Appendix E Model Fair-housing Ordinance Provisions

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

Many elements of local zoning codes have direct or indirect effects on group homes and people with disabilities. While there is no way to provide sample or model ordinance language for all of the code provisions that might impact group homes or people with disabilities, the intent here is to provide local governments and group home advocates with some basic principles and language that can be adapted into and used in a local zoning code. It is the authors' hope that these models will assist local governments in preparing legally defensible zoning codes that provide people with disabilities with equal opportunities to obtain housing in the community.

Anyone using model ordinance language should exercise caution when incorporating it into local codes. While the authors have made the best efforts to provide model language that is broadly applicable and legally defensible, no community should simply adopt a model ordinance without conducting background planning and research. Every community is different, and local leaders are charged with addressing unique situations, so communities should make a concerted effort to adapt this model language to the particular situation. Being sensitive to the particular needs and characteristics of a community ensures that the code language actually and directly addresses the community's concerns and issues.

Furthermore, the model language is an attempt at general applicability. Before adopting any model language—whether from this publication or any other source—the local government should consult a lawyer to make sure that what is adopted is consistent with all federal, state, and local requirements. While model language is frequently helpful, adopting model language without researching all of the applicable law can lead to problems.

In this appendix, the authors have provided the following model ordinance provisions: (1) sample definitions of "group home" and "family"; (2) a sample fair-housing ordinance; (3) a sample reasonable accommodation ordinance; and (4) a sample group home floating zone ordinance.

Sample Definitions

As Chapter 7 discusses in detail, the definitions section of a local zoning code can be one of the most overlooked, but also the most troublesome and litigated sections of the code. Two definitions in particular are problematic in the context of group homes for people with disabilities: the definition of "family" and the definition of "group home." Following are suggested definitions of these terms with some explanation.

Definition of "Family"

The model definition of family below does not distinguish among housekeeping units on the basis of a blood, marriage, or adoptive relationship, which avoids the problem of discrimination against individuals residing in group living facilities. Capacity issues are best addressed by building-safety regulations, based on the physical characteristics of the dwelling unit. Some local jurisdictions—particularly jurisdictions with large numbers of renters—may find this model definition unsatisfactory because it does not limit the number of unrelated individuals who may live together in the nondisability context. If a local jurisdiction chooses to limit the number of unrelated people who may live together, it is imperative that the jurisdiction provide a waiver or exemption for group homes for people with disabilities to avoid liability under the Fair Housing Amendments Act.

Family. A group of individuals functioning as a single housekeeping unit and residing in a single dwelling unit, whether or not related by blood, marriage, civil union, or adoption.

Definition of "Group Home"

The model definition of group home does not turn on the characteristics—that is, the disabilities—of the residents of a group, but rather on the services provided and the relatedness of the individuals residing in the home.

Group home. A single dwelling unit, owned or operated by a nonprofit or for-profit entity, providing health-care, rehabilitative, or other services to its residents, and that houses unrelated individuals temporarily or permanently.

Sample Fair Housing Ordinance

Some local jurisdictions have elected to enact fair housing ordinances, mirroring—and typically augmenting—the protections afforded to people with disabilities (and other groups) under the Fair Housing Act and state fair housing laws. The following sample primarily addresses private discrimination, since the local government is barred from engaging in housing discrimination under federal (and presumably state) law. Nothing, however, would prevent a local fair housing ordinance from applying to local government actions.

[Insert jurisdiction] Nondiscrimination in Housing Ordinance

Note: portions of this model code language in italics indicate areas in which local jurisdictions have broad flexibility to insert or delete terms in implementing these provisions.

Sec. 1. Intent.

It is the intent of the city that no person be denied to equal protection of the laws; nor shall any person be denied the enjoyment of his or her civil or political rights or be discriminated against because of actual or perceived race, color, religion, national origin, sex, age, height, weight, condition of pregnancy, marital status, physical or mental limitation, source of income, family responsibilities, educational association, sexual orientation, gender identity, or HIV status. As used herein, "perceived" refers to the perception of the person who acts, and not to the perception of the person for or against whom the action is taken.

Sec. 2. Definitions.

As used in this chapter, the following words and phrases have the following meanings:

(1) Age. Chronological age.
(2) Director. The director of the [insert local department responsible for enforcement].
(3) Discriminate. To make a decision, offer to make a decision or refrain from making a decision based in whole or in part on the actual or perceived [race, color, religion, national origin, sex, age, height, weight, condition of pregnancy, marital status, physical or mental limitation, source of income, family responsibilities, educational association, sexual orientation, gender identity, or HIV status] of another person or that person's relatives or associates.

Discrimination based on actual or perceived physical or mental limitation includes discrimination because of the use by an individual of adaptive devices or aids.

As used herein, "perceived" refers to the perception of the person who acts and not to the perception of the person for or against whom the action is taken.

(4) Family responsibilities. The state of being or the potential to become a contributor to the support of a person or people in a dependent relationship.
(5) Gender identity. A person's actual or perceived gender, including a person's gender identity, self-image, appearance, expression, or behavior, whether or not that gender identity, self-image, appearance, expression, or behavior is different from that traditionally associated with the person's sex at birth as being either female or male.
(6) HIV status. A person who has, or has been diagnosed as having been infected with, the human immunodeficiency virus, whether or not that person has or has been diagnosed as having acquired immunodeficiency syndrome (AIDS) or AIDS-related complex.
(7) Housing facility. Any dwelling unit or facility used for a person to regularly sleep and keep personal belongings, including, but not limited to, a house, apartment, rooming house, housing cooperative, hotel, motel, tourist home, retirement home, or nursing home.
(8) Marital status. The state of being married, unmarried, divorced, or widowed.
(9) Mental limitation. A limitation of mental capabilities unrelated to one's ability to safely perform the work involved in

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