Solemn Promises Mean Little in Home-Based Hospice Case : Residents are suing a woman whose facility, they say, violates the rules of their single-family neighborhood. But government has stacked the deck against the homeowners.

In the darkest moment of World War II, as England stood alone against the Nazis, Winston Churchill, wondering aloud what it would take to get the United States into the war, likened America to a giant kettle: slow to boil, but once hot, capable of gigantic power.

It’s an arresting image, but incomplete, for it considers only America’s industrial might. And it’s not true that America boils only reluctantly, and only in war. America boils all the time--peaceably, for the most part, and in uniquely American fashion.

The kettle I see, however, is not America’s economy. It is the American social contract, a kettle into which Americans long ago tossed the Declaration of Independence and the Constitution to see what might bubble to the surface as time went by.

As an example of what bubbles to the surface in that kettle, take the effort of a Westlake woman to set up a home for the dying in a residential area of town. The controversy poses questions of rich importance that, on the whole, say positive things about us, since we do ask these questions and seek answers. But it also presents other, worrisome questions.

The facts are simple. Isobel Oxx, desiring to do good in the world, recently won state sanction to convert a house she owns on the shores of Westlake Lake into a home for the dying. The facility now houses two persons with terminal illnesses, giving them shelter, food and care in their last days of life, for a fee. Oxx has permission to take in two more.

Her neighbors object, and you might say that these people, safely nestled just beyond Los Angeles County, just want to pull up the drawbridge after themselves.

But you would miss the point. It doesn’t matter whether these people seek only to protect privilege--because privilege isn’t the issue. Discrimination isn’t the issue, either. When Oxx and her neighbors bought their houses, they all signed deeds agreeing not to run businesses in their homes.

They made promises to one another, and they solemnized those promises in the form of a contract, each relying on all the others to make good on their promises. Now Oxx, in seeking to care for the dying, engages in a business in her house and so violates the restriction of her deed. Her neighbors want to stop her because they live by the rules, and they want Oxx to do so, too.

In the ordinary course of things, the neighbors turned to their homeowner association, which protested to the city of Thousand Oaks and engaged the help of attorney Robert Saperstein of Santa Barbara. In this, too, the neighbors followed the rules: In America, as Saperstein points out, when you don’t like what government does, you petition it for redress. And when you disagree with your neighbors, you don’t duke it out with them in the streets. You take them to court.

The homeowners may do so--and therein lies the rub. Government has stacked the deck in such a way as to make it hazardous for them to try. For starters, last year the state passed legislation defining a group home sheltering six or fewer persons as a single-family residence. This makes it impossible for Oxx’s neighbors to attack her facility as something other than a single-family residence.

State law also declares group homes like Oxx’s off limits to any local regulation beyond that for single-family residences. This makes it impossible for the homeowners to attack Oxx’s facility under local zoning laws.

Worst of all, the federal Fair Housing Act declares it discriminatory for anyone to work to deny housing to the disabled, including those to whom Oxx wants to give care. This is at best a dubious proposition, since it limits the right to petition for redress of grievances, but the act goes one step further. Those who discriminate become liable for punitive damages and for payment of lost profits to anyone, such as Oxx, whose business suffers as a consequence.

This raises the stakes enormously if the Windward Shores Homeowners Assn. pursues the only course left open: to ask the courts to affirm the right of ordinary citizens to use private contracts to govern how they will live together. The U.S. Department of Housing and Urban Development is investigating the association for possible violations under the Fair Housing Act; it may call on the Justice Department to prosecute. The homeowner association has much to lose against such force.

A certain fairness underlies the American social contract, and the fight facing the Windward Shores Homeowners Assn. isn’t a fair one. People should play by the rules. So should government, even as it pursues the good.