Apr 1

An Introduction to Group Home Regulation— Part 1

By Robert Widner

Over the next several issues, our newsletter will introduce one of the most relevant local government planning issues facing communities – group home regulation. The demand for group living accommodations is increasing due to our aging population, the de-institutionalization of our mentally and physically disabled, and recognition in federal and state laws that elderly and disabled persons are entitled to a non-discriminatory opportunity to live in residential settings. From a zoning and development approval standpoint, the regulation of group homes presents a difficult subject matter for several reasons.

A common attitude of the public is to support conceptually the integration of homes for the handicapped, elderly, and other similar persons into residential communities. However, once a particular group home is proposed to be located within a certain neighborhood, this attitude of the public sometimes changes. There are often poorly articulated fears expressed during the development review process that a group home will result in a degradation of the residential neighborhood, pose a risk of harm to neighbors, and reduce property values. Another common complaint raised by citizens is that a proliferation in the number of group homes within a neighborhood can change the quiet residential character of the neighborhood into a more institutional or commercial character.

The law governing group homes is somewhat complex and, at times, conflicting. For example, some federal courts have held that laws imposing minimum spacing requirements between certain types of group homes violates federal law, but the Colorado statutes for group homes expressly permit such spacing. In addition, Colorado statutory provisions predate federal requirements and are poorly “fitted” with federal provisions thereby causing more confusion. Lastly, federal and state law protects certain types of group homes from discrimination or dissimilar treatment during the development review process and effectively restricts the ability of local governments to address the public’s concerns related to the location and operation of group homes.

GENERAL LEGAL BACKGROUND

There are two major levels of laws governing Colorado group homes: federal law (both statutory and case law) and Colorado state law (largely statutory). These laws reduce the local government’s ability to regulate certain types of group homes. In this issue, we will introduce the federal laws; in subsequent issues we will introduce our state laws and explore how local regulatory programs must balance all laws to be defensible and effective.

1. Federal Laws

The federal Fair Housing Act, a part of the Civil Rights Act of 1968, was originally enacted to prohibit discrimination on the basis of race, color, religion, or national origin. In 1974, the Act was amended to add protection on the basis of gender and, in 1988, the Act was further amended to prohibit discrimination on the basis of “handicap” or “familial” status (families with children).

“Handicap” is defined broadly by 42 U.S.C. § 3602(h) as:

(A) a physical or mental impairment which substantially limits one or more of such person’s major life activities;
(B) a record of having such an impairment; or
(C) being regarded as having such an impairment.

Persons who qualify as handicapped range from those with physical disabilities, mentally disabled and mentally ill persons, recovering alcoholics and drug addicts (non-users), many elderly persons with physical or mental impairments, and persons infected with Human Immunodeficiency Virus (HIV) and other life limiting medical impairments.

“Discrimination” in this context includes a local government’s failure to make “reasonable accommodations” in rules, policies, practices, or services necessary to afford a handicapped person equal opportunity to the use and enjoyment of a residential dwelling. Such a failure can arise from a government’s neglect in removing barriers to housing for handicapped persons that are contained in the government’s zoning ordinance. Importantly, the federal law’s provision concerning the making of “reasonable accommodations” may provide the local government an ability to alter its application of discriminatory ordinances once confronted with a development application for a group home or when the local government is called upon to enforce a policy or regulation which would be discriminatory in effect against the group home. Much of the relevant case law illustrates that the failure of local government to make a reasonable accommodation during the enforcement of policies or regulations can result in legal action by the group home.

Unlawful discrimination can be proven through a showing of “intentional discrimination” or by demonstrating that a regulation or policy has a “discriminatory effect.” Intentional discrimination need only involve a showing that one of the reasons for the action by the government was based on the handicap character of a protected class of individuals. For example, a regulation that is enacted, in part, to limit the number of handicapped persons in the community may evidence intentional discrimination. Moreover, if an action is taken by a governing body to appease the viewpoint of persons opposed to the residence of handicapped persons within a neighborhood, the governing body’s decision may be “tainted” by the discriminatory intent of the group home’s opponents.

To prove a discriminatory effect, a showing that a rule, regulation, or policy has the mere effect of discriminating against handicapped persons will be sufficient to prove unlawful discrimination. The fact that the government had no actual intent to discriminate is irrelevant.

Where discrimination by a local government exists, there are several potential avenues for an aggrieved party to pursue. The Department of Housing and Urban Development (HUD) can request that the state attorney general prosecute a complaint in civil court which can result in an injunction against the municipality, a fine of $50,000 for a first offense ($100,000 for subsequent violations), and attorneys’ fees and costs. The federal Attorney General can file a federal civil claim with similar penalties against the local government. In addition, a private enforcement action can be brought by the aggrieved party which could include a 42 U.S.C. § 1983 civil rights claim potentially resulting in significant monetary penalties.

Certain types of governmental actions have been found by various courts to constitute “discrimination” within the meaning of the Fair Housing Amendments Act. The more important actions addressed by the courts include:

Spacing Requirements. Some communities require group homes to be spaced a certain distance from one another. Although some judicial decisions have approved spacing limitations for federally-protected group homes, some recent federal courts have found spacing requirements to be a discriminatory practice and to violate of the Fair Housing Amendments Act because similar requirements are not imposed on other
residential uses and users.

Limitations on Numbers of Unrelated Residents. Some communities limit the number of persons that may reside in a group home. These limitations usually indirectly arise from the definition of “family” or “household” contained in local ordinances. For example, a local ordinance may define “family” as any number of related persons or not more than four unrelated persons. Because residential zoning ordinances typically limit a residential dwelling unit to occupancy by one “family,” a residential group home would be limited to housing four unrelated persons. Where the unrelated residents are federally-protected handicapped persons, there is a real concern that such limitations would unlawfully discriminate against handicapped persons and violate the Fair Housing Amendments Act.

Special or Conditional Use Review. Some communities require group homes to undergo special or conditional use review as a condition to obtaining approval to locate within a residential zone district. Some (but not all) courts have concluded that this practice is discriminatory and violates the Fair Housing Amendments Act because the local government does not require other types of single family residential users to undergo special or conditional use review.

The federal Fair Housing Amendments Act does not preclude all regulation of group homes. A local government may impose restrictions on the number of persons residing in a group home where the restriction is the result of a uniform attempt to limit the number of residents to prevent overcrowding. This type of regulation would customarily require limitations applicable to all residential units regardless of the make-up of the residents and might be accomplished through a regulation which limits occupancy numbers based on the total floor area of a residential structure.

In the next issue, the newsletter will introduce the Colorado State laws that govern group homes and address how local regulations can balance both federal and state legal requirements.