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I. Space for Staff as Constituting Prohibited Offices Under Local Zoning Ordinances.
Without the option of zoning ordinances aimed directly at community residences as such, municipalities sometimes resort to indirect means that invoke general zoning ordinances or other laws. One of the more common attacks aims at the space that community residences often provide for their staff and for the records kept by the residence. This space may be a room within a residence. It may even be a separate unit within a multi-unit residence. Many local zoning codes prohibit offices in residential districts, and municipal authorities may invoke such provisions against the space provided for staff and records within community residences.

The rebuttal to these efforts is that the space for the residenceís records and staff is not, legally speaking, an office at all. Rather, it is an integral and necessary part of the community residence. The State statutory and regulatory schemes that govern community residences contemplate that provider agencies will provide residents with "food, shelter[,]... personal guidance,...such supervision as [is] required,...[and] assistance" both temporary and permanent. Staff must be on-site to provide these services. Detailed records must be kept. Naturally, the staff that attend to community residences must have a place from which to provide the counseling, supervision and support that State law requires of them. There must also be a place where the required records can be recorded and stored, at least temporarily. The space for records and staff serves both these purposes. It is part and parcel of a duly licensed community residence. Consequently, it shares in the sanction afforded by current statutory law: it is part of a use that is permitted "in all residential districts of a municipality." Municipalities cannot move against it.

 
 
II. Community Residences as Boarding Homes
One occasionally encounters the argument that community residences are boarding homes and must meet the statutory and regulatory standards for such homes. In fact, prior to 1987, group homes for persons with mental illnesses were governed by boarding home laws as well as by the licensing laws for community residences. This anomaly grew from the fact that community residences did not have separate kitchen and bathroom facilities for residents, and they provided services that fit within the definition of a boarding home. However, in 1987 statutory revisions exempted community residences from the scope of boarding home law. They are now governed solely by their own licensing laws.
 
 
III. Community Residences and Construction Codes
Community residences for persons with disabilities are generally subject to the same construction code requirements as other residential buildings. Only rarely can they be classified as, and held to the more stringent construction requirements imposed on, institutions.

Local construction officials determine construction code classifications. However, they are overseen by, and subject to regulations issuing from, the State Department of Community Affairs. The Department can also issue what are called Formal Technical Opinions or FTOs. FTOs are binding on local construction officials. FTO-8, entitled "Use Group Classification - Department of Human Services Residential Programs", currently governs the classification of community residences licensed by the State Division of Mental Health Services and the Division of Developmental Disabilities.

FTO-8 sets out four factors that determine the construction classification of community residences: the number of residents, whether their residency is permanent (typically reside in the residence for 30 days or more) or transient (typically reside in the residence for fewer than 30 days); whether they can self-evacuate; and the division within the Department of Human Services that licenses the residence.

Community residences virtually never have transients. Usually their residents can self-evacuate. However, that ability is not a strict requirement for classification as a residence. Residences licensed by the Division of Developmental Disabilities may have as many as five residents incapable of self-evacuation and still retain residential classification for construction code purposes if certain compensating measures are taken.

When residents are permanent and self-evacuation is not an issue, the determining criteria for construction code classification are the number of residents and the licensing agency. Residences licensed by the Division of Mental Health Services or by the Division of Developmental Disabilities that have five or fewer residents are classified with one- and two-family dwelling units. Those with from six to fifteen residents and licensed by the Division of Mental Health Services are dealt with as multi-family dwellings with more than two units, as are residences with six to sixteen residents licensed by the Division of Developmental Disabilities. FTO-8 does not address residences with more than 15 residents licensed by the Division of Mental Health Services. Residences with 17 or more residents licensed by the Division of Developmental Disabilities are treated as institutions.

Current trends in serving persons with disabilities favor smaller community residences. In recent years it is unusual to find newly established community residences that have more than five residents and are therefore subject to anything more than the comparatively lenient construction requirements imposed upon one- and two-family homes.

FTO-8 is intended to preclude local construction officials from making intrusive inquiries into the nature of the disabilities of the residents of community residences. Instead, they are to rely on the Opinionís four criteria, since state licensure assures that the residence will be occupied by appropriate individuals. However, the opinion applies only to state licensed community residences. Unlicensed community residences are subject to construction officialsí careful inquiry into the "characteristics of intended occupants". The residences must then be classified by direct application of relevant provisions from the stateís construction code, rather than by resort to FTO-8.

 
 
IV. Geographic Disbursal of Community Residences

From time to time municipalities claim that too many community residences are being established within their borders. Minimum spacing and maximum population standards are no longer permissible. However, there remains one statutory provision that addresses this concern, at least indirectly.

One of the state statutes governing community residences calls upon the Department of Human Services to "monitor" the "geographic location" of community residences, and, "through the granting or withholding of licenses", to "insure" that they are "available throughout the state." This provision has not been interpreted by the courts. It can be viewed as a measure to benefit persons with disabilities by assuring that they have easy access to residences statewide. Its purpose may also be to assure that community residences are not so heavily concentrated in a small area that the residences resemble an institutional setting, thereby depriving persons with disabilities of their right to a home in the community. Viewed in either of these manners, the provision no doubt would survive judicial scrutiny. However, if the provisionís purpose is to permit the State to surreptitiously utilize minimum spacing or maximum population requirements of the type that have been struck down in zoning cases, the courts are not likely to respond favorably. Nor are the courts apt to sustain an interpretation that permits the State to "steer" community residences out of municipalities that complain of their presence.

 
 
V. Unlicensed Community Residences and the Definition of a Single-Family Home
To this point the discussion has dealt solely with community residences that are licensed by the state. However, there is a credible argument that community residences for persons with disabilities do not have to be licensed by the state. For example, three or four families may decide to buy a house and establish a residence for their adult children with mental retardation. What is the legal status of such homes?

From time to time municipalities have attempted to exclude community residences on the grounds that they do not constitute "families" as required by local zoning ordinances that establish zones for single-family residences. Licensed community residences are immune to these efforts by virtue of their statutorily mandated status as "permitted uses in all residential districts", uses that must be treated "the same as . . . single family dwelling[s]". However, unlicensed community residences are subject to local efforts to define what constitutes a family.

A typical ordinanceís definition of "family" might read:

" . . . [o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants.

The municipality would argue that an unlicensed community residence such as a group home was not a permitted single-family use because its occupants were not related by blood, adoption, or marriage.

Other efforts to exclude community residences have resorted to imposing differential restrictions on the number of persons who could live in a single-family residence based on whether the residents were related to each other. Such an ordinance might accomplish this objective by defining "family" as

persons [without regard to number] related by genetics, adoption or marriage, or a group of five or fewer [unrelated] persons.

Neither type of effort can succeed. The federal Fair Housing Act does exempt from its coverage "any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling." However, the United States Supreme Court has held that differential occupancy limitations based upon relationship by blood, marriage or adoption do not fall within this exemption.

New Jersey's courts have gone even further. They have entirely prohibited the differential treatment of families based on blood, marriage or adoption. Instead, they have adopted an approach that looks to functional relationships. If the residents of a house "bear the generic character of a family unit as a relatively permanent household," they must be considered a single family for zoning purposes. The only municipal limitations that can survive application of this rationale are ceilings on the number of persons who may reside in a house, regardless of their biological or legal relationship. These ceilings may be related to the size of the house, or they may be simple, absolute limitations. Either type would pass muster under New Jersey zoning law. They would also be exempt from the Fair Housing Act as a reasonable restriction of the number of occupants permitted to occupy a dwelling."

In determining whether, under New Jerseyís functional relationship test, unrelated residents of a residence "bear the generic character of a family unit", courts look to such things as whether the residents share expenses and use common areas, perform household chores, participate in community activities, and shop together. Residents of community residences generally have no trouble meeting these criteria. Of course, their disabilities sometimes preclude their performing household chores or independently functioning in other ways indicative of a family unit. However, this does not mean that the residences can be attacked as failing to meet the zoning criteria for families occupying single-family homes. Municipalities must make "reasonable accommodations in rules policies, [and] practices" so as to "afford . . . person[s] [with disabilities] equal opportunity to use and enjoy a dwelling[.]" Such accommodation requires municipalities to ignore residentsí inability to function independently within a family unit unless the municipality can show that to do so would place an undue burden on the locality or fundamentally alter itís zoning scheme.

In the end, even unlicensed community residences for persons with disabilities are likely to stand as single-family residences and be afforded all the protections given other single-family residences.

 
 
VI. Excluding "Dangerous" Residents
Residents of community residences are commonly misperceived to be more dangerous than other neighbors. However, as with the general population, and in similar proportions, there are some residents of community residences whose backgrounds do suggest that caution is appropriate. How to respond to such personsí needs is a social and political decision. However, that decision must be made within the bounds imposed by law, and the law has much to say on the subject.

While the federal Fair Housing Act protects persons with disabilities from housing discrimination, it also excepts from protection persons "whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others." The Act goes into no further detail, but the direct threat exception also appears in the Americans with Disabilities Act where its scope is more precisely defined. The ADAís exposition of the direct threat exception can guide discussion of the same exception in the Fair Housing Act, since courts are likely to draw on the ADA analogy when interpreting the Fair Housing Act.

The heart of the exception is that it applies to individuals. In other words, it cannot be used to exclude an identified group of persons from the protections of the Fair Housing Act. Thus, an effort to use the direct threat exception to exclude from group homes persons recently discharged from state psychiatric institutions has failed. Even New Jerseyís statutory efforts to exclude from community residences persons previously found not guilty by reason of insanity or found unfit to stand trial in criminal cases were struck down, the court focusing on the legislatureís attempt to exclude a whole category of persons from community residences and emphasizing that the direct threat exception requires person-by-person application.

Proper application of the exception requires a "careful" and "particularized factual consideration of whether [a] person is currently dangerous" Direct threat must be "established on the basis of a history of overt acts or current conduct". Evidence must be "sufficiently recent as to be credible". The danger to be considered is the danger posed in the specific placement under consideration. Finally, in assessing the prospect of danger, the possibility of reducing the danger by accommodations such as programmatic changes must be explored.

Significantly, municipalities cannot even use the direct threat exception to exclude identified persons from community residences. The exception is available for use only by landlords or sellers of property who may refuse to rent or sell housing on the basis of a lessorís or buyerís disability. Presumably, it is also available to the State in selecting residents of community residences.

Super. 91 (App. Div. 1988), affíd 117 N.J. 421 (1990)

42 U.S.C.A. sec. 3604(f)(3)(B); N.J.A.C. 13:13-3.4(e)2.

See Helen L. v. DiDario, 46 F.3d 325, 337 (1995) (interpreting the reasonable accommodation provision of the Americans with Disabilities Act).

42 U.S.C.A. sec. 3604(f)(9). New Jerseyís Law Against Discrimination does not have a direct threat exception. This discussion will proceed on the assumption that such an exception would be read into the law, though the assumption can be challenged.

Township of West Orange v. Whitman, 8 F.Supp.2d 408, 428 (D.N.J. 1998)

N.J.S.A. 30:11B-2 and N.J.S.A. 40:55D-66.1.

In the Matter of the Commitment of J.W., 288 N.J.Super. 197 (App. Div. 1996).

Ibid. at 202-203, 208.

H.R.Rep. No. 711, 100th Cong., 2d Sess. 9 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2181.

In the Matter of the Commitment of J.W., 288 N.J.Super. at 207.

Ibid. at 204.

Township of West Orange v. Whitman, 8 F.Supp.2d at 428.

 
 
 
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