April 01, 2015 Urban Lawyer

Planning & Zoning for Group Homes: Local Government Obligations & Liability Under the Fair Housing Amendments Act

by Brian J. Connolly & Dwight H. Merriam
Fair Housing

Fair Housing

Brian J. Connolly is an attorney with the Land Use practice group at Otten Johnson Robinson Neff & Ragonetti, P.C., in Denver, Colorado. Prior to practicing law, Brian was an urban planner in the planning department of Westchester County,
New York.

Dwight H. Merriam, past chair of the American Bar Association’s Section of State and Local Government Law, founded Robinson & Cole’s Land Use Group in 1978. He represents land owners, developers, governments, and individuals in land use matters.

This article is adapted from excerpts of BRIAN J. CONNOLLY & DWIGHT H. MERRIAM, GROUP HOMES: STRATEGIES FOR EFFECTIVE AND DEFENSIBLE PLANNING AND REGULATION (Am. Bar Ass’n 2014), and is being reproduced with the consent of ABA Publishing.

Across the diverse landscape of local land use matters, few regulatory issues and approval processes elicit as much emotion and opposition as planning and zoning decisions relating to housing for persons with disabilities. While such facilities have proven invaluably beneficial in the care and treatment of one of the most underserved populations in the United States — those with disabilities — community discrimination against people with disabilities has limited, and in some cases has wiped out, the willingness of local governments to approve such housing. As advances in the medical, sociological, and psychological fields have encouraged movement away from the early-to-mid twentieth century approach of large-scale institutionalization of persons with physical and cognitive disabilities and mental illnesses, and as civil rights organizations have exposed the mistreatment of people with disabilities that has pervaded much of history, pressure has increased on non-profit organizations and local communities to provide housing for people with disabilities in smaller congregational settings located in predominantly residential areas generally occupied by persons without disabilities. Consequently, local governments are increasingly called upon to decide the fate of applications by social service organizations and other treatment facility operators to locate and operate housing facilities for people with disabilities in local jurisdictions.

Discrimination against persons with disabilities has been pervasive and perpetual throughout history, and continues with regrettably little abatement today.1 Particularly in the arena of housing, this population has experienced a degree of isolation and segregation that far exceeds the more widely-known and highly-publicized forms of housing discrimination such as racial or religious discrimination.2 Before the rise of the modern welfare state, persons with disabilities lived primarily with family members.3 However, such arrangements often failed to provide the treatment and support necessary for persons with disabilities to share in the experience of productive lives in the community or to enjoy a high quality of life.4 Furthermore, from ancient times through the mid-twentieth century, the principal method of treatment recommended by the medical and psychological communities for persons with mental disabilities was confinement and isolation, treatment methods that have been wholly rejected in modern times.5

Historically, persons with disabilities have been disenfranchised of their civil and political rights, suffered verbal and physical abuse, and subjected to forced sterilizations.6 In the United States, for much of the twentieth century, people with disabilities were typically relegated to large, publicly operated institutions many of which were poorly funded and negligently operated.7 Residents were often abused and lived in unsanitary and inhumane conditions.8 These facilities offered little to no treatment or support to those seeking to lead fulfilling lives.

While medical and social science has evolved with respect to the proper treatment and the best forms of housing for persons with disabilities, discrimination against this population continues to persist throughout the United States and the world.9 In the United States, while independent living arrangements and group living facilities have in large part replaced the institutions of the past,10 they have also given rise to new, or at least modified, forms of discrimination. Societal-structural discrimination and poor knowledge about the proper means of treatment were often behind earlier institutionalizations of persons with disabilities,11 whereas persistent fears and a palpable antipathy toward people with disabilities are a more current, common feature of debates in neighborhoods and localities when housing facilities for this population are under consideration. Whether justified by concerns about maintenance of community character, preservation of property values, or concern for personal and property protection, these arguments effectively deny persons with disabilities fair and equal access to housing and give voice to bias, prejudice, stigma, and discrimination. More often than not, the result of these battles is drawn-out litigation that imposes high costs on local governments and the taxpaying public. Furthermore, a broad national failure to ensure that persons with disabilities have adequate housing has been a principal driver of social problems such as homelessness, criminality, and emergency hospitalization, all of which impose high costs on government agencies and society as a whole.12

The modern trend in housing for people with disabilities, embraced by both the medical and scientific community as well as the civil rights community, has concentrated on midsize to small group homes and individualized living arrangements located among residential neighborhoods.13 These living arrangements provide persons with disabilities with the most “normalized” living environment, allowing for interaction with those without disabilities, dramatically improved treatment outcomes, and a level of dignity which was previously unheard of in institutional settings. Unfortunately, due to widespread fear of the unknown and misunderstood or outright bias, group homes and independent living facilities have faced a great uphill battle and persistent community opposition when locating in residential areas. In a 1998 study, group homes for people with disabilities outranked many industrial uses, including landfills and other waste disposal sites, on a list of the most unwanted land uses in local communities.14

Community opposition to group homes has its roots in many, varied reactions to people with disabilities, but can often be traced back to lack of information or misinformation, fear of negative community impacts, shortcomings in local procedures that preclude full public participation in the decision-making process, outright prejudice and bias toward people with disabilities, and conflicting interests and development goals.15 Furthermore, general community antipathy toward the homeless has a disproportionate impact on people with disabilities. Ironically, the failure of government to provide housing facilities for the homeless and people with disabilities has left more people with disabilities on the streets, where they are more prone to criminal activity such as violence or drug addiction.16 Neighborhood opposition to a proposed group home can delay the construction and operation of a needed community resource, and can derail the establishment of a group home altogether. Given the significant amount of misinformation about group homes in many communities, as well as the discrimination and community opposition that group homes often generate, planners and group home operators must leverage what they can accomplish politically and take the initiative to educate the community about new group homes and the benefits they have for everyone.

While the political and social challenge of providing housing for people with disabilities is complicated by the dire need for such housing facilities and all too common, yet quite extreme levels of community opposition, there is an additional layer of complexity in housing for people with disabilities arising out of the legal obligations applicable to local governments which pertain to housing discrimination. As a result of the Federal Fair Housing Amendments Act (referred to in this article as the FHAA or the Act),17 the principal federal law dealing with matters of housing discrimination against people with disabilities, and other federal and state antidiscrimination laws (including the Americans With Disabilities Act (ADA),18 the Rehabilitation Act,19 and state law equivalents), local governments are obligated to ensure that people with disabilities can use and acquire housing on an equal basis with nondisabled persons. These laws require equal treatment under the terms of zoning codes and other regulations, as well as equal treatment in approval processes for the location of housing for people with disabilities. While the FHAA’s protections for people with disabilities are less than three decades old, they have already benefitted and empowered those who are unfairly treated as a result of local government regulation and action. Proven time and again in litigation over approvals and denials of housing facilities for people with disabilities, the consequences of a local government’s failure to comply with the FHAA and other laws can be quite severe.

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