                                   ___________

                                   No. 95-2365
                                   ___________

Oxford House-A; Oxford                  *
House, Inc.,                            *
                                        *
     Plaintiffs - Appellees,            * Appeal from the United States
                                        * District Court for the
     v.                                 * Eastern District of Missouri.
                                        *
City of University City,                *
                                        *
     Defendant - Appellant.             *
                                   ___________

                    Submitted:     January 9, 1996

                         Filed:    July 5, 1996
                                   ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     Oxford    Houses    are   a   nationwide     network   of   self-governing,
transitional residences where recovering alcoholics and drug addicts can
live in a supportive group setting.     Oxford House locates its group homes
in residential neighborhoods.      Residents seek jobs in the community, pay
for their room and board, and are expelled if they relapse.               To be
economically viable, an Oxford House must have a minimum of eight to twelve
residents.    Congress supports the group home concept.           See 42 U.S.C.
§ 300x-25.    But the Oxford House site selection and minimum resident
criteria have put Oxford Houses at odds with many local zoning officials.1




      1
      See City of Edmonds v. Oxford House, Inc., 115 S. Ct. 1776
(1995); Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir.
1996), rev'g 843 F. Supp. 1556 (E.D. Mo. 1994); United States v.
Village of Palatine, 37 F.3d 1230 (7th Cir. 1994); Oxford House,
Inc. v. City of Virginia Beach, 825 F. Supp. 1251 (E.D. Va. 1993);
Oxford House, Inc. v. Township of Cherry Hill, 799 F. Supp. 450
(D.N.J. 1992).
      In this case, the City of University City, Missouri, threatened to
evict residents who moved into "Oxford House-A" without obtaining the
occupancy permit required by the City's zoning ordinances.                  Oxford House-A
and its parent, Oxford House, Inc. (collectively "Oxford House"), commenced
this action alleging that the City's zoning code violates the Fair Housing
Act ("FHA"), 42 U.S.C. §§ 3601 et seq., and other federal laws by
discriminating against Oxford House's handicapped residents.                     Some months
later, the City amended the code and granted Oxford House-A an occupancy
permit for its ten residents.          Oxford House dismissed this lawsuit without
prejudice and then was awarded $35,000 in attorney's fees under the fee
provision in the FHA.       The City appeals the district court's decision that
this lawsuit was the catalyst for the City's favorable action.                   Our recent
decision in Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir.
1996), petition for cert. filed, 64 U.S.L.W. 3808 (May 23, 1996) (No. 95-
1925), establishes that the lawsuit was unreasonable because Oxford House
did   not   first    give   the   City   an    opportunity     to   grant    a   reasonable
accommodation.       Accordingly, we reverse the fee award.


                                              I.


      On July 19, 1993, Oxford House leased a house in a part of the City
zoned primarily for single-family dwellings.                 The code defined family to
include a group of three unrelated individuals.                 Oxford House residents
began to move in without applying for the occupancy permit the City
requires of all new occupants to ensure code compliance.                    Because Oxford
House planned to house ten unrelated residents, it could not have obtained
an occupancy permit without an exemption from the single-family zoning
restriction.


      When    they    learned     of   Oxford      House's    actions,   City      officials
threatened to evict those who had moved in without an occupancy permit.
Counsel for Oxford House asked the City to "leave the house alone."
Counsel for the City responded that Oxford House




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must either apply for a special use permit, which the City would process
quickly, or seek amendment of the zoning code.      The City promised not to
proceed against past violations if no resident occupied the house until an
occupancy permit issued.


        On July 28, both sides went to court.   The City asked a state court
to enforce the codes.      Oxford House filed this action in federal court,
alleging violations of the FHA and other federal statutes.        A few days
later, responding to Oxford House's separate administrative complaint, the
Department of Housing and Urban Development ("HUD") filed its own action
in federal court, obtained a temporary restraining order against eviction
of the residents, see 42 U.S.C. § 3610(e)(1), and then entered into a
Consent Order in which the City agreed not to evict anyone for 180 days if
no more than eight persons occupied Oxford House-A.2


        Oxford House applied for an amendment to the City's zoning ordinance
that defined a "family."    Although the City Council rejected Oxford House's
specific proposal, it amended the code in February 1994 to conform to a
state       statute which provides that the classification "single family
dwelling" in a zoning law "shall include any home in which eight or fewer
unrelated mentally or physically handicapped persons reside, and may
include two additional persons acting as houseparents or guardians."     Mo.
Rev. Stat. § 89.020(2).      The City's amended code provides that a "small"
group home of eight residents and two houseparents is allowed in a
residential area, and further provides that a larger group home may be
allowed "as a conditional use."


        These code changes did not necessarily solve Oxford House's problem
for two reasons.      First, the phrase "mentally or physically handicapped
persons" in state law does not apply to recovering




        2
     On April 21, 1994, the City agreed to a supplemental Consent
Order allowing nine residents.

                                      -3-
alcoholics and drug addicts.     See City of St. Joseph v. Preferred Family
Healthcare, Inc., 859 S.W.2d 723, 725 (Mo. App. 1993).3        Second, Oxford
House intended to operate Oxford House-A with ten residents, rather than
eight.       Nevertheless, construing the group home's two officers as the
functional equivalent of houseparents, the City resolved these issues in
Oxford House's favor and granted Oxford House-A an occupancy permit to use
the premises as a "[c]ongregate dwelling housing up to 10 persons."


     Four days later, Oxford House moved to dismiss this lawsuit without
prejudice, reserving the right to seek attorney's fees.     The district court
                                      4
dismissed over the City's objection.      Oxford House then moved for an award
of $35,000 in attorney's fees, the district court granted that motion, and
the City appeals.


                                     II.


     The prevailing party in FHA litigation may be awarded costs and a
reasonable attorney's fee.    See 42 U.S.C. § 3613(c)(2).   "Prevailing party"
has the same meaning as it does under the more general civil rights
statute, 42 U.S.C. § 1988(b).       See 42 U.S.C. § 3602(o).      Despite the
voluntary dismissal, Oxford House argues that it should be deemed a
prevailing party because its suit was the "catalyst" for the City's
accommodation of Oxford House's request for a ten-resident group home in
a single-family




         3
       The City has not challenged the claim that Oxford House
residents are "handicapped" for purposes of the FHA.
     4
      Procedurally, there is nothing wrong with proceeding in this
fashion. See Brown v. Local 58, I.B.E.W., 76 F.3d 762, 766 (6th
Cir. 1996); Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541, 550
(3d Cir. 1994). However, when the City opposed dismissal on this
basis, the court would have been well advised to consider the
merits of the lawsuit and Oxford House's catalyst theory before
dismissing. It is not unusual for conditions to be imposed when
dismissal without prejudice is granted long after a suit is filed.
See Kern v. TXO Prod. Corp., 738 F.2d 968, 972 (8th Cir. 1984).

                                     -4-
neighborhood.      We uphold a fee award under the catalyst theory if
plaintiff's    suit   was   in   fact   a    catalyst     for   defendant's    voluntary
compliance, and if that compliance "was not gratuitous, meaning the
plaintiff's suit was neither frivolous, unreasonable nor groundless."
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., #1, 17 F.3d
260, 262 (8th Cir. 1994) (quotation omitted).


       The district court found that Oxford House's lawsuit was a catalyst
for the City's action in amending its zoning code and issuing Oxford House
a ten-resident occupancy permit.            The court did not consider the other
catalyst theory issue -- whether the lawsuit was unreasonable.                 We review
that issue de novo.    See Degidio v. Pung, 920 F.2d 525, 529 n.7 (8th Cir.
1990).    Based upon our recent decision in Oxford House-C, we conclude that
the fee award must be reversed because the lawsuit was unreasonable.


       The zoning restriction at issue applied equally to handicapped and
non-handicapped    persons,      providing    that   no    group   of   four   unrelated
individuals could occupy a single-family residence without obtaining some
type of zoning exemption.        In this regard, the restriction is different
than the facially discriminatory provision invalidated on equal protection
grounds in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 436-37
(1985).   Therefore, to prove unlawful discrimination, Oxford House had to
prove a violation of FHA's "reasonable accommodation" mandate -- that the
City   refused "to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to afford
[handicapped] persons equal opportunity to use and enjoy a dwelling."                 42
U.S.C. § 3604(f)(3)(B).


       As in Oxford House-C, Oxford House sued before exhausting available,
non-futile procedures under the City's zoning ordinances, procedures which,
when invoked, produced a "reasonable accommodation" of Oxford House's
desire for a ten-resident group




                                            -5-
home.       Thus, the timing of the lawsuit was unreasonable.   As we said in
Oxford House-C, 77 F.3d at 253:


        The Oxford Houses must give the City a chance to accommodate
        them through the City's established procedures for adjusting
        the zoning code. See United States v. Village of Palatine, 37
        F.3d 1230, 1233 (7th Cir. 1994); Oxford House, Inc. v. City of
        Virgina Beach, 825 F. Supp. 1251, 1261 (E.D. Va. 1993). The
        Fair Housing Act does not 'insulate [the Oxford House
        residents] from legitimate inquiries designed to enable local
        authorities to make informed decisions on zoning issues.' City
        of Virginia Beach, 825 F. Supp. at 1262. . . . In our view,
        Congress also did not intend the federal courts to act as
        zoning boards by deciding fact-intensive accommodation issues
        in the first instance.


        Oxford House argues that its lawsuit was necessary to stop the City
from intentionally discriminating against residents by threatening them
with eviction.     There are two obvious answers to this contention.   First,
it is premised upon a self-inflicted wound.     Oxford House signed a lease,
moved two residents into the home without obtaining an occupancy permit,
and declared its intent to violate the zoning ordinance by moving a total
of ten unrelated residents into the home.      Apparently, this is part of a
nationwide Oxford House strategy to ignore local laws that treat its
residents differently than members of a biological family,5 and to present
local zoning officials with a fait accompli by moving into a residential
neighborhood without seeking prior approval.    Having provoked the City into
taking action to enforce its facially neutral laws, Oxford House cannot
bootstrap itself into a




        5
      Oxford House's belief that its members must be treated the
same as a biological family is highly suspect. Compare Moore v.
City of East Cleveland, 431 U.S. 494 (1977), with Village of Belle
Terre v. Boraas, 416 U.S. 1, 9 (1974). The majority in City of
Edmonds v. Oxford House, Inc., 115 S. Ct. 1776 (1995), did not
reach this issue, and the courts in Oxford House-C, Palatine, and
Virginia Beach construed the FHA as not prohibiting family-oriented
zoning restrictions, so long as the handicapped are treated the
same as other unrelated persons.

                                      -6-
prevailing      party    because   the   City   later   granted   an   administrative
accommodation when Oxford House eventually sought it.                  See Village of
Palatine, 37 F.3d at 1234-35 (Manion, J. concurring).


     Second, while we can easily imagine situations in which an FHA anti-
discrimination plaintiff might legitimately seek preliminary injunctive
relief before exhausting local administrative zoning remedies, in this case
adequate preliminary relief was obtained by HUD in a separate lawsuit and
Consent Order.          This lawsuit was entirely premature.           It obtained no
interim relief, and it should have been dismissed without prejudice when
HUD and the City signed the Consent Order.


     It is not the function of the catalyst theory to encourage FHA
plaintiffs to file premature, superfluous lawsuits which then sputter
fitfully, clogging district court dockets, while plaintiffs trudge through
the administrative process, hopeful that the pending lawsuits will justify
attorney's fee awards when local officials administratively accommodate the
dwelling needs of the handicapped.              Because that is essentially what
happened here, and because our decision in Oxford House-C confirms that the
lawsuit   was    unreasonable,     the   district   court's   award     of   costs   and
attorney's fees is reversed.


     A true copy.


             Attest:


                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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