      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,
                                   
                                      No. 98-3523

                                   
           v.                       >
                                   
CITY OF RICHMOND HEIGHTS, 
                                   
                   Defendant, 
OHIO,
                                   
                                   
CITY OF WARRENSVILLE               
                                   
                                   
HEIGHTS, OHIO; CITY OF

                                   
FAIRVIEW PARK, OHIO; CITY

        Defendants-Appellees. 
OF BEDFORD HEIGHTS, OHIO,

                                   
                                 1
      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.


                           1
2       Fair Housing Advocates v. City of             No. 98-3523
        Warrensville Heights, et al.

                      _________________
                           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. (“Housing1
Advocates”) filed a complaint against defendants-appellees
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

    1
      Housing Advocates also named the City of Richmond Heights, Ohio
as a defendant. However, Housing Advocates thereafter filed a
stipulation voluntarily dismissing Richmond Heights.
34   Fair Housing Advocates v. City of            No. 98-3523      No. 98-3523          Fair Housing Advocates v. City of        3
     Warrensville Heights, et al.                                                             Warrensville Heights, et al.

                              III.                                 ordinances, enacted in full compliance with the FHA. The
                                                                   district court, after a bench trial, entered judgment on behalf
  In summary, although I concur in the majority’s ultimate         of the Cities. See Fair Hous. Advocates Ass’n, Inc. v. City of
judgment that the ordinances at issue here were reasonable, I      Richmond Heights, 998 F. Supp. 825 (N.D. Ohio 1998). For
believe that the rationale it uses to reach that result severely   the reasons that follow, we AFFIRM the district court’s
undermines the respect we owe to states’ and localities’ use       judgment.
of their police powers. Requiring cities to prove their neutral,
numerically based maximum occupancy restrictions to be                                           I.
reasonable flies in the face of the wealth of precedent
according a presumption of reasonableness and constitutional         Housing Advocates is a “non-profit private fair housing
validity to enactments based on these historically non-federal     corporation whose mission is to eliminate housing
powers.                                                            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.
4       Fair Housing Advocates v. City of                  No. 98-3523         No. 98-3523          Fair Housing Advocates v. City of      33
        Warrensville Heights, et al.                                                                      Warrensville Heights, et al.

 The specific evidence presented at trial by the Housing                         Legislature * * *.' E.g., Sproles v. Binford, 286 U.S. 374,
Advocates can be summarized as follows:                                          388, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932).
                                                                                                               * * *
Bedford Heights                                                                  Our past cases leave no doubt that appellants
                                                                                 [challenging the ordinance] had the burden on
   Bedford Heights enacted its first occupancy ordinance in                      ‘reasonableness.’
February 1989. The 1989 version of the ordinance required
a minimum of 300 square feet of habitable floor space2 for the                 Goldblatt, 369 U.S. at 594-95, 596. This is the same test we
first occupant and an additional 200 square feet for each                      applied in Kutrom Corp. See 979 F.2d at 1174 (“The
additional occupant. Codified Ordinance § 1387.14, the                         Supreme Court has stated repeatedly that an ordinance or
version of the ordinance now being challenged by Housing                       statute directed toward economic or social welfare regulation
Advocates was adopted in September 1991. The 1991                              adopted in exercise of police powers is presumptively valid,
occupancy ordinance requires a minimum of 200 square feet                      and the burden on the issue of reasonableness lies with the
of habitable space for the first occupant and 150 additional                   party challenging such an enactment”). The Court in City of
square feet for each additional occupant. The ordinance                        Edmonds suggested that the FHA’s reasonableness
further requires a minimum of 650 square feet of habitable                     requirement is no more demanding than this lenient test. See
space for dwellings having four occupants.                                     514 U.S. at 734. n. 8 (quoting legislative history suggesting
                                                                               that a reasonable ordinance is one that is applied evenly and
  The deposition testimony of John Marrelli, the Bedford                       does not discriminate on a basis regulated by the FHA); id. at
Heights Building Commissioner at the time the ordinance                        737 (“this contention . . . exaggerates the force of the FHA’s
was enacted, was presented at trial. Marrelli testified that the               antidiscrimination provisions. [W]hen applicable, [they]
ordinance was passed, in part, due to residents’ concerns                      require only ‘reasonable’ accommodations”).
about too many people living in one apartment, unsupervised
children, children playing in unsafe environments (e.g.,                         For these reasons, I read the City of Edmonds decision and
balconies, parking lots, hallways, elevators), noise, and                      the FHA’s text and legislative history as affirming the
overcrowding. Further, in response to plaintiff’s counsel’s                    propriety of presuming local maximum occupancy restrictions
question of whether “[t]he law was directed towards                            based on police powers to be valid. At the very least, they
problems associated with children and problems that other                      remove the FHA’s anti-discrimination policy considerations
tenants, adult tenants, were experiencing in relation to these                 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
    2
      Although each city defines habitable floor space slightly differently,   burden of disproving the ordinances’ reasonableness on the
the term in general is defined as “the floor area in any room in any           challengers, for by definition a presumption is a rule of law
multiple dwelling . . . which floor area is required to be contained within    creating “an inference in favor of a particular fact” until
such dwelling . . . in order to meet the minimum requirements of this          rebutted. BLACK’S LAW DICTIONARY 822 (Abr. 6th ed.
Housing Code.” Fair Hous. Advocates Ass’n, 998 F.Supp. at 827.
Similarly, a “habitable room” is defined as “a room or enclosed floor          1991); see also Fed. R. Evid. 301.
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.
32    Fair Housing Advocates v. City of             No. 98-3523     No. 98-3523           Fair Housing Advocates v. City of           5
      Warrensville Heights, et al.                                                              Warrensville Heights, et al.

1176, 1179 (8th Cir. 1992) (same); Doe v. City of Butler,           children,” Marrelli answered, “Yes.” J.A. at 126. However,
Penn., 892 F.2d 315, 324 n. 5 (3d Cir. 1989) (recognizing           Marrelli also stated that in passing the ordinance, the city “did
distinction by refusing to express opinion on whether HUD           not look at [the ordinance] as having an impact on any
regulations are applicable to governmental as opposed to            specific group of persons. . . .We weren’t trying to define who
private occupancy limits); United States v. Tropic Seas, Inc.,      could live in the suites, but how many.” J.A. at 129. He
887 F.Supp. 1347, 1361 (D. Hawai´i 1995) (applying stricter         further stated that the ordinance was passed to address
standard to private limits); United States v. Lepore, 816           “[h]ealth, safety, and sanitation” problems that could result
F.Supp. 1011, 1021 (M.D. Penn. 1991) (same). While the              from overcrowding. J.A. at 137. According to Marrelli, the
majority’s assignment of the burden of proof to the party           ordinance was enacted as a result of the 1988 amendments to
claiming § 3607(b)(1)’s exemption may be appropriate when           the FHA, and in response to landlords’ and tenants’
the restriction is privately initiated, it is inappropriate here.   complaints regarding overcrowding. Thus, after the FHA
                                                                    amendments were passed, information regarding these
   Section 3607(b)(1)’s proviso limiting its exception to only      amendments, along with a draft of the proposed ordinance,
“reasonable” restrictions is also consistent with a presumption     was submitted to local apartment landlords/owners. Bedford
of the ordinances’ validity. The presumption in favor of a          Heights, working with the landlords/owners, developed the
police power-based ordinance has never been irrebuttable, and       square footage requirements included in the final version of
its constitutional validity has always hinged on the                the ordinance.
ordinance’s reasonableness:
                                                                       In addition, B. Allen Clutter, Vice-President and General
  The term 'police power' connotes the time-tested                  Manager of Owners Management Company, testified at trial.3
  conceptional limit of public encroachment upon private             Clutter stated that although using a square footage occupancy
  interests. Except for the substitution of the familiar            standard is not unreasonable, for consistency purposes,
  standard of 'reasonableness,' this Court has generally            Owners Management imposes a two-person-per- bedroom
  refrained from announcing any specific criteria. The              standard. Clutter further admitted that he was aware that
  classic statement of the rule in Lawton v. Steele, 152 U.S.       Owners Management was in violation of Bedford Heights’s
  133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894), is still        occupancy ordinance due to the company’s two-person-per-
  valid today:                                                      bedroom standard. A letter Clutter wrote to the Mayor of
                                                                    Bedford Heights shortly before enactment of the 1989
     'To justify the state in * * * interposing its authority       occupancy ordinance was also presented at trial. This letter
     in behalf of the public, it must appear--First, that the       referenced the 1988 FHA Amendments and pointed out that
     interests of the public * * * require such                     Bedford Heights did not have an occupancy ordinance.
     interference; and, second, that the means are                  Clutter indicated in his letter that he knew “there [would] be
     reasonably necessary for the accomplishment of the             a great demand for family housing in this area because of the
     purpose, and not unduly oppressive upon                        school system,” and thus, he “urge[d] [the Mayor] to consider
     individuals.'
  Even this rule is not applied with strict precision, for this
  Court has often said that 'debatable questions as to                  3
                                                                           Owners Management Company is a subsidiary of a company which
  reasonableness are not for the courts but for the                 owns, develops and manages apartment buildings in several states and
                                                                    cities, including Bedford Heights.
6       Fair Housing Advocates v. City of              No. 98-3523       No. 98-3523         Fair Housing Advocates v. City of      31
        Warrensville Heights, et al.                                                               Warrensville Heights, et al.

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

§ 3607(b)(1)’s breadth, and it is undisputed that the                  In addition, the deposition testimony of James Thompson,
ordinances here fall within it. City of Edmonds therefore also      Fairview Park’s Assistant Building Commissioner, was also
commands that the FHA, exemption or not, is no longer               presented at trial. Thompson stated that his office receives
relevant to the inquiry. To the extent that the authorities cited   only a few complaints each year from city residents alleging
by the majority suggest otherwise, they are, in my opinion,         that certain dwellings are in violation of the ordinance, i.e.,
mistaken. For the same reason, the majority’s emphasis on           overcrowded. According to Thompson, upon investigating
the fact that the FHA is a remedial statute is also irrelevant      these complaints, he found that there were no violations and
once we decide that the exemption applies.                          that there were never more occupants of a dwelling than were
                                                                    allowed by the ordinance.
  I also find the majority’s reasoning undermined by its
omission of several critical elements in the cases it cites for     Warrensville Heights
this proposition. Most glaringly, the majority blatantly
misrepresents our holding in Grancare, Inc. v. National               Warrensville Heights adopted its current occupancy
Labor Relations Board, 137 F.3d 372, 378 (6th Cir. 1998).           ordinance, Codified Ordinance § 1377.03(d), in March 1989.
There, a nursing care facility asserted an exemption to the         This ordinance requires 350 square feet of habitable floor area
National Labor Relations Act that excluded “supervisors”            for the first occupant and an additional 100 square feet for
from joining collective bargaining units with other employees.      each additional occupant. Further, the occupancy ordinance
Consistent with our precedent, see NLRB v. Beacon Light             requires a minimum of 650 square feet of habitable space for
Christian Nursing Home, 825 F.2d 1076, 1080 (6th Cir.               dwellings with four occupants.
1987), we held through Judge Surheinrich that the NLRB bore
the burden of proving that the employees were not                     Williams Pegues, President of the Warrensville Heights
supervisors, and that it had impermissibly shifted that burden      City Council at the time the ordinance was passed, testified in
to the employer. See Grancare, 137 F.3d at 375. Judge               his deposition that he did not recall specific discussions about
Moore filed an opinion concurring in the result but                 the ordinance. He did, however, recall that residents had
disagreeing with the placement of the burden on the Board,          expressed some concerns to him regarding problems with
and it is a passage from that opinion—which is contrary to          overcrowding, and indicated that they had moved to
that case’s actual holding—that the majority now cites as the       Warrensville Heights in order to have more space. However,
proposition Grancare stands for. See id. at 378. The                according to Pegues, none of the residents expressed any
majority’s citation to Judge Moore’s concurrence is made            concern about children. Pegues also stated that it was
even more troubling by the fact that Judge Jones, the author        unlikely that landlords provided any input into the city’s
of today’s majority opinion, solidified Grancare’s actual           decision to enact the ordinance. The deposition testimony of
holding in a separate opinion “concur[ring] in [Judge               Nathaniel Harris, Warrensville Heights’s Chief Housing
Surheinrich]’s well-reasoned opinion.” Id. at 376. Judge            Inspector at the time, was also presented at trial. Harris
Jones’s Grancare concurrence sympathized with Judge                 provided general information regarding the enforcement of
Moore’s concerns, but agreed that “we are clearly bound by          the city’s occupancy ordinance. Further, the deposition
Sixth Circuit precedent which places the burden on the Board        testimonies of three Warrensville Heights landlords were also
to prove that employees are not supervisors.” Id. at 377.           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
8     Fair Housing Advocates v. City of            No. 98-3523      No. 98-3523         Fair Housing Advocates v. City of      29
      Warrensville Heights, et al.                                                            Warrensville Heights, et al.

standards violated the more specific square footage                 its holding was a narrow one limited to this question only.
requirements set forth in Warrensville Heights’s occupancy          See id. at 728, 731, 738. City of Edmonds decided that
ordinance. The third landlord stated that his apartment             § 3607(b)(1) exempted only “numerical ceilings that serve to
complex followed the occupancy ordinance, and due to the            prevent overcrowding in living quarters,” and not the type of
ordinance, the complex allowed a maximum of three                   ordinance at issue there, which defined what composed a
occupants for two bedroom dwellings. None of the landlords          family unit and applied different occupancy rules on that
recalled being approached by any Warrensville Heights               basis. Id. at 731. The Court differentiated land-use
official regarding possible violations of the occupancy             restrictions that are necessarily based on value judgments
ordinance.                                                          from numerical occupancy limits that are neutral and evenly
                                                                    applied. See id. at 732-34. These latter ordinances “plainly
Housing Advocates                                                   and unmistakably fall within § 3607(b)(1)’s absolute
                                                                    exemption from the FHA’s governance.” Id. at 735 (internal
   Housing Advocates submitted evidence regarding model             quotations omitted, emphasis added). The section “entirely
occupancy standards established by the Building Officials and       exempts [such ordinances] from the FHA’s compass.” Id. at
Code Administrators (“BOCA”). All three Cities were                 728 (emphasis added).
members of BOCA at the time they enacted their respective
occupancy ordinances. The BOCA model code, which was                   The majority purports to follow City of Edmonds’s lead in
formulated by housing experts from around the country, set          construing the exemption narrowly to promote the FHA’s
forth the following minimum occupancy standards: a                  broader policy. In actuality, by narrowly construing both the
minimum 70 square feet of habitable space per person in a           breadth and effect of the exemption, the majority ignores both
bedroom for the first occupant and 50 square feet of habitable      the legislative intent of § 3607(b)(1) to protect numerical
space in a bedroom for two or more occupants. For dwellings         occupancy limits and the Court’s express admonition that
with three to five occupants, BOCA requires a minimum of            once an ordinance is determined to be such a neutral,
120 square feet in a living room, 80 square feet in a dining        numerical law—a fact the majority freely concedes here—it
room, and 50 square feet in a kitchen. Housing Advocates            is no longer subject to the FHA’s anti-discrimination regime.
presented evidence that two other groups, the Ohio Apartment
Association and the Northeast Ohio Apartment Association,              The majority also cites general principles of statutory
had not adopted square footage requirements, but merely             construction and a string of cases for the generic proposition
determined that a two-person per-bedroom occupancy                  that a party claiming an exemption from a statute has the
standard is appropriate.        Housing Advocates further           burden of proving its applicability. This is not an
established that the Cities did not conduct any formal studies      objectionable concept in the abstract. The Supreme Court
before enacting their respective ordinances.                        itself said as much in City of Edmonds in a preface to its
                                                                    discussion of the family-defining ordinance at issue there.
  Housing Advocates consulted several land planners and             See 514 U.S. at 731-32. But that decision and each case cited
housing experts, each of whom testified at trial that the Cities’   by the majority were concerned with the types of restrictions
occupancy ordinances are unreasonable. See Fair Hous.               that would qualify for the exemption, not the scrutiny to be
Advocates Ass’n, 998 F. Supp. at 829. For example, Martin           given after deciding that the exemption in fact applies. The
Jarret, a land planner and city planning consultant, stated that    breadth of the exemption and its effect are wholly separate
the restrictions included in each city’s ordinance were more        questions. City of Edmonds settled the question of
28    Fair Housing Advocates v. City of            No. 98-3523      No. 98-3523           Fair Housing Advocates v. City of         9
      Warrensville Heights, et al.                                                              Warrensville Heights, et al.

significance in a case involving a historic police power, we        restrictive than BOCA standards. Jarret believed that the
nonetheless presume that exercise of power to be                    Cities’ restrictions were not reasonable due to the Cities’
constitutionally valid. The idea that we should give that           deviation from the BOCA standards, and the Cities’ failure to
degree of deference to police power ordinances in                   specifically analyze an appropriate square footage
constitutional arenas but not in the context of statutory           requirement. On cross-examination, however, Jarret admitted
regimes such as the FHA is entirely unsupported by the              that the issue of reasonableness was debatable.
majority’s bare observation that this is an FHA case and
Kutrom Corp. involved the Due Process Clause. Indeed, the             Following the bench trial, the district court filed its findings
idea is simply unsupportable.                                       of fact and conclusions of law. The district court concluded
                                                                    that Housing Advocates had the burden of proving that the
                               II.                                  Cities’ occupancy ordinances were unreasonable, and that
                                                                    Housing Advocates failed to meet its burden. See Fair Hous.
   Beginning from these precedents, it seems plain to me that       Advocates Ass’n, 998 F. Supp. at 830-31. The district court
neither the FHA’s text, its legislative history, the Supreme        also concluded that the ordinances were health, safety and
Court’s City of Edmonds decision, nor any “general principles       welfare measures, and were thus entitled to a presumption of
of statutory construction” mandate a departure from our             validity. See id. at 830. As a result of these conclusions, the
standard practice of according police power ordinances a            district court granted judgment for the Cities on each of
presumption of validity and placing the burden on the               Housing Advocates’ claims. See id. at 831. Housing
challenger to prove otherwise. The pertinent sentence of 42         Advocates thereafter filed this timely appeal.
U.S.C. § 3607(b)(1) reads: “Nothing in this subchapter limits
the applicability of any reasonable local, State, or Federal                                      II.
restrictions regarding the maximum number of occupants
permitted to occupy a dwelling.” As the majority has noted,           The FHA was originally enacted in 1968 and prohibited
the Court in City of Edmonds found it “[t]elling” that this         discrimination based on race, color, religion and national
provision was added simultaneously with the 1988                    origin. Congress thereafter amended the FHA to prohibit
Amendments broadening the FHA’s scope to prohibit                   housing discrimination based on gender. In 1988, Congress
discrimination based on family status. “Section 3607(b)(1)          passed the Fair Housing Amendments Act (“FHAA”), thereby
makes it plain that, pursuant to local prescriptions on             extending the FHA’s protections, and prohibiting
maximum occupancy, landlords legitimately may refuse to             discrimination based on disability and familial status.
stuff large families into small quarters.” City of Edmonds,         Specifically, the FHAA makes it unlawful to refuse to sell or
514 U.S. at 735 n. 9. Clearly this section was intended to          rent or to “make unavailable or deny, a dwelling to any person
prevent overzealous judicial application of the FHA’s broad,        because of . . . familial status[.]” 42 U.S.C. § 3604(a). The
anti-discrimination policy from having the unintended               FHAA defines “familial status” as:
consequence of invalidating legitimate anti-overcrowding
ordinances. The Court did continue to read § 3607(b)(1)’s             [O]ne or more individuals (who have not attained the age
exemption narrowly in order to preserve the primary                   of 18 years) being domiciled with–
operation of the FHA’s policy, see id. at 731-32, but it did this     (1) a parent or other person having legal custody of such
only in measuring the breadth of the exception, not its effect        individual or individuals; or
on laws falling within it. The Court repeatedly stressed that
10   Fair Housing Advocates v. City of           No. 98-3523      No. 98-3523          Fair Housing Advocates v. City of        27
     Warrensville Heights, et al.                                                            Warrensville Heights, et al.

  (2) the designee of such parent or other person having          Inc., 166 F.3d 1236, 1237 (D.C. Cir. 1999) (following Rice’s
  such custody, with the written permission of such parent        presumption against preemption). The presumptive validity
  or other person.                                                of historic police powers, then, is not a peculiarity of due
                                                                  process case law, but a crucial doctrine underlying our entire
42 U.S.C. § 3602(k). In addition, the FHA also includes           federalist system of governance. Cf. Railroad Comm’n of
several exemptions; the one at issue in the case sub judice       Texas v. Pullman Co., 312 U.S. 496, 500-01 (1941) (“Few
provides that “[n]othing in this subchapter limits the            public interests have a higher claim upon the discretion of a
applicability of any reasonable local, State, or Federal          federal chancellor than the avoidance of needless friction with
restrictions regarding the maximum number of occupants            state policies. [It is wise for federal courts to] restrain their
permitted to occupy a dwelling.” 42 U.S.C. § 3607(b)(1).          authority because of scrupulous regard for the rightful
Although we have not previously interpreted this occupancy        independence of the state governments and for the smooth
exemption, we are substantially aided in our resolution of this   working of the federal judiciary” (internal quotations
issue by legislative history, applicable administrative           omitted)); Brown v. Tidwell, 169 F.3d 330,332 (6th Cir. 1999)
regulations, and the Supreme Court’s decision in City of          (same).
Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995).
                                                                     Second, the majority’s statement is premised upon the
                  A. Legislative History                          assumption—an unfathomable one, in my view—that federal
                                                                  courts should somehow be less concerned with potential
  A review of the relevant legislative history regarding the      constitutional deficiencies in local ordinances than possible
FHA indicates that Congress was concerned that “families          violations of the Fair Housing Act. It is elementary to our
with children, like the other classes protected by title VIII,    judicial system that constitutional law is “the law of the land,”
have been the victims of unfair and discriminatory housing        and that no legislation—federal, state, or local—will stand if
practices.” H.R. Rep. No. 100-711, at 13 (1988). Despite its      it contradicts constitutional provisions. A corollary to this
broad goal of eradicating discrimination in housing based on      principle is that we should be hesitant to accord constitutional
familial status, however, Congress also recognized the            significance to our pronouncements, choosing instead to base
legitimate interests local and state governments have in          our holdings on less significant statutory or even procedural
enacting non-discriminatory occupancy restrictions.               grounds whenever plausible. Thus, we will presumptively
Accordingly, Congress made clear that:                            interpret statutes in such a way as to avoid constitutional
                                                                  defects, see, e.g., Pak v. Reno, 196 F.3d 666, 673 (6th Cir.
  These provisions are not intended to limit the                  1999) (majority opinion by Cole, J., and joined by Jones, J.);
  applicability of any reasonable local, State, or Federal        Callier v. Gray, 167 F.2d 987, 992 (6th Cir. 1999), and not
  restrictions on the maximum number of occupants                 reach the constitutional issues raised in a case unless they are
  permitted to occupy a dwelling unit. A number of                necessary to the case’s proper resolution. See Spector Motor
  jurisdictions limit the number of occupants per unit based      Co. v. McLaughlin, 323 U.S. 101, 105 (1944) ("If there is one
  on a minimum number of square feet in the unit or the           doctrine more deeply rooted than any other in the process of
  sleeping areas of the unit. Reasonable limitations by           constitutional adjudication, it is that we ought not to pass on
  governments would be allowed to continue, as long as            questions of constitutionality [...] unless such adjudication is
  they were applied to all occupants, and did not operate to      unavoidable”). And yet, as I discussed above, whenever we
                                                                  do choose to reach the questions of law with constitutional
26    Fair Housing Advocates v. City of            No. 98-3523      No. 98-3523          Fair Housing Advocates v. City of      11
      Warrensville Heights, et al.                                                             Warrensville Heights, et al.

of proof on reasonableness to the challengers. Once invoked,          discriminate on the basis of race, color, religion, sex,
“the force of the presumption of validity [rendered any               national origin, handicap or familial status.
further] justification for [the] regulatory ordinance
unnecessary.” Id. at 1175.                                          Id. at 31; see also Edmonds, 514 U.S. at 735 n.8 (quoting
                                                                    legislative history).
   In light of the degree to which the presumptive validity of
police power ordinances is ingrained in our jurisprudence, the                    B. Administrative Regulations
majority’s offhand distinction of these cases on the basis that
they were decided in the context of constitutional due process         Pursuant to the 1988 amendments, HUD was authorized to
challenges instead of the FHA is astounding. First, contrary        issue regulations implementing the FHA. Accordingly, HUD
to the majority’s assertion, Fourteenth Amendment Due               issued the Implementation of the Fair Housing Amendments
Process law is not the only context in which this respect for       Act of 1988, 54 Fed. Reg. 3232 (1989), which includes the
historic police powers has been accorded. As we pointed out         following discussion:
in Kutrom Corp., the Supreme Court, in upholding a Sunday
closing law in the face of an Equal Protection Clause                 While the statutory provision providing exemptions to
challenge, commented that “a statutory discrimination will            the [FHA] states that nothing in the law limits the
not be set aside if any set of facts reasonably may be                applicability of any reasonable Federal restrictions
conceived to justify it.” Id. at 1174-75 (quoting McGowan v.          regarding the maximum number of occupants, there is no
Maryland, 366 U.S. 420, 426 (1961)). Indeed, the Court has            support in the statute or its legislative history which
made it quite clear that only classifications based on a few          indicates any intent on the part of Congress to provide for
suspect or quasi-suspect groups will get any higher level of          the development of a national occupancy code. This
Equal Protection scrutiny. The Court has also stated plainly          interpretation is consistent with Congressional reliance
that, notwithstanding an apparent conflict, it will presume that      on and encouragement for States and localities to become
federal laws do not preempt exercises of traditional state and        active participants in the effort to promote achievement
local police powers under the Constitution’s Supremacy                of the goal of Fair Housing.
Clause “unless that was the clear and manifest purpose of
Congress.” Ray v. Atlantic Richfield Co., 435 U.S. 151, 157         Id. at 3237. The HUD regulations further provide that:
(1978) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.             Many jurisdictions limit the number of occupants per
218, 230 (1947)); see also Hill v. State of Florida ex. rel.          unit based on a minimum number of square feet in the
Watson, 325 U.S. 538, 552 (Frankfurter, J., dissenting) (“The         unit or the sleeping areas of the unit; HUD also issues
principle is thoroughly established that the exercise by the          occupancy guidelines in its assisted housing programs.
state of its police power, which would be valid, if not               Reasonable limitations do not violate the Fair Housing
superseded by federal action, is superseded only where the            Act as long as they apply equally to all occupants. A
repugnance or conflict is so direct and positive that the two         substantial number of comments were received asking
acts cannot be reconciled or consistently stand together . . . .      that the Department adopt occupancy restrictions that
Deviations from this policy . . . have been so rare all these         housing providers can apply in jurisdictions that do not
decades, despite the changes in the Court, because of fidelity        have governmentally-adopted occupancy restrictions, and
to the purposes of this vital aspect of our federalism” (internal     in jurisdictions where the governmentally-adopted
quotations omitted)); Geier v. American Honda Motor Co.,              restrictions are tantamount to no restrictions.
12    Fair Housing Advocates v. City of             No. 98-3523      No. 98-3523          Fair Housing Advocates v. City of       25
      Warrensville Heights, et al.                                                              Warrensville Heights, et al.

Id. at 3253; see also 24 C.F.R. § 115.202(c)(1999)(“The              (1977) (upholding denial of building permit for multi-family,
requirement that the state or local law prohibit discrimination      low income housing as part of rational zoning plan); Memphis
on the basis of familial status does not require that the state or   v. Green, 451 U.S. 100 (1981) (upholding against a racial
local law limit the applicability of any reasonable local, state     discrimination claim an ordinance diverting traffic from
or Federal restrictions regarding the maximum number of              residential neighborhood); Tower Realty, 196 F.2d at 724
occupants permitted to occupy a dwelling.”).                         (“Every reasonable presumption or intendment must be
                                                                     indulged in favor of the validity of the ordinance; and, in case
                C. City of Edmonds Decision                          of doubt, every presumption not clearly inconsistent with the
                                                                     language and subject matter is to be made in favor of its
  In addition to the foregoing legislative history and               constitutionality”); Lakewood, Ohio Congregation of
administrative materials, the Supreme Court also has                 Jehovah’s Witnesses, Inc. v. City of Lakewood, Ohio, 699
addressed the issue. In Edmonds, the Supreme Court                   F.2d 303, 308 (6th Cir. 1983) (upholding denial to build
considered whether the City of Edmonds’s residential zoning          church in areas zoned as exclusively residential); Curto v.
provision limiting the maximum number of unrelated                   City of Harper Woods, 954 F.2d 1237, 1242 (6th Cir. 1992)
occupants allowed in a single-family dwelling violated the           (per curiam) (holding that ordinances, whether zoning or
FHA’s provision prohibiting discrimination against disabled          regulatory, “which represent[] an exercise of the
individuals. 514 U.S. at 728. The City of Edmonds’s zoning           municipality’s police powers [are] presumed to be
code provided that occupants of single-family dwellings must         constitutionally valid, with the burden of showing
compose a “family.” The code defined “family” as an                  unreasonableness being cast upon those who challenge the
unlimited number of related persons or a group of five or            ordinance . . . . [S]uch presumptions are entitled to as much
fewer unrelated persons. Id.                                         force and effect under summary judgment procedure as
                                                                     elsewhere” (internal quotations omitted)). All exercises of
  In reviewing the zoning provision, the Court noted that            police powers are entitled to an equal level of respect. See
“rules that cap the total number of occupants in order to            Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 529 (1959).
prevent overcrowding of a dwelling plainly and unmistakably
fall within § 3607(b)(1)’s absolute exemption from the FHA’s            Few of our cases articulate this basic doctrine more clearly
governance.” Id. at 735 (internal citation and quotations            than Kutrom Corp. v. City of Center Line, 979 F.2d 1171 (6th
omitted). The Court further noted the following:                     Cir. 1992), to which the majority gives only passing
                                                                     obeisance. The question presented in that case was whether
     Tellingly, Congress added the § 3607(b)(1) exemption            summary judgment was properly granted on the basis of the
  for maximum occupancy restrictions at the same time it             ordinance’s presumptive validity without requiring the city,
  enlarged the FHA to include a ban on discrimination                as the moving party, to provide any affirmative evidence of
  based on “familial status.” The provision making it                the law’s reasonableness. See id. at 1171-72. Holding that
  illegal to discriminate in housing against families with           mere reliance on the presumption of validity was proper, we
  children under the age of 18 prompted fears that                   noted that the “lenient ‘rational basis’ test finds its least
  landlords would be forced to allow large families to               stringent application in cases involving a governmental unit’s
  crowd into small housing units . . . (remarks of Rep.              exercise of its police powers.” Id. at 1174. We required the
  Edwards) (questioning whether a landlord must allow a              city merely to invoke the presumption and identify a possible,
  family with 10 children to live in a two-bedroom                   legitimate basis for the ordinance in order to shift the burden
24    Fair Housing Advocates v. City of             No. 98-3523      No. 98-3523          Fair Housing Advocates v. City of       13
      Warrensville Heights, et al.                                                              Warrensville Heights, et al.

majority does not disturb the district court’s finding that the        apartment). Section 3607(b)(1) makes it plain that,
maximum occupancy ordinances at issue are in fact exercises            pursuant to local prescriptions on maximum occupancy,
of police powers intended to prevent overcrowding in                   landlords legitimately may refuse to stuff large families
apartment buildings, and the Supreme Court has confirmed               into small quarters.
that such laws are enacted to protect the health and safety of
citizens. See City of Edmonds v. Oxford House, Inc., 514             Id. at 735 n.9 (internal citations omitted). After reviewing the
U.S. 725, 733-34 (1995). Health and safety concerns are at           legislative history and applicable regulations, however, the
the very heart of local police powers, and our respect for           Supreme Court concluded that the city’s zoning provision did
ordinances controlling uses of land for these reasons extends        not fall within the occupancy exemption set forth in
far back into our jurisprudence. See, e.g., Tower Realty v.          § 3607(b)(1) because the provision did not limit the number
City of Detroit, 196 F.2d 710, 722 (6th Cir. 1952) (quoting          of occupants that were allowed to occupy a dwelling, but
Fischer v. City of St. Louis, 194 U.S. 361, 370 (1904)) (“The        rather “describe[d] who may compose a family unit.” Id. at
power of the legislature to authorize its municipalities to          728. The Court held that § 3607(b)(1) “removes from the
regulate and suppress all such places . . . as, in its judgment,     FHA’s scope only total occupancy limits, i.e., numerical
are likely to be injurious to the health of its inhabitants, or to   ceilings that serve to prevent overcrowding in living
disturb people living in the immediate neighborhood . . . , is       quarters,” not “provisions designed to foster the family
so clearly within the police power as to be no longer open to        character of a neighborhood.” Id.
question”). Such enactments have long been accorded a
presumption of validity. See, e.g., Village of Euclid v. Ambler        Despite the obvious deference afforded to maximum
Realty Co., 272 U.S. 365, 395 (1926) (requiring zoning laws          occupancy restrictions, however, the Court made clear that
to be upheld as valid exercises of police power unless “clearly      such restrictions are not simply “rubber stamped” by the
arbitrary or unreasonable, having no substantial relation to the     courts, but instead, require some level of scrutiny. The
public health, safety, morals or general welfare”); Goldblatt        Supreme Court noted that courts must remain “‘mindful of
v. Town of Hempstead, New York, 369 U.S. 590, 593 (1962)             the Act’s stated policy to provide, within constitutional
(“If this ordinance is otherwise a valid exercise of the town’s      limitations, for fair housing throughout the United States.’”
police powers, the fact that it deprives the property of its most    Edmonds, 514 U.S. at 731 (quoting § 3601). Further, the
beneficial use does not render it unconstitutional . . . . The       Court noted that exceptions to the FHA’s “general statement
power which the states have of prohibiting such use . . . as         of policy” must be “read narrowly in order to preserve the
will be prejudicial to the health, the morals, or the safety of      primary operation of the policy.” Id. at 731-32 (internal
the public, is not, and consistently with the existence and          quotations and alteration omitted). With this clear guidance
safety of organized society, cannot be, burdened with the            in mind, we consider whether the Cities’ occupancy
condition that the state must compensate such individual             ordinances qualify for the § 3607(b)(1) exemption.
owners for pecuniary losses they may suffer” (internal
quotations omitted)); Village of Belle Terre v. Boraas, 416                                        III.
U.S. 1, 9 (1974) (acknowledging a village’s police power as
“ample to lay out zones where family values, youth values,              Based on the plain language of § 3607(b)(1), and the
and the blessings of quiet seclusion and clean air make the          standards articulated in the legislative history, the
area a sanctuary for people”); Village of Arlington Hts. v.          administrative regulations and Edmonds, we find that in order
Metropolitan Housing Development Corp., 429 U.S. 252                 to qualify for a §3607(b)(1) exemption, each city’s ordinance
14   Fair Housing Advocates v. City of           No. 98-3523      No. 98-3523          Fair Housing Advocates v. City of        23
     Warrensville Heights, et al.                                                            Warrensville Heights, et al.

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.                                  CONCURRENCE
§ 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        ALICE M. BATCHELDER, Circuit Judge, concurring in
of occupants permitted to occupy an apartment. Thus, we           judgment. I agree with the majority that the maximum
must determine whether these occupancy ordinances are             occupancy regulations at issue here are valid exercises of the
“reasonable,” and whether Housing Advocates or the Cities         Cities’ police powers that withstand the scrutiny of the Fair
bear the burden of proving that these ordinances are              Housing Act, but I cannot concur in its reasoning. In my
reasonable. Housing Advocates contends that because the           opinion, the majority gives far too little respect to the
Cities are attempting to invoke an exemption to the FHA, the      traditional police powers of states and localities. Requiring
Cities bear the burden of proving that their ordinances fall      the Cities to prove their ordinances reasonable not only turns
within this exemption, and must therefore establish that their    the traditional notion of federalism on its head, but contradicts
ordinances are reasonable. Conversely, the Cities respond         the basic assumption of our legal system that plaintiffs in civil
that the ordinances are valid, non-discriminatory efforts to      litigation bear the burden of making out each element of their
limit occupancy, and therefore, Housing Advocates must            claims. I do not read anything in the Fair Housing Act as
prove that the ordinances are unreasonable.                       requiring this result. I therefore respectfully object to the
                                                                  majority’s characterization of the controlling law in Part III of
            A. Allocation of Burdens of Proof                     its opinion.
   The district court concluded that “Plaintiff has the burden                                   I.
to show that the ordinance[s] [are] unreasonable.” Fair
Hous. Advocates Ass’n, 998 F. Supp. at 830 (citing Kutrom            The majority relies heavily on “general principles of
Corp. v. City of Center Line, 979 F.2d 1171, 1174 (6th Cir.       statutory construction” for its conclusion that the Cities
1992)). Housing Advocates contends that it is well-settled        should have to prove that their ordinances are “reasonable,”
that the party seeking an exemption to the FHA bears the          because that term is found in an “exemption” to the FHA. It
burden of proving that it is entitled to the exemption, and       also dismisses in a single paragraph the concept that
thus, the district court erroneously placed the burden on         ordinances enacted pursuant to historic, local police powers
Housing Advocates. We agree with Housing Advocates, and           are entitled to a presumption of validity in federal courts with
find that the district court improperly allocated the burden of   the observation that this idea emanates from cases involving
proof.                                                            constitutional due process challenges, not potential FHA
                                                                  violations. In my view, this is exactly the wrong approach.
   Federal courts have repeatedly concluded that the party
claiming the exemption “carries the burden of proving its           Instead, we should begin by recognizing the traditional
eligibility for the exemption,” and that “[e]xemptions from       deference given to exercises of a locality’s police power. This
the [FHA] are to be construed narrowly, in recognition of the     presumption of validity stems from a recognition that federal
important goal of preventing housing discrimination.”             courts should be wary to tread on the spheres of authority that
Massaro v. Mainlands Section 1 & 2 Civic Ass’n, Inc., 3 F.3d      were never given up by state and local governments. The
22   Fair Housing Advocates v. City of          No. 98-3523      No. 98-3523          Fair Housing Advocates v. City of        15
     Warrensville Heights, et al.                                                           Warrensville Heights, et al.

                             V.                                  1472, 1475 (11th Cir. 1993), cert. denied 513 U.S. 808
                                                                 (1994); see also Hogar Agua y Vida en el Desierto v. Suarez-
   Based on the foregoing, we AFFIRM the district court’s        Medina, 36 F.3d 177, 182 (1st Cir. 1994)(“exemptions from
grant of judgment for the defendants, although we reject its     the requirements of a remedial statute–like the FHA–are to be
allocation of the burden of proof and presumption of validity.   construed narrowly to limit exemption eligibility”)(citing
Because the record in this case is thorough, and provides        Massaro)(discussing “single-family house” exemption to
sufficient evidence from which we conclude that the Cities       FHA); United States v. City of Hayward, 36 F.3d 832, 837
satisfied their burden of proving that their respective          (9th Cir. 1994)(same); Rogers v. Windmill Pointe Village
occupancy ordinances were “reasonable” as required to            Club Ass’n, Inc., 967 F.2d 525, 527 (11th Cir. 1992)(“Under
invoke the § 3607(b)(1) exemption, we find a remand              general principles of statutory construction, one who claims
unnecessary.                                                     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.
16   Fair Housing Advocates v. City of            No. 98-3523      No. 98-3523             Fair Housing Advocates v. City of           21
     Warrensville Heights, et al.                                                                Warrensville Heights, et al.

Id. at 378 (internal quotations and citations omitted); see also   1990 WL 97490, at *4 (6th Cir. July 13, 1990)(same).
Herman v. Palo Group Foster Home, __ F.3d __, No. 97-              However, we conclude that based on the evidence presented,
2102, 1999 WL 498932, at *2 (6th Cir. 1999)(holding that           Housing Advocates has failed to satisfy either of these tests,
Fair Labor Standards Act exemptions are to be narrowly             and the district court thus properly       denied Housing
construed and employer claiming exemption has burden of            Advocates’ claim on this ground.7.
proving that exemption applies); Jones v. FBI, 41 F.3d 238,
244 (6th Cir. 1994)(exemptions under Freedom of                       In support of its discrimination argument, Housing
Information Act are to be narrowly construed and “burden is        Advocates notes that the population was decreasing in each
on the defendant agency to demonstrate, not the requester to       city; the ordinances were passed shortly after enactment of the
disprove, that the materials sought may be withheld due to an      FHA amendments extending protections to families; the
exemption”)(internal quotations and citations omitted).            ordinances were more restrictive than BOCA’s standards; and
                                                                   the ordinances would prohibit many families from finding
  Based on the foregoing caselaw, we find that the district        housing. We find this evidence insufficient to establish that
court erred in concluding that Housing Advocates was               the Cities’ intended to discriminate against families. The
required to establish that the ordinances were unreasonable,       ordinances are facially neutral and apply equally to families
as opposed to requiring the Cities to establish that the           and unrelated individuals who occupy dwellings in the
ordinances were reasonable.                                        respective Cities. Further, Housing Advocates conceded in
                                                                   the parties’ joint stipulations that “[n]one of the square
                B. Presumption of Validity                         footage restrictions in the occupancy ordinances of the
                                                                   defendant municipalities facially discriminate on a familial
  Citing Kutrom, the district court also concluded that the        basis.” Fair Hous. Advocates Ass’n, 998 F. Supp. at 826.
Cities’ occupancy ordinances are “an exercise of the local         Housing Advocates has also failed to establish that the
government’s police power on social legislation enacted to         occupancy ordinances had a discriminatory effect on families
protect the public health, safety and welfare and, [are]           as required by the discriminatory impact analysis. Further, as
therefore, entitled to a presumption of validity.” Fair Hous.      the Cities point out, families of four, as opposed to families
Advocates Ass’n, 998 F. Supp. at 830 (citing Kutrom, 979           of three, are not protected classes.
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          7
the presumption of validity where they attempt to invoke an               We note that Housing Advocates’s argument is strongest against
exemption under the FHA.                                           Bedford Heights’s ordinance, because there was evidence in the record
                                                                   that, to some extent, the issue of children was discussed in conjunction
  In Kutrom, the plaintiff challenged an ordinance regulating      with that city’s decision to enact the ordinance. This may suggest that
                                                                   Bedford Heights’s decision was not completely motivated by issues of
massage parlors in the city, claiming that the ordinance           overcrowding. Despite this evidence against Bedford Heights, we find
violated the due process clauses of the Fifth and Fourteenth       that Housing Advocates has not established discriminatory intent or
                                                                   impact with regard to that city.
20       Fair Housing Advocates v. City of                 No. 98-3523         No. 98-3523          Fair Housing Advocates v. City of       17
         Warrensville Heights, et al.                                                                     Warrensville Heights, et al.

  restricting the number of unrelated individuals who may                      Amendments. The city enacted the ordinance in order to limit
  occupy a single family residence are reasonably related                      the hours during which massage parlors could be open, to
  to these legitimate goals. The City does not need to                         regulate the attire of each masseuse, and to eliminate
  assert a specific reason for choosing eight as the cut-off                   prostitution that was allegedly occurring in such parlors. See
  point, rather than ten or twelve. Every line drawn by a                      979 F.2d at 1172. We held that such an ordinance was a valid
  legislature leaves some out that might well have been                        health, safety and welfare measure, and was therefore
  included. That exercise of discretion, however, is a                         presumptively valid. The presumption of validity standard we
  legislative, not a judicial, function.                                       applied in Kutrom was based on the “rational basis” test
                                                                               utilized in addressing constitutional challenges to “economic
Id. at 252 (emphasis added)(internal quotations and citations                  or social welfare regulation adopted in exercise of police
omitted). The rationale of Oxford House applies with equal                     powers.” Id. at 1174; see also Goldblatt v. Town of
force here. The “exercise of discretion” as to whether to                      Hempstead, 369 U.S. 590, 595-96 (1962); Bibb v. Navajo
require a minimum of 650 square feet for an apartment of four                  Freight Lines, Inc., 359 U.S. 520, 529 (1959)(“The various
people, as opposed to a minimum of 500 square feet       or 800                exercises by the States of their police power . . . are entitled
square feet, is a legislative, not a judicial function.6                       to the same presumption of validity when challenged under
                                                                               the Due Process Clause of the Fourteenth
                                   IV.                                         Amendment.”)(emphasis added). By contrast, the Cities in
                                                                               this case are attempting to invoke an exemption under the
   Finally, Housing Advocates contends that the Cities’                        FHA, and thus Kutrom is inapposite. Accordingly, the
occupancy ordinances were invalid because they (1) were                        district court’s reliance on Kutrom, and its conclusion that the
enacted to discriminate against families of four; and (2) had                  Cities’ occupancy ordinances are presumptively valid, was
a discriminatory impact on families of four. We have applied                   erroneous.
the discriminatory treatment and impact analyses to FHA
claims. See Arthur v. City of Toledo, 782 F.2d 565, 574-75                                     C. Reasonableness Inquiry
(6th Cir. 1986); Blaz v. Barberton Garden Apt., No. 91-3896,
1992 WL 180180, at *3 (6th Cir. July 29, 1992)(“[A]                               As set forth above, the Cities bear the burden of proving
violation of the [FHA] can be established by a showing of                      that the ordinances are reasonable. However, at trial, the
discriminatory intent or discriminatory effect.”)(citing                       district court placed that burden on Housing Advocates. Due
Arthur); Troy v. Suburban Management Corp., No. 89-1282,                       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
     6                                                                         the district court to review the matter using the correct
      Housing Advocates also contends that the ordinances were
unreasonable because the population in each city declined over a 20-year       allocation of the burden of proof. Despite the district court’s
period. However, as the Cities point out, the fact that the population of      improper allocation of the burden of proving reasonableness,
each city has declined over the past twenty years is not dispositive. As the   we find that based on the ample evidence presented in the
Supreme Court noted in Edmonds, the purpose of many occupancy                  record, the Cities have presented evidence sufficient to
restrictions is to “protect health and safety by preventing dwelling
overcrowding.” Edmonds, 514 U.S. at 733 (emphasis added). Thus, the            establish that their ordinances fall within the exemption set
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.
18       Fair Housing Advocates v. City of                 No. 98-3523         No. 98-3523           Fair Housing Advocates v. City of        19
         Warrensville Heights, et al.                                                                      Warrensville Heights, et al.

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