a dwelling plainly and unmistakably
fall within § 3607(b)(1)’s absolute exemption from the FHA’s
governance.” Id. at 735 (internal citation and quotations
omitted). The Court further noted the following:
Tellingly, Congress added the § 3607(b)(1) exemption
for maximum occupancy restrictions at the same time it
enlarged the FHA to include a ban on discrimination
based on “familial status.” The provision making it
illegal to discriminate in housing against families with
children under the age of 18 prompted fears that
landlords would be forced to allow large families to
crowd into small housing units . . . (remarks of Rep.
Edwards) (questioning whether a landlord must allow a
family with 10 children to live in a two-bedroom
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
25
(1977) (upholding denial of building permit for multi-family,
low income housing as part of rational zoning plan); Memphis
v. Green, 451 U.S. 100 (1981) (upholding against a racial
discrimination claim an ordinance diverting traffic from
residential neighborhood); Tower Realty, 196 F.2d at 724
(“Every reasonable presumption or intendment must be
indulged in favor of the validity of the ordinance; and, in case
of doubt, every presumption not clearly inconsistent with the
language and subject matter is to be made in favor of its
constitutionality”); Lakewood, Ohio Congregation of
Jehovah’s Witnesses, Inc. v. City of Lakewood, Ohio, 699
F.2d 303, 308 (6th Cir. 1983) (upholding denial to build
church in areas zoned as exclusively residential); Curto v.
City of Harper Woods, 954 F.2d 1237, 1242 (6th Cir. 1992)
(per curiam) (holding that ordinances, whether zoning or
regulatory, “which represent[] an exercise of the
municipality’s police powers [are] presumed to be
constitutionally valid, with the burden of showing
unreasonableness being cast upon those who challenge the
ordinance . . . . [S]uch presumptions are entitled to as much
force and effect under summary judgment procedure as
elsewhere” (internal quotations omitted)). All exercises of
police powers are entitled to an equal level of respect. See
Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529 (1959).
Few of our cases articulate this basic doctrine more clearly
than Kutrom Corp. v. City of Center Line, 979 F.2d 1171 (6th
Cir. 1992), to which the majority gives only passing
obeisance. The question presented in that case was whether
summary judgment was properly granted on the basis of the
ordinance’s presumptive validity without requiring the city,
as the moving party, to provide any affirmative evidence of
the law’s reasonableness. See id. at 1171-72. Holding that
mere reliance on the presumption of validity was proper, we
noted that the “lenient ‘rational basis’ test finds its least
stringent application in cases involving a governmental unit’s
exercise of its police powers.” Id. at 1174. We required the
city merely to invoke the presumption and identify a possible,
legitimate basis for the ordinance in order to shift the burden

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24 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
majority does not disturb the district court’s finding that the
maximum occupancy ordinances at issue are in fact exercises
of police powers intended to prevent overcrowding in
apartment buildings, and the Supreme Court has confirmed
that such laws are enacted to protect the health and safety of
citizens. See City of Edmonds v. Oxford House, Inc., 514
U.S. 725, 733-34 (1995). Health and safety concerns are at
the very heart of local police powers, and our respect for
ordinances controlling uses of land for these reasons extends
far back into our jurisprudence. See, e.g., Tower Realty v.
City of Detroit, 196 F.2d 710, 722 (6th Cir. 1952) (quoting
Fischer v. City of St. Louis, 194 U.S. 361, 370 (1904)) (“The
power of the legislature to authorize its municipalities to
regulate and suppress all such places . . . as, in its judgment,
are likely to be injurious to the health of its inhabitants, or to
disturb people living in the immediate neighborhood . . . , is
so clearly within the police power as to be no longer open to
question”). Such enactments have long been accorded a
presumption of validity. See, e.g., Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 395 (1926) (requiring zoning laws
to be upheld as valid exercises of police power unless “clearly
arbitrary or unreasonable, having no substantial relation to the
public health, safety, morals or general welfare”); Goldblatt
v. Town of Hempstead, New York, 369 U.S. 590, 593 (1962)
(“If this ordinance is otherwise a valid exercise of the town’s
police powers, the fact that it deprives the property of its most
beneficial use does not render it unconstitutional . . . . The
power which the states have of prohibiting such use . . . as
will be prejudicial to the health, the morals, or the safety of
the public, is not, and consistently with the existence and
safety of organized society, cannot be, burdened with the
condition that the state must compensate such individual
owners for pecuniary losses they may suffer” (internal
quotations omitted)); Village of Belle Terre v. Boraas, 416
U.S. 1, 9 (1974) (acknowledging a village’s police power as
“ample to lay out zones where family values, youth values,
and the blessings of quiet seclusion and clean air make the
area a sanctuary for people”); Village of Arlington Hts. v.
Metropolitan Housing Development Corp., 429 U.S. 252
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
13
apartment). Section 3607(b)(1) makes it plain that,
pursuant to local prescriptions on maximum occupancy,
landlords legitimately may refuse to stuff large families
into small quarters.
Id. at 735 n.9 (internal citations omitted). After reviewing the
legislative history and applicable regulations, however, the
Supreme Court concluded that the city’s zoning provision did
not fall within the occupancy exemption set forth in
§ 3607(b)(1) because the provision did not limit the number
of occupants that were allowed to occupy a dwelling, but
rather “describe[d] who may compose a family unit.” Id. at
728. The Court held that § 3607(b)(1) “removes from the
FHA’s scope only total occupancy limits, i.e., numerical
ceilings that serve to prevent overcrowding in living
quarters,” not “provisions designed to foster the family
character of a neighborhood.” Id.
Despite the obvious deference afforded to maximum
occupancy restrictions, however, the Court made clear that
such restrictions are not simply “rubber stamped” by the
courts, but instead, require some level of scrutiny. The
Supreme Court noted that courts must remain “‘mindful of
the Act’s stated policy to provide, within constitutional
limitations, for fair housing throughout the United States.’”
Edmonds, 514 U.S. at 731 (quoting § 3601). Further, the
Court noted that exceptions to the FHA’s “general statement
of policy” must be “read narrowly in order to preserve the
primary operation of the policy.” Id. at 731-32 (internal
quotations and alteration omitted). With this clear guidance
in mind, we consider whether the Cities’ occupancy
ordinances qualify for the § 3607(b)(1) exemption.
III.
Based on the plain language of § 3607(b)(1), and the
standards articulated in the legislative history, the
administrative regulations and Edmonds, we find that in order
to qualify for a §3607(b)(1) exemption, each city’s ordinance

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14 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
must be a (1) reasonable; (2) “local, State, or Federal
restrictio[n];” (3) regarding “the maximum number of
occupants permitted to occupy a dwelling.” 42 U.S.C.
§ 3607(b)(1). The occupancy ordinances at issue here clearly
meet prongs two and three because they are ordinances
enacted by municipalities that set restrictions on the number
of occupants permitted to occupy an apartment. Thus, we
must determine whether these occupancy ordinances are
“reasonable,” and whether Housing Advocates or the Cities
bear the burden of proving that these ordinances are
reasonable. Housing Advocates contends that because the
Cities are attempting to invoke an exemption to the FHA, the
Cities bear the burden of proving that their ordinances fall
within this exemption, and must therefore establish that their
ordinances are reasonable. Conversely, the Cities respond
that the ordinances are valid, non-discriminatory efforts to
limit occupancy, and therefore, Housing Advocates must
prove that the ordinances are unreasonable.
A. Allocation of Burdens of Proof
The district court concluded that “Plaintiff has the burden
to show that the ordinance[s] [are] unreasonable.” Fair
Hous. Advocates Ass’n, 998 F. Supp. at 830 (citing Kutrom
Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir.
1992)). Housing Advocates contends that it is well-settled
that the party seeking an exemption to the FHA bears the
burden of proving that it is entitled to the exemption, and
thus, the district court erroneously placed the burden on
Housing Advocates. We agree with Housing Advocates, and
find that the district court improperly allocated the burden of
proof.
Federal courts have repeatedly concluded that the party
claiming the exemption “carries the burden of proving its
eligibility for the exemption,” and that “[e]xemptions from
the [FHA] are to be construed narrowly, in recognition of the
important goal of preventing housing discrimination.”
Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
23
______________________
CONCURRENCE
______________________
ALICE M. BATCHELDER, Circuit Judge, concurring in
judgment. I agree with the majority that the maximum
occupancy regulations at issue here are valid exercises of the
Cities’ police powers that withstand the scrutiny of the Fair
Housing Act, but I cannot concur in its reasoning. In my
opinion, the majority gives far too little respect to the
traditional police powers of states and localities. Requiring
the Cities to prove their ordinances reasonable not only turns
the traditional notion of federalism on its head, but contradicts
the basic assumption of our legal system that plaintiffs in civil
litigation bear the burden of making out each element of their
claims. I do not read anything in the Fair Housing Act as
requiring this result. I therefore respectfully object to the
majority’s characterization of the controlling law in Part III of
its opinion.
I.
The majority relies heavily on “general principles of
statutory construction” for its conclusion that the Cities
should have to prove that their ordinances are “reasonable,”
because that term is found in an “exemption” to the FHA. It
also dismisses in a single paragraph the concept that
ordinances enacted pursuant to historic, local police powers
are entitled to a presumption of validity in federal courts with
the observation that this idea emanates from cases involving
constitutional due process challenges, not potential FHA
violations. In my view, this is exactly the wrong approach.
Instead, we should begin by recognizing the traditional
deference given to exercises of a locality’s police power. This
presumption of validity stems from a recognition that federal
courts should be wary to tread on the spheres of authority that
were never given up by state and local governments. The

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22 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
V.
Based on the foregoing, we AFFIRM the district court’s
grant of judgment for the defendants, although we reject its
allocation of the burden of proof and presumption of validity.
Because the record in this case is thorough, and provides
sufficient evidence from which we conclude that the Cities
satisfied their burden of proving that their respective
occupancy ordinances were “reasonable” as required to
invoke the § 3607(b)(1) exemption, we find a remand
unnecessary.
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
15
1472, 1475 (11th Cir. 1993), cert. denied 513 U.S. 808
(1994); see also Hogar Agua y Vida en el Desierto v. Suarez-
Medina, 36 F.3d 177, 182 (1st Cir. 1994)(“exemptions from
the requirements of a remedial statute–like the FHA–are to be
construed narrowly to limit exemption eligibility”)(citing
Massaro)(discussing “single-family house” exemption to
FHA); United States v. City of Hayward, 36 F.3d 832, 837
(9th Cir. 1994)(same); Rogers v. Windmill Pointe Village
Club Ass’n, Inc., 967 F.2d 525, 527 (11th Cir. 1992)(“Under
general principles of statutory construction, one who claims
the benefit of an exception from the prohibition of a statute
has the burden of proving that his claim comes within the
exception.”)(alterations, citations and internal quotations
omitted); United States v. Columbus Country Club, 915 F.2d
877, 882 (3rd Cir. 1990)(noting that the defendant bears the
burden of proving that it fits within the FHA’s “religious
organization” exemption, § 3607(a)).
We further conclude that placing the burden on the
defendants in this case comports with our caselaw discussing
exemptions from other statutes, and holding that the party
seeking to invoke the exemption bears the burden of proving
that it is entitled to that exemption. For example, in
Grancare, Inc. v. NLRB, 137 F.3d 372 (6th Cir. 1998) we
concluded that:
[R]eviewing courts must take care to assure that
exemptions from NLRA coverage are not so expansively
interpreted as to deny protection to workers the Act was
designed to reach . . . In an effort to effectuate Congress’s
purpose that the exclusion of supervisors from the Act’s
protections be a limited one, the Board places the burden
of proving supervisory status upon those invoking the
exemption. In contrast, placing the burden of proof on
the Board presumes that all employees simply asserted by
employers to be supervisors are exempt from the Act’s
coverage until proven otherwise.

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16 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
Id. at 378 (internal quotations and citations omitted); see also
Herman v. Palo Group Foster Home, __ F.3d __, No. 97-
2102, 1999 WL 498932, at *2 (6th Cir. 1999)(holding that
Fair Labor Standards Act exemptions are to be narrowly
construed and employer claiming exemption has burden of
proving that exemption applies); Jones v. FBI, 41 F.3d 238,
244 (6th Cir. 1994)(exemptions under Freedom of
Information Act are to be narrowly construed and “burden is
on the defendant agency to demonstrate, not the requester to
disprove, that the materials sought may be withheld due to an
exemption”)(internal quotations and citations omitted).
Based on the foregoing caselaw, we find that the district
court erred in concluding that Housing Advocates was
required to establish that the ordinances were unreasonable,
as opposed to requiring the Cities to establish that the
ordinances were reasonable.
B. Presumption of Validity
Citing Kutrom, the district court also concluded that the
Cities’ occupancy ordinances are “an exercise of the local
government’s police power on social legislation enacted to
protect the public health, safety and welfare and, [are]
therefore, entitled to a presumption of validity.” Fair Hous.
Advocates Ass’n, 998 F. Supp. at 830 (citing Kutrom, 979
F.2d at 1174). Housing Advocates also challenges the district
court’s conclusion in this regard, arguing that FHA
exemptions are to be read narrowly, and thus, the district
court erred in finding that the occupancy ordinances were
presumptively valid. Housing Advocates’ position on this
point is also well-taken. We find the district court’s reliance
on Kutrom to be misplaced, for the Cities are not entitled to
the presumption of validity where they attempt to invoke an
exemption under the FHA.
In Kutrom, the plaintiff challenged an ordinance regulating
massage parlors in the city, claiming that the ordinance
violated the due process clauses of the Fifth and Fourteenth
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
21
7We note that Housing Advocates’s argument is strongest against
Bedford Heights’s ordinance, because there was evidence in the record
that, to some extent, the issue of children was discussed in conjunction
with that city’s decision to enact the ordinance. This may suggest that
Bedford Heights’s decision was not completely motivated by issues of
overcrowding. Despite this evidence against Bedford Heights, we find
that Housing Advocates has not established discriminatory intent or
impact with regard to that city.
1990 WL 97490, at *4 (6th Cir. July 13, 1990)(same).
However, we conclude that based on the evidence presented,
Housing Advocates has failed to satisfy either of these tests,
and the district court thus properly denied Housing
Advocates’ claim on this ground.7.
In support of its discrimination argument, Housing
Advocates notes that the population was decreasing in each
city; the ordinances were passed shortly after enactment of the
FHA amendments extending protections to families; the
ordinances were more restrictive than BOCA’s standards; and
the ordinances would prohibit many families from finding
housing. We find this evidence insufficient to establish that
the Cities’ intended to discriminate against families. The
ordinances are facially neutral and apply equally to families
and unrelated individuals who occupy dwellings in the
respective Cities. Further, Housing Advocates conceded in
the parties’ joint stipulations that “[n]one of the square
footage restrictions in the occupancy ordinances of the
defendant municipalities facially discriminate on a familial
basis.” Fair Hous. Advocates Ass’n, 998 F. Supp. at 826.
Housing Advocates has also failed to establish that the
occupancy ordinances had a discriminatory effect on families
as required by the discriminatory impact analysis. Further, as
the Cities point out, families of four, as opposed to families
of three, are not protected classes.

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20 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
6Housing Advocates also contends that the ordinances were
unreasonable because the population in each city declined over a 20-year
period. However, as the Cities point out, the fact that the population of
each city has declined over the past twenty years is not dispositive. As the
Supreme Court noted in Edmonds, the purpose of many occupancy
restrictions is to “protect health and safety by preventing dwelling
overcrowding.” Edmonds, 514 U.S. at 733 (emphasis added). Thus, the
purpose of the ordinance does not have to be to prevent overcrowding of
a particular apartment complex, an area of the city, or the entire city, but
simply to prevent overcrowding of each dwelling.
restricting the number of unrelated individuals who may
occupy a single family residence are reasonably related
to these legitimate goals. The City does not need to
assert a specific reason for choosing eight as the cut-off
point, rather than ten or twelve. Every line drawn by a
legislature leaves some out that might well have been
included. That exercise of discretion, however, is a
legislative, not a judicial, function.
Id. at 252 (emphasis added)(internal quotations and citations
omitted). The rationale of Oxford House applies with equal
force here. The “exercise of discretion” as to whether to
require a minimum of 650 square feet for an apartment of four
people, as opposed to a minimum of 500 square feet or 800
square feet, is a legislative, not a judicial function.6
IV.
Finally, Housing Advocates contends that the Cities’
occupancy ordinances were invalid because they (1) were
enacted to discriminate against families of four; and (2) had
a discriminatory impact on families of four. We have applied
the discriminatory treatment and impact analyses to FHA
claims. See Arthur v. City of Toledo, 782 F.2d 565, 574-75
(6th Cir. 1986); Blaz v. Barberton Garden Apt., No. 91-3896,
1992 WL 180180, at *3 (6th Cir. July 29, 1992)(“[A]
violation of the [FHA] can be established by a showing of
discriminatory intent or discriminatory effect.”)(citing
Arthur); Troy v. Suburban Management Corp., No. 89-1282,
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
17
Amendments. The city enacted the ordinance in order to limit
the hours during which massage parlors could be open, to
regulate the attire of each masseuse, and to eliminate
prostitution that was allegedly occurring in such parlors. See
979 F.2d at 1172. We held that such an ordinance was a valid
health, safety and welfare measure, and was therefore
presumptively valid. The presumption of validity standard we
applied in Kutrom was based on the “rational basis” test
utilized in addressing constitutional challenges to “economic
or social welfare regulation adopted in exercise of police
powers.” Id. at 1174; see also Goldblatt v. Town of
Hempstead, 369 U.S. 590, 595-96 (1962); Bibb v. Navajo
Freight Lines, Inc., 359 U.S. 520, 529 (1959)(“The various
exercises by the States of their police power . . . are entitled
to the same presumption of validity when challenged under
the Due Process Clause of the Fourteenth
Amendment.”)(emphasis added). By contrast, the Cities in
this case are attempting to invoke an exemption under the
FHA, and thus Kutrom is inapposite. Accordingly, the
district court’s reliance on Kutrom, and its conclusion that the
Cities’ occupancy ordinances are presumptively valid, was
erroneous.
C. Reasonableness Inquiry
As set forth above, the Cities bear the burden of proving
that the ordinances are reasonable. However, at trial, the
district court placed that burden on Housing Advocates. Due
to the district court’s incorrect allocation of the burden,
Housing Advocates urges us to conclude that the ordinances
violate the FHA, or, in the alternative, to remand and order
the district court to review the matter using the correct
allocation of the burden of proof. Despite the district court’s
improper allocation of the burden of proving reasonableness,
we find that based on the ample evidence presented in the
record, the Cities have presented evidence sufficient to
establish that their ordinances fall within the exemption set

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18 Fair Housing Advocates v. City of
Warrensville Heights, et al.
No. 98-3523
5We reiterate that even if this matter were remanded to require the
district court to determine whether the Cities are able to prove that they
are entitled to the § 3607(b)(1) exemption, on any resulting appeal, we
would review the district court’s determination de novo. See Kildea v.
Electro-Wire Prods., Inc., 144 F.3d 400, 404 (6th Cir. 1998)(noting that
although we review the district court’s findings of fact for clear error, we
review legal conclusions and mixed questions of law de novo); Razavi v.
C.I.R., 74 F.3d 125, 127 (6th Cir. 1996)(same). Thus, we would “draw
our own inferences and legal conclusions from the record.” Smith v. Wal-
Mart Stores, 167 F.3d 286, 289 (6th Cir. 1999). Moreover, on appeal, we
may affirm a district court’s judgment for an alternate reason. See Russ’
Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th
Cir.1985) (per curiam).
forth in § 3607(b)(1), thereby rendering a remand
unnecessary.5
As an initial point, we reject the Cities’ assertion that
because Edmonds held that “rules that cap the total number of
occupants in order to prevent overcrowding of a dwelling
plainly and unmistakably fall within § 3607(b)(1)’s absolute
exemption from the FHA’s governance,” Edmonds, 514 U.S.
at 735 (citation omitted), we need not undertake any further
analysis as to the reasonableness of their occupancy
ordinances. A review of the plain language of § 3607 (b)(1)
illuminates the fallacy of the Cities’ argument on this point.
The exemption specifically requires that the ordinances be
“reasonable,” and in interpreting that exemption, we must
give effect to this requirement. Thus, despite the Cities’
suggestion to the contrary, the mere fact that the ordinances
are municipal occupancy ordinances does not remove them
from the reasonableness requirement set forth in the
§ 3607(b)(1) exemption. Further, the Supreme Court in
Edmonds did not suggest such a result. Indeed, in Edmonds,
the Court reiterated that the FHA, and the policies reflected
therein, are to be construed broadly, while exemptions to the
FHA must be “narrowly” and “sensibly read . . . to preserve
the primary operation of the [policy].” Edmonds, 514 U.S. at
732. Thus, in order to establish that the ordinances were valid
measures entitled to the § 3607(b)(1) exemption, the Cities
No. 98-3523 Fair Housing Advocates v. City of
Warrensville Heights, et al.
19
were required to establish that the ordinances were
“reasonable.”
We find that the following evidence indicates that the Cities
satisfied that burden. First, the Cities’ occupancy ordinances
“apply uniformly to all residents of all dwelling units.”
Edmonds, 514 U.S. at 733. Second, the Cities have presented
convincing evidence that the ordinances were enacted “to
protect health and safety by preventing dwelling
overcrowding,” not to impermissibly limit the family
composition of dwellings. Id. Third, Jarret and other
Housing Advocates’ experts testified that there were several
options for determining maximum occupancy requirements–a
minimum square feet per-person standard; a minimum
number of square feet per-bedroom-per-person standard; and
a two-person-per-bedroom standard. The Cities were surely
permitted to choose which of these standards was the most
appropriate for that particular city, particularly in light of the
fact that Congress made clear that there is no national
occupancy standard. Housing Advocates suggests that only
the two-person-per-bedroom standard or a different minimum
square foot per-person standard would be appropriate.
However, the fact that the Cities used a square footage
calculation, as opposed to a total number per apartment
calculation, does not make the ordinances unreasonable.
Similarly, the fact that the ordinances differed from the
standards in the BOCA model code and the standards
suggested by the apartment associations does not make the
ordinances unreasonable. Finally, the Eighth Circuit
considered the issue of whether the City of St. Louis violated
the FHA by enforcing the city’s zoning code to limit the
number of residents in group homes to eight individuals, and
concluded that the code did not violate the FHA. See Oxford
House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996).
The Eighth Circuit concluded that the rule was rational and
noted that:
Cities have a legitimate interest in decreasing congestion,
traffic, and noise in residential areas, and ordinances

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