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HomeMy WebLinkAboutCOM 0067.031 2006-2008 , January 15, 2007 ~ i'- 70: Susan CasPria, Pete Hoffmann, and Chair Hawaii County Council '~Cufv ~ ` i "R'` ~l From; Brenda Ford, Council member Please and the following 7 pages regarding the Joint Statcment of the Dept. of Justice and the Depsrtment of Housing and Urban Dev®lopment to the email regarding the definitions of Family and Group Living Farlllty. Please include this in the information packet io Council members along with the transmittal letter, changes to the ordinance. Please call with questions. Debbic Hccht or Brenda Ford 326-5684 Comm. No. ~ 7'? Ref. Td+rea~ Ref. Uare JAN 19 ot12 7 i0 39vd OWN L6959LE OL~LT L00Z/5Z/t0 JOINT STATEMENT OF THE DEPARTMENT OF JUSTICE AND THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMRNT t:ROUP HOMES, LOCAL LAND USE, AND THE FAIR HOUSING ACT Since the federal Fair Housing Act ("the Act") was amended by Congress in 1988 to add protections for persons with disabilities and families with children, there has been a great deal of litigation concerning the Act's effect oa the ability of loco] governments to exercise control over group living arrangements, particulazly for persons with disabilities. The Department of Justice has taken ari active part in much of this litigation; often following referral of a matter by the Deparanent of Hutuu~g az~d Urban Development ("hIUD"}. This joint statement provides an overview of the Fair I-Touring Act's requirements in this area. Specific topics are addressed in more depth in the attached Questions and Answers. The Fair Housing Act prohibits a broad ranite of practices that discriminate aeain~ individuals on the basis of race color religion, sex, na Tonal ongin, fatniltal status, and dtsabthty u The Act does not pre-empt local zoning laws. However, the Act applies to municipalities and other 1~ ,aft s`~,g gnvay~ e t ~ jti~_e gad nmhibiiG th from aking znnjng or land ice dtcici ns or ~e s Ca implementing land use nolicics that exclude or otherwise discriminate against protected persons, G~ a includinc individuaj~ withdisabilitic~; The Fair T-lousine Act makes it unlawful To utilize land use policies or actions that treat groups of persons with disabilities less favorably than cirouys of non-disabled persons. An example would be an ordinance prohibiting housing fbr persons with disabilitic~ ur a specific type of disability, such as mental illness, from locating in a pazticulaz area, while allowing other groups of utuelated individuals to live together in that araa. To tape action against or deny a permit for a home because of the disability of individuals who live r_g would live ere. An example would be douyutg a building permit for a home because it was intended to provide housing for persons with mental retardation. To refiise to make reasonable accommodations inland ttsC and zoning policies and procedures where such accommodafions may be necessary to afford parsons or groups of persons with disabilities an equal ogportunity to use and enjoy housing. • What constitutes a reasonable accommodation is a case-by-case detemtination. • Not all requested modifications of rules or policies aze reasonable. Tf n requested modification imposes an undue financial or administrative burden on a local government, or if a modification Creates a fuudamcntal aitcration in a local government's land use and zoning scheme, it is not a "reasonable" accommodation. The disability discrimination~rovisions of the Fair Housing Act do dot extend to ersons who claim to be disabled solely on the basis of haven been ad'udicated a Juvenile dehn uent, having a criminal record, or being a sex o en er. urthetrxtorc, the Fair easing Act door not protest rsons who currently use illegal drugs, persons who have been convicted of the manufacture or 0 ~Ca~~p ~~g 1 O Z0 39Cd OON L6959ZE Ol:Li teeaistita sale of illegal drugs or persons with or without disabilities who present a direct threat to the persons or property of others. HUD and the Department of justice encourage parties to group home disputes to explore all reasonable dispute resolution pruccdwcs, like mediation, w alternafives to litigation. DATE: AUGUST 18,1999 Questions and Answers on the Fair Housing Act and Zoning Q, lloes the Fair Housing Acl pr~~-CLgrt local zoning laws? to "Pre-emption" is a legal term meaning that one level of government hes taken over a field d left no room for government at any other level to pass laws or exercise autrioriry in that area. The Fair Housing Act is not a land use or zoning statute; it does not pre-entpt local land use and zoning laws. This is an area where state law typically gives local govcnmmnts primary power. However, if that power is exercised in a specific instance in a way that is inconsistent with a federal law such as the Fair Huusurg Act, the federal law will control. Lon~„before thn 19RR amendments, the courts had held that the Fair Housing Act prohibited local govermnents from cxercisin¢ their land use and 2oning powers in a scriminetory way. Q. What is a group home within the roeaning of the Fair Housing AcP•' Use o Group The form "group home" does not have a specific legal meaning. In this statement, the term Care ou home" refers to housin orcn ied b u elated individuals with disabilities ~ Facility ometimes, but not always, housing is provided by organizations that also offer various services Hot for individuals with disabilities living in the group homes. Sometimes it is this group home Group operator, rather than the individuals who live in the home, that interacts with local guvcrmucut in Home seeking permits and malting requests for reasonable accommodations on behalf of those individuals. The term "group home" is also sometimes ayplied to any group of muelated ersons who live ~togethertr> a dwellin¢ such as a fttoun of students who voluntarily agree to s are the rent on a house. The Act does not generally affect the ability of local governments to regulate housmg o this kind, as long as they do not discriminate against the residents vu the basis of racq color, national origin, religion, sex, handicap (disability) or familial status (families with minor children). Q. Who are persons with disabilities within the meaniat; of the Fair Rousing Act? The Fair Housing Act prohibits discrimination on the basis of handicap. "l~Tandicap" has the ~amc legal meaning as the term"disability" which is used in other federal civil rights laws. Persons with disabilities (haadicapsl are individuals with mental or physical impainnrnts which stag substantially limit one or more major life activities, The term mental or p}rysical impairment may Goy include conditions such as blindness, hearing impairment, mobility impatrment, HIV infection, mental retardation, alcoholism, drug addiction, chronic fatigue, learning disability, head injury, and mental illness. The term major life activity may include seerng, hearing, walking, breathing, 2 E0 3'~tid DD71 L69~9ZE OZ:Li L00L/St/T0 ~perfortning manual tasks, caring for one's self, learning, speaking, or working. The Fair Housing Act also prouets persons who have a record of such an impaimrent, or are regarded as having such an impairmCnt. Current useLS Of i11Cga1 Controlled subslanccs, Perseus convicted for illegal manufacture or distribution of a controlled Substance, sex offenders, and juvenile offendCrs, are not considered a isablcd under the Fair Housing Act, by vimie of that status. ~~~o 'I'}te Fair T-Iousine Act affords no protections to individuals with or without disabilities who V resent a diiect tlueat to the Zersons or }ro}arty of others. DeterminhAg wbethcr someone poses such a direct threat must be made on an individualized basis, however, and cannot be based nn gcncral -assumptions oz spcoulation about the nature of a disability. Q. What kinds of local zoning and land use laws relating to group homes violate the Fair Housing Act? Local zonin¢ and land use laws that treat prnups of unrelated persons with 3isabilities less favorably than similar trroups of unrelated persons without disabilities violate the Fatr Housing ~p'C Act. For example, suppose a city's zoning ordinance defines a "family" to include up to 5tx 0E`~~ unrelated persons living together as a household unit, and gives such a group of unrelated ~ persons the riglrt to live in any caning district without special pemiission.:f that ordinance als 0 xF disallows a group home for six or fewer people with disabilities in a certala district ur roquires this home to seek a use permit, such requirements would conflict with the Fair Housing Act. The ordinance treats persons with disabilities worse than persons without disabilities. A Inral ova ernment may ec orally restrict the abili of ou s of unrelated arsons to live to ether as lop as the restrictions are im osed on all such pups. us, to the case where a farnily is defined to include up to six utuelate peoplC, an or mance would not, on its face, violate the Act if a group home for seven people with disabilities was nut allowed to locate in a use G~PV single family Zoned neighborhood, because a group of seven unrelated people without SQL disabilities wuuld also be disallowed. However, as discussed below, bena~ar.,persons with pro m'tt disabilities arC also entitled to request reasonable accommodations in rules and policies, the roue home for seven nersnns with disabilities would have to be given the opportunity to seek an exception or waiver. If the ariteria for reasonable a~tton are met, the petmii woad tl eve ~to be given in that instance, but the ordinance would not be invalid in all circumstances. Q. What is a reasonable accommodation under the Fair Housing Act? As a general rule, the Fair Housing Act makes it unlawful to refuse to ma}:e "reasonable accommodations" (modifications or Cxceptions) to rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilities an equal opportuni~ oc9~~oa~~o< to use or enjoy a dwelling. _ Even thoueh a zoning ordinance imposes on group homes the same restrictions it imposes on ~P other groups of unrelated people, a local government may"Ge iequtre , to to tvt ual cases andL when requested to do so, to Grant a reasonable accommodation to a group home for perso~,with disabilities. For example, it may be a reasonable accommodation to waive a setback requirement so that a paved path of travel can be provided to resideats who have mobility uupairments. A sinular waiver might not be required for a different type of group home where residents do not 3 40 39Cd OON G6959Z(: OZ~LT L00Z/ST/T0 have difficulty negotiating steps and do not need a setback in order to have an equal opportunity m nse and egjoy a dwelling. Not all requested modifications of rules or policies are reasonable. Whether a particular accommodatiuu is reasonable depends on the facts, and must be decided on a case-by-case basis. The determination of what is reasonable depends on the answers to two questions: First, does the request impose an undue burden or expense on the local government? Second, does Uae proposed use create a fundamental alteration in the zoning scheme? If the answer to either question is "yes," the requested accommodation is unreasonable. What is "reasonable" in one circumstance naay not be "reasonable" in ancther. For example, suppose a local government does not allow groups of four or more unrelated people to live together in asingle-family neighborhood. A group home for four adults with rnenta] retardation would very likely be able to show that it will have no more impact on parking, 'traffic, noise, utility use, and other typical concerns of zoning than an "ordinary family " In this circumstance, there would be no undue burden or expense for the local government nor would the single-family character of the neighborhood be fundamentally altered. Ciraiting an exception or waiver to the group home in tltis circumstance does not invalidate the ordinance. The local government would still be able to keep gruups of unrelated persons without disabilities from living in single-family neighborhoods. By contrast, afifty-bed nursing home would not ordinarily be considered an appropriate use in a single-family neighborhood, for obvious reasons having nothing to do with the disabilities of its residents. Such a facility might or might not impose sigaxificant burdens and expense on the cotrununity, but it would likely create a fundamental change in the single-family character of the neighborhood. On tlrc other hand, a nursing home might not create a "firndamental change" in a neighborhood zoned for multi-family housing. The scope and magnitude of the modification requested, and the feamre~ of the surrounding neighborhood aze among the factors that will be taken into account in determining whether a requested accommodation is reasonable. Q. What is the procedure for reyucstiug a~easonablc accommod• t.~n_~ Where a local zoning scheme specifies procedures for seeking a dcpattw'e from the general rule, courts have decided, and the Department of Justice and HUD agree, that these procedures must ordinarily be followed. If no procedure is specified, persons with disabilities may, nevertheless, request a reasonable accommodation in some other way, and a local government is obligated to grant it if it meets the criteria discussed above. A local governmettl's failure to respond to a request fur seasonable accommodation or an inordinate delay in responding could also violate the Act. Whether a procedure for requesting accommodations is provided ar not, if local govcrtuuent officials have previously made statements or otherwise indicated that an application would not receive fair consideration, or if the procedure itself is discriminatory, then individuals with disabilities living in a group home (and/or its operator) might be able to go directly into court to rcyucst alt order for an accommodation. ,Deal gwemments are encouraeed to provide mechanisms for requesting reasonable .accommodations that operate promptly and efficiently, without tmposing significant casts ur o° v Qe~Oaoaa 4 J~~c°~4 Fcc AG S0 39Fid OON L69S9ZE OZ :Lt L00Z/St/t0 delays. The local government should also make efforts to insure that the availability of such mechanisms ;a well known within the community. Q. Whea, if ever, can a local government limit the number of group homes that can locate in a certain area?' A concern expressed by some local government of3iciels and neighborhood residents is that certain jurisdictions, governments, or particular neighborhoods within a lutisdiction, may come to have more than their "fair share" of ou homes. There are legal ways to address this concern. a air Housing Act does not prohibit most governmental progs~un.^. designed to encourage people OY a particular race to move to noibhborhoods occupied predominantly by people of another race. A local governtent that believes a particular azca tvithin its boundaries has its "fair shaze" of group homes, could offer incentives to providers to locate future homes in other neighhorhoodS. However, some state and local governments have tried to address this concern by enacting laws requiring that group hwues be at a certain minimum distance from one ancther. The Department \n of Justice and HUD take the osition, and most coons that have addressed the issue agree, tha ~a\P ~rl 00 dcnsi restrictions are generally inconci.atent with the Farr ousme Act. e so c lave, gra°~ owever, that i a nci hborhood came to be corn ose arc o rou hotnes, that could See lad versel act in viduals with disabilities and would be inconsistent with the ob'ecdve of integrating persons with disa ilities into the communi . Espect yin the licensing and regulatory process, it is appropriate to be concerned about the setting far a group home. A consideration ofover-concentration could be considered in this cutttext. This objective does not, however, justify requiring separations which have the affect of foreclosing. group homes from locating in entire neighborhoods. Q. What kinds of health and safety regulations can be imposed upon group homes? The great majority of group homes for persons with disabilities are subject to state regulations intended to ptrotect the health and safety of their residents. The Department Of justice and HUD believe, as do responsible group home operators, that such licensing schemes azc necessary and legitimate. Neighbors who have concerns that a particular group home is being operated inappropriately should be able to bring their concerns to the attention of tYte responsible licensing agency. We encourage the states to commit the resources needed to make these systems responsive to resident and conununity needs and concerns. Re¢ulation and licensine regLuirements for group homes azc themselves subiect to scrutiny under the Fair Housing Act. Such requirements based on health and safety concerns can be discrirnina[ory themselves or maybe cited sometimes to disguise discriminatory motives behind attempts to exclude group homes from a community. Regttlatnr~ moat also recognize that not all individuals with disabilities living in group home settings desire or need the same level of services or protection. For example, it may be appropriate to require heightened fire safety measures in a group home for people who are unable to move about without assistance. But for another group of persons with disabilities who do not desire or need such assistance, it would not a • o~°ga~ yn0 90 39tid OON L6959Z6 OZ~Gt L00Z/St/i0 be appropriate to require fire safety measures beyond those normally imposoed on the size and type of residential building involved. Q. Can a local government consider the feelings of neighbors in making a decision about granting a permir to a group home to locate fn a residential neighborhood? in the same way a local government would break the law if it rejected low-income housing in a community because of neighbors' fears that such housing would be occupiod by racial minorities, a local government can violate the Fair Housing Act if it blocks a group home or denies a iequeste reasons a accommo tton m response w neighbors' stereotypica cnr3 or prejudices 3 Out perSOnS lya t tees. S is su even i e vi govarrtmgnt ecision-m us are nut t temse vcs persona y prejudiced against persons with disabilities. If tF.e evidence shows that the decision-makers were responding to the wishes of their constituents, and that the constituents were motivated in substantial part by discriminatory concerns, that could be enough to prove a violation. Of eoWSe, s city council of zoning board is not bound by everything that is said by every Person who speaks out at a public hearing. It is the record as a whole that will be detcrrninative. Tf the record shows that there were valid reasons for denying an application that were no! related to the disability of the prospective residents, the courts will give little weight to isolated discriminatory statements. Tf, however, the purportedly leititimate reasons advanced to support the action are not o c objectively valid, the courts are likely to treat them as pretcxtual, and to find that there has been r ~ discrimination. z v or example, neighbors and local overrunent officials ma be le 'timately concerned that a group home or ado is m certain circumstanres ma create more demand far on-sheet parkin ` woo atypic amt y. Tt is not a violation of the air Housing Act fcr neighbors or officials to raise this concern and to ask the provider to respond. A valid a^taddressed concern about inadequate parking facilities could justify denying the application, if another type of facility would ordinarily be denied a permit for such parking problems. However, if a group of individuals with disabilities or a group home operator shows 6y credible a-td unrcbutted evidence that the home will not create a need for more parking spaces, or submits a plan to provide whatever o1T street pazking mny be needed, then parkins concerns waild not support a decision to deny the home a permit. Q. Whet is the status of group living arrangements for children under [hu Fair Hous[ag Act? In the cotuse of lirigation addressing group homes for persons with disabil ifies, the issue has arisen whether the Fair Housing' Act also provides protections for grnup living arrangements for children. Such living axrangemcnrs are covered by the Fair Housing Act's provisions prohibiting discriminatioa against families with children. For example, a local government may not enforce a zoning ordinance which treats group living arrangements for cltildren less favorably than it treats a similar group living arrangement for unrelated adults. Thus, an ordinance that defined a group of up to six utuclated -adult persons as a family, but specifically disallowed a group living arrangement for six or fewer children, would, on its face, discriminate on the basis of familial status. Likewise, a local government might violate the AM if it denied a permit to such a home because neighbors did not want to have a group facility for children next to them. 6 L0 39tid 0011 L69E9ZE OL:LT L00L/ST/T0 The law generally recognizes that children require adult Supervision. Imposing a reasonable requirement for adequate supervision in group living facilities for children would not violate the familial status provisions of the Fair Housing Act. Q. IIOW are zoning and land use mnllcrs handled by IITJD and the Depnrtmont of Sustice? The Fair Housing Act gives the Department of Housing and Urban Development the power to receive and investigate complaints of discrimination, including complaints that a local government has discriminated in exercising its land use and zoning powers. HUD is also obligated by Statute to attempt to conciliate the complaints that it receives, even before it completes an investigation. In matters involving zoning and ]and use,1-IUD does not issue a charge of discrimination. Instead, HUD refers mattcxs it believes may be meritorious to the Department of justice which, in its discretion, may decide to bring suit against the respondent in such a case. !']rc Aepartmurt of Justfce may also bring suit in a case that has not been the subject of a hPJD complaint by exercising iLi puwcr to initiate litigation alleging a "pattern or practice" of discrimination or a denial of rights to a group of persons which raises an issue of general publ' c importance. The Department of Justice's rinci al ob'ective in a suit of this kind is tore ove si nificant amers to a housin o ortunities available for ersons with disabilities. The Department ordinarily wr not parite[pate in litigation to challenge discriminatory ordinances wluch arc not being enforced, unless there is evidence that the mere existence of the provisions are preventing or discouraging the development of needed housing. ff T-ND determines that there is no reasonable basis to believe drat there may be a violation, it will close an investigation without referring the matter to the Department of Justice. Although the Aepartment of Justice would still have independent "pattern or practict:" authority to take enforcement action in the matter that was the subject of the closed HUD irtvcstigation, that would be an unlikely event. A HUD or Department of Justice decision not to proceed with a zoning or land use mattcx does not £oraclose psivate plaintiffs from purauing a claim. Litigation can be an expensive, time-consuming, and uncertain process fot all parties. H'UD and the Department of Justice encourage parties to group home disputes to explore all reasonable alternatives to litigation, including alternative dispute resolution procedures, like mediation. HiJD attempts to Conciliate all Fair Housing Act complaints that it reeeivec. In addition, it is the Department of Justices policy to offer prospective defendants the opportu-tity to engage inpre- auit Battlement negotiations, except in thr. most unusual circumstances. 1. The Fair Housing ACt uses the term "handicap." This document uses [hr. term "disability" which has exactly the same legal meaning. 2. There are groups of unrelated persons with disabilities who choose to live together who do not consider their living arrangements "group homes," and it is inappropriate to consider therm "group homes" as that concept is discussed in this statement. 7 80 39tld OOr L6959Z8 OZ:LT L00d/ST/T0