Faith House: The Elephant on North Market Street

The rezoning of 731 North Market street for Faith House, a small homeless shelter for women and children, offers a unique opportunity for Mayor and Board of Aldermen to take a stand against discrimination as it relates to our neighbors experiencing homelessness, or those in poverty, and women. Testimony offered by individuals in opposition to the project paint a clear picture of discrimination-based reasoning. Citing “quality of life”, “property values”, and/or “an increase in crime” are widely recognized buzzwords to give life to this discrimination.

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This rezoning case is unique in that there is absolutely no legal basis for denial based on the land use principles that govern the many other projects that come before the City of Frederick. The Planning Commission’s unanimous vote as well as the City staff report support the rezoning. In a previous workshop, members of the Board of Aldermen struggled to word their concerns, rightly skirting the obvious discriminatory nature of some of the comments. The discussion of “compatibility” quickly devolved in to a circular no-win, ultimately leading to an additional workshop being scheduled to vet concerns. Members of the Board of Aldermen attempted to ask specific use details of the applicant before they were reminded by staff that their decision had to be based on land use – the case itself – not broader theoretical questions that would serve to allay concerns perceived by the Mayor and Board.

I wanted to take a moment to explain the good reasoning behind that awkwardness we have seen and will continue see among our elected officials. At the November 12th workshop, one member of the Board, Josh Bokee, nailed it when he asked the question of his colleagues – if this was a graduate school dormitory would we have this conversation?

The simple fact is that no, this zoning case is being treated special. So special in fact, that we will have a special workshop this afternoon to continue the discussion.

Before that occurs, I wanted to offer some historical perspective on this conversation – one that has occurred all over our nation for decades. We are all familiar with the concept of NIMBY – Not In My Back Yard. Yet, NIMBYism can only be tolerated so far when it impacts protected classes of people. In the City of Frederick, our Fair Housing ordinance recognizes “source of income” as a protected class. In other words, similar to jurisdictions nationwide – we prohibit discrimination with respect to residential housing for several groups of people. While I do not speak for the city’s Fair Housing Commission, I am a member and very familiar with our ordinance. Recently updated to include gender identity, it states:

“It is the policy of The City of Frederick to provide for fair housing to all of its residents, regardless of race, color, religion, sex, familial status, national origin, disability, marital status, sexual orientation, gender identity, or source of income; and to that end to prohibit discriminatory practices with respect to residential housing by any person or group of persons, in order that the peace, health, safety, prosperity, and general welfare of all the inhabitants of the City may be protected and insured.” – Ordinance No. G-14-21

The Department of Justice and Department of Housing and Urban Development are quite clear with respect to their discussion of municipalities and the federal Fair Housing Act:

“The Act applies to municipalities and other local government entities and prohibits them from making zoning or land use decisions or implementing land use policies that exclude or otherwise discriminate against protected persons, including individuals with disabilities.” – Joint Statement of the Department of Justice and Department of Housing and Urban Development

I have attempted to research and include a snapshot of the case law that applies to this rezoning case. I am not an attorney but a mere advocate that can Google. I have included the citations and attempted to quote directly to prove my point that city officials must take care when giving undue weight to discrimination. Naturally concerns of all subjects deserve consideration and the Rescue Mission continues to reach out to the neighborhood to educate residents and answer questions.

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Denying the rezoning of 731 North Market would be a grave mistake, I believe. I would have offered that I seriously doubt that there is concern for real worry that this project will fail. There was the general assumption that the five elected members of the Board of Aldermen and Mayor – all of which who ran alongside of me in 2013 and pledged their commitment to solutions for our neighbors experiencing homelessness – would do the right thing. When it came time, Alderman Josh Bokee, Michael O’Connor, and Kelly Russell were ready to move forward to public hearing – where matters like this are frequently discussed during a time more accessible to those who work during the day. Yet, the others indicated they needed more time.

That said, I never anticipated that we would have a “special workshop” or delay the approval of the rezoning, and the project, a month waiting for a hearing and a vote. Faith House, operated by the Rescue Mission, was not thought to be a highly controversial project. When we extended the Linton Shelter to operate year-round we didn’t hear negative feedback from area residents. Perhaps advocates grew too comfortable assuming that NIMBYism would be suspended for the sake of homeless children.

The below is a brief and incomplete snapshot of court cases that have been considered where a government has been overruled in its use of zoning to perpetuate discrimination. This is an ongoing area of law and one that requires – a law degree – to fully understand.

Stewart B. McKinney Foundation v. Town & Zon. Comm. of the Town of Fairfield – 1992
(United States District Court, D. Connecticut. F.Supp. 1197 (1992))

Summary: A non-profit, the Foundation, sought a special-exception to offer housing to homeless HIV-infected persons. The Town Plan and Zoning Commission of the Town of Fairfield treated the non-profit in a different manner than other organizations due to the individuals their project was going to serve.

Following a meeting, with municipal officials, the Foundation received a letter asking thirteen questions about the proposed residence. In this letter, the Commission stated: “’Although some of the information requested may not be relevant to zoning concerns, it is requested that you provide it due to the uniqueness of the situation in order to provide us with as full a picture as possible of the manner in which the property is to be used.’” The questions included the average age of the occupants, the disposal of garbage, and the name of the record titleholder to the property – all not zoning concerns.

At a later meeting, town officials decided that the non-profit required a special exception for its proposed use of the property.

Result: The Court overturned the special exception, citing the Fair Housing Act.

• “It is clear to the court that it was the HIV-status of the prospective tenants that motivated much of the opposition to the home.”

• The court “concludes the Commission, at the least, bowed to the political pressure exerted by the residents of Fairfield opposed to the Foundation’s plans.”

• “The defendants cannot, consistent with the Fair Housing Act, ask questions concerning the handicapped nature of tenants that are admittedly irrelevant to any zoning concern no matter how ‘unique’ the handicap.”

• “The court next considers whether there was any departure from normal procedural sequences.”

• “The court finds, however, the evidence supports the plaintiff’s claim that the defendants conveniently seized upon the most “plausible,” though improbable, sections of the zoning code to deny or delay the opening of the residence and thereby appease the mounting public opposition.”

U.S. v. City of Taylor, Michigan – 1992
(United States v. City of Taylor, Mich., 798 F. Supp. 442 (E.D. Mich. 1992))

Summary: A corporation purchased a home and remodeled it to serve as a group home for 12 elderly disabled persons. The City of Taylor has a Comprehensive Zoning Ordinance and in order to permit 12 residents (doubling from 6) the corporation had to obtain local zoning approval. The City of Taylor refused to issue the permit, claiming improper zoning.

• The Taylor Planning Commission’s planning consultant recommended that the city deny the request to rezone to permit for 12 people based on 3 reasons:

— RM-1 zoning would be inconsistent with the established zoning pattern of the neighborhood;

— RM-1 zoning would allow for land uses that are incompatible with the established single-family residential character of the neighborhood; and

— the request was inconsistent with the recommendation of the City’s Master Land Use Plan 2000.

• There was concern raised at the Planning Commission hearing that the city was violating the Fair Housing Act however the city of Taylor moved forward in denying the zoning approval. Later the City Council voted unanimously to deny zoning, citing inconsistency with the Master Use Plan.

• Taylor Councilman Franch Bacha: “permitting Mortenview Manor to house twelve residents would not be fair to the taxpayers who chose this specific neighborhood based on reasons such as character”.

Result: The Court overturned Taylor’s denial based on its violation of the Fair Housing Act.

• “It is obvious to the Court that Taylor officials intentionally discriminated against the proposed residents by making unavailable and denying housing based upon their handicaps.”

• “Taylor’s series of demands upon [the applicant], in attempting to gain approval for its proposal, is circumstantial evidence highlighting the City’s pretextual rationales and thus its discriminatory intent.”

• “Denial is impermissible under the Fair Housing Act because Taylor’s actions violate the residents’ ‘right to be free from housing discrimination [which] is essential to the goal of independent living.’ *450 H.R.Rep. No. 711, supra, at 18, 1988 U.S.C.C.A.N. at 2179.”

CITIZENS FOR A BALANCED CITY, et al., Appellants, v. PLYMOUTH CONGREGATIONAL CHURCH – 2003
(Defendant, Plymouth Church Neighborhood Foundation, Respondent, City of Minneapolis, Respondent. No. A03-190. (December 2, 2003))

Summary: A faith-based non-profit purchased a property to renovate and operate transitional housing who are homeless and are disabled because of mental illness, chemical dependency, or HIV/AIDS. The property was zoned Office Residence 2 and required rezoning and/or special exceptions.

• “At the conclusion of the final planning hearing, the commission voted to grant a spacing ordinance waiver [the municipality required a quarter mile of space from certain facilities] as a reasonable and necessary accommodation under the Fair Housing Amendment Act, to grant the conditional use permit, to grant the maximum occupancy variance, and to adopt the planning department’s findings of fact.”

• “The Foundation considered the location unique and did not believe an acceptable alternative location existed.”

Citizen groups were formed in opposition and the case came to court. Citizens alleged a high concentration of special needs residents and increased criminal activity.

Result: The municipality found that without action, it would be in violation of the Fair Housing Amendment Act, the court affirmed this decision.

• “Minneapolis determined it must grant the Foundation a spacing ordinance waiver because the Fair Housing Amendment Act required the waiver as a reasonable accommodation necessary to provide disabled persons equal opportunity to reside in a certain neighborhood.”

• “The Fair Housing Amendment Act’s requirements are a legally sufficient ground to grant such a waiver and Minneapolis’s had a factual basis to conclude the waiver was a reasonable accommodation necessary to afford Lydia House’s proposed residents equal opportunity to reside in this neighborhood.”


Faith House
A Place for Homeless Women and Children.