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April 21, 2019

4/3/2019 2:44:00 PM
Editorial: In Our View, Imposing Special Use Requirements on Residential Care Homes Would Violate Federal Civil Rights Laws

In 1993, City Council approved a new Zoning Code after several years of public hearings and extensive input from community members, land-use planners and lawyers. One part of the Zoning Code created two categories of residential care homes. Category I residential care homes provide housing for between four and eight unrelated people with a disability who live together “in a family type environment as a single housekeeping unit.” Under the Zoning Code, these homes cannot be used for persons who are addicted to alcohol or drugs or are criminal offenders serving on work release or probationary programs.

City Council decided to make the Category I residential care homes a “permitted use” in 19 of the City’s zoning districts. While they are permitted uses, the homes are required to be spaced 900 feet from any other residential care home and comply with other land-use regulations; and they are subject to the City’s licensing ordinance and the State’s licensing requirements, which impose many additional regulations.

Last year, an alderman asked that the City consider making these homes a “special use” in all 19 of the zoning districts in which the homes are currently permitted uses. If that were done, organizations desiring to establish small residential care homes would be required to go through a public hearing process and obtain City Council approval to obtain a special use permit.

On March 27, the City’s Zoning Committee met and considered this proposal, and after extensive discussion voted 5-0 to recommend against the change. See story on page 4.

We strongly support the Zoning Committee’s recommendation.

Making residential care homes a special use would impose a substantial additional burden on anyone seeking to establish a small residential care home for people with a disability. We think it would violate the Fair Housing Amendments Act of 1988 (FHAA), as well as other federal laws.

The FHAA prohibits all forms of housing discrimination against persons with a disability. 42 U.S.C. Sec. 3604 (f), and the legislative history makes clear that the FHAA applies to zoning laws. Congress expressly recognized that  municipalities had often restricted the ability of persons with a disability to live in communities by imposing requirements on congregate living arrangements among persons with disabilities. “Since these requirements are not imposed on families and groups of similar size of other unrelated people, these requirements have the effect of discriminating against persons with disabilities,” says the House Report, H.R. Rep. No. 100-711, on page 24.

The House Report goes on to say that the FHAA “is intended to prohibit the application of … 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.” 

The FHAA also provides that discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Id. at Sec. 3604(f)(3)(9).

Here, the proposal to require small residential care homes to obtain a special use permit singles out housing for people with a disability, and it proposes to treat them differently from how it treats dozens of other types of permitted uses. There is no valid, legal reason for doing this. In our view, the proposal discriminates against housing for people with disabilities.   

In addition, a small residential care home provides housing for between four and eight people “in a family type environment,” in the words of the Zoning Code. Families of similar size are not required to obtain a special use permit to live in any residential district; and a small residential care home should not be required to obtain one.  As stated in the House Report, since special use requirements are not imposed on families, a special use requirement put on a residential care home would “have the effect of discriminating against persons with disabilities.”

Further, the City’s staff explained that 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.”

If a special use requirement were imposed, a non-profit organization seeking to establish a residential care home would need to find a seller willing to enter into a contract to sell his or her home contingent on the issuance of a special use permit. Given a potential six month delay and the uncertainty, sellers would be unwilling to do so. A special use requirement would severely restrict housing for people with a disability.

A special-use requirement also would make it more expensive and time consuming to establish a residential care home, and make it more difficult to obtain the necessary financing to do so. Moreover, public hearings would hold persons with a disability up to public scrutiny, with resulting stigma that cannot be easily erased.

In our view, requiring small residential care homes to obtain special use permits would violate the FHAA. And aside from the legalities, as a matter of policy, the City should be engaging in efforts to enable housing for people with disabilities in neighborhood settings, rather than restricting it. We should keep in mind that society is judged on how it treats its most vulnerable.

 







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