dissenting.
Although I agree with the well reasoned conclusion of the majority that the transitional dwelling provisions of the City of Butler zoning ordinance do not violate plaintiffs’ due process rights with respect to R-2 districts, that they do not violate plaintiffs’ right to freedom of association, and that they do not violate the sex discrimination prohibition of The Fair Housing Act, I must respectfully dissent from the majority’s conclusion that the case be remanded to the District Court for fuller consideration of the consequences of the transitional dwelling provisions’ application to R-3 and R-0 districts and of the effect of the “familial status” provision of The Fair Housing Act upon the transitional dwelling six-person limit.
*325Turning first to the validity of the transitional dwelling provisions as applied in R-3 and R-0 districts, I am aware that in the court below plaintiffs claimed both that the specific denial of the permit for a group home in an R-2 district was improper and also that the across-the-board transitional dwelling occupancy limit of six residents was arbitrary and must fail. This in effect was both an “as applied” and a “facial” attack on the transitional dwelling provisions. The “facial” attack is based on the conflict which exists between the six person limit1 for transitional dwellings under the Butler Zoning Code and the plaintiffs’ position, based on expert testimony, that a group home for battered women and their children is not economically feasible if it cannot accomodate 12 to 15 residents. Plaintiffs’ “as applied” attack of the denial of the permit in an R-2 district was directed at the same six-person limit. It did not succeed in the court below due to the determination of the court that the permit to use a house at 404 Washington Street was denied to the Volunteers Against Abuse Center (“VAAC”) through an evenhanded application of a facially neutral ordinance. Because the proceedings in the court below involved primarily a preliminary injunction hearing to force the City of Butler to grant a permit to VAAC in order to establish a shelter for battered women and their children at the Washington Street address, the focus of the opinion of the court below was on the denial of the permit for the 404 Washington Street site. On the appeal to this court, the majority have first considered that aspect of the plaintiffs’ complaint and concluded that the denial of the permit in this R-2 district was proper: “[UJnder the deferential rational basis standard, the six-person limit for transitional dwellings in R-2 districts as applied to the Washington Street house was not arbitrary because it was rationally related to the legitimate government objective of controlling density in a residential neighborhood."
I disagree with the majority’s further conclusion to remand for consideration of the effect of the six-person limit in R-3 and R-0 districts because I believe that once the majority has thus validated the transitional dwelling provisions in the specific location for which the permit was requested, the majority cannot then proceed to examine the ordinance on its face, without regard to any specific site application, in order to determine whether its language is so arbitrary that the six-person limit cannot be rationally related to a legitimate government objective. My primary reason for this position is that the standard for a successful facial challenge of a statute or ordinance is more difficult to achieve than that required for an attack of a specific application of that statute or ordinance.
A facial challenge to a legislative Act is, of course, the most difficult to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.
U.S. v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). Cf. Agins v. Tiburon, 447 U.S. 255, 260-63, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980) (discussion of “facial” vs “as applied” attacks on zoning ordinances limiting development potential of land); Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1146-47 (9th Cir.1983) (same); Zilber v. Moraga, 692 F.Supp. 1195, 1200-01 (N.D.Cal.1988) (same).
The distinction between facial and “as applied” attacks on governmental regulation permeates constitutional law, but it is especially important in cases challenging the constitutionality of land use regulations. A law is “facially” unconstitutional if a court can determine its invalidity simply by reading its terms. The court need not know what the effect of the law as administered has been.... A law is unconstitutional “as applied” if the court cannot determine its invalidity simply by reading its terms but must consid*326er the manner in which it has been administered.
D. Mandelker, J. Gerard, E. Sullivan, Federal Land Use Law § 1.04 at 1-10.
Because the plaintiffs have failed to meet the less stringent burden of an “as applied” challenge to the transitional dwelling six-person limit, it is not appropriate to remand the case to determine if plaintiffs can now succeed in a more difficult facial attack. Or to paraphrase Salerno, having found a circumstance under which the ordinance is valid, plaintiffs cannot now succeed in establishing that under no circumstances could it be valid. I consider this principle to be sound whether one is considering the ordinance as a whole or merely various of its sections under which no permit application has in fact been made.
My other reason for opposing the remand to consider the application of the six-person limit to an R-3 or R-0 district is based upon a closely related concept: my conclusion that plaintiffs' challenge of the limit in these two districts is not ripe.
In the area of land use, the doctrine of ripeness is intended to avoid premature ■adjudication or review of administrative action.
Herrington v. County of Sonoma, 857 F.2d 567, 568 (9th Cir.1988) (also holding that these same ripeness standards apply to equal protection and substantive due process claims in land use cases).
No application has been made for a transitional dwelling permit for a group home for battered women and their children in an R-3 or R-0 district. I note that R-3 and R-0 districts, unlike R-2, allow “multiple-dwelling” buildings. Arts. 1329 & 1331. Thus, an application for a permit to establish a 12 to 15 person group home for battered women in two or more “dwellings” in a multiple dwelling building in an R-3 or R-0 district might in fact be granted. The Butler Zoning Code could be interpreted to permit this. For this reason, it is my conclusion that as to a specific zoning district, be it R-3 or R-0 or another, until application for a permit has been denied, a complaint regarding the transitional occupant limitations applicable to that district is not ripe.
My second area of disagreement with the majority is the decision to remand to the District Court for fuller consideration of whether the across-the-board six-person limit violates the “familial status” provision of The Fair Housing Act. In view of what appears to me to be the very clear language of this addition to the statute, I do not see the need for the court below to explore it further.
Section 3604(a) of The Fair Housing Act was amended in 1988 to prohibit discrimination in housing based on “familial status.” See Fair Housing Amendments Act of 1988, Pub.L. No. 100-430, 102 Stat. 1620 (Sept. 13, 1988) (“the 1988 amendment”). “Familial status” is defined in the 1988 amendment as:
[Ojne or more individuals (who have not attained the age of 18 years) being domiciled with — (1) a. parent or another person having legal i ■ jtody of such individual. ...
42 U.S.C.A. § 3602(k) (West Supp.1989). On its face this definition does not encompass groups of more than one family such as would live at the Washington Street home.
The legislative history of the 1988, amendment supports this conclusion. When Congress referred to “familial status,” it was concerned with the plight of single families, not with the plight of families who desired to live communally:
Familial status. The Committee intends to cover by this definition a parent or other person having legal custody, or that individual's designee, domiciled with a child or other children under age 18. The committee does not intend this definition to include marital status.
H.Rep. No. 100-711, 100th Cong., 2d Sess. 23, reprinted in 1988 U.S.Code Cong. & Admin.News 2173, 2184.
There is nothing in the language of The Fair Housing Act or the legislative history, to support the proposition that the Act is intended to extend protection to families who wish to live in groups. I find no need *327for the court below to explore this issue more fully.2
Moreover, if one considers the Butler six-person limit in connection with a single family unit, it does not seem likely that many single family units, particularly a family unit without the presence of the battering husband/father, will exceed the six-person limit. The Butler ordinance is not likely to collide with “familial status” provision insofar as the six-person limit applies to a single family unit. This is an additional reason for which I see no need for further consideration of the effects of The Fair Housing Act by the court below.
Because, therefore, I do not agree with either ground of the majority’s decision to remand, I would affirm the district court’s order, granting summary judgment to defendants.
. Butler Zoning Code, Art. 1303.44, provides that a "transitional dwelling may be occupied by "not more than six individuals being provided temporary special care, plus supervisory family or individual.”
. Because I find it clear that the "familial status” provision is not directed at "communities” of families, I will not go on to consider whether the six-person limit is exempted from The Fair Housing Act under § 3607(b)(1):
Nothing in this title limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.