Tcl - Group Home Regulations Under State and Federal Law - February 2006 - Government and Administrative Law
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 35 No. 2 Pg. 37 |
| Pages | 37 |
| Publication year | 2006 |
2006, February, Pg. 37. TCL - Group Home Regulations Under State and Federal Law - February 2006 - Government and Administrative Law
February 2006
Vol. 35, No. 2 [Page 37]
Government and Administrative Law
This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law.
Column Editors:
Carolynne C. White, of Brownstein Hyatt & Farber, P.C., (303) 223-1197, cwhite@bhf-law.com; Brad Bailey, Assistant City Attorney, City of Littleton - (303) 795-3725, bbailey@littletongov.org; Tiffanie Bleau, Denver, an attorney with Light, Harrington & Dawes, P.C. - (303)298-1601, tbleau@lhdlaw.com
About The Authors:
This month's article was written by Michele B. McGlyn, Denver, an associate at the national land use consulting firm of Clarion Associates - (303) 830-2890, mmcglyn@clarionassociates.com; and Donald L. Elliott, Denver, a principal at Clarion Associates - (303) 830-2890, delliott@clarionassociates.com. Both authors are attorney and planners with experience in housing policy and zoning.
Zoning of group homes remains a challenging issue for local governments attempting to comply with federal and Colorado law and regulate group home uses in residential neighborhoods. This article discusses the important justifications for zoning group homes as residential uses and examines the legal limitations that federal and Colorado statutes place on the regulation of group homes.
Few zoning issues are more controversial than the issue of allowing group homes in single-family residential districts. The drafting of group home regulations for single-family districts also remains a complex and confusing task. The confusion arises because certain types of group homes are subject to both state and federal laws, several of which categorize group homes differently, regulate different aspects of those group homes, and sometimes give the same terms different definitions.
This article sorts out the confounding vocabulary for group homes and their residents used in the federal and Colorado laws, explains the legal and policy reasons for distinguishing and protecting certain types of group homes, and sheds light on the parameters that state and federal laws place on a local government's ability to regulate group homes in residential zoning districts.
Definitions of Group Homes
As a general matter, a group home is a single-family residential structure designed to serve a group of people who are in need of a supervised living facility. Although they are occupied by unrelated individuals, group homes accommodate family-style living in a homelike atmosphere. Many homes designed to provide social services fall under this umbrella, including foster homes, halfway houses for persons undergoing drug rehabilitation, and homes for the physically and mentally disabled.(fn1) Although some of these residences enjoy statutory protections, others do not.
The federal Fair Housing Act ("FHA") protects disabled persons from discrimination; it does not regulate the zoning of certain types of homes and does not define "group home," per se. However, statements made by the Department of Justice ("DOJ") regarding the FHA have used the term "group home" to refer to "housing occupied by unrelated persons with disabilities."(fn2) The key terms used in the FHA are "developmental disability" and "physical or mental impairment." These terms are important because government actions (including municipal zoning) that fail to make reasonable group living accommodations for persons within these federally defined categories may violate the FHA.
Colorado law(fn3) does define certain types of "group homes" and specifies that three types of group homes are determined for residential use as a matter of law: (1) state-licensed group homes for developmentally disabled persons (a.k.a. "community residential homes"); (2) group homes for the aged; and (3) state-licensed group homes for the mentally ill. This article will refer to these three types of group homes as the "Statutory Group Homes." (See Appendix to this article to learn how terms that apply to the local zoning of group homes are defined in various Colorado and federal laws.)
Legal Mandates and Public Policy
Most states and the federal government have recognized the need for small group living facilities as an alternative to large institutions for the care and assistance of the disabled. In some states (including Colorado), disabled persons have the right to the "least restrictive alternative available" to serve the purpose of commitment.(fn4) Group home advocates argue that the isolation of dependent and delinquent persons stymies individual development, whereas integration into a more "normal" family life facilitates the achievement of individual social and physical potential.(fn5) Many studies have shown that allowing individuals with disabilities to live outside institutions in a family-like setting is less expensive and more effective than confining them to institutions.(fn6)
Although studies indicate that community residential homes have no negative impact on the surrounding neighborhood and function as single-family residences,(fn7) the accommodation of these group homes in residential districts remains a controversial issue. In spite of the legislative policies and court decisions that recognize group homes as residential uses, municipalities and counties continue to face political pressure to use zoning to exclude group homes from family districts. As a result, there is an overall scarcity of community residences, with small concentrations of them in less desirable residential or commercial districts, which defeats the purpose of "normalization."(fn8) A survey of community-based mental health services in Colorado made public by the Colorado Department of Human Services in 2001 found a scarcity of residential alternatives to institutionalized care ("the more typical, lower-intensity residential and housing options for consumers living in the community are insufficient").(fn9)
Because of these long-standing biases against some group homes, the Colorado General Assembly adopted legislation in 1975 declaring certain types of group homes residential uses as a matter of law. This was an effort to preempt local zoning ordinances from classifying them as commercial uses and excluding them from residential districts on that basis. These statutes are codified as CRS §§ 30-28-115(2) and 31-23-301 and -303(2), collectively referred to in this article as the "Group Home Statutes." In Glennon Heights, Inc. v. Central Bank and Trust,(fn10) the Colorado Supreme Court stated that the purpose of these acts is to "ensure that municipalities are precluded from barring group homes from residential neighborhoods on the basis of fears and stereotypes about handicapped persons."(fn11)
Colorado Group Home Statutes(fn1)
Type of Home Number of Residents License Required Dispersal Required Intended to Apply to Home Rule Jurisdictions(fn2)
Home Four to eight
developmentally
disabled(fn3) Yes 750 feet from another community residential home (and other facilities)(fn4) Yes
for the Aged
eight persons
aged 60 or older
Yes(fn5)
the Mentally Ill Eight screened
persons with
mental illness Yes * County: 750 feet from any group home(fn6)
* Cities/towns: 750 feet from another group home for the mentally ill Yes
Notes
1. See CRS §§ 30-28-115 and 31-23-303.
2. In Glennon Heights, Inc. v. Central Bank and Trust, 658 P.2d 872, 875 (Colo. 1983), and Adams County Ass'n for Retarded Citizens, Inc. v. Westminister, 196 Colo. 79 (1978), the Colorado Supreme Court expressly declined to rule on whether group homes are a matter of statewide or local concern. Home rule cities have the right to legislate on matters of purely local concern. Colo. Const. art. XX, § 6.
3. Unless specifically...
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