9th Circuit Court of Appeals Rules Homeless in Shelters, Transitional Housing have Rights pursuant Fair Housing Act

by Terry Richards

Relevant Excerpts from Ruling
THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE GROUND THAT DEFENDANTS’ HOMELESS SHELTERS ARE NOT DWELLINGS The Act defines the term “dwelling” to include “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.” 42 U.S.C. 3602(b). This definition should be broadly construed to effectuate the purposes of the Act. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008). HUD regulations make it clear that the term “dwelling” includes accommodations in homeless shelters, defining the term “dwelling unit” to include “dormitory rooms and sleeping accommodations in shelters intended for 5 Participants in the Discipleship Program who are employed must pay $25 per week for room and board. This money, however, is held for the participant and refunded when she moves out. Supp. R.E. 109. – 17 – occupancy as a residence for homeless persons.” 24 C.F.R. 100.201. 6 HUD has stated that the length of stay is only one factor to be considered in determining whether a particular building is a “dwelling” covered by the Act: Other factors to be considered include: (1) Whether the rental rate for the unit will be calculated based on a daily, weekly, monthly or yearly basis; (2) Whether the terms and length of occupancy will be established through a lease or other written agreement; (3) What amenities will be included inside the unit, including kitchen facilities; (4) How the purpose of the property will be marketed to the public; (5) Whether the resident possesses the right to return to the property; and (6) Whether the resident has anywhere else to which to return.

HUD’s interpretation is consistent with that of the courts. The statute defines “dwelling” to include “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families,” 42 U.S.C. 3602(b), but does not define the key term “residence.” As multiple courts have noted, however, the ordinary meaning of that term is: “a temporary or permanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit.”

On the one hand, it is well established that the term “dwelling” does not include a motel, Patel, 483 F. Supp. at 381; or a bed and breakfast, Schneider v. County of Will, 190 F. Supp. 2d 1082, 1087 (N.D. Ill. 2002).7 On the other hand, courts have held that the term encompasses a children’s home, Hughes, 396 F. Supp. at 548-549; a hospice for terminally ill patients, Baxter v. City of Belleville, 720 F. Supp. 720, 731 (S.D. Ill. 1989); seasonal housing, Columbus Country Club, 915 F.2d at 881; a nursing home, Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3d Cir. 1996); group homes for individuals recovering from drug and alcohol addictions, e.g., Lakeside Resort Enterprises, L.P. v. Board of Supervisors of Palmyra Township, 455 F.3d 154 (3d Cir. 2006), cert. denied, 549 U.S. 1180 (2007); Connecticut Hospital v. City of New London, 129 F. Supp. 2d 123 (D. Conn. 2001); Schwarz, 544 F.3d at 1213-1216; and seasonal housing for migrant 7 One court also has held that the term “dwelling” does not include a city jail, reasoning that a jail “is designed as a detention facility not a ‘residence.’” Garcia v. Condarco, 114 F. Supp. 2d 1158, 1160 (D.N.M. 2000). workers, e.g., Lauer Farms, Inc. v. Waushara County Board of Adjustment, 986 F. Supp. 544, 557, 559 (E.D. Wis. 1997); Villegas v. Sandy Farms, Inc., 929 F. Supp. 1324, 1328 (D. Or. 1996).

The key factors courts have considered in reaching these determinations are the length of stay, whether the occupants intend to return to (or remain in) the building, and whether the occupants view the building as their home, albeit a temporary one. See Schwarz, 544 F.3d at 1215; Lakeside, 455 F.3d at 158; Schneider, 190 F. Supp. 2d at 1087. Woods found the term “dwelling” applicable to a homeless shelter. “The homeless,” the court explained, “are not visitors or those on a temporary sojourn in the sense of motel guests. Although the Shelter is not designed to be a place of permanent residence, it cannot be said that the people who live there do not intend to return – they have nowhere else to go.” 884 F. Supp. at 1173.

The court rejected defendants’ contention that the shelter was not a dwelling because occupants’ stay was limited to 120 days, ruling that the length of stay was not the determining factor. “Because the people who live in the Shelter have nowhere else to ‘return to,’ the Shelter is their residence in the sense that they live there and not in any other place.” Id. at 1173-1174; see also Jenkins v. New York City Dep’t of Homeless Srvs., 643 F. Supp. 2d 507, 518 (S.D.N.Y. 2009) (concluding, on motion to dismiss, that homeless shelter “could well fall within the definition of dwelling” – 20 – where the plaintiff “intends to stay at the shelter as long as he can, * * * and has no other home to go to”).8 The evidence that BRM shelters are dwellings is sufficient to withstand a motion for summary judgment. Most importantly, as homeless shelters, they provide housing for those who “have nowhere else to go.” Woods, 884 F. Supp. at 1173. Plaintiff Chinn stated that he was “periodically homeless” through 2005 and 2006 and that he alternatively stayed at the Front Street and River of Life shelters throughout those years. R.E. 46.9 Chinn stated that during the period he was homeless, the shelters were his only home, that he stored all of his belongings there, and that he expected to live in the shelters “in excess of several months.” R.E. 47. He moved out, he said, only because of the defendants’ discriminatory conduct. R.E. 47-48. When he did move out, he lived on the streets until a new shelter opened that did not require participation in religious services. R.E. 48.

Most importantly, as homeless shelters, they provide housing for those who “have nowhere else to go.” Woods, 884 F. Supp. at 1173. Plaintiff Chinn stated that he was “periodically homeless” through 2005 and 2006 and that he alternatively stayed at the Front Street and River of Life shelters throughout those years. R.E. 46.9 Chinn stated that during the period he was homeless, the shelters were his only home, that he stored all of his belongings there, and that he expected to live in the shelters “in excess of several months.” R.E. 47. He moved out, he said, only because of the defendants’ discriminatory conduct. R.E. 47-48. When he did move out, he lived on the streets until a new shelter opened that did not require participation in religious services. R.E. 48.

Click on to Link below to read full Ruling

https://www.justice.gov/sites/default/files/crt/legacy/2011/05/06/boisebrief.pdf

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