LAWS, RULES, POLICIES AFFECTING

COMMUNITY RESIDENCES FOR

PEOPLE WITH DISABILITIES

Authors:

David Lazarus, Esq.

David Popiel, Esq.

COMMUNITY HEALTH LAW PROJECT

Copyright, Community Health Law Project, 1999

INTRODUCTION

Over the last generation, starting with the Rehabilitation Act of 1973 through the passage of the Americans with Disabilities Act (ADA), the rights of persons with disabilities have changed radically. Laws affecting public accommodations, transportation, education, employment, insurance coverage and government programs and services have all been dramatically impacted. But little has changed as much as the nation's laws regarding housing for persons with disabilities. The right of a person with a disability to be free from discriminatory housing practices has become a civil right that is protected by both State and Federal law.

This manual will focus on laws governing community residences for persons with disabilities; how those residences are defined, the regulations they are subject to, and protections afforded them by both federal and state law. This manual will also discuss the extent to which local government may exert control over the residences. We hope that we have presented this material in terms understandable by the layman. However, it is impossible within the context of a short work to answer and clarify all questions regarding this complicated subject. Therefore, any readers that have questions are invited to call or write the authors at the Community Health Law Project, 185 Valley Street, South Orange, NJ 07079, 973-275-1175, TDD 973-275-1721, Fax 973-275-5210, e-mail chlp@worldnet.att.net

This manual is divided into four sections which are described as follows:

Section 1:

Summarizes and reviews current federal and state laws and regulations and provides an overview of laws governing the establishment and operation of community residences for persons with disabilities. It is intended to briefly summarize federal and state law in a condensed version of section three.

Section 2:

In Question and Answer format provides answers to the most frequently asked questions regarding community residences.

Section 3:

Provides a more in-depth discussion of the Federal Fair Housing Act, the State Municipal Land Use Law, the State Law requiring licensure of community residences, their regulation, and various other laws governing community residences.

Section 4:

The appendix is a reproduction of statutory, regulatory, and other authorities that are cited in the manual.

Section 1

Under New Jersey law a community residence for persons with disabilities is defined as any residential facility, including apartments, group homes, halfway houses and other facilities that are licensed by the New Jersey Department of Human Services (usually the Division of Mental Health Services, or the Division of Developmental Disabilities). They provide food, shelter, and supervision as may be required, to persons with developmental disabilities or mental illnesses (and to other persons with disabilities) and are usually, but not exclusively, run by nonprofit organizations. From a zoning perspective, they may be located in any zone in which residential uses are permitted and have the same rights and limitations as single-family dwellings. If a community residence is located in a single-family detached home, it can be located in any zone in which single-family detached homes are allowed. If the residence is located in an apartment house, it is permitted in any zone that would permit that multiple dwelling. It should be noted that a community residence does not have to be located in a residential zone. It can be located in another zone in which residential uses are permitted. Therefore if a business or commercial zone would permit residential uses, the community residence may be located in that zone as well.

The Municipal Land Use Law that permits the location of community residences in residential districts (see Footnote 1) is a state law that dictates how municipalities can regulate land use. Because it is a state law, it cannot be superseded by local municipalities. The power to zone land to determine its use originates with the state, not with municipalities. The power is given by the state to its municipalities and is a grant of authority that can be withdrawn at any time. This is, in fact, what has occurred with respect to community residences. The location, as well as the internal operation and management of community residences and their practices and procedures are established by state law and regulation and are a state function. They are not subject to municipal regulation.

Federal law also provides similar protection for persons with disabilities. The Fair Housing Act was initially passed as part of the Civil Rights Act of 1968. The purpose of the Fair Housing Act was to protect certain classes of persons from discrimination in real estate transactions. These included persons who were subject to discrimination because of their race, sex, color, religion, and national origin. In 1988 the Fair Housing Act was amended to add two new classes of protected persons: persons with disabilities and families with children. Congress, by enacting the Fair Housing Amendments Act of 1988, gave virtually the same protections to persons with disabilities as it had previously given to other protected classes. Simply put, action that is discriminatory when directed at a person who is Black, Jewish, Asian, Female, etc., is now discriminatory when directed at persons with disabilities.

The Fair Housing Amendments Act not only equated persons who are disabled with other protected classes but recognized that persons with disabilities might require additional accommodations to enable them to use and enjoy residential dwellings. The definition of disability (referred to as "handicap") in the Fair Housing Act is exceedingly broad and includes a physical or mental impairment which substantially limits one or more of a persons major life activities, having a record of such impairment, or being regarded as having such an impairment. The Act recognized that persons with disabilities might require relaxation of rules or physical renovations to enable them to occupy a dwelling and thus discrimination includes a refusal to allow for reasonable physical renovations to the dwelling or for changes in policies or practices to enable a handicapped person to use and enjoy a dwelling. Examples might include allowing a person with a mobility impairment to install a ramp, or allowing a person with a visual impairment a service animal in an apartment building with a no-pet policy. This provision of the Fair Housing Act has even been interpreted to require a zoning board of adjustment to allow the construction of a nursing home in a rural residential adult community zone.

New Jersey's Law Against Discrimination is the state law that is analogous to the Federal Fair Housing Act. It was amended after the passage of the Fair Housing Act for the express purpose of incorporating in state law all of the provisions of the federal law. The two coexist independently, so that even if the Federal Fair Housing Act were repealed, state law would provide protection to all of the protected classes.

Section 2

Frequently Asked Questions and Answers

A. No. The New Jersey Attorney General in an opinion addressing this issue has found that, given the history of community opposition and delay that resulted from prior notification and which tended to limit the housing opportunities for persons with disabilities, prior notification in most all cases would violate the Fair Housing Act. It also would be blatantly discriminatory if required of other protected classes; another indication that it is prohibited under the Fair Housing Act.

A. No. This practice was found to violate the Fair Housing Act by a U.S. District Court. The Municipal Land Use Law was subsequently amended to comply with the decision.

A. Yes. The Fair Housing Act does not protect persons who pose a direct threat to others or to property, and to exclude such persons would not violate the Fair Housing Act. However, such exclusion may not be based upon status (e.g. that someone had been guilty of a crime in the past) or upon dated acts of dangerousness, but must be based upon current evidence and assessments. One should also note that a direct threat is one that cannot be eliminated by a modification of policies, practices or procedures or by the provision of auxiliary aids or services.

A. No. The Fair Housing Act prohibits such requirements, and the State Municipal Land Use Law makes community residences a permitted use. As Congress has said, "The [Fair Housing] Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community."

A. No. Community residences are by statute required to be licensed by the Department of Human Services (DHS), and the law provides that DHS also regulate their operations . Most persons would agree that this area of regulation has been "pre-empted" by the state and that municipalities have no authority over the internal operations of community residences.

A. No. Any attempt at setting quotas placed on a municipality would violate the Fair Housing Act. However, the state law requiring licensing of community residences requires that such residences be available statewide without unnecessary concentration. Although this provision of the licensing law has not been tested in the courts, there is at least good authority that the state does have a legitimate interest in assuring that community residences are available statewide.

A. No. A community residence cannot be treated any differently that a single-family residence. Therefore, if the single-family residence were not required to obtain approval, this requirement could not be imposed upon community residences. If a single-family residence were required to obtain approvals such as a variance to build on an undersized lot or encroach on a setback, the same approvals would apply to community residences.

Section 3

State licensed community residences provide homes in the community for persons with developmental disabilities, mental disabilities, and head injuries. Their residents receive food, shelter, personal guidance, and assistance in maintaining a basic level of self-care and in developing the potential to live independently in the community. Regulations governing the residences aim at assuring that the residents enjoy essential life-safety, health and comfort conditions in a home-like atmosphere. The regulations also govern staffing ratios and staffsí educational and professional requirements. The residences are not health care facilities.

Residences for persons with developmental disabilities and head injuries are licensed by the state Division of Developmental Disabilities, and may have up to 16 residents. Those for persons with mental illnesses are licensed by the Division of Mental Health Services, and may have up to 15 residents.

Though commonly referred to as group homes, community residences come in several varieties. They can include, but are not necessarily limited to, group homes, half-way houses, supervised apartments, hostels, and family care homes.

Municipal efforts to regulate community residences are likely to fail. Attempts to utilize local zoning ordinances will run afoul of factors discussed in the next section. Other efforts, such as ordinances that set staffing requirements, are equally unlikely to survive scrutiny. The stateís scheme governing community residences is comprehensive. The licensing of community residences throughout the state as part of the stateís services for persons with disabilities calls for uniformity of regulation. Under such circumstances, it is likely that local regulation is pre-empted. Any ordinance the policy or effect of which conflicted with state law would also fail, as would any ordinance which stood as an obstacle to effectuation of the Legislatureís "full purposes and objectives".

Two watersheds mark the development of the stateís land use or zoning law as it relates to community residences for persons with disabilities. At its inception the first was considered a great step forward for persons with disabilities. But, within a generation it was eclipsed by the rapid evolution of legal protections for such persons.

In 1978 New Jersey amended its Municipal Land Use Law, the statute that confers zoning authority upon localities, so as to confer upon community residences for persons with disabilities limited protection from municipal zoning actions. The amendment classified community residences with six or fewer residents as "permitted uses in all residential districts" and mandated that, for zoning purposes, they be treated "the same as . . . single family dwelling[s]". This effectively immunized small community residences from local zoning authority. However, the amendment left municipalities free to place zoning limitations on larger community residences, those with seven or more residents. These limitations are known in zoning parlance as "conditional uses" - special conditions that must to be met before zoning approval can be obtained. In addition, municipalities could deny zoning approval to any community residence located within 1500 feet of another community residence, and could wholly exclude additional community residences when the number of people residing in them exceeded 50 or amounted to 0.5% of the municipalityís population, whichever was greater. Nonetheless, the 1978 amendments represented a marked advance for persons with disabilities, since previously they enjoyed virtually no protection from municipal zoning authority.

While they still held the power to differentiate between larger community residences and other types of housing many municipalities enacted ordinances that effectively "zoned out" the larger residences. One common conditional use provision required community residence operators to obtain a million dollar insurance policy against harm caused by residents. The policy had to waive defenses based on the residentsí mental condition. Such policies cannot be obtained, and, consequently, this provision effectively precluded the establishment of larger community residences. Other provisions reflected deep-seated prejudices against persons with disabilities. Thus, numerous municipalities required that community residences be visually "buffered" from their neighbors.

The law changed markedly again in 1988. This time the change came from the federal level when Congress amended the nationís Fair Housing Act. The amendment brought persons with disabilities within the Actís purview. Eight years later, in 1996, New Jerseyís federal district court, relying on these changes, struck down those portions of the Municipal Land Use Law, including the minimum spacing and maximum population provisions, that permitted localities to impose zoning conditions upon larger community residences. A year later the State Legislature conceded the point, eliminating all municipal authority to zone against community residences.

Today, for zoning purposes, the fundamental legal truth regarding community residences for persons with disabilities is that they are single family residences. Regardless of the number of residents, they are "permitted uses in all residential districts", and must be treated "the same as . . . single family dwelling[s]".

The treatment of community residences as single family homes extends even beyond the realm of zoning. It encompasses, too, the controversial issue of notifying communities that a community residence is to be established. Just as there is no legal basis for demanding notification when African-Americans, Jews, Catholics, Italians, women, or persons of Irish descent are coming to a of zoning. It encompasses, too, the controversial issue of notifying communities that a community residence is to be established. Just as there is no legal basis for demanding notification when African-Americans, Jews, Catholics, Italians, women, or persons of Irish descent are coming to a neighborhood, so there is no legal basis for demanding notification that persons with disabilities are moving in. The protection of community residences also precludes efforts by surrounding neighborhoods to have a say in the placement of the residences and in the nature of the persons who reside in them.

Recently an effort was made to require community notification of the establishment of community residences for persons with mental disabilities and to require that the surrounding community be afforded the opportunity to participate in locating the residences and selecting their residents. Neighbors of the prospective residence brought an action in New Jerseyís federal district court. They contended that persons with mental disabilities, recently discharged from state psychiatric hospitals to reside in community residences, posed a heightened risk of danger to the surrounding neighborhood. This danger, the neighbors alleged, arose from the fact that, after a generation of reducing the size of psychiatric hospitals, only the most ill and threatening patients remain to be discharged into the community. The threat is such, the argument concluded, that neighbors were constitutionally entitled to know that a residence was coming and to have input into its establishment.

Not so, the court held. The federal Fair Housing Act protects persons with mental disabilities in housing matters, and the neighborís argument fundamentally misconstrued constitutional law, there being no constitutional basis for overriding the statutory protections. Moreover, New Jerseyís comprehensive regulation of community residences and of discharge procedures for state psychiatric hospitals blunted allegations that the residences posed a community threat.