7 Regulatory Strategies

• Library: Group Homes: Strategies for Effective and Defensible Planning and Regulation (ABA) (2014 Ed.)

The previous chapters of this book focused on the history of discrimination against people with disabilities, the important role that group homes play in providing housing choices for people with few housing options, and the law as it pertains to providing housing for people with disabilities. The hardest work remains to be addressed: determining how local regulators can draft and adopt workable and defensible zoning regulations and how advocates, neighbors, and public officials can work together to get group homes approved and developed in the right places, in the right numbers, and at the right times. Getting all of this done—having proper regulations and a successful approval process—requires walking a narrow path delimited by what good local politics is and what the Fair Housing Amendments Act (FHAA) requires. This chapter discusses zoning code compliance with the FHAA, with an emphasis on how to make local zoning regulations pertaining to group living facilities as legally defensible as possible.

Definitions

There may be more law made in the definitions section of a zoning code than anywhere else, yet the definitions section often receives the least consideration in the drafting process. It is important that the code contain clear definitions of all key terms. For example, clearly defining the term "group home" and determining how to define "family" will make it clear to everyone what a "group home" is and what a "single-family" occupancy limitation means. To avoid constitutional vagueness and procedural due process concerns—as well as the mundane problems typical of ordinances that are commonly misunderstood by the public—an ordinance must define ambiguous or special terms with a high degree of specificity. With that said, code drafters should avoid, to the extent possible, using terms that are technical and not readily understood by a lay reader and instead use simple, easy-to-understand terms.

Even with the recognition that there will always be a good deal of law found in the definitions themselves, it is still the best practice to limit how much "regulating" goes on within the definitions. However, the "division of labor" between the definitions and the implementing portions of the code will not always be a comfortable one. Because most code readers look directly to the substantive provisions of the code—instead of the definitions—to understand the code's requirements, keeping as much of the regulation within the substantive regulatory portion of the code as possible makes it more likely that an ordinance reader will understand and comply with the code.

Here is a definition of "community residence" from the Clark County, Nevada, Uniform Development Code:

"Community residence" (also commonly referred to as a "group home") means a residential family-like living arrangement for five (5) to ten (10) unrelated individuals with disabilities in need of the mutual support furnished by other residents of the community residence as well as the support services, if any, provided by the operator of the community residence. Residents may be self-governing or supervised by a sponsoring entity or its staff which furnishes habilitative or rehabilitative services related to the disabilities of the residents. Inter-relationships between residents are an essential component of a community residence. A community residence shall be considered a residential use of property for purposes of all zoning and building codes. The term does not include "facilities for the treatment of alcohol and drug abuse", "modified medical detoxification facilities", "transitional living facilities for released offenders", "facility for treatment with narcotics", or "community triage center" as each of those terms are defined within chapter 449 of the Nevada Revised Statu[t]es. The term also does not include a "boarding house", "lodging house", "fraternity", "sorority", "dormitory", or any other group living arrangement for unrelated individuals who are not disabled. The term includes two categories as follows:

1. "Family Community Residence" including but not limited to "residential facilities for groups" of more than 4 residents as defined by NRS 449.017. Relatives of the residents may reside in the facility (cannot exceed 10 individuals).
2. "Transitional Community Residence" including but not limited to "halfway house for recovering alcohol and drug abusers" for more than four residents as defined by NRS 449.008.¹

Clark County's definition of "community residence" defines such facilities with great precision, yet contains very little regulation. Note, however, that the definition's language—"A community residence shall be considered a residential use of property for purposes of all zoning and building codes"—could constitute regulation.

In addition, this definition limits community residences to no more than 10 residents, a potentially severe restriction. A possible "fix" to recognize that large group homes might better serve some needs would be to have two or more classes of community residences, "small" group living arrangements of 5 to 10 residents and "large" houses of 10 to 25 residents, or something like that. For example, the City and County of Denver, Colorado, provides for two classes of "residential care use" in its zoning code.²

Defining the Facility

How the code defines "group home" and other types of congregate living facilities is important to the validity and functionality of the code. When drafting code definitions for facilities housing people with disabilities, communities should consider the extent to which—if at all—the definitions attempt any classification or limitation on the basis of the nature of the disability. There is merit to drafting a code that is entirely "disability neutral," which avoids defining particular facilities based on the disabilities of the residents. An example of a disability-neutral definition is Garfield County, Colorado's definition of "group home facility": "A facility operated by a public, nonprofit, or private agency that provides care or supervision of persons who are not related by blood, marriage, or adoption to the facility's owner, operator, or manager."³

If the code does not contain references to the residents' disabilities, then the drafter must take special care to ensure that the code's neutrality does not inadvertently deny people with disabilities adequate housing opportunities. For example, a definition of a congregate living facility could be as simple as: "A 'congregate living facility' is a facility housing up to six unrelated adults and that may provide support or medical services to residents thereof." However, the drafter must ensure that the congregate living facility is granted single-family residence status so as to avoid its exclusion from residential neighborhoods in a way that would violate the FHAA or state zoning enabling laws. Regulations should not improperly discriminate based on the nature of the disability, but there may be important siting and design considerations that could and perhaps should vary based on the use. Consider important differences that may be directly relevant for location, architecture, and site design between group homes for adults with intellectual disabilities, group homes for people recovering from drug and alcohol addiction, and group homes for formerly-incarcerated prisoners in need of custodial medical care. Adding to the challenge is the need to go beyond the issues of housing for people with disabilities and consider group homes for other people—for example, those who are victims of domestic violence and the homeless. It is exceedingly difficult and often frustrating to plan for and define group homes in a way that results in the very best locational decisions and, at the same time, does not limit housing opportunities for those in need and does not discriminate or stigmatize the very people we are trying to help. In addition, it is necessary to avoid destabilizing residential and commercial neighborhoods in the process of facilitating these housing opportunities.

Another approach, which is followed by Clark County, Nevada, is to refer to the residents' disability status, but to avoid subjecting people with disabilities to more burdensome requirements than others without disabilities. Code drafters must take special care to grant equal or greater rights to housing facilities for people with disabilities to ensure that they are not being subjected to discrimination in the placement of the group homes. Many ordinances distinguish, for example, "substance abuse treatment centers" or define the term "group home" as "a residential facility intended for occupancy by mentally handicapped people." However, to avoid violating the FHAA, the definitions section should focus on the characteristics of the dwelling itself rather than the residents' disabilities.

For example, a "congregate living facility" might be defined as "a residential housing unit intended for occupancy by people receiving medical or other forms of treatment or services." This definition describes the form of the dwelling, as opposed to the residents' disabilities, and does not regulate within that definition. Examples of offering equal or greater rights to housing facilities for people with disabilities could include allowing higher occupancy limits for congregate living facilities than for other types of housing, offering a more expedited site plan review process, or giving housing for people with disabilities all of the same rights under the ordinance as single-family homes in residential areas.

Zoning codes use many terms to describe housing for people with disabilities. In all cases, these terms must be defined with complete precision. Some examples include the following:

• assisted living facility
• community residential facility
• congregate living facility
• family home
• group home
• group living facility
• halfway house
• independent living facility
• nursing

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