At the Nov. 14 meeting of the City’s Plan Commission, Meagan Jones, the City’s Neighborhood and Land Use Planner, advised members of the Commission that Alderman Judy Fiske (1st Ward) had asked that the Plan Commission consider making Residential Care Homes a “special use” in zoning districts in which they were currently permitted as a matter of right.
Ms. Jones said there are two categories of Residential Care Homes under the City’s Zoning Code, which are intended to provide housing for persons with a disability: Category I is defined as “A dwelling unit shared by four (4) to eight (8) unrelated persons, exclusive of staff, who require assistance or supervision and who reside together in a family type environment as a single housekeeping unit.” It does not include persons who are currently addicted to alcohol or narcotic drugs or are criminal offenders serving on work release or probationary programs.
Category II homes have a similar definition, but are for between nine and 15 unrelated persons.
Both Category I and Category II homes must be licensed by the City and they must be 900 feet from another Residential Care Home, Child Residential Care Home, or Transitional Treatment Facility, said Ms. Jones.
Currently, Category I homes are “permitted uses” in all zoning districts except the MUE district. Category II homes are “permitted uses” in the R4, R5, R6, D1, MU, and MXE districts.
Under the proposal made by Ald. Fiske, Category I and Category II homes would not be permitted uses in any District. Rather, they would be “special uses” in the zoning districts in which they are now permitted uses. They would continue to be special uses in districts in which they are currently special uses.
For example, under current zoning, if a residential care home for four persons with a disability obtained a license from the City and complied with the distance and other zoning requirements, it could operate in a residential district as a matter of right, without obtaining a “special use” permit. Under Ald. Fiske’s proposal, the residential care home would have to obtain a special use permit to operate in a residential district.
When this issue was considered in 1996, housing providers argued that a special use requirement would impose on persons with a disability a burden that was not imposed on other people and cited cases holding that a special use requirement would violate the Federal Fair Housing Amendments Act (FHAA); that it would require housing providers to make contracts to purchase properties conditioned on their obtaining a special use permit, making it more difficult to secure housing; that it would make it more difficult to put together packages to finance the purchase of properties, which was already a difficult process; that public hearings may hold persons with a disability up to public scrutiny, with a resulting stigma that cannot be easily erased; and that the process of securing a special use permit would be expensive and add to the cost of housing, which is already expensive in Evanston.
The City’s legal staff and City Council decided at that time against requiring special use permits for Category I residential care homes, except for the MUE district, and against requiring special use permits for Category II residential care homes in residential and other districts which permitted a higher density.
A Nov. 8, 2018 memo to the Plan Commission from Johanna Leonard, Director of Community Development, Scott Mangum, Planning and Zoning Administrator, and Ms. Jones said staff examined regulations from bordering municipalities and comparable national communities, and consulted American Planning Association’s Planning Advisory Service. Staff found that group homes of similar size “are largely permitted within residential districts by right and have distance requirements ranging from 600 to 1320 feet.”
The memo also cited a decision of the U.S. Court of Appeals for the Seventh Circuit in Valencia v. City of Springfield, 883 F. 3d 959 (March 1, 2018), in which the City of Springfield refused to waive a 600 foot distance requirement between residential care homes. The Seventh Circuit relied on the FHAA, the Americans with Disability Act, and the Rehabilitation Act of 1973, and affirmed a preliminary injunction entered against the City of Springfield, precluding the City from enforcing the 600-foot distance requirement during the litigation. The Seventh Circuit said, quoting an earlier decision, “‘Often, a community-based residential facility provides the only means by which disabled persons can live in a residential neighborhood, either because they need more supportive services, for financial reasons, or both.’ Thus, ‘[w]hen a zoning authority refuses to reasonably accommodate these small group living facilities, it denies disabled persons an equal opportunity to live in the community of their choice.’”
The Seventh Circuit in Valencia said it was unnecessary to consider whether the 600-foot distance requirement was unlawful on its face, but the district court held that the plaintiffs were likely to prevail on their claim that the distance requirement was discriminatory on its face. The United States Justice Department filed an amicus curiae brief in the Valencia case, in which it said the District Court’s finding on that issue was correct. Citing Larkin v. State of Michigan, 89 F. 3d 285, 290-92 (6th Cir. 1996) with approval, the Justice Department said, “The Larkin court held that the spacing requirement [at issue in that case] amounted to intentional discrimination because it ‘single[d] out for regulation’ group homes for individuals with disabilities, and did not apply to ‘other living arrangements’ involving persons without disabilities.”
Ald. Fiske told members of the Plan Commission, “What I was struggling with is the Valencia decision. If we’re going to have a distance requirement, justify it, so that there is a record of why we have one – how important that is to our community.
“I’ve spoken with some other aldermen. We all have various reasons. Among them are preservation of affordable housing, integration into the community. I feel very strongly, I’m a big supporter of Girls Hope, Boys Hope, and I feel very strongly that it’s important to integrate group homes into neighborhoods in the community.”
Ald. Fiske said she was asking that the City “state very clearly why we have distance requirements and why we think they’re good ideas, if in fact we do,” and “extend the regulation to group homes for under four residents.”
She added that another goal was to require that “transitional treatment facilities” be licensed and supervised.
Sue Loellbach, Manager of Advocacy at Connections for the Homeless, told members of the Plan Commission that she was speaking on behalf of Joining Forces, which is a coalition of 30 human service agencies, several faith communities, and several hundred individuals.
She said, “Joining Forces has no issue with looking at the distance requirement. We are concerned, though, about the possibility of making it more difficult or potentially more expensive or exacerbating concerns about group homes by making this a special use in areas where it is not already.
“Our concern with making this a special use is that it would be going in the wrong direction in terms of really encouraging various types of affordable housing.”
City staff’s Nov. 8 memo cautions that imposing the special use requirement may run afoul of the FHAA, which prohibits all forms of housing discrimination against persons with a disability. The memo says the FHAA “requires communities to make reasonable accommodations to give people with disabilities an equal right to housing and prohibits communities from imposing additional barriers to community residences for people with disabilities.” In addition, the memo says that federal regulations adopted in July 2015 require cities that receive federal block grant funds to “affirmatively further fair housing by taking meaningful actions to overcome the legacy of segregation, unequal treatment and historic lack of access to opportunity in housing by members of the protected classes, which includes persons with mental and physical disabilities.”
While the compliance deadlines of the recent federal regulations requiring affirmative action have been delayed, the staff memo says, “Making approval of housing for persons with disabilities that is currently by right a special use could be viewed as adding an impediment to fair housing choice for persons with disabilities.”
The Staff memo also says “There are no adverse effects to public utilities that would be expected from this type of use nor does staff believe that a well operated facility would have adverse effects on the values of adjacent properties. As detailed in the previous comparison chart, almost all communities permit the operation of similar facilities by-right while implementing distance requirements similar to Evanston.”
The staff memo concludes, “Adding the special use process may be seen as a hindrance to entities who meet existing use standards. There is also a concern that this proposed action would not align with the Fair Housing Amendments Act.”
The Plan Commission voted 5-0 to send the matter to the Zoning Committee for further research and discussion.
The Federal Fair Housing Amendments Act (FHAA) prohibits all forms of housing discrimination against persons with a disability. 42 U.S.C. Sec. 3604(f).
The House of Representatives Report on the FHAA, Report No. 100-711, page 18, states the purpose of the Act as follows:
“Prohibiting discrimination against individuals with handicaps is a major step in changing the stereotypes that have served to exclude them from American life. These persons have been denied housing because of misperceptions, ignorance, and outright prejudice.
“The Fair Housing Amendments Act, like Section 504 of the Rehabilitative Act of 1973, is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculation about threats to safety are specifically rejected as grounds to justify exclusion.”
The House Report, page 24, also makes clear that the FHAA prohibits the imposition of health, safety and land use requirements on “congregated living arrangements among non-related persons with a disability,” that are “not imposed on families and other groups of similar size of other unrelated people.
“The 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.” (Emphasis added)