The opinion of the court was delivered by: James Robertson United States District Judge
On April 15, 2004, the United States filed a two-count complaint against the District of Columbia for violations of the Fair Housing Act, 42 U.S.C. §§ 3601-3619. Count One alleges discrimination on the basis of disability arising from actions (and inaction) by the District that blocked Father Flanagan's Boys Home ("Boys Town") from operating proposed group homes, in violation of Sections 3604(f)(1) & (2) of the Fair Housing Act. Count Two alleges that a number of the District's zoning regulations violate the Act by imposing more stringent requirements on housing for the disabled than are imposed on housing for persons without disabilities. The first claim, of intentional discrimination against Boys Town on the basis of disability in violation of the Fair Housing Act, was tried before a jury from November 27 to December 8, 2006. The jury failed to reach a verdict, and I declared a mistrial.
Prior to the start of the trial, I determined that the challenge to the zoning regulations asserted in Count Two presented issues for the Court, and not for the jury. (Pre-trial Hr'g Tr. 7, Oct. 17, 2006). During the trial, I determined that the United States' claims that the District violated the Fair Housing Act by denying Boys Town's requests for reasonable accommodation would be decided by the Court.*fn1 (Trial Tr. 82, Dec. 5, 2006). On these non-jury claims, the United States now moves for judgment as a matter of law pursuant to Federal Rules of Civil Procedure 52 and 58. Declaratory and injunctive relief are sought.
Relevant events began on February 10, 2000, when Boys Town purchased property that it configured into six record lots in the 1300 block of Pennsylvania and Potomac Avenues, S.E., in Washington, D.C. These lots are located in a district zoned C-2, a municipal designation that allows both commercial and residential development.*fn2 Boys Town intended to build a single structure on each lot. Four homes were planned for the first four lots, each to house six abused and neglected children and two staff caretakers. [Ex. A, Dkt. # 185]. A short-term shelter for up to sixteen children was planned for the fifth lot. The sixth parcel was to be the site of a non-residential administration building.
A. The District's Zoning Scheme
Under the District's zoning regulations, the four homes and short-term shelter that Boys Town planned to build were classified "community-based residential facilities" ("CBRFs"), an umbrella term that includes seven different subcategories, each with its own zoning requirements. See 11 DCMR § 199.1. The homes and shelter that Boys Town planned to operate are a type of CBRF called a "youth residential care home" ("YRCH"), defined as "a facility providing safe, hygienic, sheltered living arrangements for one (1) or more individuals less than eighteen (18) years of age, not related by blood, adoption, or marriage to the operator of the facility, who are ambulatory and able to perform the activities of daily living with minimal assistance." Id. Other types of CBRFs include rehabilitation homes for adjudicated felons and emergency shelters for the homeless. While CBRFs, including YRCHs, may house persons with disabilities, these zoning classifications neither require nor assume that the persons living in such a facility are handicapped.
Generally speaking, the location and number of children to be housed in a YRCH determine which, if any, additional zoning restrictions apply. A YRCH housing six or fewer children, plus staff, is permitted as a matter of right in all residential, mixed use, and commercial zones. 11 DCMR § 201.1(n)(1). A YRCH housing seven or more children is also permitted as a matter of right in zones R-5, CR, C-1, and C-2, but is subject to a spacing requirement: there can be no other CBRFs housing 7 or more people within 500 feet. 11 DCMR §§ 350.4(f), 601.2(b), 701.3, & 721.5. For a YRCH in the R-5, CR, or C-2 zones to house 16 to 25 children, the facility must apply for and receive explicit permission, called special exception approval, from the Board of Zoning Adjustment. 11 DCMR § 732.1. Public comment and feedback before the BZA is required. As described by the BZA, the special exception process requires the Board to "consider important public interest concerns, including the public need for the proposed use, as well as potential harm to the public." Tr. Ex. 164 at 17. YRCHs housing 16 to 25 youth are also subject to spacing requirements and occupancy caps. 11 DCMR § 732.1.
Youth residential care homes specifically intended to house disabled children are not subject to these same regulations, however. Two regulations, 11 DCMR § 330.5(I) and 11 DCMR § 201.1(o), provide that spacing, occupancy, and special exception requirements do not apply to CBRFs for the disabled operating in the R-1 to C-2 zones. Section 330.5(I) was adopted in 1997 as a result of a settlement agreement between the District and the United States in a previous Fair Housing Act suit. [Ex. B-27, Dkt. # 174]. It states that
The following uses shall be permitted as a matter of right in an R-4 District:
(I) Community-based residential facility; provided that, notwithstanding any provision in this title to the contrary, the Zoning Administrator has determined that such community-based residential facility, that otherwise complies with the zoning requirements of this title that are of general and uniform applicability to all matter-of-right uses in an R-4 District, is intended to be operated as housing for persons with handicaps. For purposes of this subsection, a handicap means, with respect to a person, a physical or mental impairment which substantially limits one or more of such person's major life activities, or a record of having, or being regarded as having, such an impairment, but such item does not include current illegal use of, or addiction to, a controlled substance.
11 DCMR § 330.5(I). A series of interlocking regulations provide that all uses permitted as a matter of right in R-4 districts are also permitted as a matter of right in the R-5, C-1 and C-2 zones. See 11 DCMR §§ 350.4, 701.2, & 721.1.
Section 201.1(o) is substantially similar in language and effect ...