Potomac Group Home Corp. v. Montgomery County

Presently pending in this civil action are the parties’ cross motions for summary judgment or for partial summary judgment. Plaintiff Potomac Group Home Corporation (hereinafter “Potomac”) operates four group homes 1 in Maryland which provide housing for and services to elderly persons who require some assistance with their daily living activities. Plaintiffs Betty Neuhaus and Ruth Stokoe are residents at Golden Guardian, one of the group homes operated by Potomac. The defendants are Montgomery County, Maryland, the Montgomery County Department of Health, and certain individuals employed by the County’s Department of Health.

The amended complaint in this case contains four counts and seeks declaratory and injunctive relief as well as monetary damages under the Fair Housing Amendments Act of 1988 (hereinafter the “FHAA”), Pub.L. No. 100-430,102 Stat. 1619, codified at 42 U.S.C. § 3601, et seq., and under the Americans with Disabilities Act of 1990 (hereinafter the “ADA”), 42 U.S.C. § 12101, et seq. Counts I and II of the amended complaint allege that certain provisions of the Montgomery County Code (hereinafter the “Code”) violate plaintiffs’ rights under the FHAA. Count I alleges on behalf of each plaintiff that the “exceptional person” definition contained in the Code, on its face and as applied here, violates the FHAA. Count II alleges that the neighbor notification and program review board provisions of the Code violate plaintiffs’ rights under the FHAA. Count III alleges on behalf of plaintiffs Neuhaus and Stokoe that the “exceptional person” definition eon- *1288 tained in the Code violates the ADA. Count IV alleges that certain actions undertaken by defendants since the filing of this lawsuit constitute unlawful harassment and retaliation in violation of the FHAA.

Two motions for a preliminary injunction have previously been filed in this case. The first motion for a preliminary injunction was filed by plaintiffs on April 28, 1992, the same day that this lawsuit was instituted. That motion sought to enjoin defendants from enforcing the provisions of Chapter 23A of the Code against the two individual plaintiffs in this case, Betty Neuhaus and Ruth Stokoe. Under Chapter 23A, only individuals meeting the statutory definition of an “exceptional person” are permitted to live in group homes. Defendants contend that neither plaintiff Neuhaus nor plaintiff Stokoe, because of their mental and physical qualifications, can qualify as an “exceptional person.” Prior to the filing of this suit, Montgomery County had ordered that Neuhaus and Stokoe be evicted from Golden Guardian. With its complaint, plaintiffs filed a motion for a temporary restraining order and a motion for a preliminary injunction, seeking to block the eviction of plaintiffs Neuhaus and Stokoe. However, in a conference with the Court, the Montgomery County defendants agreed to stipulate that Stokoe and Neuhaus could remain at Golden Guardian pending the outcome of this case.

On June 8, 1992, plaintiff Potomac filed a second motion for a preliminary injunction. By way of this motion, plaintiff Potomac sought an order prohibiting defendants from retaliating against it and further sought to enjoin enforcement of certain provisions of Chapter 23A of the Code. Following a preliminary hearing, the issues raised by the second motion for a preliminary injunction were amicably resolved by the parties, and on October 1, 1992, the Court approved a Stipulation withdrawing the second motion. Under the terms of the Stipulation, Montgomery County agreed to promptly convene a program review board for Pepper House without neighbor participation, to waive neighbor notification for Andrus House, and to review the program statement submitted for Andrus House without the holding of a program review board hearing. Pepper House and Andrus House have subsequently been licensed and are presently operating in Montgomery County.

By way of their pending motion for partial summary judgment, plaintiffs are seeking summary judgment as to liability on Counts I, II and III. Plaintiffs’ motion does not address the claim of plaintiff Potomac in Count IV that defendants retaliated against it for filing this lawsuit, nor do plaintiffs seek summary judgment at this time concerning any damages or injunctive relief to which they might be entitled. Defendants’ motion seeks the entry of summary judgment in their favor as to each of Counts I through IV.

Memoranda, and numerous depositions, affidavits and exhibits in support of and in opposition to the pending motions have been submitted by the parties and reviewed by the Court. The Court has also received and reviewed memoranda submitted by amici curiae. 2 Oral argument has been heard in open Court. For the reasons to be stated herein, plaintiffs’ motion for partial summary judgment will be granted in part and denied in part, and defendants’ motion for summary judgment will be denied.

I

Background and Facts

Potomac is a Maryland corporation which provides community-based housing and support services to elderly people in Montgomery County, Maryland. Since 1989, Potomac has opened four group homes in Montgomery County: Simeon’s House, licensed on January 15, 1991; Golden Guardian, licensed on April 4, 1991; Pepper’s House, licensed on *1289 November 4, 1992; and Andrus House, licensed on November 9,1992. Eight persons are housed in a comfortable community setting in each of these group homes. At least two employees of Potomac staff each home during the day, and one employee of Potomac staffs each home at night. Staff personnel assist the residents with their everyday needs, such as bathing, grooming and eating. The physical and mental condition of the residents is such that they do not require a skilled nurse to assist them with their daily needs. Potomac’s group homes thus provide elderly persons in Montgomery County with the opportunity to live in home-like milieus instead of in more institutionalized nursing homes. Defendants have conceded that “group homes provide an important service to Montgomery County’s senior citizens by preventing premature institutionalization.”

Montgomery County’s licensing scheme for group homes is found in Chapter 23A of the Code and in Montgomery County Executive Regulations, 59-91 (hereinafter “ER 59-91” or the “Regulations”), § 111(A)(1). Defendant Harold Gabel is the Director of the Department of Health (the “Department”) and has the overall responsibility for the licensing and regulation of group homes. Defendant Robert Carty is the Director of the Department’s Division of Licensure and Regulation (the “Division”) and is responsible for the Division and its employees, including Linda Warren and Alicia Beach. Linda Warren is the licensing coordinator for all group homes except for the elderly. Defendant Beach is the Division’s coordinator for group homes for the elderly, and is responsible for monitoring compliance by group homes with the licensing code. The Division has the responsibility for implementing and enforcing Chapter 23A of the Code and also ER 59-91.

In its zoning and land use regulations, Montgomery County does not differentiate between group homes for the elderly and any other single-family dwelling. Under County land use law, group homes for eight or fewer frail elderly residents are “permitted uses” in all residential zones in the County. Accordingly, insofar as the County’s zoning laws are concerned, group homes may locate in residential areas as a matter of right, without seeking the approval of zoning officials through the special exception process or otherwise.

Notwithstanding the fact that group homes are permitted by County zoning law, Montgomery County licensing laws require group home providers to send letters to each neighboring property owner of a proposed group home site, both adjacent and opposite, as well as to neighborhood civic organizations. In these letters, the provider is required to notify these individuals and groups of its plans to operate a group home on the site. ER 59-91, § 4A(l)(a). Pursuant to the Regulations, Potomac has been required to provide neighbors and civic groups with a variety of information about the proposed group home including (1) the type of group home planned, (2) an identification of the type of “exceptional person” who will live there, and (3) the name of a contact person within the County Department of Health to whom questions or complaints about the proposed group home may be addressed. The Regulations require that these notices be sent to neighbors at the time of the submission of the initial license application and at the time of each request for an annual renewal. ER 59-91, § 4(A)(1)(a), (b). No other County law or regulation imposes any similar requirement on a residence to be occupied by adult persons who do not have disabilities.

The preamble to the County’s group home licensing law states:

An opportunity must be provided for residents of the neighborhood surrounding the proposed group residential care facility to comment on the proposed use and provide continuing input to responsible county agencies regarding the compatibility of the group residential care facility within the neighborhood, (emphasis added).

Code, § 23A-l(g).

Thus, even though zoning law defines group homes as permitted uses in residential neighborhoods, Chapter 23A invites neighbors to provide “continuing input” concerning the “compatibility” of the homes within the neighborhoods where they locate.

*1290 As the record here indicates, the notices provided by Potomac for its four group homes have consistently provoked negative reactions from neighbors of the proposed group homes. Neighbors in the communities have typically responded with an outpouring of hostility vented by way of a letter writing campaign opposing the proposed group home. For example, one neighborhood petition opposing the licensing of Simeon’s House expressed the fear that the group home would lead to the “demise” of their “refined neighborhood” and to the lowering of property values.

The licensing process also requires that group homes in Montgomery County be subject on occasion to evaluation by a program review board. Program review boards are “boards which are convened on an ad hoc basis with a rotating membership to consider a specific program application.” Code, § 23A-4. The function of a program review board is to “review and evaluate] the program statement submitted with all applications for a [group home] license prior to the issuance of any such license and to provide the director [of the Department of Health] with its recommendations.” Code, § 23A-10(c).

As was repeatedly emphasized in the deposition testimony of County licensing officials, program review boards are supposed to confine their reviews strictly to “programmatic concerns.” As defendant Carty testified, zoning issues, such as traffic, parking and the “character of the neighborhood,” are not appropriate subjects for inquiry by a program review board, since group homes for no more than eight elderly residents are permitted uses in residential neighborhoods under the County zoning law.

Program review boards are comprised of seven to nine members who are to be (1) representatives of government agencies involved with the group residential care program under consideration, and (2) representatives of civic and charitable organizations which are interested in care to elderly members of such group homes. Code, § 23A-10(a). In addition, the Code provides that “[w]hen an application affects a municipality or a neighborhood civic organization, the board shall also include representatives therefrom.” Id. Defendants have construed applicable provisions of Chapter 23A as giving neighborhood associations the right to designate one representative of each board.

Defendant Carty testified that members of each program review board should be selected based on their knowledge of “the particular population to be served” in order to provide the County with “the benefit of a body of expertise in evaluating the services that some prospective licensee was proposing.” Nevertheless, the neighbors selected to serve on review boards are not required to have any professional expertise with respect to the programs and services offered by the group homes. As a result, hearings of program review boards have focussed on such nonpro-grammatic concerns as “community relations,” the compatibility of the group homes with the surrounding neighborhood, the impact of the group homes on property values, and the fears of neighbors about living near people with disabilities.

Neighborhood residents and civic organizations have regularly been invited to attend hearings of program review boards and, on occasion, have been invited to comment on any matter of concern to them. 3 When residents of the community have been permitted to comment, their statements have uniformly been negative ones, opposing the group homes. Their comments have consistently included stereotypical views of the elderly and of the compatibility of the elderly in the neighborhood. Complaints have ranged from parking problems, to “troublesome wandering incidents” and other problems associated with people “in varying degrees of Alzheimer’s disease.”

Although § 23A-10 of the Code, on its face, requires a program review board hearing in all cases except where “a review has been accomplished by another agency of competent jurisdiction over the specific program considered,” plaintiffs have submitted *1291 evidence indicating that such hearings have not in fact been required for most group homes for the elderly licensed in Montgomery County. Of the thirty currently active group homes for the elderly in Montgomery County, only five were subject to consideration at program review board hearings. 4 Plaintiff Potomac objected to a program review board hearing for Pepper House because of the delay involved and the stigma caused by the complaints of neighbors voiced during such hearings. Defendants held a program review board hearing on the Si-meon’s House application, and Potomac’s program statement was thereafter approved. Potomac has since opened Golden Guardian, and has renewed its license for Simeon’s House, without the holding of a program review board hearing. As noted by plaintiff Potomac, the hearing held on the Simeon’s House application caused a six month delay, and the hearing held on the Pepper House application also caused a six .month delay inasmuch as that application was otherwise complete on May 6, 1992.

Defendants concede that they have granted group home licenses without holding board hearings. Defendants Carty and Beach have testified that Dena White, a Division employee, acts as the other “agency of competent jurisdiction,” whose “sign off’ as the local agent of the State Office on Aging eliminates the need for a program review board. Ms. White, however, has testified that the decision of Ms. Beach to hold a program review board hearing determines whether Ms. White will sign off on a provider’s program statement.

Evidence of record in this case reveals that program review board hearings are held, not when there is no sign off by an “agency of competent jurisdiction,” but whenever neighbors of a group home are particularly vocal in their opposition to the proposed home. As Ms. White testified: “[I]f we are getting a lot of calls from neighbors who are concerned, who are writing the County Executive and County Council and there is a lot of community response ... then Alicia [Beach] will opt to have a program review board.”

Another licensing requirement of the Code is that only an “exceptional person” may live in a group home. ER 59-91(II)(C). The County has sought to evict plaintiffs Neuhaus and Stokoe from Golden Guardian on the ground that they are not exceptional persons. 5 Plaintiffs have in this litigation challenged the legality of the “exceptional person” definition contained in Chapter 23A.

An “exceptional person” is defined as:

Any individual who because of emotional, mental, familial or social differences has a need for supervision or assisted community living.... Such individuals shall be capable of proper judgment in taking action for self-preservation under emergency conditions and shall be mobile and capable of exiting from a building, following instructions and responding to an alarm.

Code, § 23A-4.

The “exceptional person” rule, as interpreted by both plaintiffs and defendants, requires that a resident of a group home be both physically able to exit from a group home unassisted, 6 and mentally capable of comprehending instructions. If a group home resident is not capable of exiting from the house without assistance or of responding to an alarm, then under the rule, the resident must leave the home. Both plaintiff Neu-haus and plaintiff Stokoe are not able to exit from Golden Guardian without assistance, and the County has ordered them to leave the home for that reason.

*1292 Both plaintiff Neuhaus and plaintiff Stokoe have a mental disability and need assistance with activities of their daily living. The families of these plaintiffs believe that they are receiving excellent care at Golden Guardian, and that they respond well to the warm and supportive atmosphere at the home. The personal physicians of both plaintiffs have testified that these plaintiffs have received excellent care at Golden Guardian and that this group home is a proper placement for them. Defendants have produced no credible evidence contradicting the opinions of plaintiffs’ physicians and families that plaintiffs Neuhaus and Stokoe are in fact receiving appropriate care in their current home. Moreover, defendants have not identified any needs of these plaintiffs which are not being met at Golden Guardian. 7

Although the “exceptional person” rule was originally adopted to protect the residents of group homes from the dangers of fire, evidence of record indicates that defendants no longer consider this to be the purpose of the rule. Defendant Carty, testifying as the County’s designee witness under Rule 30(b)(6), has stated that this is “because there are different ways that a provider can meet the requirements of the fire code.” Potomac’s homes in fact contain sprinklers, smoke detectors and around-the-clock staffing, all of which, as defendants concede, eliminates any fire safety concerns.

The reason the rule is still applied, according to defendant Carty, is that it is an administratively easy and convenient tool to determine who may live in a group home. However, it is undisputed that the rule does not take into account the needs of individuals in determining who may or may not live in a group home. Defendant Carty could not explain why “mobility” is the governing criteria for living in a group home or how “mobility” reflects on the appropriateness of the setting for the care or of the care being given.

The record here further indicates that the County applies the “exceptional person” rule inflexibly. Defendant Carty has testified that the rule is a “broad” and “rigid yardstick” for determining who may or may not live in a group home.

II

Summary Judgment Principles

It is well settled that a party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that such party is entitled to judgment as a matter of law. Rule 56(c), F.R.Civ.P.; see also Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir.1984). This burden may be met by consideration of affidavits, exhibits, depositions and other discovery materials. Id.

One of the purposes of Rule 56 is to require the opposing party, in advance of trial and after a motion for summary judgment or partial summary judgment has been filed and supported, to come forward with some minimal facts to show that there are genuine issues of fact concerning the claims or defenses asserted. See Rule 56(e). Moreover, “ ‘[a] mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.’ ” Barwick, supra, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967)). In the absence of such a minimal showing, a party should not be required to undergo the considerable expense of preparing for and participating in a trial. As Judge Winter said in Bland v. Norfolk & S.R.R. Co., 406 F.2d 863, 866 (4th Cir.1969):

While a day in court may be a constitutional necessity when there are disputed questions of fact, the function of a motion for summary judgment is to smoke out if there is any'case, i.e., any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by *1293 avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.

In two cases decided in 1986, the Supreme Court clarified the principles applicable to a trial court’s consideration of a summary judgment motion filed under Rule 56. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In Anderson, the Supreme Court held that the standard for granting a summary judgment motion under Rule 56 is the same as that for granting a directed verdict under Rule 50, F.R.Civ.P. 477 U.S. at 250-51, 106 S.Ct. at 2511-12. The Court explained this standard as follows:

[T]he judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiffs position mil be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Id. at 252, 106 S.Ct. at 2512 (emphasis added).

In Catrett, the Court held that there is “no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis in original). In reaching this result, the Court observed:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.” Fed.Rule.Civ.P. 1;.... Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

Id. at 327, 106 S.Ct. at 2555.

The Fourth Circuit discussed the Supreme Court’s holdings in Anderson and Catrett in Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). Quoting Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53 Judge Wilkinson in Felty emphasized that trial judges have “an affirmative obligation ... to prevent ‘factually unsupported claims and defenses’ from proceeding to trial.”

Applying these standards to the motions presently before this Court, this Court has concluded that plaintiffs’ motion for partial summary judgment must be granted in part and denied in part and that defendants’ motion for summary judgment must be denied. The essential facts pertaining to the claims asserted by plaintiff under the FHAA are not disputed, and the Court need merely apply the applicable legal principles to the facts of record. Insofar as Counts III and IV are concerned, disputed questions of fact exist which cannot be resolved by way of a motion for summary judgment.

Ill

Discussion

In support of their motion for partial summary judgment, plaintiffs contend that the exceptional person, the neighbor notification and the program review board requirements of the Code and the Regulations, on their face and as applied in this case, constitute a clear violation of the FHAA and the ADA because the intent and effect of these provisions is to restrict the ability of elderly disabled persons in Montgomery County to live where they choose. Plaintiffs further contend that these particular provisions of the Code constitute illegal discrimination because they treat the elderly handicapped differently from other similarly situated individuals who live in group homes and because they subject the residents of Potomac’s group homes to public scrutiny simply because they are disabled.

In many respects, defendants, in opposing plaintiffs’ motion, have in effect abandoned their efforts to uphold some of the challenged *1294 provisions of the County licensing law. Defendants assert that proposed amendments to Chapter 23A would correct any problems that exist, and they maintain that the exceptional person and neighbor notification rules no longer mean what they once meant and still say. According to defendants, the neighbor notification and program review board procedures do not cause any harm to Potomac. Defendants further argue that, although neighbors participate in the licensing process, neighborhood opposition does not in any way affect defendants’ decision whether or not to grant a license.

(a)

The Fair Housing Amendments Act

The Fair Housing Amendments Act of 1988, Pub.L. No. 100-430, 102 Stat. 1619, codified at 42 U.S.C. § 3601, et seq., extended the protection of the federal fair housing law to persons with disabilities. The FHAA, which became effective March 12, 1989, prohibits discrimination on the basis of a physical or mental handicap. 42 U.S.C. § 3604(f)(1).

Section 3604(f)(1) of the FHAA makes it unlawful

[tjo discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—

(A) that buyer or renter;

(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C) any person associated with that buyer or renter.

Similarly, it is unlawful to discriminate against any person in the “terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling because of a handicap of that person.” 42 U.S.C. § 3604(f)(2).

The FHAA also makes it unlawful to coerce, intimidate, or retaliate against someone for having exercised rights protected by the FHAA. 42 U.S.C. § 3617. Furthermore, the FHAA requires defendants to make “reasonable accommodations in rules, policies, practices, or services,” when such accommodations would enable a person with disabilities to live where he or she chooses. 42 U.S.C. § 3604(f)(3)(B). Courts which have considered issues arising under the FHAA have given a broad interpretation to these provisions so as to fully effectuate Congress’s remedial purposes. See, e.g., Association of Relatives and Friends of AIDS Patients v. Regulations and Permits Admin., 740 F.Supp. 95, 102 (D.P.R.1990) (hereinafter “A.F.A.P.S."); Baxter v. City of Belleville, 720 F.Supp. 720, 731 (S.D.Ill.1989).

As the statute’s legislative history indicates, the handicap provisions of the FHAA were intended to reach a wide array of discriminatory housing practices, including licensing laws which purport to advance the health and safety of communities:

These new subsections [§ 3604(f) ] would also apply to state or local land use and health and safety laws, regulations, practices and decisions which discriminate against individuals with handicaps. While state and local governments have authority to protect safety and health, and to regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in communities. This has been accomplished by such means as the enactment or imposition of health, safety or land-use requirements on congregate living arrangements among non-related persons with disabilities. Since these requirements are not imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities.

H.R.Rep. No. 100-711, 100th Cong., 2d Sess. 24, reprinted in 1988 U.S.Code Cong. & Admin.News at 2173, 2185.

Recognizing the purpose and breadth of provisions of the FHAA, courts have consistently invalidated a wide range of municipal licensing, zoning and other regulatory practices affecting persons with disabilities. See, e.g., Marbrunak, Inc. v. City of Stow, 974 F.2d 43, 47 (6th Cir.1992) (striking down discriminatory fire and safety codes); Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 *1295 F.Supp. 683, 693 (E.D.Pa.1992) (striking down 1,000 foot spacing requirement); AF.A.P.S., 740 F.Supp. at 103 (enjoining refusal to issue special use permit to AIDS hospice); Stewart B. McKinney Foundation, Inc. v. Town Plan and Zoning Comm’n, 790 F.Supp. 1197, 1219 (D.Conn.1992) (hereinafter “McKinney Foundation ”) (invalidating special exception process).

The initial inquiries which the Court must make in this case are whether elderly residents of Potomac’s group homes are “handicapped” within the meaning of § 3604(f)(1) of the FHAA and, if so, whether plaintiff Potomac has standing here to assert the rights of those residents. Defendants concede, as they should, both of these points. Elderly group home residents are clearly “handicapped” within the meaning of the FHAA. United States v. Commonwealth of Puerto Rico, 764 F.Supp. 220 (D.P.R.1991); Casa Marie, Inc. v. Superior Court of Puerto Rico, 752 F.Supp. 1152, 1168 (D.P.R.1990). Moreover, this Court is satisfied that plaintiff Potomac has standing under § 3604(f)(1)(B) to assert the rights of those elderly residents. Baxter, 720 F.Supp. at 730.

A plaintiff may demonstrate a violation of the FHAA by showing that a challenged regulation “discriminates against the handieap[ped] on its face and serves no legitimate government interest.” Horizon House, 804 F.Supp. at 693. 8 Alternatively, a plaintiff may prevail under the FHAA by showing “discriminatory intent,” or by showing a “discriminatory impact.” A.F.A.P.S., 740 F.Supp. at 103.

Intentional discrimination or “disparate treatment” is the “most easily understood type of discrimination.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 334, n. 15, 97 S.Ct. 1843, 1854, 1854 n. 15, 52 L.Ed.2d 396 (1977). To prove discriminatory intent, a “plaintiff need only show that the handicap of the potential residents [of a group home], a protected group under the FHA, was in some part the basis for” the policy being challenged. Baxter, 720 F.Supp. at 732. Simply put, the inquiry under a disparate treatment analysis is whether similarly situated persons or groups are subject to differential treatment. McKinney Foundation, 790 F.Supp. at 1211.

An ostensibly benign justification for a challenged rule or regulation is irrelevant under a disparate treatment analysis. International Union, United Automobile, Aerospace and Agricultural Workers of America v. Johnson Controls, Inc., 499 U.S. 187, —, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991). Thus, a plaintiff need not prove that a defendant was motivated by malice or prejudice in order to prevail on a claim of intentional discrimination. McKinney Foundation, 790 F.Supp. at 1211; Horizon House, 804 F.Supp. at 696.

Even if the plaintiffs were not able to demonstrate that regulations and practices of the defendants have a discriminatory intent, plaintiffs would still be entitled to establish a violation of the FHAA by showing that the regulations and practices in question have a discriminatory effect. Casa Marie, Inc., 752 F.Supp. at 1168. Although the Fourth Circuit has not to date had before it any case arising under the FHAA, it is apparent that the test in the Fourth Circuit for determining whether a housing practice has a disparate impact in violation of federal law focusses on four factors:

(1) how strong is the plaintiffs showing of discriminatory effect; (2) is there some evidence of discriminatory intent, though not enough to satisfy the constitutional standard of Washington v. Davis [426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597]; (3) what is the defendant’s interest in taking the action complained of; and (4) does the plaintiff seek to compel the defendant to affirmatively provide housing for members of minority groups or merely to restrain the defendant from interfering with individual property owners who wish to provide housing.

Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir.1982) (applying discriminatory effect test in case arising under the Fair *1296 Housing Act). Several courts have observed that the intent component of the above test is “the least important” and that “the absence of such proof weighs only slightly against granting relief.” Cason v. Rochester Housing Authority, 748 F.Supp. 1002, 1008 (W.D.N.Y.1990). See also Baxter, 720 F.Supp. at 732.

Once the plaintiffs have made a pri-ma facie showing of disparate impact under the above standards, the burden shifts to defendants to present proof to avoid liability. McKinney Foundation, 790 F.Supp. at 1220. Defendants must then present bona fide and legitimate justifications for their action and must show that no less discriminatory alternatives are available. Id.; Cason, 748 F.Supp. at 1007; Horizon House, 804 F.Supp. at 698. A regulation will not stand if it is overbroad for the asserted purpose. Marbrunak, 974 F.2d at 48; Horizon House, 804 F.Supp. at 698.

(b)

Neighbor Notification

The Court will first address the legality under the FHAA of the neighbor notification requirement. This requirement on its face creates an explicit classification based upon disability and is not supported by any justification of the County. It therefore contravenes § 3604(f)(1) of the FHAA. The requirement that a prospective provider of group home services to the elderly must notify neighbors and civic organizations of the type of disabilities of the persons w