An Introduction to Group Home Regulation— Part II

By Robert Widner

September Newsletter 2014_regulationsIn the last edition of our newsletter, we introduced one of the most important yet misunderstood local government planning issues facing communities – group home regulation. The last edition addressed the federal law (Fair Housing Amendments Act) that governs group homes (Part I). In this edition, we discuss Colorado laws and the common components of local group home regulations.

II. Colorado Law

Colorado statutes governing municipalities (C.R.S. § 31-23-303) and counties (C.R.S. § 30-28-115) recognize that the location of certain types of group homes is a matter of statewide concern. This recognition limits the ability of local governments to regulate these state-protected group homes. State law requires local governments to recognize group homes as a residential land use and to include them in residential zone districts (including single-family) if they contain eight or fewer persons and if they fall into one of the following categories:

  1. State-licensed group homes for developmentally disabled persons together with appropriate staff persons. “Developmentally disabled” means persons having “cerebral palsy, multiple sclerosis, mental retardation, autism, and epilepsy.”
  2. A state-licensed group home for mentally ill persons as defined by C.R.S. § 27-10-102. Such persons must be pre-screened by a mental health professional and such persons cannot have been previously convicted of a felony involving a violent crime, or have been found guilty by reason of insanity.
  3. An owner-occupied or nonprofit group home for the exclusive use of not more than eight persons who are sixty years of age and older.

Although local governments cannot exclude these group homes from single-family or any other residential zone districts, they are authorized to adopt regulations that address the compatibility of the group homes with the residential character of neighborhoods. See, e.g., Adams County Assoc. for Retarded Citizens v. City of Westminster, 580 P.2d 1246 (Colo. 1978)(decided under Colorado law, not federal.).

State law also expressly requires the spacing of elderly group homes and mentally ill group homes at a distance of 750-feet from another group home of the same type unless the municipality or county establishes a different spacing requirement. This requirement does not apply to group homes for developmentally disabled. The intent of this statute is to assist group homes for the elderly and the disabled in finding locations in residential  communities and to increase the opportunities for integration of these homes in residential communities. See Double D Manor v. Evergreen Meadows, 773 P.2d 1046 (Colo. 1989). Because the explicit intent of the statutory program is to encourage the establishment of group homes within residential communities, the proper interpretation of this spacing requirement is to permit local governments to place such homes closer to each other than 750-feet. It is not the intent of the statute to permit local governments to set larger spacing restrictions upon group homes.1 Although state law permits spacing of group homes, this spacing requirement may potentially conflict with the federal court decisions (introduced in the prior edition of this newsletter) that hold that spacing requirements are discriminatory and violate the Fair Housing Amendments Act.

III. Basic Interplay Between State and Federal Laws for Group Homes

Virtually all persons living within a state-defined group home (developmentally disabled, mentally ill, and most elderly persons) will fall within the federal definition of “handicapped person.” Such persons possess a physical or mental impairment that “substantially limits one or more of such person’s major life activities.” As a result, the state laws governing group homes may be preempted or at least somewhat superfluous where the state laws conflict or violate the federal act. See 42 U.S.C. § 3615; Bangerter v. Orem City Corporation, 46 F.3d 1491 (10th Cir. 1995).

IV. Components of Common Group Home Regulations

Most local government regulatory programs attempt to address three elements of residential group homes:

(1) Limitations on total number of group home residents; (2) conditional or special use review for the siting or approval of group homes; and (3) spacing between one or more group homes. These elements of regulatory programs comprise the most commonly litigated issues when local governments deny or reject the establishment of a new group home in the community.

In devising a regulatory program for group homes, local governments should consider the following broad policy issues and bases for regulations:

A. Whether a Limitation Should be Imposed on the Total Number of Group Home Residents

Considerations include:

  1. State law requires that local governments provide housing opportunities in residential zone districts for group homes of not more than eight developmentally disabled, elderly, and mentally ill persons.
  2. A limitation upon the total number of persons that may reside in a group home may be found to be a discriminatory practice when the persons seeking to live in a group home are federally-protected handicapped persons. Discrimination may arise if related and non-related persons are not equally limited in the total number that may reside in a residential structure.
  3. Local governments may impose uniform regulations limiting the number of persons on a per square foot, per bedroom, or other objective standard or basis provided that the standard is applied to all residential uses regardless of the relationship of the residents. However, this type of regulation is exceedingly difficult to administer and to enforce because few local governments are willing to limit the traditional household of related
    persons to a maximum or specific total number of residents.
  4. Although limitations in the number of federally-protected persons may risk violating federal law, there is simply some point at which a group home is of a sufficient size to present a significant impact on the neighborhood. Based on the case law to date, group homes with greater than fifteen persons are not commonplace. When a single-family home is occupied by fifteen or more persons, there is a reasonable argument that the home requires special use review and mitigation measures to protect the character of the neighborhood. The local government should understand that the purpose for the review is not to exclude Federally protected homes, but to determine the need to make, and to permit the government to make, reasonable accommodations for these protected homes.
  5. If a limitation on the number of residents of a group home is desired, the local government should assess the degree of risk acceptable to the government concerning legal challenges. If a federally protected group home seeks to locate within the community and the regulatory program would create a claim of discrimination, the government should be prepared to defend the claim or provide a reasonable accommodation to the group home.
  6. Group homes for persons not protected by federal or state law may be regulated. Such regulations need only have a reasonable or rational basis. These group homes may include homes for violent offenders, half-way houses, homeless shelters, etc.

B. Whether a Special or Conditional Use Permit Should be Required

Considerations include:

  1. Recently federal courts have found conditional or special use review and other permitting procedures to be discriminatory under the Fair Housing Amendments Act. The federal enforcement agency, the Department of Justice, has issued opinions finding that such permit programs are discriminatory.
  2. Special or conditional use review and the public hearing process oftentimes provides a fertile ground for ad hoc, discretionary decisions that are influenced by the unsubstantiated fears and perceptions of neighboring residents. It is sometimes difficult to educate the public concerning the federal and state law protections afforded handicapped and other persons in finding residential accommodations, especially where the federally protected persons are recovering drug users and recovering alcoholics. Political pressure may give rise to a discriminatory decision.
  3. An administrative registration program that lacks a public hearing process can be instituted if it is merely designed to obtain information from the group home to determine that the home qualifies as a handicapped group home protected by the Fair Housing Amendments Act. The form for such registration would be simple and the required information could include: (1) the name and address of the home; (2) name of operator and contact persons; (3) maximum number of persons to be housed; (4) description of general disabilities or handicaps of the Residents; (5) number of resident staff and hours staffed; and (6) physical changes to the premises necessary to serve the residents. This registration system would permit the local government to assist the group home in obtaining any necessary variances or to address, in an administrative forum, any concerns related to impacts on the neighborhood.
  4. A permitting system can provide for reasonable restrictions designed not to exclude group homes for handicapped persons but to ensure their safety and enjoyment of the residential neighborhood. See, e.g., Bangerter v. Orem City Corp., 46 F.3d 1491 (10th Cir. 1995). Examples might include: (1) appropriate staff where the residents are immobile or otherwise require day-to-day assistance; and (2) smoke detectors and other safety systems designed to protect the residents especially where the residents will need assistance in exiting the building. Many of these types of protections are afforded as part of the state program for licensed
    mentally and developmentally disabled homes.

C. Whether Spacing Requirements Should be Imposed

Considerations include:

  1. State law allows local governments to impose a 750-feet spacing requirement for group homes comprised of developmentally disabled, mentally ill, and elderly persons. However, these spacing requirements may be vulnerable to the federal Fair Housing Amendments Act as it has been interpreted by federal courts.
  2. If the local government desires to maintain a spacing requirement, the spacing requirement should either be brought into conformance with the spacing requirements of the state statute (750-feet) or reduced to less than 750-feet. Maintaining a spacing requirement that implements the state statutory standard may enable the local government to enlist the State of Colorado as a potential co-defendant in any action challenging the spacing as
    discriminatory.