November 9, 2009 2009-R-0361
SITING GROUP HOMES: THE INTERPLAY OF FEDERAL, STATE, AND LOCAL LAW
By: Saul Spigel, Chief Analyst
Federal and state laws that prohibit discrimination against people with disabilities constrain Connecticut towns' ability to (1) direct where group homes serving such people can operate, (2) limit the number of homes that can be located in a particular area, and (3) require providers to notify town officials or neighbors before opening a home. They also require towns to make reasonable changes in zoning and other rules to provide equal housing opportunities for this population. These laws define disability broadly and also prohibit discrimination based on “family status,” which extends their reach to group homes for children, with or without disabilities, in state custody.
This background report briefly describes these statutes and related caselaw and their effect on local control of group homes. Since it is not a comprehensive caselaw review and because the Office of Legislative Research is not authorized to render legal opinions, this report should not be construed as providing any.
States began moving people with mental retardation and mental illness into the community from state-operated institutions in the 1960s and 1970s. Because some of these people needed more support than their families could provide or lacked financial resources to live independently, public and private agencies developed group homes and, recently, “sober houses” for people in recovery from substance abuse disorders, to accommodate them. These facilities, which resemble single family homes and can house three, six, or a dozen unrelated people (often with staff), enable people with disabilities to live in residential neighborhoods where their needs can be met and they can fit naturally into the community.
As group homes proliferated and began serving more types of people—Connecticut now has around 900 homes serving over 4,000 people with mental retardation, acquired brain injury, mental illness, and substance abuse disorders and children under state control—conflicts arose between property owners concerned over their families' safety and their property values and group home operators and disability rights advocates. Some local governments responded by enacting zoning and other ordinances that restricted, among other things, where and how many group homes could operate in the community and required operators to notify local officials before they opened a home. In return, the federal government and states enacted laws protecting people with disabilities against discrimination.
The 14th Amendment's Equal Protection Clause prohibits states from denying a person equal protection of the law. This and three federal laws—section 504 of the Rehabilitation Act of 1973; Title II of the Americans with Disabilities Act (ADA); and the Fair Housing Act, especially its 1988 amendments (FHAA)—limit local control over group home siting. The FHAA is probably the most significant since it applies to dwellings. The three laws build on one another by applying consistent definitions and nondiscrimination standards.
All three laws protect individuals with current, past, or perceived disabilities against discrimination in housing. Under all three, a person has a disability if he or she (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a history of such an impairment, or (3) is perceived as having an impairment. Under these criteria, people with HIV/AIDS and those recovering from, or in treatment for, drug addiction or alcoholism have a disability, as well as people with physical and mental impairments.
But none of these laws protect people who currently use illegal drugs. The FHAA also excludes (1) people convicted of illegally manufacturing or distributing drugs, even if they have a disability, and (2) people with disabilities who present a direct threat to other people or their property.
The FHAA also applies to “family status,” which it defines as one or more people under age 18 living with (1) a parent or person with legal custody or (2) someone designated by a parent or legal custodian. Consequently, the same types of acts that constitute discrimination against people with disabilities apply to group homes for children in the Department of Children and Families' (DCF) custody.
All three acts are intended to end discriminatory treatment in the implementation of land use and health and safety codes that pose barriers to siting group residences. An ordinance or rule can be invalid:
1. on its face (e.g., it explicitly applies only to people with drug abuse histories),
2. because it treats people with disabilities differently than those without disabilities (disparate treatment, e.g., a siting decision based, in part, on the residents' disability), or
3. because it affects people with disabilities differently than those without disabilities (disparate impact, e.g., a neutral rule that affects unrelated groups of individuals with disabilities more than related groups without disabilities).
FHAA. The FHAA was crafted specifically to address land use regulation. It was
intended to prohibit the application of special requirements through land use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals [people with disabilities] to live in the residence of choice in the community….Another method of making housing unavailable to people with disabilities has been the application or enforcement of otherwise neutral rules and regulations on health, safety and land-use in a manner which discriminates….These and similar practices would be prohibited (House Judiciary Committee, H.R. Rep. 711, 100 Cong. 2nd Sess. at 18, 24; U.S. Code Administrative, 2173, 2185).
Under the FHAA, it is unlawful to discriminate in the sale or rental of, or otherwise make unavailable or deny, a dwelling because of a disability of the buyer or renter, anyone associated with the buyer or renter, or anyone who may live in the dwelling. The act also requires governments to make “reasonable accommodations” in rules, policies, practices, or services that are needed to provide equal housing opportunities for this population; refusal to do so is discrimination. Courts have defined “reasonable” to mean a change that would not (1) fundamentally alter the nature of the rules, procedures, or neighborhood; (2) impose an undue financial or administrative burden on the government; or (3) undermine the legitimate purpose of the rule (42 USC § 3601, et.seq.).
Rehabilitation Act. This law makes it unlawful for any entity, including municipalities, receiving federal financial assistance to discriminate on the basis of disability. It also requires these entities to make reasonable accommodations. It is intended to eliminate discrimination on the basis of disability in a broad range of federally supported activities, including housing, and has been used to challenge zoning decisions and practices (29 USC §794; 28 CFR pt. 39, 41).
ADA. Title II of the ADA prohibits discrimination by any public entity on the basis of disability. It is intended to end government discrimination in the same areas of life as the Rehabilitation Act, but it is not linked to federal funding. Consequently, all government activities, including land use regulation, must be free from discrimination.
ADA regulations prohibit governments from (1) using criteria, such as the definition of family, that have a discriminatory effect and (2) using licensing or other requirements that restrict a person with a disability from enjoying any right, privilege, or opportunity others enjoy. They require governments to (1) make reasonable modifications in policies and procedures and (2) administer programs, services, and activities in the most integrated appropriate setting, which may be a single family residential area (42 USC §12132; 29 CFR pt. 35.130).
Discrimination Against People with Disabilities Prohibited
The Connecticut Constitution prohibits discrimination against people on the basis of physical or mental disability (CT Const. Article XXI). State statutes mirror the FHAA by making it illegal to (1) discriminate against people with physical or mental disabilities in housing sales or rentals or to otherwise make housing unavailable to them and (2) refuse to make reasonable accommodations in rules, practices, or services. It defines disability to include mental retardation, physical disabilities, and any disability covered by the FHAA. Connecticut law also makes it illegal to discriminate on the basis of familial status, which it defines as people under age 18 living with their parents, legal custodian (e.g., DCF), or the parents' or custodians' designee (CGS §§ 46a-64b and -64c).
Group Home Siting
In addition to its broad ban against discrimination, Connecticut statutes address group home location, concentration, and notice issues. They prohibit local zoning regulations from:
1. treating group residences housing (a) six or fewer adults with mental retardation, mental illness, or substance abuse disorder or (b) six or fewer children with mental or physical disabilities in any way that differs from a single-family residence (CGS § 8-3e) and
2. prohibiting any group residence in areas zoned for multifamily dwellings (CGS § 8-3g).
A privately operated group residence for people with mental retardation or children with disabilities cannot be established within 1,000 feet of an existing one without the local zoning authority's approval (CGS §§ 8-3f).
A residence for eight or fewer adults with mental illness or substance abuse disorder cannot be established (1) within 1,000 feet of another one or (2) if its residents will bring the total population in all such residences above 0.1% of the town's total population. The Department of Public Health (DPH) licenses these residences, and the law requires a license applicant to send a copy of its application to the town's governing body and the appropriate regional mental health board. Residents of the town where such a residence is located or planned can ask DPH to deny the application on the grounds that the site violates either of the locational criteria and can ask the Department of Mental Health and Addiction Services to withdraw its funding because the home violates this or any other law governing the home's operation (CGS § 19a-507b (a) & (b)).
Once any group home begins operation, any town resident can petition the supervising state agency to take action against it on the grounds that it is violating any law governing its operation. Before submitting a petition, the resident must obtain the town legislative body's approval (CGS §§ 8-3e (b) and 19a-507d).
APPLYING FEDERAL LAW TO LOCAL LAND USE REGULATION
Group homes have challenged local land use regulations and practices throughout the country for over 30 years. These challenges have addressed five broad areas: (1) maximum occupancy limits, (2) dispersion requirements, (3) prior notice requirements, (4) application of health and safety codes, and (5) reasonable accommodation. Below, we briefly describe the issues involved and cite key court rulings on them.
Many of the challenges to local control over group home siting involve ordinances that limit the number of people who can live in a home. Such limits are specifically exempt from the FHAA if they are based on the maximum number of occupants in a dwelling and apply equally to all town residents.
But many municipalities base occupancy limits on a definition of “family” rather than a number of occupants per square foot or per room in a dwelling. They typically define “family” as (1) any number of people related genetically or by marriage or (2) a specific number of unrelated people. But the U.S. Supreme Court has held that caps based on “family size” are not “occupancy limits” under the FHAA.
In Edmonds v. Oxford House, the city of Edmonds (WA) claimed its zoning law's definition of “family” was a maximum occupancy limit that warranted exemption from FHAA. Edmonds defined “family” as “persons [without regard for number] related by genetic, adoption or marriage, or a group of five or fewer [unrelated] individuals.”
The Court ruled that Edmonds was not exempt from the FHAA. Because the city's definition permitted any number of related people to live in a single family house, it did not actually cap the number of people who could live in such a dwelling. Consequently, Justice Ginsberg determined the FHAA exemption does not apply to restrictions based on family definitions, which are designed to foster a neighborhood's family character, but only to total occupancy limits, that is, a numerical ceiling designed to prevent overcrowding in living quarters (City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995)).
The Edmonds Court did not hold that rules limiting unrelated individuals are, per se, invalid, just that they are plainly subject to FHAA and must be scrutinized carefully for their discriminatory intent or effect. In 1996, the Eight Circuit Court upheld a St. Louis zoning definition of single family dwelling that included group homes with eight or fewer unrelated residents. This court reasoned that municipalities have an interest in “decreasing congestion, traffic, and noise in residential areas, and ordinances restricting the number of unrelated people who may occupy a single family residence are reasonably related to these legitimate goals” (Oxford House-C v. City of St. Louis, 77 F 3d, 249, 253).
Some communities attempt to limit the location of group homes through spacing and density restrictions. Spacing restrictions require a minimum distance between group homes or between group homes and other community sites like schools. Density restrictions limit the percentage of a community's population that consists of group home residents. As noted above, Connecticut law contains both. Courts have both upheld and rejected such restrictions.
Spacing restrictions are permissible in certain circumstances when group homes are clustered so densely as to recreate an institutional environment in the community. A federal court in Minnesota upheld a state law and related local ordinances calling for a 1,320 foot minimum distance between group homes. The case involved a provider that wanted to site three homes for people with mental illness in a two-block area that already contained 18 group homes with over 100 residents. The provider argued that the spacing requirements limited housing choices available to people with disabilities and were thus discriminatory. The defendant city of St. Paul asserted the laws increased housing options by integrating people with disabilities into the community.
The court agreed with the city, holding that the spacing requirement was not discriminatory and was rationally related to a legitimate state purpose— integrating people with disabilities into the community mainstream—that several state government bodies had articulated. And, by forcing new homes to locate apart from existing ones, it prevented the clustering of group homes that could lead people with mental illness to cloister themselves and not interact with that mainstream (Familystyle of St. Paul, Inc. v. City of St. Paul, 728 F.Supp. 1396, affirmed 923 F. 2d 94).
In contrast, a federal court in Pennsylvania found that a 1,000 foot distance requirement violated the FHAA and the Equal Protection Clause. In a case involving a township that had enacted four different spacing requirement ordinances over a four-year period, the court found them to be based on community opposition to group homes, not a desire to avoid clustering. As a result it held they were purposefully discriminatory and facially invalid under FHAA because they created an explicit classification based on disability with no rational basis or legitimate government interest. It also concluded that the distance requirement violated FHAA because it had a disparate effect on the housing choices of people with disabilities (Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F. Supp. 683).
Two main distinctions between Familystyle and Horizon House help explain the difference in the courts' treatment of spacing requirements and give municipalities some guidance. In Familystyle, the city's ordinance was based on a broad state policy for integration and against clustering; no state policy supported the township in Horizon House. And, even if a municipality could enact a spacing ordinance without a supporting state policy, Horizon House shows it must have legitimate public health and safety objectives in mind when it does so. It must show a real desire to further integration, not just assert apparent neutrality when it is really reacting to neighborhood fears.
The U.S. Department of Justice, which administers the FHAA, believes states and localities have ways to disperse group homes throughout communities. One is to provide incentives to providers to locate in neighborhoods where homes are not concentrated; another is through the licensing and regulatory process.
Courts have held that state and local laws requiring group homes for people with disabilities to notify local officials or neighbors before beginning operations are discriminatory under the FHAA. One case involved a Montgomery County, Maryland ordinance that required group home operators to notify neighbors and civic organizations before establishing a home. The court held the requirement to be “facially invalid” and found no rational basis or legitimate government interest to support it. Notice requirements, the court said, assume that people with disabilities are different from people without disabilities and must take different steps to become part of the community. It rejected the county's argument that the notice was intended to better integrate the home's residents into the community by promoting a dialogue between operators and neighbors saying, “a purportedly benign purpose of a facially discriminating ordinance is irrelevant to a determination of the lawfulness of the legislation.” (Potomac Group Home Corporation v. Montgomery County, Maryland, 823 F. Supp. 1285 (1993)).
A second case involved a state law that required city councils to notify residents whose property lines were within 1,500 feet of a proposed group home. The court found no rational basis for the law and, in striking it down, stressed that the FHAA was intended to prohibit actions that would limit the ability of people with disabilities to live where they chose (Larkin v. State of Michigan, 883 F. Supp. 172 (1994)).
Governments also try to establish notice requirements by requiring group homes to obtain special exceptions or conditional permits before they can start operating. A federal court rejected this approach in a case involving a residence for homeless people with HIV/AIDS in Fairfield, Connecticut. The town told the group home provider that it needed a special exception to rent rooms in a two-family home in a residential zone because the facility's use would make it a nursing home or charitable institution. To obtain the special exception, the provider would have to submit a site plan, reports from the fire marshal and local health department, and a certificate of need from DPH and be the subject of a public hearing. The provider also had to complete a questionnaire about the property's use and its residents.
The court concluded the special exception requirement was discriminatory under the FHAA because, among other reasons, the public hearing requirement held HIV-infected people up to public scrutiny in a way not required of other unrelated people planning to live together. It found that the town could have used less discriminatory ways to gather information about zoning concerns and ensure compliance with its zoning regulations (Stewart B. McKinney Foundation v. Fairfield, 790 F. Supp. 1197 (1992).
Health and Safety Codes
Most group homes for people with disabilities are subject to state licensing requirements, which typically include provisions to protect residents' health and safety. But these requirements; state and local housing, building, and fire safety codes; and enforcement of them can sometimes have a discriminatory effect.
One of the issues in a complex case in West Haven, Connecticut was whether a sober house had to install a fire safety sprinkler system and make other structural changes even though families living in similar houses faced no such requirements. Town officials imposed these requirements after learning that a single family residence was to be used to house unrelated people recovering from alcohol and drug abuse. They reclassified the residence as a boarding house and ordered the owner to evict four of the seven residents and make structural changes to conform to the town's property maintenance code.
The court held that the town's classifying the home as a boarding or rooming house and requiring structural changes had an undeniable discriminatory effect. It found the house would not be able to operate in a single-family zone; residents, unlike a family with seven related members, would not be able to live in any neighborhood with single-family zoning; and recovering alcoholics and drug addicts could not live in a sober house in a residential setting in order to enhance their chances of making a full recovery (Tsombanidis v. City of West Haven, 129 F. Supp. 2d 136, 180 F. Supp. 2d 262, 208 F. Supp. 263 (2001, 2002); affirmed in part, reversed in part 352 F.3d 565).
In addition to prohibiting discrimination, the FHAA and ADA also require local governments to make reasonable accommodations in their rules, policies, practices, or services when these are necessary to give people with disabilities (and families) equal housing opportunities. Courts have consistently ruled that this requirement applies to zoning and other land use regulations, including variance and conditional permit requirements. Like discrimination cases, group homes have used the reasonable accommodation rule to challenge towns' occupancy limits, minimum spacing requirements, and health and safety regulations.
The courts have largely agreed that, in most circumstances, a group home must give a town a chance to make accommodations before litigating. If a home takes a dispute to court, it usually must first show that the accommodation is necessary. If it does, the defendant must then try to show that the accommodation is unreasonable, that is, it (1) fundamentally alters the town's rules, procedures, or neighborhoods; (2) imposes an undue financial or administrative burden on the town; or (3) undermines the rule's legitimate purpose.
In New York, a sober house challenged a town's refusal to modify its definition of “family” to allow residents to continue to live in a single-family neighborhood. The home asked the town to modify the definition because in order to increase the likelihood its residents would stay sober, they needed the “stable, affordable, and drug-free living situation” a residential neighborhood afforded. The court found their request reasonable and held the home posed “no adverse effect on the residential character of the neighborhood” and neither it nor the residents caused any financial or administrative burden (Oxford House v. Town of Babylon, 819 F. Supp. 1179 (1993); see also Oxford House v. Township of Cherry Hill (NJ), 799 F. Supp 450 (1992)).
And, in a case involving minimum spacing requirements, a court found the city of Milwaukee failed to provide reasonable accommodation when it refused to grant a group home a variance from its requirement that such homes be at least 2,500 feet apart. The court determined that “The mere fact that the residents of the proposed group home would at times require the assistance of local police and other emergency services did not rise to the level of imposing a cognizable administrative and financial burden upon the community.” Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F. 3d 775 (2002)).
FOR FURTHER READING
Whitman and Parks, Siting Group Homes for the Disabled and Children, National League of Cities, 2004 (http://www.bazelon.org/issues/housing/cpfha/1group_homes.pdf)
U.S. Substance Abuse and Mental Health Administration, Siting Drug and Alcohol Treatment Programs: Legal Challenges to the NIMBY Syndrome, 1995
Leamon, The Zoning of Group Homes for the Disabled…Zeroing in on Reasonable Accommodation, Connecticut Public Interest Law Journal, June 2003
Fierro, A Legal Guide to the Siting of Community-Based Social Services and Special Needs Schools, 2006
Group Homes, Local Land Use, and the Fair Housing Act, Joint Statement of the Department of Justice and The Department of Housing and Urban Development, July 25, 2008