County of Fairfax, Virginia

DATE: February 10, 2020

TO: John F. Ribble, III, Chairman Members, Board of Zoning Appeals

FROM: Leslie B. Johnson -c52!5;f--,Zoning Administrator

SUBJECT: Supplemental Information for BZA Following Public Hearing

REFERENCE: A 2019-DR-014, Anders Larson Trust;

A 2019-DR-015, Matthew Desch, Daniel Duval, and Jason Hein;

A 2019-DR-016, Victor T. Tsou and Janet C. Tsou

1318 Kurtz Road, McLean, VA 22101 Tax Map Ref: 30-2 ((13)) 36 Zoning District: R-2

The above-referenced applications are appeals of an August 21, 2019 determination of the Zoning Administrator that the proposed use of the property located at 1318 Kurtz Road, McLean, VA 22101 constitutes a group residential facility under the Zoning Ordinance. A concurrent public hearing for these applications was held on January 22, 2020. At the time of the public hearing, additional information was requested by the BZA, which is included in the attached brief.

CC: Cathy S. Belgin, Deputy Zoning Administrator for Appeals Brent Krasner, Chief, Special Permit and Variance Branch Lorraine Giovinazzo, Clerk, Board of Zoning Appeals Molly Bramble, Appeals Coordinator Chap Petersen, Chap Petersen and Associates, PLC, 3970 Chain Bridge Road, Fairfax, VA 22030 Gifford R. Hampshire, Esq., Blankingship Keith PC, 4020 University Drive, Suite 300, Fairfax, VA 22030 John E. Carter, Esquire and Shaoming Cheng, Esquire, 4103 Chain Bridge Road, Suite 101, Fairfax, VA 22030 Monroe RE LLC, 1318 Kurtz Road, McLean, VA 22101 (property owner) Sean F. Murphy, McGuire Woods, 1750 Tysons Boulevard

,. Suite 1800, Tysons,

Virginia 22102-4215

Department of Planning and Development Zoning Administration Division

12055 Government Center Parkway, Suite 807 Fairfax, Virginia 22035-5507

Phone 703-324-1314 Fti Fax 703-803-6372

PLANNING & DEVELOPMENT www.fairfaxcounty.gov/planning-development

INRE: Appeal Nos. A 2019-DR-014, A 2019-DR-015, A 2019-DR-016

Tax Map No. 30-2((13)) 36 Zoning District: R-2

FAIRFAX COUNTY ZONING ADMINISTRATOR'S POST-HEARING BRI EF

Virginia Code § 15.2-2291 requires zoning ordinances to consider a "residential facility 1

in which no more than eight individuals with mental illness, intellectual disability, or

developmental disabilities reside, with one or more resident or nonresident staff persons, as

residential occupancy by a single family." To comply with this mandate, the Board amended its

Zoning Ordinance to define a " group residential facility" as a " group home or other residential

facility, with one or more resident or nonresident staff persons, in which no more than: (a) eight

(8) mentally ill, intellectually disabled or developmentally disabled persons reside and such

home is licensed by the Virginia Department of Behavioral Health and Developmental

Services."2 As a result, when Newport Academy proposed a mental health children's residential

treatment facility, with nonresident staff, in which no more than eight mentally ill persons would

reside, the Zoning Administrator had no choice but to deem the use a group residential facility.

The term reside requires nothing more than a place where one dwells and has an intention

to return at the end of the day.3 And the General Assembly did not attach a temporal qualifier

that could require more than its ordinary meaning. Thus, once the Zoning Administrator

determined that the Kurtz Road facility satisfied all requirements of a " group residential facility,"

1 A "residential facility" means "any group home or other residential facility for which the Department of Behavioral Health and Developmental Services is the licensing authority pursuant to this Code." Va. Code§ 15.2-2291(A).

2 Zoning Ordinance § 20-300. 3 See infra, part I.

including that mentally ill persons would reside there, she was foreclosed from considering other

uses.

The Zoning Administrator also has no discretion to consider the "commercial flavor" of

the Kurtz Road facility. Nothing in Virginia Code§ 15.2-2291, the Fair Housing Amendments

Act of 1988 (FHAA), or the definition of a "group residential facility" limits the use to only

nonprofit or charitable entities. In fact, when such a distinction was proposed in the past, the

Virginia Attorney General said it would violate the Virginia Fair Housing Law.4 Whether a

facility's operator makes money, breaks even, or loses money is irrelevant, because the law does

not allow its profitability to be considered.

Further, after reviewing Newport Academy's policies and procedures and its VDBHDS

license application, the Zoning Administrator could not reasonably determine that the children

will be currently using or addicted to a controlled substance. The facility is now licensed by

VDBHDS to provide a mental health children's residential treatment service--not substance

abuse treatment-and it obtained that license after demonstrating its policies regarding pre­

treatment screening, ongoing testing, and zero-tolerance for substance use.5 Under Virginia Code

§ 15.2-2291, proper licensing by VDBHDS of a mental health treatment facility is dispositive of

the fact that the licensed facility is treating persons with a mental illness.6 The Kurtz Road

facility therefore cannot reasonably be compared with Vanguard Services Unlimited's proposed

4 Dec. 8, 2000, Op. Va. Att'y Gen., 2000 WL 33912660 at *2 (copy attached). 5 See Jan. 21, 2019, letter from VDBHDS to Joseph Procopio, CEO, Virginia Health

Operations d/b/a Newport Academy, informing him of Newport Academy's conditional license (attached).

6 See Bd. of Supervisors v. Bd. of Zoning Appeals, 1997 WL 1070562 at *5 (Fairfax Cty. Cir. Ct. Apr. 7, 1997) (the "Kaleidoscope" case)

2

I.

substance abuse treatment facility for adults.7 To deny Newport Academy's proposed mental

health facility the opportunity to treat children in Fairfax County because of an inapposite adult

substance abuse facility would invite an FHAA discrimination lawsuit. Further, a local

government also may not block a group home "in response to neighbors' stereotypical fears or

prejudices about persons with disabilities or a particular type of disability," which includes

"mental illness, drug addiction (other than "addiction caused by current, illegal use of a

controlled substance), and alcoholism."8

For these reasons and as detailed below, federal, state, and local law required the Zoning

Administrator to determine that the Kurtz Road facility would be permitted by right as a group

residential facility.

Argument

In light of unambiguous legal authority, the Zoning Administrator determined that children will reside at the Kurtz Road facility during treatment.

A. The term reside does not connote a singular or permanent residence.

In Virginia, "[t]o reside in a place is to abide; to sojourn; to dwell there permanently or

for a length of time."9 It is merely "the act or fact of living in a given place for some time." 10 A

person's residence, in general terms, "may be said to be the dwelling place of a person, but it

7 Vanguard's facility was at the heart of Bd. of Supervisors v. Bd. o f

Zoning Appeals, Case No. 197380 (Fairfax Cty. Cir. Ct. Apr. 2, 2002). The BZA asked for this brief to include infonnation about the outcome of any appeal from that case to the Virginia Supreme Court. See inf,-a, part II.

8 Jt. Statement of Dep't ofHous. & Urban Dev. and Dep't of Justice, State and Local Land Use Laws and Practices and the Application of the Fair Housing Act, issued Nov. 10, 2016, at 5.

9 Smith v. Smith, 94 S .E. 777, 778 (Va. 1918) ( quoting Long v. Ryan, Tl Va. (30 Gratt.) 718, 719 (Va. 1878)).

,o United States v. Bruffy, No. 1:10cr77, 2010 WL 2640165 at *5 (E.D. Va. 2010) citing United States v. Venturella, 391 F.3d 120, 125 (2d Cir. 2004).

3

may be either his pe1manent or temporary abode." I1 Thus, one who lives or dwells in a place can

be said to reside there. 12 Such is the case with Newport Academy's clients, who will live at the

Kurtz Road facility for 30 to 90 days. 13

To require a longer stay would also fail to distinguish between domicile and residence. 14

Domicile means a residence at a particular place, accompanied with positive or presumptive

proof of intention to remain there for an unlimited time.15 Domicile, therefore, means more than

residence, as it also requires an intention to remain for an unlimited time.

11 Cooper's Adm 'r v. Commonwealth, 93 S.E. 680, 681 (Va. 1917) ( emphasis added). In at least two cases, other federal courts have applied the FHAA to such "residences" as homeless shelters. See Turning Point, Inc. v. City of Caldwell, 74 F.3d 941 (9th Cir. 1996); Woods v. Foster, 884 F. Supp. 1169 (ND Ill. 1995). The Woods court reasoned that the "homeless are not visitors or those on a temporary sojourn in the sense of motel guests." Id. at 1173. Because the "people who live in the Shelter have nowhere else to 'return to,' the Shelter is their residence in the sense that they live there and not in any other place." Id. at 1174.

12 See United States v. Hughes Mem 'l Home, 396 F. Supp. 544,549 (W.D. Va. 1975) (holding that a children's home was subject to the Fair Housing Act because it was occupied as a residence, meaning "a temporary or pennanent dwelling place, abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit[.]" (quoting Webster's New Intl Dictionary (3d ed.)).

13 See Newport Academy's Mem. Supp. Zoning Adm'r's Aug. 21, 2019, Use Detennination regarding 1318 Kurtz Road at 7 ( discussing residents' average length of stay). In fact, individuals have been determined to reside in Virginia after less time than Newport Academy's clients will stay. InBruffy, 2010 WL 2640165 at *5, the court held that the defendant was residing in Virginia after only three weeks of sleeping on a couch, because he prepared his meals, parked, and returned there, even though he kept his belongings in the car, did not have a key to the apartment, and was not added to the lease).

14 "Domicile and residence are not words of equivalent meaning. One may have a residence at a place without having his domicile there. A person may have more than one residence, while he can have only one domicile, - a permanent place of abode - at the same time, and at least for the same purpose." Slate-Planters Bank & Trust Co. of Richmond v. Commonwealth, 6 S.E.2d 629,631 (Va. 1940).

15 Pilson v. Bushong, 70 Va. (29 Gratt.) 229,240 (Va. 1877).

4

The tenn reside must also be read in the context of the FHAA and Virginia Code

§ 15.2-2291. 16 They are remedial statutes and must be interpreted in a way that furthers the policy

of ensuring fair housing. 17 This policy was reflected in the staff report prepared to describe the

group residential facility amendment to the Zoning Ordinance. The staff report described the

amendment as intending to include "mental health youth group homes; short-term mental health

diagnostic facilities for youths; mental health therapeutic homes for children." 18 Though the

statements in the staff report do not bind the Board, they show what was before the Board when it

adopted the use. The Board was not contemplating only the Oxford House-type model of group

home; rather, it was aware of a range of housing options, including a short-tenn facility.

What's more, the Zoning Ordinance does not impose any special residency requirements

on single families, beyond its regulations on transient occupancy. 19 To impose such a

requirement only on group residential facility residents would violate Virginia Code § 15.2-2291,

which prohibits any conditions more restrictive than those imposed on residences occupied by

families to be imposed on group residential facilities.

16 See Bd. of Supervisors v. Bd. of Zoning Appeals, 1997 WL 1070562 at *3 ("In the construction of statutes, the meaning of the word residence depends upon the context and

purpose of the statute . . . The purpose behind the FHA amendments is to prohibit discrimination in housing opportunities on the basis of handicapped status, including those persons handicapped

by reason of mental illness.").

17 City of Edmonds v. Oxford House, Inc. 514 U.S. 725, 731 (1995); Carmel v. City of Hampton, 403 S.E.2d 335, 337 (Va. 1991) ("Remedial statutes must be construed liberally to remedy the mischief to which they are directed in accordance with the legislature's intended purpose.").

18 Staff report at 3 (emphasis added) (copy attached).

19 A month-to-month lease is still an acceptable form ofresidential occupancy in Fairfax County, despite its ensuring residency for only a 30-day period-the same time period as the Kurtz Road facility. Though not applicable here, Fairfxa County regulates short-term lodging under Zoning Ordinance§ 10-105. And Zoning Ordinance§ 20-300 now defines the term

"transient occupancy" to mean the "[u]se of a DWELLING or MOBILE HOME, or part thereof, for sleeping or lodging purposes for fewer than 30 consecutive nights."

5

B. The Circuit Court previously overturned the BZA when it erroneously found that mentally ill children did n.ot reside at a residential facility.

In the Kaleidoscope case, the Fairfax County Circuit Court overturned the BZA's

detennination that children who stayed at a group home for up to two months did not reside

there.20 The Circuit Court stated, "[t]he reasoning that residence requires 'an indefinitely long

intention to stay,' is an en-oneous application of the law and is plainly wrong."21 The Circuit

Court found that the children's stay at the facility was not permanent, but it was not a "transient

visit."22 During the two-month period they lived at Kaleidoscope, they were in residence.23

C. As with Kaleidoscope, the Newport Academy children will reside at its Kurtz Road facility.

Newport Academy represents that its residents typically stay between 30 to 90 days, with

45 days being the national average length of stay. 24 If they leave the facility during their

treatment, they will do so with the intent to return. Their belongings will remain at the facility,

they will rely on Newport Academy to provide transportation, and their parents or legal

guardians will expect them to remain for the duration of treatment. Consistent with the foregoing

legal precedent25 and past determinations, 26 the Zoning Administrator determined that children

would reside at the Kurtz Road facility during treatment.

20 Bd. of Supervisors v. Bd. of Zoning Appeals, 1997 WL 1070562 (Fairfax Cty. Cir. Ct. Apr. 7, 1997).

21 Id. at *3.

22 Id. at *4. 23 Id. at *4. This timeframe exceeds what could be considered "transient occupancy"

under the Zoning Ordinance. See Zoning Ordinance § 20-300.

24 Newpmi Academy's Mern. Supp. Zoning Adm'r's Aug. 21, 2019, Use Determination regarding 1318 Kurtz Road at 7.

25 While a distinction could theoretically be drawn between Newport Academy's and Kaleidoscope's clients based on Kaleidoscope's children having no family home to return to, the distinction is immaterial. If both sets of children are expected to remain for the duration of

(Continued on next page)

6

D. Residents' length of stay does not convert the facility to a congregate living facility or a medical care facility.

As discussed above, the tenn reside is, by definition, expansive enough to include a place

of temporary abode. It is therefore of no import that the Zoning Ordinance uses the word

temporary when it defines a "congregate living facility," but not a " group residential facility."27

It does so only because, unlike a group residential facility, a cong

regate living facility is defined

as a facility that provides housing-a more nebulous phrase than the word reside and in need of

further qualifier. By contrast, a group residential facility is, in relevant part, a facility with "one

or more resident or nonresident staff persons, in which no more than: (a) eight (8) mentally ill,

intellectually disabled or developmentally disabled persons reside."28

Similarly, the Kurtz Road facility does not constitute a medical care facility, which is a

place that provides health services to persons primarily as inpatients.29 As outlined in

VDBHDS's July 2019 letter, Newport Academy will not be providing inpatient services, because

it is not in a hospital, it will not include intensive 24-hour medical services, and the level of

treatment and will be clothed, fed, and treated while they remain, the fact that they have somewhere to return afterward-at some point in the future---does not change the fact that they reside at the facility during their treatment.

26 On November 22, 2013, and November 2, 2017, the Zoning Administrator determined that Sagebrush Treatment Center's residential program, treating clients who would stay between

30 to 45 days, on average, constituted a group residential facility, because Sagebrush would be

treating individuals considered mentally ill or handicapped. See Attachments 11-12, attached to the Zoning Administrator's January 15, 2020, staff report. She also determined that Center for Discovery, located at 5343 Summit Drive, constitutes a group residential facility, despite its residents staying only 35-60 days.

27 See Zoning Ordinance§ 20-300 defining a congregate living facility, in relevant part, as one that "provides housing and general care on a permanent or temporary basis," not as a place where individuals reside.

28 See id. (defining group residential facility).

29 See id. (defining a medical care facility).

7

psychiatric care is less intensive than that required of an intensive psychiatric service. 30

Furthermore, under the Zoning Ordinance, while a medical care facility can include a hospital,

assisted living facility or nursing facility, it does not include a group residential facility. When a

use falls under§ 15.2-2291 (A), it must be permitted by right, and residents' length of stay does

not change the use.

II. Whether a residential facility has a "commercial" flavor is irrelevant.

The appellants contend that Virginia Code§ 15.2-2291 does not allow for a residential

facility-even one that otherwise meets the requirements of the Code--if it has a "commercial

flavor." In fact, Mr. Peterson's January 22, 2020, letter to the BZA characterized the "ultimate

issue" in these appeals as:

• Is the applicant using the property for a commercial purpose? • Does that commercial purpose include treatment for substance abuse?

He added, "Assuming that either answer is 'yes,' then the Administrator's opinion is erroneous

and must be overturned."31 This contention is false.

The plain language of the statute does not allow localities to make decisions based on a

facility's "flavor." In 2000, Senate Bill 449 sought to amend§ 15.2-2291 "to distinguish between

for-profit and nonprofit group homes for purposes of defining a 'residential facility. "'32 The

Attorney General opined that this distinction would conflict with the FHAA, stating:

Clearly, it is the policy of the Commonwealth, as expressed in the Virginia Fair Housing Law, "to provide for fair housing throughout the Commonwealth, to all its citizens, regardless of . .. handicap, and to that end to prohibit discriminatory practices with respect to residential housing by any person or group of persons."

30 See Letter from Jae Benz, Director, Office of Licensing, VDBHDS, Attachment 13 to the Zoning Administrator's staff report.

31 C. Peterson's Jan. 22, 2020, letter to the BZA. 32

See Dec. 8, 2000, Op. Va. Att'y Gen., 2000 WL 33912660 at* 1.

8

Nothing in the Virginia Fair Housing Law distinguishes between a nonprofit and a for-profit group home or residential facility. To incorporate such a distinction in § 15.2-2291, which seeks to implement the Virginia Fair Housing Law, would result in a direct conflict with the legislative intent of the law.33

The bill failed.

III. Newport Academy's clients are protected under federal, state, and local law, because they will not be currently using or addicted to controlled substances.

Newport Academy is licensed as a children's mental health residential treatment facility.

While testimony suggests that a small percentage of its patients will also be treated for a co­

occuring substance abuse issue, they will not be currently using or addicted to a controlled

substance. Newport Academy has established policies to ensure there will be no substance

abuse.34 To overturn the Zoning Administrator's determination and prohibit Newport Academy

from operating its mental health treatment facility would discriminate against these handicapped

residents in violation of the FHAA, Virginia Code § 15.2-2291, and the Zoning Ordinance.

A. The FHAA is intended to protect residents of group homes, including drug treatment programs.

Congress intended the FHAA to apply to local land use laws and to "prohibit 'terms or

conditions . . . which have the effect of excluding, for example, congregate living arrangements

for persons with handicaps. "'35 To that end, the Department of Justice and the Department of

33 Id. at *2.

34 See Exhibit K to Newport Academy's Mem. Supp. Zoning Adm'r's determination (documenting Newport Academy's established policy that no one who enters treatment may be using illicit substances and anyone found using substances while in Newport Academy's care will be subject to immediate administrative discharge).

35 City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802, 805 (9th Cir. 1994) (quoting Congress's report on the FHAA, 1988 U.S.C.C.A.N. 2173, 2185); see Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329, 1342 (D.N.J. 1991) ("The legislative history of the [Fair Housing] Act's Amendments indicates that recovering alcoholics and addicts were meant to be included in the definition" of handicapped).

9

Housing and Urban Development36 issued a joint statement in November 2016 entitled, "State

and Local Land Use Laws and Practices and the Application of the Fair Housing Act."37

Regarding group homes, DOJ and HUD state:

[T]he term "group home" includes homes occupied by persons in recovery from alcohol or substance abuse, who are persons with disabilities under the Act. Although a group home for persons in recovery may commonly be called a "sober home," the tenn does not have a specific legal meaning, and the Act treats persons with disabilities who reside in such homes no differently than persons with disabilities who reside in other types of group homes. Like other group homes, homes for persons in recovery are sometimes operated by individuals or organizations, both for-profit and not-for-profit, and support services or supervision are sometimes, but not always, provided. The Act does not require a person who resides in a home for persons in recovery to have participated in or be currently participating in a substance abuse treatment program to be considered a person with a disability. The fact that a resident of a group home may currently be illegally using a controlled substance does not deprive the other residents of the protection of the Fair Housing Act.38

Courts have held that using zoning codes to exclude group homes for recovering alcoholics or

drug addicts from a residential neighborhood "predictably results in discrimination" because of

their handicap. 39 When only a minority of prospective residents have any history of substance

abuse-a limited history given their age-and without evidence of current use or addiction, the

Zoning Administrator believed it would violate the FHAA to exclude all of them from handicap

protection. Again, the Kurtz Road facility is licensed as a children's residential mental health

treatment facility. But to the extent residents have co-occuring substance abuse issues, they are

36 HUD administers and enforces the FHAA with legal assistance from DOJ. 42 U.S.C. §§ 3612, 3614.

37 Joint Statement at I ("[t]he regulation ofland use and zoning is traditionally reserved to state and local governments, except to the extent that it confUcts with requirements imposed by the Fair Housing Act or other federal laws.") (emphasis added) (copy attached).

38 Joint Statement at 7-8 (emphasis added).

39 See Oxford House v. Town of Babylon, 819 F. Supp. 1179, 1181 (E.D.N.Y. 1993) (finding the town violated the FHAA, "because its proposed eviction of [group home residents] has a disparate impact on persons with handicaps").

still protected under the FHAA. 40

B. The FHAA's handicap exclusion for current illegal use or addiction.

The FHAA, 42 U.S.C. §§ 3601-3631, defines "handicap" as follows:

(1) a physical or mental impairment which substantially limits one or more of such person's major life activities,

(2) a record of having such an impairment, or (3) being regarded as having such an impairment,

but such term does not include current, illegal use of or addiction to a controlled substance.41

After Congress adopted the FHAA, the Virginia General Assembly adopted Virginia Code

§ 15.2-2291 and the Fairfax County Board of Supervisors adopted the definition of"group

residential facility" to implement the FHAA and "prohibit discrimination in housing

opportunities on the basis of handicapped status, including those persons handicapped by reason

of mental illness. "42

The Virginia Supreme Court has not addressed the question of what "current illegal use

40 "Individuals recovering from drug or alcohol addiction are handicapped under the FHA[A]." Babylon, 819 F. Supp. at 1182. Indeed, in many disputes involving the FHAA and drug treatment programs, the parties have simply stipulated that the participants of the program are protected by the Act. See, e.g., City of Edmonds, 514 U.S. at 729; United States v. Village of Palatine, 37 F.3d 1230, 1232 (7th Cir. 1994); Elliott v. City of Athens, 960 F.2d 975,977 n.2 (11th Cir. 1992). In those cases that involved a dispute as to whether participants in a drug treatment program were protected by the FHAA, courts have consistently ruled that they are. See Conn. Hosp. v. City of New London, 129 F. Supp. 2d 123, 125 (D. Conn. 2001) (finding recovering alcoholics and substance abusers, in their initial period of sobriety, to be handicapped); Oxford House-Evergreen, 769 F. Supp. at 1342 (holding that a high number of relapses did not establish that the residents of a group home for recovering addicts were "current users of illegal drugs," since the rules of the home required expulsion of anyone who relapsed); cf Kehoe v. Housing Auth. ofS. Bend, 2012 WL 1877740 (N.D. Ind. 2012) (acknowledging that there are "safe harbor protections" for past drug abusers who have successfully completed, or are participating in a supervised drug rehabilitation program, but those did not protect a tenant from eviction after she was arrested and charged with possession of cocaine).

41 42 U.S.C. § 3602(h). 42 Bd. v. BZA (Kaleidoscope case) at *3.

11

of or addiction to a controlled substance" means. Considering the phrase was taken directly from

federal law, it follows that the federal courts' interpretation of that phrase offers guidance.43 The

Fourth Circuit Court of Appeals has ruled that the FHAA's exclusion from the definition of

"handicap" of the "current, illegal use of or addiction to a controlled substance" does not apply

to an individual who has "successfully completed a supervised drug rehabilitation program and is

no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully

and is no longer engaging in such use" or who "is participating in a supervised rehabilitation

program and is no longer engaging in such use" (''safe harbor provision").44

The United States House Conference Report explains that the safe harbor provision,

which was codified in the Americans with Disabilities Act ("ADA"), provides "that a person

cannot be excluded as a qualified individual with a disability if that individual is participating in

a supervised rehabilitation program and is no longer engaging in the illegal use of drugs."45 The

report further specifies that "it is not a violation ... to adopt or administer reasonable policies or

procedures, including but not limited to drug testing, designed to ensure that an individual

involved in rehabilitation programs is no longer engaging in the illegal use of drugs."46 The

exclusion of current drug users from the term "handicapped" protects employers from fear of

being held liable for discriminatory firings. But the safe harbor provision codifies the equally

43 "Courts generously construe the Fair Housing Act. As a broad remedial statute, its exemptions must be read narrowly." City of Edmonds v. Washington State Bldg. Code Council, 18 F .3d 802, 804 (9th Cir. 1994) ( citations omitted).

44 United States v. S. Mgmt. Corp., 955 F.2d 914,922 (4th Cir. 1992) (emphasis added); see Washington State Bldg. Code Council, 18 F.3d at 804 ("Participation in a supervised drug rehabilitation program, coupled with non-use, meets the definition of handicapped.").

45 H.R. Conf. Rep. 101-596 at 64 (1990); 42 U.S.C. § 12114(b){l)-(2).

46 H.R. Conf. Rep. 101-596 at 64.

12

important "legislative purpose of ensuring that rehabilitated or rehabilitating individuals are not

discriminated against based on past substance abuse."47

All that said, the burden of proving an exemption or exception is on the one asserting it.48

The appellants must base this proof on specific acts and current conduct, not on speculative fears

or generalized assumptions.49 The Zoning Administrator has no obligation to disprove

speculative fears about the Kurtz Road facility's residents.

Appellants contend that Newport Academy's residents will be moving in with an

addiction-even if they're no longer active users-making the facility a drug treatment center.

But the Fourth Circuit has considered and rejected this notion.50 Specifically, the court found that

the Fair Housing Act's exclusion from the definition of "handicap" of the "current, illegal use of

or addiction to a controlled substance" does not apply to an individual who falls under the safe

harbor provision. 51

C. Individuals are not required to cease the use of controlled substances for a set time period to enjoy protection under the FHAA.

The Fourth Circuit and the Virginia courts52 have not established a bright line rule for

how long an individual must be drug free before entering a group home. On the contrary, the

47 Teahan v. Metro-North Commuter R.R., 951 F.2d 511,518 (2d Cir. 1991).

48 Fair Housing Advocates Ass 'n, Inc. v. City of Richmond Heights, 209 F.3d 626, 634 (6th Cir. 2000).

49 See e.g., Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 737 (9th Cir. 1999) (holding under the ADA and the Rehabilitation Act that hypothetical or presumed risks are insufficient to trigger statutes' exemptions).

50 S. Mgmt. Corp., 955 F.2d at 922-23 (holding that individuals who are no longer using drugs are entitled to protection under the Fair Housing Act).

51 Jd. at 922 (emphasis added).

52 Virginia courts do not appear to have addressed the issue at all.

13

Fourth Circuit has held that individuals are handicapped under the FHAA and not excluded as

current users or addicts if they are "participating in a supervised rehabilitation program and [are]

no longer engaging in such use."53 If every fonner user had to be fully rehabilitated before

moving into a group home, there would be no need for supervised rehabilitation, and that

statutory language would have no meaning.

Requfring a set drug free time period that applies across the board would be impracticable

and discriminatory; the time that might be required for a hardened adult user to become clean

necessarily differs from a child with mental health problems, who has used substances for a brief

time to cope. While it is true that the individuals in United States v. Southern Management had

completed a drug free year before seeking to live in a group home, they were also adult "drug

abusers with the most serious dependency problems."54 The court did not hold that a drug free

year was required for all prospective group home residents.55 Rather than establish a bright line,

many courts have been satisfied that group home residents are not currently using or addicted to

drugs if they have ceased using before moving into a group home or residential facility and will

be immediately expelled if found using.56

53 S. Mgmt., 955 F.2d at 922-23; c.f DOJ and HUD's Joint Statement at 7-8 (stating that the FHAA "does not require a person who resides in a home for persons in recovery to have participated in or be currently participating in a substance abuse treatment program to be considered a person with a disability").

54 S. Mgmt., 955 F.2d at 919 n.3 (emphasis added). 55 See Shafer v. Preston Mem 'l Hosp. Corp., 107 F.3d 274,277 n.4 (4th Cir. 1997)

(observing that, although the court found that individuals who had been drug-free for one year were not "current users or addicts," the Fourth Circuit did not decide in that case whether individuals who had been drug-free for less than a year were current users) abrogated on other grounds by Baird ex rel. Baird v. Rose, 192 F .3d 462, 465 ( 4th Cir. 1999).

56 See Conn. Hosp., 129 F. Supp. 2d at 136 (declining to "withhold the protections of the Fair Housing Act from people who seek out-patient treatment in programs run for by-profit agencies."); Oxford House-Evergreen, 769 F. Supp. at 1342 (defendants' evidence did not

(Continued on next page)

14

The prospective residents of the Kurtz Road facility are children seeking an early

intervention; they are not longtime adult drug users. The vast maj01ity, according to Newport

Academy testimony, are not entering the program with any history of substance abuse. And as

discussed above, alJ residents will be subject to Newport Academy's policies regarding pre­

treatment screening, ongoing testing, and zero-tolerance for substance use.

D. Cases decided under the ADA are not contr�lling.

With one exception,57 appellants cite only employment discrimination cases decided

under the ADA. Because of the vastly different context between the FHAA and the ADA and

because of the specific facts, appellants' cases are irrelevant.58 In Mauerhan v. Wagner Corp.,

for example, the court found that Mauerhan failed to contest relevant testimony regarding

whether he was a "current user."59 And in Shafer v. Preston Mem 'l Hosp. Corp, Ms. Shafer, a

nurse, was stealing Fentanyl from her employer and using it. 60 She ceased only after being

confronted and could not avoid responsibility by entering rehab.61 These fact-specific holdings

offer no guidance. Newport Academy's prospective residents are individuals with a mental

establish the Oxford House residents were "current users of illegal drugs" and citing the House

rules mandating that no resident can use drugs and remain in the house); see also Oxford House v. Twp. of Cherry Hill, 799 F. Supp. 450,460 (D. N.J. 1992).

57 See Kehoe, infra n.40.

58 Construing the current use of illegal drugs in the context of a residential facility under the FHAA "is qualitatively different than those [contexts] in which the issue had been addressed previously." Southern Mgmt., 955 F.2d at 922; see also Discovery House, Inc. v. Consol. City of Indianapolis, 43 F. Supp. 2d 997, 1001 (N.S. Ind. 1999) (observing, without deciding, that the phrase "'currently engaging in illegal drug use' . . . should perhaps be different in the context of a governmental decision affecting provision of drug rehabilitation services.") abrogated on other grounds by Smith v. Ind. Dep't of Corr., 871 N.E.2d 975,986 (Ind. Ct. App. 2007).

59 649 F.3d 1180, 1189 (10th Cir. 2011).

60 I 07 F.3d. at 275.

61 Id. at 280.

15

illness who seek treatment-taking, rather than evading, responsibility-in a residential setting. 62

IV. The Vanguard litigation.

In 2001, Vanguard Services Unlimited requested a determination from the Zoning

Administrator as to whether a proposed eight-bed facility for recovering drug addicts and

alcoholics could be located at 6581 Braddock Road (Tax Map No. 71-4((1)) parcel 55). The

Zoning Administrator determined the facility would be allowed by-right as a group residential

facility, because the residents would qualify as handicapped persons under the FHAA. Several

neighbors appealed to the BZA, which reversed the determination. After the Board and the

Zoning Administrator appealed to Circuit Court, Judge Alden affirmed the BZA's decision. No

party appealed to the Virginia Supreme Court.

The Vanguard facility was distinct in several ways. First, it proposed to operate a

substance abuse facility for adults,63 whereas the Kurtz Road facility is a licensed mental health

facility for children. Second, at the time of its BZA hearing, Vanguard had no zero-tolerance

policy regarding use of drugs or alcohol-clients "may" be discharged if they were found to use

or possess drugs or alcohol while in the program;64 discharge was not automatic.65 Third, urine

62 See Discovery House, 43 F. Supp. 2d at 1001 ( observing that 42 U .S.C. § 1221 0(b )(2) casts doubt on applying the analysis of Shafer in the context of a drug rehab treatment center).

63 Id. at 2.

64 During oral argument in Circuit Court, counsel for the BZA explained that under Vanguard's program documents the use of mood-altering substances resulted in a five-day suspension, and violation of a program rule-the primary rule being no use of drugs, alcohol, or .paraphernalia-may result in dismissal from the program, in the discretion of staff. Mar. 30, 2002, Tr. at I 8-19 (copy attached). Briefs filed in the federal litigation revealed that Vanguard changed its program after the BZA hearing. Specifically, under the "old program" in effect at the time of the BZA hearing, if a "client re-entering the facility was found to possess alcohol or drugs of any kind 'discharge from the program may be considered. In the new program, such an offense unequivocally results in discharge from the program." Def. Bd. of Supervisors and Jane W. Gwinn, Fairfax Cty. Zoning Adm'r's Mem. Opp'n to Pl.'s Mot. for Prelim. lnj. (copy attached) at 7 (internal citation omitted).

16

testing done at intake was done to 'identify all drugs currently being used,"66 as opposed to

ensuring that residents were not on drugs. The Vanguard case offers no guidance regarding the

outcome of this appeal involving a mental health children's residential treatment facility.

Conclusion

In sum, Newport Academy's Kurtz Road facility satisfies all requirements of a by-right

group residential facility, and under Virginia Code§ 15.2-2291, it cannot be subjected to any

conditions more restrictive than those imposed on residences occupied by persons related by

blood, marriage, or adoption. For the reasons detailed above and in the January 15, 2020, staff

report, the Zoning Administrator requests that the BZA uphold her determination.

Respectfully submitted,

LESLIE B. JOHNSON, FAIRFAX COUNTY ZONING ADMINISTRATOR,

By Counsel ELIZABETH D. TEARE COUNTY ATTORNEY

By:_+-"-=�Do<:......c>l.-----""'�t1==�-----L ra S. Gori (VSB o. 65907)

enior Assistant County Attorney 12000 Government Center Pky., Suite 549 Fairfax, Virginia 22035-0064 Telephone:(703) 324-2421 Facsimile: (703) 324-2675 Laura.gori@fairfaxcounty.gov Counsel for Leslie B. Johnson, Fairfax

County Zoning Administrator

65 Id. (stating "[i]n the new program, such an offense [returning to the facility under the influence] unequivocally results in discharge from the program.").

66 Vanguard's urine procedure, Bd. of Supervisors v. Bd. o,fZoning Appeals, Case No. 1973 80, Circuit Court Rec. at 4 70 ( emphasis added) ( copy attached).

17

The Honorable Frederick M. Quayle, 2000 WL 33912660 (2000)

2000 WL 33912660 (Va.A.G.)

Office of the Attorney General

Commonwealth of Virginia

December 8, 2000

*1 HOUSING: VIRGINIA FAIR HOUSING LAW.

COUNTIES, CITIES AND TOWNS: PLANNING, SUBDIVISION OF LAND AND ZONING.

House Bill 908, which allows locality to require special exception or special use permit for three or more persons unrelated

by blood, marriage, or adoption residing in single-family dwelling in area zoned for single-family use, would not violate

federal or state fair housing law unless applied in discriminatory manner. Whether bill applies to or affects specific

piece of property must be decided on case-by-case basis. Incorporation of term "nonprofit" in definition of "residential

facility" in Senate Bill 449 creates discriminatory distinction that violates Virginia Fair Housing Law.

The Honorable Frederick M. Quayle

Member

Senate of Virginia

You ask whether federal or state fair housing laws affect certain legislation considered by the 2000 Session of the General

Assembly. Specifically, you inquire whether federal or state fair housing laws affect House Bill 908 1 or Senate Bill 449, 2 and whether such bills constitute a regulatory taking of property.

House Bill 908 sought to amend § 15.2-2286(A)(3) of the Code of Virginia, relating to zoning and the granting of special

exceptions by local governing bodies, by adding the following language:

Nothing in th[e planning and zoning] chapter [of Title 15.2] shall be construed to prevent a locality from

requiring a special exception or special use permit 3 for a use which includes three or more persons unrelated

by blood, marriage or adoption residing in a single-family dwelling in an area zoned for single-family use. 4

Senate Bill 449 sought to amend § 15.2-2291, relating to zoning of group homes for mentally ill, mentally retarded,

developmentally disabled, elderly, or otherwise disabled persons, to distinguish between for-profit and nonprofit group homes

for purposes of defining a "residential facility."

The Federal Fair Housing Act was enacted as part of the Civil Rights Act of 1968. 5 It was amended by the Fair Housing

Amendments Act of 1988 ("Federal Act") to extend protection of the Fair Housing Act to handicapped persons. 6 Likewise, the

1991 Session of the General Assembly recodified the Virginia Fair Housing Law, originally enacted in 1972, 7 to complement the federal fair housing law to correct practices which denied to certain groups-among them the elderly and the handicapped-

equal access to, and benefits from, housing opportunities. 8 Both the federal and state fair housing laws are remedial in the sense that they seek to suppress the denial of housing opportunities to persons falling within the classifications designated in

these laws. 9 Neither the federal nor the state fair housing laws are intended to be land use or zoning statutes.

WEST A © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

The Honorable Frederick M. Quayle, 2000 WL 33912660 (2000)

10*2 While zoning statutes that are facially neutral and otherwise constitutional enjoy a presumption of validity, the applicationi

of a particular zoning law may be challenged when it is applied in a manner that violates the federal. or state fair housing law. Withi

respect to House Bill 908, which allows a locality to require a special exception or special use permit for three or more personsi

unrelated by blood, marriage, or adoption residing in a single-family dwelling in an area zoned for single-family use, such billi

appears facially neutral since it applies to all unrelated persons as described in the bill. If, however, in practice, it is applied onlyi

to housing for unrelated persons with disabilities, such application would appear to be discriminatory. Thus, the amendmenti

proffered in House Bill 908 is not affected by the fair housing laws unless it is applied, in fact, in a discriminatory manner.i

With respect to whether the proposed legislation could be considered a regulatory taking of property, the Taking Clause of the

Fifth Amendment to the Constitution of the United States applies not only to a physical deprivation of property but also to

11regulations of property. The Taking Clause is violated when land use regulations do not substantially advance legitimate statei

12interests, or they deny an owner the economically viable use of his land. A zoning regulation which does not in its termsi

arbitrarily discriminate, however, will not be declared unconstitutional, except where its effect upon an individual parcel ofland

is so great as to amount to a taking of the property without just compensation. 13 The zoning amendment in House Bi II 908itdoes not in its terms arbitrarily discriminate among those properies which are subject to it nor does it deprive an owner the

economically viable use of his land. Accordingly, it is my opinion that there is no clear conflict between the amendment and any

federal or state law. Again, whether it applies to or affects a specific piece of property must be decided on a case-by-case basis.

Regarding Senate Bill 449 and its proposed amendment to § 15.2-2291 to change the current definition of a "residential facility"

from "any group home or residential facility in which aged, infirm or disabled persons reside" to "any nonprofit group home or

14other nonprofit residential facility," it is my opinion that such an amendment violates the Virginia Fair Housing Law.i

Clearly, it is the policy of the Commonwealth, as expressed in the Virginia Fair Housing Law, "to provide for fair housing

throughout the Commonwealth, to all its citizens, regardless of... handicap, and to that end to prohibit discriminatory practices

15with respect to residential housing by any person or group of persons." in the Vir inia Fair Housin La

16istin uishes between a nonprofit and a for- rofit gr 1 home or residential facility. To incorporate such a distinction in

§i 15.2-2291, which seeks to implement the Virginia Fair Housing Law, would result in a direct conflict with the legislativei

17intent of the law.

*3 Mark L. Earleyi

Attorney Generali

Footnotes

li House Bill 908 was introduced and referred to the Committee on Counties, Cities and Towns on January 24, 2000, but was defeatedi

in committee on February 12, 2000.i

2 Senate Bill 449 was introduced and referred to the Committee on Local Government on January 21, 2000. TI1e bill was continuedi

to the 2001 Session of the General Assembly.i

3 "'Special exception' means a special use, that is a use not permitted in a particular district except by a special use pennit granted underi

the provisions of this chapter and any zoning ordinances adopted herewith." Section 15.2-2201.i

4 2000 H.B. 908, supra note 1.i

5 See Pub. L. No. 90-284, Tit. VIII,§§ 801-819, 82 Stat. 73, 81-89 (1968) (codified as amended at42 U.S.C. ch. 45, §§ 3601-3619,i

3631 (1994 & Supp. III 1997)).i

6 See Pub. L. No. 1i

00-430, Tit. VIII,§ 9, 102 Stat. 1619, 1635 (1988) (current version at42 U.S.C. § 3631 (1994 & Supp. III 1997)).i

7 See 1991 Va. Acts ch. 557, at 979 (repealing Chapter 5 ofTitle 36, §§ 36-86 to 36-96, and adding in Title 36 Chapter 5.1, §§ 36-96.1i

to 36-96.23).i

WES11.AW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2

The Honorable Frederick M. Quayle, 2000 WL 33912660 (2000)

8 1992 Op. Va. Att'y Gen. 123, 124.

9 Id. at 124-25.

10 See, e.g., 1983-1984 Op. Va. Att'y Gen. 475 (determining validity of city council's adoption of floodplain regulations with some

restrictive effect on property development).

11 The Taking Clause provides that "private property [ shall not] be taken for public use, without just compensation."

12 See Agins v. Tiburon, 447 U.S. 255, 260 (1980); see also Hodel v. Virginia Surface Mining & Reel. Assn., 452 U.S. 264, 295-96

(1981).

13 1983-1984 Op. Va. Att'y Gen., supra note 10, at 477.

14 2000 S.B. 449, supra note 2 (quoting§ 5.2-2291(C)).

15 Section 36-96.l(B).

16 Compare 1982-1983 Op. Va. Att'y Gen. 265, 268 (concluding that definition of "facility," as used in Interstate Compact on the

Placement of Children, does not distinguish between private and public residential facilities, and thus, "facility," as used in Compact,

refers to all facilities otherwise includable ).

17 Compare§ 36-96.6(D) (noting that "group home in which physically handicapped, mentally ill, mentally retarded, or developmentally

disabled persons reside, with one or more resident counselors or other staff persons, shall be considered for all purposes residential

occupancy by a single family when construing any restrictive covenant which purports to restrict occupancy") with§ 15.2-2291(A)

(providing that "[z]oning ordinances for all purposes shall consider a residential facility in which no more than eight mentally

ill, mentally retarded, or developmentally disabled persons reside, with one or more resident counselors or other staff persons, as

residential occupancy by a single family").

2000 WL 33912660 (Va.A.G.)

End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.

WEST A © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3

COMMONWEALTH of VIRGINIA DEPIRT.\/f:,\TOf

\IIR '\ l SIG,l:R 8£11. I 1'/0R. ll l/1:.. lllll I \D D£1 t.WP \IE.\ T IL S£RJ'/CES I clcphooe 180-l J 786-1921

,\t Tl"-G C0'-1\IISSIW,LR l'O!.I OOii:e Bo\. 1797 h, 18011171-6633

Richrnund \ \ 2•218, I 7'l7 �v.� d� \lf�ll1LI fO\

January 21. 2019

Joseph Procopio. CEO Virginia Health Operations, LLC dba Newport Academy 3990 Hillsboro Pike, uite 330 Nashville, TN 37215

ent via email attachment: jprocopio@newportacademy.com

Dear Mr. Procopio:

The Office of Licensing has reviewed the provider application and policies and procedures submitted by Virginia Health Operations, LLC dba Newport Academy. and have found them to be in compliance with the Rules and Regulations for the Licensing of Providers by the Department of Behavioral Health and Developmental Services. This is to inform you that the Department of Behavioral Health and Developmental Services is issuing a conditional license to Virginia Health Operations, LLC dba Newport Academy, effective, January 20. 2020 through July 19, 2020. The following services will be licensed:

3517-14-004 A mental health children's residential treatment service for children with serious emotional disturbance.

This letter serves as your authority to operate as a licensed service until you receive the official licensing document from the Commissioner per Office of Licensing protocol, ·'G. Conditional License Letters."

Sincerely,

Daniel Solares, Licensing pecialist Office of Licensing. DBHD

C: Jae Benz, Director of Licensing

Jamie Sacksteder, Associate Director

Veronica Davis. Regional Manager alicc.nichols a dmas. irginia.gov Deanna.Harvey@dmas.virginia.gov

Angela.Harrison@conduent.com

Trammell.west@conduent.com

VANetworkQuestions@magellanhealth.com

OLI File 3517

Z<>-90-194

AOOPl'ION OF AN� 'IO C8APl'ER 112

(ZONING) OF THE 1976 (l)DE OF THE (l)UNTY OF FAIRFAX, VIRGINIA

At a regular meeting of the Board of Supervisors of Fairfax County,

Virginia, held in the Board Room of the Massey Building at Fairfax, Virginia,

on Monday, August 6, 1990, the Board after having first given notice of its

intention so to do, in the manner prescribed by law, adopted an amendment to

Chapter 112 (Zoning), of the 1976 Code of the County of Fairfax, Virginia,.

said amendment so adopted being in the words and figures following, co-wit:

BE IT ORDAINED BY THE BOARD OF SUPERVISORS OF FAIRFAX CXXJNTY, VIRGINIA:

lvnend Chapter 112 (Zoning Ordinance), Articles 2, 19 and 20, as follows:

-2- Z0-90-194

Amend Article 2, General Regulations, Part 5, Qualifying Use, Structure Regulations, Sect. 2-502, Limitation on the Occupancy of a !Melling Unit, by revising Par. 3 to read as follows:

3. A group residential facility.

Amend Article 19 , Board, catmissions, carmittees, by deleting Part 7, Group Residential Facilities Commission, in its entirety.

Amend Article 20, Ordinance Structure, Interpretations and Definitions, Part 3, Definitions, by revising the definition of GROOP RESIDENTIAL FACILITY to read as follows:

GROUP RESIDENTIAL FACILITY: A group home or other residential facility, with one or more resident counselors or other staff persons, in which no more than: (a) eight ( 8) mentally ill, mentally retarded or developmentally disabled persons reside and such home is licensed by the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services; or (b) eight (8) mentally retarded persons reside and such home is licensed by the Virginia Department of Social Services; or (c} eight (8) handicapped persons reside, with handicapped defined in accordance with the Federal Fair Housing Amendments Act of 1988. The terms handicapped, mental illness and developmental disability shall not. include current illegal use or addiction to a controlled substance as defined in§ 54.1-3401 of the Code of Virginia or as defined in§ 102 of the Controlled substance Act (21 u.s.c. 802}.

For the purpose of this Ordinance, a group residential facility shall not be deemed a group housekeeping unit and a dwelling unit or facility for more than four ( 4) persons who do not meet the criteria set forth above or for more than eight ( 8) handicapped, mentally ill, mentally retarded or develoµnentally disabled persons shall be deemed . an institution providing housing and general care for the indigent, orphans and the like.

This amendment shall become effective at 12:01 a.m. on August 7, 1990.

GIVEN under my hand this 6th day of August, 1990.

Nancy Ve s Clerk to�he Board of Supervisors

STAFF REPORT PROPOSED ZONING ORDINANCE AMENDMENT

Articles 2, 19 and 20 - Group Residential Facilities

PUBLIC HEARING DATES

Planning Commission

Board of Supervisors July_9,_ 1990 at 4:00_p.m. __ _

PREPARED BY:

ZONING ADMINISTRATION DIVISION

OFFICE OF COMPREHENSIVE PLANNING

�� 199�0________ WNH

I

J .

'

STAFF COMMENT

On October 30, 1989, the Board of Supervisors directed staff to prepare an amendment to the Zoning Ordinance to permit the by right use of a dwelling unit for up to eight unrelated handicapped persons. This Board directive was prompted by the passage of the Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, Amending the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, 42 u.s.c. §§3601 et. seg. This legislationprohibits discrimination in housing for handicapped persons.Department of Housing and Urban Development (HUD) regulation 24 C.F.R. § 100.201 (1989) which was promulgated to implement the Act, defines handicapped. A copy of this definition is enclosed as Attachment 1. During the preparation of this amendment, staff became aware that the 1989 General Assembly of Virginia had established a Joint Subcommittee Studying Site Selection of Resident i a 1 Facilities For Mentally Disabled to evaluate issues related to the problem of locating and assimilating community residence programs into residential neighborhood settings. A copy of the final report of this Committee is enclosed as Attachment 2. In anticipation of the findings of the Joint Subcommittee and possible modifications to the Code of Virginia to reflect the changes in the Fair Housing Act, action on an amendment to the Zoning Ordinance was deferred until such time that the Commonwealth of Virginiapromulgated new legislation in this area.

New legislation was passed during the 1990 session of the Virginia General Assembly with an effective date of July 1,1990. The new legislation repeals §15. l-486. 2 which requiresthat locally adopted zoning ordinances provide for the establishment of group homes and adds a new section §15.1-486.3which mandates that locally adopted zoning ordinances contain provisions which will permit up to eight mentally ill, mentallyretarded, or developmentally disabled persons to reside, alongwith support staff, as a single family in any dwelling unit. A copy of this legislation is enclosed as Attachment 3. New Va. Code Sect. 15.1-486.3 provides that: 1) the group home or other residential facility must fall under the licensing jurisdictionof the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services, and 2) the current illegal use of or addiction to a controlled substance specifically excludes a person from the definitions of mental illness and developmentaldisability.

Presently, the Zoning Ordinance provides that a group home with five to eight individuals may be established after receiving a group residential facility permit from the ZoningAdministrator. The current Ordinance provisions specify that all applications for group residential facility permits be

. .

-2-

referred, by the Zoning Administrator, to the Group Residential Facilities Commission (GRFC) for its review and recommendation. The Commission and Zoning Administrator evaluate the application based on three primary standards: a)protection of health and safety of the individuals who will reside in the facility; b) compatibility with adjacent uses in the same zoning district; and c) proportional distribution from other like facilities. As part of the review process, a publicmeeting is conducted by the GRFC in the community where the proposed facility will be located. The Commission's recommendation is evaluated by the Zoning Administrator in determining whether the proposed f aci 1 i ty meets the st and a rds set forth in the Ordinance and whether a permit should be issued or denied.

The proposed Zoning Ordinance amendment deletes all provisions related to requiring a permit for a groupresidential facility and the review functions of the GroupResidential Facilities Commission. The term of groupresidential facility is retained, however the definition is revised to be generally consistent with Va. Code Sect. 15.1-486.3 and the provisions of the Federal Fair HousingAmendments Act of 1988. Under the revised definition, a groupresidential facility will include dwelling units in which no more than eight handicapped, mentally ill, mentally retarded or developmentally disabled persons reside with one or more resident counselors or staff. The terms mental illness or developmentally disabled are further defined to exclude current illegal use of or addict ion to a control led substance. Under the federal definition of handicapped the term handicapped also excludes current illegal use of or addiction to a controlled substance. Facilities which meet this definition will be allowed as a use by right in all dwelling units. In addition, as is the case under the current Zoning Ordinance, dwellingsoccupied by four or less persons, regardless of any disability,will also continue to be a use by right in any dwelling unit under Par. 2 of Sect. 2-502. Similar group home-type uses of a dwelling which are occupied by more than four persons that do not meet the new definition of a group residential facilitywill be categorized as Institutions Providing Housing and General Ca re for the Indigent, Orphans and the Like, requiringCategory 3 special exception approval from the Board of Supervisors. It is noted that this use is allowed in all P districts when shown on approved development plans and byspecial exception in the R-C through R-MHP Districts, and C-l through C-4 Districts.

The types of facilities which would be permitted by rightwould include a broad range of human services program types.These may include programs for handicapped persons (physical or mental impairment); mentally retarded adults (ranging from mild

. .

-3-

to severe mental retardation with multiple handicaps}; mentally ill adults (ranging from acute to chronic mental disability}; mental health youth group homes; short-term mental health diagnostic facilities for youths; mental health therapeutic homes for children; and homes for recovering drug and/or alcohol abusers. Staff believes that other category types of disabilities may be covered by the new provisions based on the licensure policy of the Department of Mental Health, Mental Retardation and Substance Abuse Services.

Staff has reviewed all of the twenty-eight (28) homes which currently hold group residential facility permits and contacted each provider. Of the 28 facilities, 18 are licensed by the Department of Men ta 1 Hea 1th, Men ta 1 Retardation and Substance Abuse Services, six are licensed by the Virginia Department of Social Services, and four are yet to have begun operation due to planned construction or renovations. It is staff's understanding that the four latter homes will receive licensing from the Department of Mental Health, Mental Retardation and Substance Abuse Services, bringing each into compliance with the proposed amendment as a by right use. Two of the six homes with licenses from the Department of Social Services are for mentally retarded adults and staff is recommending that these two homes be included in the by right use category. The rema 1n1 ng four f aci 1 i ties which hold 1 icenses f ram the Department of Social Services which provide residential youth services do not appear to meet the revised definition of a group residential facility, but will be allowed to continue; however, under Par. 2 of Sect. 15-101, any further enlargement or intensification of the existing use would require approval of a special exception for an institution providing housing and general care for the indigent, orphans and the like f ram the Board of Supervisors.

Staff recommends approval of the proposed amendment, with an effective date of 12:01 A.M. on the day following adoption.

. . -4-

PROPOSED AMENDMENT

Amend Article 2, General Regulations, Part 5, Qualifying Use,Structure Regulations, Sect. 2-502, Limitation on the Occupancyof a Dwellin� Unit, by revising Par. 3 to read as follows:

3. A group residential facility_,J4Ml�M/�/�e/�/86'�tlM'fe'IL6M.ri,(y/MdmrRZS�ta��t/A:Y'p'/L�//ygg��aae/M.//a-t0�p/Le�A.d.el\ttBAl�l�/W/�aadtdanae/wltMtMe/t0Zl0�lri�/pt0tlil0riit/

Al Allreq�eg�//Vdv/lall�/Le�A.d.el\ttAll/tatllittpetmltll/sl'L6!Alll.bell/�/I/Vdl//�We///Z0rilri�Aelmlril�ttat0tl//a�/IIWPht�//�AA'.ie{Y//btllltMe �0ttrittJI//T�el/ve'q\te'9'tt/lS'hM/lllbellcDlflp!eLe/l�rid8M!ZZ///11'e///a'o'o'ohrp'aW:i/eti'//bt///AfW///�elelltl0riallril0tmar.l0ri/lM.l/�ty/bel/ve'q�¥ve«lbt/Mie'IZ0rilri� Aelmlrilit t ateSt'

BJ TMe11�11Mdmrarg�ri�ar11sMaa111vevev11r.Me te�tte�tll�d/Mie'l�l.lteSAdeMAA!I/Ya�llltlei�0�l�tl0ri/i£otllrVg/L.eRAeMlla'htl'/te�0A'IA'lerielatl0ri/lri/ACC6Ld�.r\.celMA.tlV,t,he/�/dU/Vav�/1/0l Attl�le/191

�, Attet111teaervv11/o'Ul/,t,he//lGL�.np111Retle1eritlal Ya�llltlet//lll/�0mmlt�l0ril///llte�0ttl/////aridte�0A'IA'teridatl0ri//lll.e/�/Md'IJ(yayg�y��dv/tMallappt0te11�1wtr.M1�10t1.69hyl1r.Mete��egt//;{M///all4L�ilp/l�Val]l//la�lllttpetmtr.111�nctt1��Jtte'1ya/wtrrr�q1ane1tMall/�e/M.6.e.dl..up(>fv'lwl«e'Ve'JlD(yda'tz'Yddl�flwMetMettMe/lAClllttl,p,t.6.t.eCt.6/�Ar'e'al:JIMY/�a«lstfe�y/0ltMel�ldfl...tMIIVwdYYYtty'f/wttettteLI/Wllit0mpatz�1e111wr�11Mtet11�11ns.e.s111ir1e1ttHeelttlelDLl��/dVIVWe/t0rilri�dzir.tl�tllrd//'vltty<itf/A:A)t)l/�/LAclAILtlllg10�ar.ee11An.d/�/�1[1'vdp'evwt1tddlwHetHet tMe//ll�k���Aefj///l�//llpvamd�e'g///ltMept0p0ttl0riall/«yg�vW�V¥aa/M//siJi:.ll//la�llltlei r.Mt���M0�t/tHe/�0��ttJ

01 TMel//l/o'rrYCfg'IIAIJJM.Afs�£ML)L///g'fi.�YY//�l/a detlil�rill/ddl//a'Wll�//Leqiles�s//lwltMlrit�ttt�tzt�1�AiJ1M.f&1,,flt,o(o'�1«��e1r�e1te��eit zg/,ma.&y';//ptdvr«ed/..t.he,U/�dr/4DD.t1/ldau"�e'/iMeSwri/r.Ke1�1Admzr1ltttat0t1�1exr.er1e11�1rtme r.0/l/slUtlll�,6,-0/Jll/�///I/J/�ll/�e///Z0riz��

. . -5-

Admlrilittat0tllfla1/W/t0//aotllwltMlri/�/(601dati11L�elk�..t1�/b8"/�geti(��1�a1�ave1�eerlappt0ved11111Pt0vlded1111H0wevet1111tHat111wltH teipett11tUY11appYraattradg//Ll!hY//f/rloW11�t0'd� teilderitlal/LA.tAAA�tes/�� atl�MIM.ine 0t11ad0�tl0n110t11tH1i110tdlnarite111tHe11z0nlri� Admlriltttat0tll/MYcY111/llteridetlllldl/l/detiil0ri wltHlril80/,{Y�/tLDIW/tth'g/M,t.,el/��e/�llimade/J,e,n,(j,//tirg/tAA.lnxe1A:AY1ae�1�/JIWO'ldattiMazz1�e/deemed/appt0vaz,

El 7Me//11/oh'�//MIMMs�LB�DLl//:tl(aYYIIAYcwA:YlltMea'dtH0tityl/Vd/Jteh6M/IAl/dear�rad/,bh'/A//petmltte�'degt1�1,eaao(o{eada�rau1LLc1h/Mi�l�t0ttpReiideritial///V<ia¥Y¥tt¥eg//�//A.ll/ltMe �0�1giz0nllAtls/.t.61.-aot!Mit1m'Wl�dvtty/(�gy1datitt0m/tMe/date/tMe/te�tte!t/1!/made1

Fl 7He/�/Ndti(:vn'yS'1fua'liduliHall/,t,.e,<,A.e.W/wl�t0'dptetiderltiall�lpetmltl��ltHetitttl�laridl�/tMetealtetllcm6'/gHall Have11tMe11a»tH0tzt;11t011tev0Ke11a11ptevl0ttgzt appt0�ed14cc.n.p1�1uwaWi-'bYlper�r�1t0ttailtttelLDl.c.6.lhp,i,¥/�l'tlh9'/VWq\(YV&h<Wll1t�ldf/tMeZ0rilri�/0LtlinArt.ce/.6.t/�Mie'/ada�YVYda�ldfltMepetmit11au/,,£,6,,t:/lmitteptetentatl0»11av1,e.tw11tattass0t1ated/w1tH/tMe/petmit1

Amend Article 19, Board, Commissions, Committees, by deletingPart 7, Group Residential Facilities Commission, in its entirety.

Amend Article 20, Ordinance Structure, Interpretations and Definitions, Part 3, Definitions, by revising the definition of GROUP RESIDENTIAL FACILITY to read as follows:

GROUP RESIDENTIAL FACILITY: A/� Na:YV /�1\1.t}V /2/S" llit<td t0//pL6#ldel/�/�II/WMrt;tl/�dvl/p<tttdRtllwitHpHytltal//lflez'LtB!l,l�l�ldvl�aaraYldillitttltiet aridlANMiVah'1a11M.tA.1hwtllA:>V'lerq��1���1tSUCW1vgugaug/tetervzn�t0mm'drilttlM.k/U},gl/aggygtfaaae1cesA.u1. A group home or other

residential facility. with one or more resident counselors or other staff persons. in which no more than: Cal eight {Blmentally i 11. rnent ally retarded or developmentally disabled persons reside and such home is licensed by the VirginiaDepartment of Mental Health. Mental Retardation and

-6-

Substance Abuse services: or {bl eight <al menta 11v retarded persons reside and such home is licensed by the VirginiaDepartment of social Services; or Cc} eight C6> handicappedpersons reside. with handicapped defined in accordance with the Federal Fair Housing Amendments Act of 1988. The terms handicapped. mental illness and developmental disability shall n.ot include current illegal u:,e or addiction to a controlled substance as defined in§ 54.1-3401 of the Code of Virginia or as defined in§ 102 of the Controlled Substance Act {21 u.s.c. 802).

For the purpose of this Ordinance, a group residential facility shall not be deemed a group housekeeping unit and a dwelling unit or facility 1'Mi'.tM//p'v'ciV'i-'<ffi's'/�/t:mrut1nnl.tt

Zi'.lfi'.n� for more th.an four C4l persons who do not meet the criteria set forth above or for more than eight (8)handicapped. mentally ill, mentally retarded or developmentallydisabled persons shall be deemed an institution t�tll.t�e Qt.Q.Y.i_dinq housing and general care �t f.o.I. the indigent, orphansand the like.

1 ATTACID1ENT

support for &.be ..um&t.e or oplDSOD of nlue.

(c> Not.h!nl tn th1a aeeUon prohJblta a person fllPled in tbe buaineu of ID&k.lnl or furnLsbm, appr&la&ll of rea­ldentl.lJ real propert:, from � into consideration facton ot.her than nee,color. rella1on. 1u, b&DdJC&P, famW.al 11.atua. or national ona1n.

<d>e Pn.ctlce.s whJcb are unlawfuleu.nder t.b1I eectlon include, tu.it are not Um1t.ed to. uaiDI an a.ppr&1s&l of real· dentl.lJ Nil property In connect.Ion "1th tbe &&le. rent&l. or flD&nciDI of ll'IY dwellinl where the penon tnowa or reasonably &bould know \bat tbe appraJ&al Improperly tuea Into conald· eratlon r-ace, color, nlla1on. 1ex, b&ndJ· cap, famlll&l st&tua, or national ort,1n.

Sult,.tt �,.hlltlt&." At•'"'' Olacri111lftefl•" a.ceuH ef Nen .. l•p

IIOOJOO �

The purpose of t.b1I aubpart II to ef­fectuate aectlons e <a> &nd <bl and 15 of the Nr Souslnr Amendm�ta Act of 1988.

I 100J01 Del\llltiona.

Mused 1n t.b.111ubpart: "Accessible", when used with rapect

to the pubUt and common use areu of a bu.lldinl cont&inin1 covered multi· family d.,·eUincs. means that Lhe pubUc or common uae areu of Lhe bulldina e&n be approached, entered. and 111ed by ind.Mduals wtlh phyale&l b.a.ocilcaps. The phrase "readily accu­alble to and u.s&ble by" II 1ynonymoua Tilh accessible. A public or common we 11.rra that complies with the appro­priate 1"1Quiremenl4 of ANSI AUU-1986 or • comparable stand.a.rd II "ac• etulble·· W1lh1n tbe meaninl of tb1a PIJ'l,frl Ph.

"Accuslble route" 1De&n1 a conUnu­ow unobstructed path connec1.J.nl ac-0.Ulble elemenl4 and IPIUI ID a bulldina or Within a atte that can be Dt1otl1ted by a penon with a eevare dlabWty U&1na a wbeelch&ir and \bat 11 &ho we for and uaable bJ people"1lb other dJaabWUea. Interior acceaJ. Ill, rout.ea may !Delude corridors,floors. rampa, eln&tol"I and Utta. Exte­rt.or ICCa&lble rout.ea may Include ll&l'k!nr M::ICeU &alea, curb ramps,�. rampa and Wta. A route ib&t

t 100-201

ICIIDPli• wtth tile appropnaw raQ\dre­aenta o! ANSI All'U-UH or a com­parable lt&Dd&rd II an ••ACICIIIIJble route"

.,ANSI A111.1-1tl8" IDet.DI &.be ltH aditlon of &.be .American NaUOD&l et&nd&Td for buJldinp and facWU• prov1d.l.DI acceulbWt1 and uaabWt:,for ph.71f e&ll:, b&ndJcapped paople.Thia 1Dcorporatton b1 nleNDce wu approved b:, tbe D1nc1.or of tht Peder­al Re,at.er in accordance WSLh I '0.8.C. H2Ca) and 1 C1'R Pt.rt. 11. COpl• maJ be obt&lntd from American National 8t&ndarda lnlt.ltute. toe .. 100 Bro&d· wa:,, New Tork, New Tork 10011. Coplea ma:, be 1Dapected at tbe De­Pl,l'tment of Bou,lnl and Orba.n De­nlopment.. 01 Seventh 8t.rett. a.w., Room 10278, Wuhineton. D.C .• or at the Office of &.be l'edert.l Rel1,ller, 1100 l, 8tnet. N.W,. Room MOl, Wuh!nrton. D.C.

.,BuJld.l.DI" meana a structure, facW­t1 or portion thereof &.bat contai.Da or 11rvea one or more dwtWna unita.

''Bu.lld.l.DI entrance on an aceeaalble route" means an acceMlble entrance to a buJldJnc that la connected by an a,c. oualble route to pubUc tranaport&Uon ltopa, to acceaa(ble Pt.rkinl and PU· eenaer IO&dinl 10nes, or to publicltreet.& or lidewalb, U H&ilable. A buJldJnl entnnce that compUea "1th ANSI AU'1.1-1t86 or a comparablestand.a.rd compliea "1th Lhe requ.1N•ment.& or t.h1a pa.ra.craph.

"Common UH areu" meana room.a. apaces or element.& tnalde or outalde of a bu.lldJnc that are made available for the uae of raldent.& of a bu.lld1na or tbe ruut.a Lhereor. Tbeae areu In· dude b.allwa:,a, loun,ea, Jobblea, laun­dry rooma, refuae rooms, ID&1l rooms,ncnatlonal anu and �ewaya amon, and between bulldlnp.

"Controlled substance" mean.s anydru, or other ,ubltance, or immedJate precunor included in the deflnJUon In eecUon 102 of the Controlled Sub­lt&Doea Act (21 'O.B.C. I02>.

"Covered mulutamll:, dwell1np"IDHN buJld.Jnp COD&iltlna of ' or IDOl"t dwelllnl unita lf IUcb bu.lld.Jn,sb&ve one or more elevators; and sround floor ctwelllnl unita ID other bu.lldJDl'I coDlinlna of t or more ctwtlllns unit.I.

4&9

1100.201

wi:>werun. unit" meana • an.le unit of ruldeD� for • f&mll7 or one or more penoDS. J:umplu of ctwelllnl' unJu include: • &1Dlle fa.mil)' home: &D ap�eDt unit with.in an ap�entbull� and 1n other tn,ea of dwell­lnll 1n whJch aleepln1 accommod&­Uona an provided but tolletlnl or cookina facWtlea an ahared bJ OCN· pa.nu of more t.h&.D one room or por•Uon of the d•elllnl'. rooms ln whJch people aleep. Eumptu of 1.be latter Include dormltorr rooms and aleeptn, 11oCCOmmod&tlona ln aht ti.era In teDded for oceup�c1 u • rM!dence for home­leu penons.

.,Entn.n�" meana &nJ aceeu polflt to • bu.Udinc or ponJon of • bull� used bJ ruldecu for 1.be Pu.rs>Olt of ente�.

•Ener1or'" muna all ueu of theopremise. out&lde of an lndMdU&l dwelllnr unit.

"Finl ooeupa.nc1" meUII • bull� tha.t h&s never before been med tor any purpose.

"Ground noor" means • floor of • bulldin& .-1th a bulldinl enlr&nce on an accastble routL A bulldlnl ID&7 b&ve more t.han one rround !Joor.

"B&ndle&p" means, wtth re&pect to • pem:>D, a physlc&l or meet.al impair­ment chlch subst&lltl&lly 11m1t.s one or more maJor U!e &etMtlu: a re<:ord of aucb &D 1.mpa.irment: or belnl rep,rded uo h.aYl.rli auch an impa.irment. TbJ.Ioterm does not include curre:ot, Wef&louu of or addlctlon to a controlled aub­lt&nce. For PW'PO$e$ of t.h1s p&rt, anolndl\1du&l ab.all not be considered toohave • b.t.Ddlcap aolelJ bta,u.,e thatolndlv1dua.l 11 a tr&nneatlte. JJ uaed 1nothis ddinJtlon:o

<a>o"Ph)"Sie&l or meDtaJ impa!rmeDt"oIDcludu:

<1 > � ph11lolor1e&l dilorder or condltlon. eo&metlc di&!�ment. or &n&tomle&l lou a.ffectinl one or more of the tolloTU>.1 bod:, 17stema: Ne� lor1e&l: muaculouelet.al.: ,peel.al MD.le orpna: respln.toTJ. lncludlnl apeech orsana: cudlovucula.r. nproduetln;diareattve; 1en.lto-w1n&r'T, bemlc and lrznphatJe; n1n; and endocnne; or

<2>oArJ, me:ot.al or paycbolor1cal dll­order. web u mental retardation. or-11,Z)Jc bra.in 11Ddrome, emotional or mental Ulneu, and ,pedflc lea.mSnl diaabWtiea. The &enD "'pbJ'l1c:l,1 or

M CPI a.. I (4-1.at IWftlN)

mentaJ lmp&lnnmt" Incl,,-. but ta DOt 11m.lted to, ,uch dileua and OODdJ. &Iona u orthopedic, fllU&l. IPNCb ud bearinc lmplLlrmeDU, eerebral .,. auu.m. epUepaJ, mUIC'Ul&r dystrophy,multiple ecterow, C111Dcer, beut dl.t­eue, d!&bet.ea, Buman lmmunodelt· denc1 Vina tntecUori. mmtal nt&rda-­Uon, emotional UJ.neu, drul addlcUoll <other than add1ct1on eauaed bJ cur• nnt, llleul uae of a ODDt.rolltd aab­stance> and alcobo.Uam.

Cb> .. M&Jor Ute act.1'1U•" � tunctlona auch u cartnr for one•• aelf, perform1nt manual &.uu, W&WD&, aeetns, helJinl, SS'f:•Jrln1, bre&tblDI,learninl &Dd worklns.

Cc> "Bu • record of l\lch &D tm.p&lr• ment" meana hu a h.lstorr of, or h.U beeD 1Dilel&s&1fled u bavlna. a metal or ph11leal implLlrment 1.b&t sublt&D• t.1&111 Um.lu one or more � 111• ac­Uvttlu.

Cd) "la rep.rdecS u bavlna an imp&Sr• 1DeDt" mea.na:

U>oHu a pbJSlcal Of' meta.I 11DSla1r·oment that does not wblt&DtJ&llJ Um.It one or mon m.a,Jor Ule acttv1ti• but that II treated bJ &Dolher penon u oonatltuttn, aucb a 11m.ltation:

(2)oHu a physical or mentaJ 11DSla1r·oment that aub&tanUt.111 Um.It.a one or more m.a,Jor U!e actlv1Ue1 on11 u a ,_ult of the atUtudea or O1.ber 10ward such tmp�ent; or

<S>oHu noDe of 1.be tmPt,!nDenta de­tlMd 1n PU'l,ITaPb (a) of tb1a detlnl­UoD but II treated bJ another penon uobavinl wch &D imp�ent.

.. Interior" mean. t.he apacea, pa,l'U.ooomponeDtl or elementl of aD 1Dd1'1d· \&&l dwe Ulna unit.

°'Modifleatlon" meana uu chaDl'e to ·o\he public or common uae .,_, of aoINlldinl or aD7 cbaqe to a dlr�oult.o

"'Prem.llee" meam \ht Interior or a­ler1or ,paces, part.a, oompooenu or el•oJDenta of • bulldinl, lnclu� lnd1'1d·ul dwelllnl' unJt.a and \he publJc aD4ooommon uae &ru1 of a bull�.o

"'Public me area.a" mean, Interior or utertor rooma or apacm or a bull� �t lll't made anJl&.blt to \ht pneral public. Public UM 111.1.1 be pNMded at a bwldinl \hat ti printelJ' or publlcl7 ewMCL

410

ATTACHMENT 2

•

.

REPORT OF THE

JOINT SUBCOMMITTEE STUDYING

SITE SELECTION OF

RESIDENTIAL FACILITIES

FOR MENTALLY DISABLED

TO THE GOVERNOR AND

THE GENERAL ASSEMBLY OF VIRGINIA

SENATE DOCUMENT NO. 36

COMMO,-.'WEil TH OF VDlGINIA alCHMOND IHO

MDmERS OF n1E JOINT SUBCC.'14MITTEE

The 110norabl• Jo11ph V. Gartlan, Jr •• Chairaan the Honorable Kitchell Van Y&hre1, Vice-0\aiSWAn 21» Honorable J:. Hatcher Crenahav, Jr. The Honorable Kary A. Karahall the Honorable Ktmeth R. Melvin !be Bonorablt Emilie Miller DIii Honorable YvoMe I. Miller .Janlt C. AlleyAubrey E. lrovn •rtiara J. Fried Patric:ia R. t.overn

Ltqal and R11earch

Oiri1ion of Ltgislativt Strvic11 Robert J. Austin, Rt111rch Associate Susan C. Ward, Staff Attorney.. rcia A. Melton, Executive Steretary

Se:nate Clerk's Office thomas C. Gilman, Chief Comnittee Clerk

•

... . .

.. --- _____.,J_

•

TABLE OF camms

J. Jctroduction

JI. Identifying the Problea

Ill. The Federal Pair Houain; Act AMNIMnt of 1111

JV. Th• Status of Current Virginia ltatvtory ,rOOFbiou

Y. Rtcommendationa

0

. .

aeport of th• Joint S�omnitt•• StudyifMi •

Sitt Selection of Residential Pacilitiea Por Mentally Diaa.bltd

To

%ht Governor an4 the General A8■ubly of Vir;iAia Ridaond, Vir;illia

March, 1t90

to: Bonorable t. Dou9la■ WUder, GoYtrnor of Vir;illia .. and

the c;.n,ral Aa1Rbly of Vir;illia

I. MRODUCTIOO The Joint Su.be0n1t1itt•• wa1 t1tabli1hed by lenatt Joint le1olution 220 of

the 1989 Gtntral Aa111!1bly. At the initial -•tin; Senator Jo11ph V. Cartlan, Jr., of Fairfax wu tltettd chairman and Delegate Kitchell Van Yahna of Chulottesvillt vu elected vict-chairaan. Ot.her ltgi1lativt Mmbtra of the Joint Su.beoff'nlittu included Senators YvoMt I. Miller of lforfolk and Dnilie Millu of Fairfax and Dtl1qat11 Kary A. Narahall of Arlington, ICtMtth R. Melvin of Portsmouth, and E. Katcher Crenahav, Jr., of 2ichlllond. Po�r citi1tn Nmbers vere appointed by the Governor. Locally elected offic:ial1 were rtprtsenttd by Aubrey E. lrovn of Abin;don, • atl!lbtr of the Wa1hinqton County Joard of Suptrvilors, and Patricia R. Lovern of Lynchburg, a Mlllbtr of the Lynchburg City Council. Citi1tn atmbtr1 were Janet C. Alley of Che1terfield County and S.rbAra J. Fried of Fairfax County.

Senate Joint Rttolution 220 ;avt tht Joint Subccamittet a broad charge to •study methods of 1itt 1tltction of COftll'lunity ruidtncu for the .. ntallytdisabled, juveniles, 1ub1tanct abu11r1 and other, who req\,lire trtatJDent whichtincludes auimilation into the CCllll!'IUnity." At tht initial Mttin; th• JointtSubcomnitttt det1min1d that the clear intent of IJR 220 va1 that tht 1tudytfocus primarily upon the •itin,a of vroup haat1 and other n1icS1ntialtfaeilititl for th• ■tntally cli■abled.t

The Joint Su.bc0111T1i ttH allo agr11d that it would accept "icStnct and tutiaony, if offered, relati"9 to th1 aitin; of ccmm.mity group hceH or other residential cart faeiliti11 which ar1 part of correctional pro;ra,u and f1cilitit1 for juv1nil11 under th• Oivi1ion of fouth l1rvic11 of the Dtpirtment of Correction.a. The Joint lubc:oanittH 1'0Uld not initially foeu.■ on these pr09r&ffll, however. lfo pr1a1ntationa were offered on th111 topic,

-1-

durin9 the htarin9s, thtrtby ■u;91stift9 that tht pantl nttd not addr111 thi1 area. Heither tht residential ccnmunity div1r1ion prograll'IS for adult off tndtu nor tht 1ysttm of half-way hou.tts for paroleH and probationersWldtr the DtpartlDtnt of Corrtctiona was deeud within tht ■cope of th• rHolution.

Followi!\9 it• initial .. ,ting on July 27. the Joint lubc�itt11 htld public hearings in Fairfaz on A•l9u.tt 25 aM Jrorfolk. on October 2, 'l'ht Su.bccxmitttt also recti•td teatiaony at a final Metin; btld in lidaond on October 30.

II. IDOOIFYING tHE PROB!D1 A 1horta91 of available ■pac11 for tht atntally d.i1abltd who art ln nttd

of rtsident.ial facHitiH has betn doc:umtntld by tht DepartJDtnt of Ntntal BHlth, Mental Retardation, and Su.bsta.nct Abu.at Strvic11 (�) and other aourcu. The General Asu�ly'a ovn Ccalninion on DeiNtit'Utionaliution,■upporttd by a study and analysia by tht Joint Legislative Audit and ReviewtCormiuion, documented at &id-decade a ■horta;e of hou.tin; but primarilyaddressed funding i11u11 and tht 1ortin; out and coordination of activities bytinvolved state and local a91ncita (Stnatt Docuzn1nt llo. 22, 1986). Problemstattendant to 1it1 11l1ction of facilities havt not bttn the ■u.bjtct oftl1gi1lativt study in Vil"9inia.t

J.tional surveys, ■t'UdiH conducted in other ■tates, and the 9en1ral literature 1u9911ttd an initial list of factor■ which ai;ht aervt •• harritra to the siting of c;roup hcfnts and ruidtntial fAcilitiH. Sinc:t data on Virginia vert not av&ilablt, tht Joint Su.bc01T111itttt took ■ttpa to identify the •jor problems faced acro11 the Conlnonwealth.t

Public: hurin91 vtrt htld in Northern Virginia (Fairfax) and Tidtwattr (llorfolk). and a public COfflllent opportunity vaa offtrtd at a aeuion in Ric:h1N>nd. Approxiffllttly three dozen individ-uala repr1s1ntin9 a ■ix of Cam'nunity Strviet Boards, other &tntal disability 11rvic1s prof11sional1, and concerned fu,ili11 and citiztna addr1111d tht Joint Su.bc:011111itte1.

In addition, through and vith the a11i1tanc1 of the Virginia Association of Ccmnuni ty Servi ct Boardl. a quutioN\lirt VII atnt to each of tht fortyCSB'1 in tht 1tat1. ?ht ;u11tionnairt 91ve tho•• with tht 1101t direct tzptrience in tht fitld an opportunity to idtntify in detail tht 1p1cificprobltms which nttd to bt addr1111d in Virginia in ordtr to aimplify tht 1it1 atltction proc:111 and enhance tht availability of hou.tift9 for tht atntally4iaabltd.

Public: tutitn0ny and the rHul ti of tht CSI survey were autuallyninforc:in9 and vtrt alao conai1t1nt vith tht problems ccmnonly fo-und in other ■t1t11. In broad terms, problems v1rt identified ln tht following area,.t

Zoning Javs and related r1quir1ment1. Zoning ordinances aero11 tht 1tatt continue to exclude facilities for tht atntally cUaabltd frOffl IOffit 1onin9 districts or to aet aside certain area■ aa "appropriate" or "inappropriate" for aueh facilities. Mort ptrvasivt, however, art practices ■ueh as tht

'

-2-

imposition of apeeial eonditiona, nquiruenta for •pteial UH pemit1, and public hnrin9 requirement,. According to the te1ti110ny and CSB ■urveyreturns, these conditions (a) at ti11111 an a direct barrier to acc111 to certain arus; (b) contribute to tht related problem of C0ftl!IW'lity )aisunderstandin9 and oppo1iUon; (c) act •• a 11rioua dttrietnt to financingof facilitiu beeau11, by delaying the proceu of acqui■ition, they placefacility provider• at• d.iaadvanta9e in coarpetin; for aale■ in the open aarket and incrun the co1t1 of acquiriD9 property; and (d) eonaU1D1 au.ch of the ta,and effort of tht Q;B •taff■ in paperwork rather than in aon direct and productive ■trvict activitie■•

Restrictive covenant■• l1v1ral CSB'■ indicated that re■trictiYI covenant■ continue to be a barrier. fht 1986 General Asumbly d.id addre■, th• rtstrietivt covenant problem to an ezttnt �rough ■W>1ection C of S 36-91 of th• Code of Virginia, declaring 9roup beau of ab or fever re■identa to be residential occupancy by a ■i�l• family for purpo■e■ of bterpretingr11trictivt covenant,. Hovev1r, th• 1986 legi1lation only applied to covenants executed after July 1, 1986. Covenant■ ez1cut1d prior to that date,which often will involve the ■tock of housing CCDing on tht aarktt for residential facility purcha11, are not affected, nor i■ the larger re■idential facility vhich mi9ht be an option i� at l1a1t ■cat localiti11 addr1111d.

Comunity opP01ition. Senate Joint RHolution 220 u,pha1iH1 community opposition as a problem to be overcome and it i• clear frm the testimony and surveys that mi1under1tandin; of the .. ntally d.iaabltd and apprehenaionconcerning safety, property valu11, and the like in neighborhood, in which group facilitiu are propo11d to be locatad continue to ezi1t. Zoninqprocedures such a1 pemit and hearing requiru1nt1, it would appear,encerbate the problem and increut the influence of COllll!Wlity oppo1ition in )decisions not to permit the ■iting of group hce11.

Reputable 1tudiu and personal tHtiaony •hov •uch eonetrna to be unfounded. See a 1unrnary of Njor recent ■tudi11 on thi■ point in Martin Jaffe and Thomas P. Smith, Siting Group H011111 for Developmentally t>iubltd Persons (Chicago: American Planning Auociation, Planning Advi■ory Service Report Number 397, October 1986), O\apttr 5. On property valut1 in particular, Ht There Gou the N1i9h.borhood (Whitt Plain.a, 11.Y.: CommunityResidences Information Proqram, March 1986).

Financing. The nt1d for greater funding for facilities and related activities which promote holain9 for tht ■entally d.iaa.bltd i• little doubted. On balance, however, tht 1vid1nc1 9iv1n to tht Joint Subccmnittte r1v11l1 that the difficulti11 in soning practice■ and ccmnunity oppo1ition er1at1 barrier■ to housing even when funding i■ availa.blt. There were 8CIIDt CS!'■,ntvtrthele11, that did identify tht lack of fundinq for faciliti11 u a primeconcern.

'!'ht Joint SW>ccmnitt11 ftlt that the adequacy of funding and other 4ir1ct financial concern.■ were beyond tht 1copt of the char91 to conaidtr the •aethods of 1i tt atltction" and wtrt better addr1111d throU9h agency budgetarytefforts. )11verthtlt11, the SubcOC11T1itt1e endora11 all effort■ to provideincreased funding,t

-3-

l

·.(

•

•

•transfer" of urviet responsibility. The emulative effect of soning, COl'l!lunity opposition, and related factor• on aite •election in urban areas for other parts of the 1tat1 i1 a 1iqnificant concern which cue to the attention of the Joint Subc0lffllitte1. Th• inability of urban area,, particularly llorthern Virginia, to house it• ■tntally di1abled population .. ana that th111 peoplt a�e being ahift•d to rural part1 of th1 atate to find housing 1ithtr in licensed reaidtntial faeilitie1 or in other facilitie1 •u.ch •• bcet1 for tht aging. 'l'ht financial burden of providing a range of •ervicH in turn ii shifted to t.h111 rural counti11 and ■-11 citie■ •

..

III. M FEDERAL FAIR HOOSING )CT �S OF 1988 Central to t.ht i11u11 under •t\ldy by t.h1 Joint lu.bec:mnittte va1 federal

legislation which has .. within tht last 71ar, aiqnificantly altered tht legal basis upon which both atatt law1 and local ordinaneta and cuatomary prac:tic■■ !tiavt dtalt with tht mentally di1abled.

The Fair Housing Azntndm1nt1 Act of 1988, 1ff1ctiv1 March 12, 1989, tztenlSa the 1968 Federal Pair Hou.in; Act to include per1ona with di1abiliti11, including mental diubilitiu. The Am1ndm1nt1 do not addre11 in ap1eific at1tutory terms 1101t of t.ht i11u11 which t.he Joint Subc:0111Ditte1 faced. However, the Act clearly int1nd1 to include soning practice• and th1 like in its coverage. In tht words of tht Report of the Ho\We Cc:mnitttt on th1 Judiciary which accompanied the Act:

The Cormi ttee intends thAt tht prohibition againat diacrimination against thou with handicaps apply to acning decisions and practicu. %ht Act is inttndtd to prohibit th1 appliution of special r1quir1m1nt1 through land-u.ae reiUl&tiona, restrictive covenants, and conditional or 1pec:ial u.ae pennit1 that have the effect of limiting tht ability of 1ueh individual• to live in the residence of their choice in th• ccaawnity.

the Act does not ■pell out expr111ly how to implement t.hi■ 9ener1l policy. The Joint Su.bcommi ttte found thAt the preci11 acopt and r1quirem1nt1 of the Act 1till are being dtbattd and vill not be fully determined until a body of cast law has d1v1loptd.

The Joint Sulx:omnittte con1equ1ntly aought 9Uidance from ezpert■ in this arta of tht law. the Attorney General of Virginia shared with th• Joint Subconmitttt at it• request a Mmorandum prepared by that office for tht Director of the Department of Mental Health, Mental Retardation, and Substance Abuse Strvices which analyzed th• i11p0rt of the federal 1tatut1s for 11v1r1l provisions of atat1 law. Ji. Claire Outhrit, deputy attorney 9ener1l. ant! Grtqory J. Malty. a11i1tant attorney 9en1ral, al10 testified before t.ht Joint Subcomnittte. Tht Joint Subc0n1T1itte1 in addition benefitted frOffl a presentation by Mr. Leonard' Rubenstein, 11911 director of the Mental Health t.w Project in Washington, t>.C., one of tht best 11:novn and rHptcttd mental health legal advocacy groups •

A consensus already has amer;td thAt the new federal law invalidates local zoning ordinances and related nquinm1nta containing tht following types of provisions�

�

1.t Zoning provi1iona which apecif ically ucl\ad1 th1 Mntally diaabl1dtfrom hou.sing ar111.t

2.t Diapersion r1quir1m1nt1. auch •• a limitation on the n\llllbtr oftfaciliti11 within an area or •inlee d.11tanc:1 re;uirutnt1 l>etwKntfacilities for the aent&llf d.iaa!>led.t

3.t Concentration N'l\lir ... nt1 llh.ich ••t uide Clllly certain area, ••tappropriate for hou.1i� the aeiit1llf d.1Abl1d.t

4.t Conditional or apecial ua1 flnlit1, building ood• requirutnt1. andt1imilar provi1iona which applf •pecifically and ••cluah•ly to th•taentally di1al,l1d.t

5.t Special hearin; requir ... nt1, .. nview ,-n1l1, mlghborhood adviao17tgroups, and th1 like •• a concUUon of or adjunct to group bme aitin;t1peeific1lly for th• -.nt1lly di1u,l1d. (R1pr111ntative1 of thetAttorney General•• Office wamed that. enn if provided for in antordinance f11hion1d to fit a eevtrality atandard, public ccmaent•tmight risk creating a record which would bl evidence of di1crillinatorytintent. the ftiAA Mana that public ecmaenta and attit\ld11 aay aottin.!lutnct • 1itin; decision.)t

6.t Special uat panDit r1quir ... nt1 '-11d on th• Mid for Mdical ortpsychiatric c1r1.t

On the other hind, 1v1n the 1sp1rt1 MV'I diff1rin; int1rpr1t1Uona u to the rationAlt and requiramtntl of Mjor point• of the Act.

"" Ont dj119r11m1nt 1ri111 over th• proper reference group or cl111ific1tion to be used in judging 1tat1 and local provi1iona re;ardin; th• Mntally disabled. Ont view ii that th1 family ii the proper bui1 of CClllplriaon. leading to the conclu,ion that no re1triction can bl iapoHd on ;roup hoai•• for the intntally di1abled, for ezaznple, which doe• not apply e(2\&,llly to 1in;le fazrily r11idtr,e11. An 1lttrnativ1 reading ii thAt \lr'lrelattd individual• who 1har1 living 1rr1ngem1nt1 ar1 th• prop1r r1ferene1 cl111. Piatinctiona be�ween !&m1ly and u.nrelated-individu.al living arrangement• are valid ao l01n9 as the mentally di11bltd an not •ingled out from other 9roup1 of unnlated individual• in a discriminatory f11hion in dr1vin.; or applying ordinances.

Another unsettled qu11tion focu.111 on the poature which 1t1t1 and local 90vunment1, must take undtr th• Act. One contention i• that the Act obligate• at&h and local governintntl not cnly to rap1al any onrtlf dileriminatory provisions and practicu tNt to take at1p1 that praaote th• availability of hou_sing to the atntally dill.bled. It iapo111 an affil"'Mtiv• obligation to remove even facially neutral rulu which have th• effect of denyin; ho\llin; opportu.nitiu to the aentally dial.bled. Por iutanc1. a Uait on the number of unrelated p1non1 living t091th1r cowd hav1 the effect of denyin; ho'.llin; opportunities to the Mntally di1abltd.

Oth1r1 uintain that th1 ftlAA doe1 DO aort than require a ■tandard of neutrality. State and local 90vu·ru11nt1 cannot r1quir1 or e.ndor11 practicu vhich discriminate against the Mntally cliau,led. llow1v1r, rule• which apply

-5-

C

(

.,

equally to all INl!lbtra of a cla11ification (e.9., unrelated individual• living together) are not facially invalid. Thi fllAA doe■ DOt require that th• atntally disabled bt a1tabli1h1d •• a •prtftrrad cl••••" although t.h1 state is DOt prohibited by t.hl Act frOlll dcing ao.

to illustrate, DO conatMWI eziat1 •• to th• nliditf of cla11ifications, r11trictioM, and 1i111itation1 band on the Dlmlber of unrelated individual• living t09eth1r, auch •• an ordinance which iapo111 a liaitation or additional requiru1nt on 9roup1 of five or aort. An ezpanaiv1 interpretation a111rta that 1uc.h proviaion. art iavalid for the .. ntally 4i1abl1d l>tcaua, they treat that ;roup differently frCIID tb1 d1fin1d group of •family" and have the effect of denying houainq opportunitiH. A aon r11tric:Uv1 po■ition a11ert1 that aw:h facially neutral zyla■ an nlid, alt�h a raquirtl!\cnt aight be OY1rturn1d if in practice it. va1 applied only to tht .antallr 4i�&l:>ltd.

IV. M STATUS OF CURmIT VI�INlA STATUTORY PROVISIOOS While 1orn1 of tht finer point, of tht recent federal l99i1lation remain to

bt legally refined, there ia aufficient con11naua on •jor points to indicate that 1ut1 lav and local sonin; ordinance• n11d to ch&.n91. '1'h1 � appliesdirectly to two 11ction1 of the Code of Virginia, anc5 both an ■Ulptct unc5er the ctw law. In addition. a third provi1ion •Y 1low th• procH1 of aite approval and acquisition.

Zoning Ordinances <S 15.1-486.2)

State Policy. S\Jbaeetion A of thia aection atate1 that the policy of the ColllDonweal th i■ "that the number of auch group hcal11 and their location throughout the Cominonvealth and within any given political aubdivi■ion ahall be proportional, insofart•• possible, to the population anc5 population dtruity within the Corffllonvealth anc5 local political aubdivi■ion■."

Repnuntati"Ns of the Attorney General•• Office took the position that tht FHAA probably invalidatH th• provi1ion1 of al.lb■ection A ainee the lanqu&9e appe•r• to enco�rage di1p1raion practice,.

Zoning Regulation■• lub11ction I requir11 loc.ally adopted soningregulations to provide for th• Mntally 4iaabled •in an appropriate sonin; district or di1trict1."

Liktwi11. tht Attorney General•• O!fict va1 of the opinion that this 1ubsection probably i1 invalid because it aeem.s to pennit concentration of the Mntally di1abl1d in certain sonin; 4i1tricta within• locality.

Special Condition■• S\Jb11ction C provide■ that conditiona not required of other dvel lings in the 1am1 son• •Y 1>t iepo1115 on hcmH for th• ••ntally disabled "only when 1uch additional condition• an related to the physical or aental handicap of the r11id1nt1 and art nec111ary to protect the health and safety of the residents of 1ueh hornu.t0 Purthtr. "(r)ea10nable conditions may also be impo1td on 1ueh homes to as1ur1 their �tibility with other ptr=itted uus in the area. 0

Tht Attorney General•• Office Memorandum to the Ccmmi11ioner of Mental Btalth, Mental Retardation, and Sub1tanc1 Abuse S1rvic11 atat1d that the 8\J.blection lilttly vu invalid. R1pr111ntativ11 of the Attorney General•• Office testified that even if theu proviaion.■ were not n1ceaaarily invalid they smacked o! the paternaliatic attitude which th• Report acccmpanyin9 th• fH1tA characttrh1d as leading to rul1■ and re9\Jlationa which would bt prohibited m1der �• Act. Any local proviaicma adopted fl,lt8u.tAt to the aubltction woulo bt acrutinised carefully.

•strictivt Covenant■ <5 36-91)t

Subsection C of th.is a1ction d1clar11 that 9roup hcDl1 of ab or fever rui4tnts 1hall be deemed n1id1ntial occupancy by a •in;le family for th• purpo11s of r11trictiv1 covenant■ but ap1cifically ■tat11 that th• proviaion does act apply to soning and land UH diatinctiona. hr'ther, th• •ub11ction appli11 only to restrictive covenants ez1cutecS after July 1. 1986.

Th• Attorney General•• Office took the position that the aub11ction aay bt ru� to encourage passive discrimination because it fail■ to addre11 covenants utcuttd prior to July 1, 1986. Likewi11, the subsection rw'la into difficultyl>ecause it draws distinctions band on handicap and invalidat11 livingarrangements where the occupant■ are handicapped (i.e., bccn11 of ••v•n or -,re) but allows the aame arrangement when the occupant■ are not handicapped.

Public Facility Siting Review<$ 1s.1-,S6)

This section dtala vith th• 11911 atatus of local compr1h1naiv1 plans and on its !ace dots not appear to address th• siting of group homes. ffovev1r. it tJ pt"O\tides that any public facility, including a "public building or structure" or -public 11rvic:1 corporation facility... whether publicly or privately�d" not shown on the original plan Ny not be conatrueted, 11tabli1h1d, or authorized until approved by the planning conni11ion. Tht COftllli11ion ia authoriud to bold a public hearing in connection with ■uch approval, and is r�r•d to do so at the direction of the local governing body.

At least 1om1 loc:alitie1 require ;roup heme fac:iliti11 to ;o throu;h the process, and several 1ptaktr1 and CSB qu11tionnair1 r11pond1nt1 identified the •'56" review as a deterrent to ;roup hoalt siting btcauat of the delay involved.

The Attorney General'• Memorandum concluded that local ordinance• adoptedto c:ury out this •tatutory provi1ion wen ••lid. The rationale of th• nquirtJ111nt i1 to ascertain whether public facilitiH in 91n1ral ■hould bt based or purchaud and th• review irocedure doea not ainglt out the bandicapped.

V. RD:®!ENDATIOOS The Joint Subcolffllitt11 determined that the ao1t advisable approach to the

conflicts between 1tatt ■tatutory provisions and the Fair Housing Mtndmtntl Act is to repeal the 1u1p1ct Code proviaiona. In this fa■hion the 11tntally •

-i-

••

. .

•

I

•

di1abltd and physically handicapped citis1n9 of th• ec..nonvealth unequivocally vill enjoy the full protection of the ftdtral la11. Locll 90v1fflltltnt1 are controlled in their soning ordinaneH and related actions by t.h1 ntu and thtre is little justification in 11tting out th• ■u• requirements in tht Code or of attempting to guide th• localiti11 in ■01111 of th• areas in which ca11 lav ii ■till developing. Local 90v1rn1111nt attomeya ued to 1>e aware of t.h• r1quirem1nt1 of the Act, and their ■tat• prof111ional a■1ociation ia w;1d to iJM:ludt a pro;ru of continuing illfonution and ech&cation in thia re;ard.

In addition to the 91n1ral recamen4ationa, the lubc:C1111Ditt1e specifically addr1u1d a ujor problem faced tly group boln11 for the aentally diaabled by addin; a proviaion which def inH group llom•• for ei9ht or 1111 aa a ■ingll family u.at and require• that they 1>e aubject to DO apecial requir ... nta not impoHd cm aingle-family u.tH 91n1rally. !'ht practical effect ia to anaure that ;roup bomu for tht ••ntally di1ablld vUl be able to aite •by ri9ht .. without ap,eial p1rmit1 and other requiru1nt1 1inc1 the houain; available in t.hoH areas where soning particularly eontributea to the aiting problu 9entrally will not ncHd that capacity. A.I far •• th• 1tatt ia conc1m1d. thi1 statutory provision r110lv11 for local 90v1rn1Dent1 the ;u11tion of whether, for group hccn1 purpc111. to treat the Mntally di1abl1d as a family u.11 or as a group li vin; arrangement among unrelated indi viduala. It aleo ■ignAls th.at the atau vhhu an affirmative effort rather than neutralltreatlDent alone vhen it CCIIDH to t.ht aitin; of grO\lp llomt1 for t.ht Mntallyldiaabltd.l

Subeormnitt11 rteonrn1nd.ation. art a, follow1:

A, Zoning and Land U■t

l.l Repeal S 15.1-06.2 ■inc1 almost all of ita prov111on1 eithtr clearlylconflict with federal lav or 1tand a rea1onablt �et of btin; ov1rt\lrn1d byldeveloping ca11 law.l

2.l Add a section nuznbtrtd 15.1-486.3 vhieh ■eta a clear atatewidt policy thatlfacilities for tight or ftwtr .. ntally di1abltd individual■ art to bt rt;ardtdlas 1in9l1 family wan. It vu evident to the Joint Subcoanitte• thAt grouplha!les hlling within this category were the prime focua of conetm. Thtldeveloping policy of the Coarnonwulth ia avay frOffl larger instit\ltion.al andlfacility can and tovarda amalltr unit,. avp1rvi■1d apart.1111nt1, andlNin1tr1uin9 of the Mntally di■abltd population. toc:al 9ov1rn111tnt1 will btlrtquirtd to eo,nply with the new federal lav in all a■ptet1 of thtir ordinane11lrtlatin; to th• atntally diaabltd, of cour■t, but t.ht Joint Subcorrrnittttlbeli1vts that the Coaffi:>nvtalth it11lf should givt direction in thi1 particularlca11.l

3.l Make no ch.angu to S 15.1-456. Rtquirin; public facilitiea which are tolbe incorpcrattd into the local coaiprehanaivt plan to undergo review and alpublic hearing proe111 ■trvt■ • rational ■tat• P\'rpo■e. tht present atatutorylprovisions do not ain;lt out reaidtntial facilit111 for the Mntally di1abl1dlfor special r1quir1m1nt1 in thi■ inatanee.l

I.l Restrictive Cov1nant1l

Repeal 1ubdivi1ion C of S 36-91. A■ Hplaintd abovt, thi1 ■ubuction i1 1uspect because it app1ar1 to paasivtly encourage di1erimination and does not

-8-

apply to covenants executed prior to July 1, 1986. The Joint Subc:011111ittHalso notu th.at the 1989 General Aa1Ulbly &Nndtd ■ub11ction A of S 36-91 to provide th.at .. (1 )ny r11trictiv1 covtn&nt purporting to restrict occup.ney orovntrship of property on th• �sis of••• familial ■tatu.a or handicap...vh1th1r htretofore or hereafter included in an inatnoent affecting tht title to real or l1a11hold property, i■ declared to be null, ,roid and of DO effect,and contrary to the public policy of the 1) ,avealth. •

C.e tn!onninq the Publice

tht Joint Subccasnitt•• endorse■ the effort• of the Departatnt of MentaleHealth, Mental Retardation, and Substance Abu.at Service, to develop a propo11dthree-year public ed\lc:ation plan.

A c:OffllTIOn practice ha1 been for loc:.1 ordinance• to require public notice,hearings, and the likt for the ■iting of facllitie• for �e .. ntallyedisabled. Some ■tat11 by lew havt Mndattd a local review proce11 with publicccmnent periods. Under new federal law, bowtvtr, cei;hborhood oppo1itioncannot af!eet facility ■iting, and aandatory beari�• in fact nm the ri1k ofecruting a record vhich ai;ht ehov a cliacriainatory intent in aiting decisions.

The Joint Subconrnittet finds it d11irabl1 91nerally to educ.ti the publicr,garding the mentally disabled, to allay unfounded fear and prej'Udict, and toeenlist colffllWlity support for tf!oru to extend rHidtntial facilitiH andeother services; thue!ore, it tn\Sorsu the Sulx:oarnitht 9oala of the Planeprepand by tht Department and tncour191 tht Icard of Mental Health, MentaleRetardation, and Substance Abuat Services to givt it favorable con,ideration.

D.e "Transfer" of Servic• Rtaponsibilitye

The Joint SubcomnittH rteOlfflltnds that the Departatnt of Mental Health,Mental Retardation, and Substance Abuse Servicu, in conjunction with anyother agencies with pr09ram1 affecting the population at i11ue, rtviev pr11tnt

!un�in9 methods to addr111 the problem of rural and small city ar,11 requiredto fund services for those vho have aovtd from urban area• du• to a lack ofefac1l1ties or services.

l1apectfully ■umitttd,

Th• Honorable Joaeph V. C.rtlan, Jr •• Chairman Th• Honorable Mitchell Van Yahrta, Vice-chairmaneTh• Honorable I. Hatch•r Crenshaw, Jr. Th• Honorable Mary Marshall The Honorable KtMeth I. Melvin Tht Honorable !IDilie Miller Tht Konorablt YvoMe I. Miller Janet C. AlleyAubrey E. lrown Barbara J. Pried Patricia R. Lovern

•_)'f

f)

•

----------

. I .

LD1359118

l 2 S A BILL to om,nd 4 JS.J-486.3 ond to I ••ctions Nlatinl

disabl,d.•

7

1990 SESSION

SENA TE BILL NO. 271 Ottered January 23, 1990

th, Cod, of Vir1inia b)' oddin1 In Till• JS.J o •ctio,i numM,_d ,-./Hal § JS.J-486� of th• Cod• of Vir1inia, th, odd,d ond N!Hal•d

to local zonin1 ordinonc,s opplicobl, to nsid,nti'al fociliti,s for tit•n

I Patro�artlan, Miller, E.F., Andrews and Miller. Y .B.; Deleptes: Plum, Van Yahres. I Melvin, Glasscock. CUnntngham, J.W., Cooper and Marshall

II Referred to the CommJttee OD Local Government l2

u Be It enacted by the General Assembly of Vtr&tnla: 14 1.e That the Code of Virlinia ii amended by addiD& ID TWe 15.1 a aedion numberedel5 15.1-486.3 as follows:eH §n15.1-486.3. Group ltom•s of •11ht or ,.u •111l.-famUJI ruul•n�.-For IA• pul"pOMs ofn

I

17 locally odopt,d zonin1 ordinanc,s, o rwsid,ntial focilit;y in which no mo,. than ,wht

11 m,,itally ill, m,ntally ntard,d, or d,wlopm,ntoJJy duabl•d P6rsor11 Nnd,, with on• or It mor, r,sident couns,lors or oth,r stall p.r.soru, MOIi M t:01Uid,nd for oil purpt,MS 20 r,sidential occupancy by o •in1l, family. No condition., mo,.. Nstrictiw than tltou

21 imposed on r,sid,nc,s occupi,d by p.rsoru relat,d by blood, mom"o1•. 01' o.doptiorr sJ,all

22 I>, impos,d on such focility. A l'Hid,ntial facility •hall M dHm•d to b6 on;y 1roup /tom•

23 or other facility /ic,ns,d by th, �partm•rrt of M,rrtol H•olth, M,,ata/ R,tardation and 24 Substance Abuse s,rvic,s as a .. ,.,;d,ntia/ facility" pur•uont to tu rw1ulatio11s.

25 2.eThat § l 5.1-486.2 of the Code of Virginia ls repealed.e2S 27 28 29 so

Sl 32 33

34 35 H

S7 SI

St

,o

41 42

43 Official Use By Clerks

44

45 Pasud By Tbe Senate "

47 48 49 50 51 Date: 52 53 54

without amendment 0 with amendment 0 substitute □

substitute w/amdt 0

Clerk of th.? Senate

Pused By 'he House of Dele11tes

without amendment D with amendment □

substitute □

substitute w /amdt □ Date:----------

Clerk of the House of Delegates-

-

24

1990 SESSION

Ie SENA TE BILL NO. 110e2 Offered January 23, 1990 •J A BILL lo om,nd and rnnoct § ,6-91 of U... Cod, of Vi,.6ini'a, rwlatin1 to Cflrtainf r�slricti,,,, cownant.s. IeIe Patrons-GartJan, Miller, E.F.. Andrews end Miller, Y.B,; Deleptes: Plum. Van Yahres.e7e Melvin, Glasscock., CUnnin&ham, J.W .. Cooper and Marshall I• Ref erred to the Committee on General Lawse

11e11e Be It enacted by the General Allembly of Virlfnla: u J. That § 36-91 of the Code of Vir&inla ts amen4�d and reenacted u follo-n: u f 36-91. Certain restrictive covenants void; Instruments contalnln& such c:ovenants.-A.e14e Any restrictive covenant purporting to restrict occupancy or ownership of property on theeISe basis of race, color, religion, national origin, sex. elderliness, familial status or handicap,He whether beretofore or bereafter included ln an instrument aff ectin& the Utle to real oref7e leasehold property, ls declared to be null, void and of no effect. and contrary to the publiceu policy of this Commonwealth. IIe B. Any person wbo 1s asked to accept a document affecting ·t1ue to real or Jeasebolde21 property may decline to accept the same 1f it Includes such a covenant until the eovenante21e bas been removed from the document. Refusal to accept delivery of an lnstnlment for thise22e reason shall not be deemed a breach of a contnct to purchase, lease, mortpge ore23e otherwise deaJ with such l)roperty.

G ).lot11iH�staREliAg HY ,estrietive ee111naAt HHwtell .,._, � � � � ,1&trie&se25e eccwpaRcy er e:o·Rership ti H&I ., leaseheld prepeAy te MePA�eF& ti • � � ., ..

resieleRtial � &F

•e2,27e28e

strwchne, a laPAily e&ff MMe-; � HIM ., � � if' � H � � � ph�·sically llaRElicappeEl. WAtntally � 11111ntally ,etanleEI ., tlei.1tlepM1ntally

21ellisaeleel persons reside, wiWI &M &F � Hsident eewn:seloFS w � &t&U pe,sen:s, �e-.e reR:iElereel Mf � pwrposes residential eeewpaney � • 5iA8Je f.aPAily. .,,athing iA aise

so ,w�:eclioA <; � restrict ., ethe�•�e � � awlhority el HY Hwnt�•. � w �en � Chapter ++ fi U.1 4H ei4 sett-,�� el Qe Ge4e el Uiriinia w IHMlff �eS2e � 8@Aeral &r special Kt llealing w+l-A aenini, plannlAg w laA4 He-: 33eS4e35eHe37eJIeHe40e41e4l

0e Official Use By Clerks 44e Passed By 45e

•

Passed By The Senate Tbe House of Delegates46e without amendment □ without amendment □0e with amendment □ with amendment D48e substitute □ substitute □0e substitute w /amdt De substitute w /amdt Deso

51 Date: _________e Date:----------52e53e Clerk of the Sen�tee Clerk of the House of Delegatese54

ATTACHMENT 3

1990 SESSION

VIRGINIA ACTS OF ASSEMBLY - CHAPTER

An Act to amend the Code of Virginia by adding a uction num!Hred 15.1-486.3 and to repeal§ JS.J-486.2 of the Code of Virginia. the added and repealed •ctions relating to local zoning ordinanc11s applicable to rwsid,mtial facilities for the disabled.

(S 279)

Approved

Be It enacted by the General Assembly of VlJ'linla: I. That tbe Code of Virginia Is amended by adc:Un& a 1ection numbered 15.l-C86.3 as follows:

§o15.1-486.3. Group hom11s of �ht or lllu 61111111'-/amlly ruid11n�.-For tJa. purpous ofolocally adopted zoning ordinan�s. o rw6'd11ntial facility in which no moN than •'i6ht mentally ill, merrtally 1"tllard11d, or d11wlopm11ntally duabl11d p11r.oru NSU/11, with one or more ,..sident courtMlors or oth11r 610/f ,,.,._,n.r, Mall btl co,uide,wd for all purp06IIS NsidenJial occupancy by o .,·,ag/11 family. For th• purposes of this •ction, m.ntal illneu and dewlopmental disability mall not lnclud11 curnnt illegal u.ut of or addiction to a controlled sustance o.s dttfined in I 54.J·3IOJ. No conditions mo,. ,wstn·ctiw than tho• imposed on resid11nc11s occupittd by p11rM>ns ,w/ated by blood, mamage, or adoption Mall be imposed on such facility. A r.sid11ntiol facility ahall btl dHmed to be any group home or other residential facility for which th• O.portm11nt of M11ntl11 Health, Mental Retardation and Substanctt Abuse Services t., the li�n.rin6 authority punuant to this Cod•. 2. That § 15.l-C86.2 of tbe Code of Virginia ls repealed .

•

President of the Senate

Speaker of the Bouse of Delegates

•

Approved:

Governor

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY

U.S. DEPARTMENT OF JUSTICE

CIVIL RIGHTS DIVISION

)

Washington, D.C. November JO, 2016

JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN

DEVELOPMENT AND THE DEPARTMENT OF JUSTICE_

STATE AND LOCAL LAND USE LAWS AND PRACTICES AND THE APPLICATION

OF THE FAIR HOUSING ACT

INTRODUCTION

The Department of Justice ("DOJ") and the Department of Housing and Urban Development ("HUD") are jointly responsible for enforcing the Federal Fair Housing Act ("the Act"), 1 which prohibits discrimination in housing on the basis of race, color, religion, sex, disability, familial status (children under 18 living with a parent or guardian), or national origin.2 The Act prohibits housing-related policies and practices that exclude or otherwise discriminate against individuals because of protected characteristics.

The regulation of land use and zoning is traditionally reserved to state and local governments, except to the extent that it conflicts with requirements imposed by the Fair Housing Act or other federal laws. This Joint Statement provides an overview of the Fair Housing Act's requirements relating to state and local land use practices and zoning laws, including conduct related to group homes. It updates and expands upon DOJ's and HUD's Joint

1 The Fair Housing Act is codified at 42 U.S.C. §§ 3601-19.

2 The Act uses the term "handicap" instead of"disability." Both terms have the same legal meaning. See Bragdon

v. Abbott, 524 U.S. 624, 631 (1998) (noting that the definition of "disability" in the Americans with Disabilities Act

Statement on Group Homes, Local Land Use, and the Fair Housing Act, issued on August 18, 1999. The first section of the Joint Statement, Questions 1-6, describes generally the Act's requirements as they pertain to land use and zoning. The second and third sections, Questions 7-25, discuss more specifically how the Act applies to land use and zoning laws affecting housing for persons with disabilities, including guidance on regulating group homes and the requirement to provide reasonable accommodations. The fourth section, Questions 26--27, addresses HUD's and DOJ' s enforcement of the Act in the land use and zoning context.

This Joint Statement focuses on the Fair Housing Act, not on other federal civil rights laws that prohibit state and local governments from adopting or implementing land use and zoning practices that discriminate based on a protected characteristic, such as Title II of the Americans with Disabilities-Act ("ADA"),3 Section 504 of the Rehabilitation Act of 1973 ("Section 504"),4 and Title VI of the Civil Rights Act of 1964.5 In addition, the Joint Statement does not address a state or local government's duty to affirmatively further fair housing, even though state and local governments that receive HUD assistance are subject to this duty. For additional infonnation provided by DOJ and HUD regarding these issues, see the list of resources provided in the answer to Question 27.

Questions and Answers on the Fair Housing Act and

State and Local Land Use Laws and Zoning

1. How does the Fair Housing Act apply to state and local land use and zoning?

The Fair Housing Act prohibits a broad range of housing practices that discriminate against individuals on the basis of race, color, religion, sex, disability, familial status, or national origin (commonly referred to as protected characteristics). As established by the Supremacy Clause of the U.S. Constitution, federal laws such as the Fair Housing Act take precedence over conflicting state and local laws. The Fair Housing Act thus prohibits state and local land use and zoning laws, policies, and practices that discriminate based on a characteristic protected under the Act. Prohibited practices as defined in the Act include making unavailable or denying housing because of a protected characteristic. Housing includes not only buildings intended for occupancy as residences, but also vacant land that may be developed into residences.

is drawn almost verbatim "from the definition of 'handicap' contained in the Fair Housing Amendments Act of 1988''). This document uses the tenn "disability," which is more generally accepted.

42 u.s.c. §12132.

29 u.s.c. § 794.

42 u.s.c. § 2000d.

2

}

3

2. What types of land use and zoning laws or practices violate the Fair Housing Act?

Examples of state and local land use and zoning laws or practices that may violate the

Act include:

• Prohibiting or restricting the development of housing based on the belief that the residents will be members of a particular protected class, such as race, disability, or familial status, by, for example, placing a moratorium on the development of multifamily housing because of concerns that the residents will include members of a particular protected class.

• Imposing restrictions or additional conditions on group housing for persons with disabilities that are not imposed on families or other groups of unrelated individuals, by, for example, requiring an occupancy permit for persons with disabilities to live in a single-family home while not requiring a permit for other residents of single-family homes.

• Imposing restrictions on housing because of alleged public safety concerns that are based on stereotypes about the residents' or anticipated residents' membership in a protected class, by, for example, requiring a proposed development to provide additional security measures based on a belief that persons of a particular protected class are more likely to engage in criminal activity.

• Enforcing otherwise neutral laws or policies differently because of the residents' protected characteristics, by, for example, citing individuals who are members of a particular protected class for violating code requirements for property upkeep while not citing other residents for similar violations.

• Refusing to provide reasonable accommodations to land use or zoning policies when such accommodations may be necessary to allow persons with disabilities to have an equal opportunity to use and enjoy the housing, by, for example, denying a request to modify a setback requirement so an accessible sidewalk or ramp can be provided for one or more persons with mobility disabilities.

3. When does a land use or zoning practice constitute intentional discrimination in violation of the Fair Housing Act?

Intentional discrimination is also referred to as disparate treatment, meaning that the

action treats a person or group of persons differently because of race, color, religion, sex,

disability, familial status, or nationaJ origin. A land use or zoning practice may be intentionally

discriminatory even if there is no personal bias or animus on the part of individual government

officials. For example, municipal zoning practices or decisions that reflect acquiescence to

community bias may be intentionally discriminatory, even if the officials themselves do not

personally share such bias. (See Q&A 5.) Intentional discrimination does not require that the

3

)

decision-makers were hostile toward members of a particular protected class. Decisions

motivated by a purported desire to benefit a particular group can also violate the Act if they

result in differential treatment because of a protected characteristic.

A land use or zoning practice may be discriminatory on its face. For example, a law that

requires persons with disabilities to request permits to live in single-family zones while not

requiring persons without disabilities to request such permits violates the Act because it treats

persons with disabilities differently based on their disability. Even a law that is seemingly

neutral will still violate the Act if enacted with discriminatory intent. In that instance, the

analysis of whether there is intentional discrimination will be based on a variety of factors, all of

which need not be satisfied. These factors include, but are not limited to: {l) the "impact" of the

municipal practice, such as whether an ordinance disproportionately impacts minority residents

compared to white residents or whether the practice perpetuates segregation in a neighborhood or

particular geographic area; (2) the "historical background" of the action, such as whether there is

a history of segregation or discriminatory conduct by the municipality; (3) the "specific sequence

of events," such as whether the city adopted an ordinance or took action only after significant,

racially-motivated community opposition to a housing development or changed course after

learning that a development would include non-white residents; (4) departures from the "normal

procedural sequence," such as whether a municipality deviated from normal application or

zoning requirements; (5) "substantive departures," such as whether the factors usually considered

important suggest that a state or local government should have reached a different resuJt; and (6)

the "legislative or administrative history," such as any statements by members of the state or 6local decision-making body.

4. Can state and local land use and zoning laws or practices violate the Fair Housing Act if the state or locality did not intend to discriminate aga.inst persons on a prohibited basis?

Yes. Even absent a discriminatory intent, state or local governments may be liable under

the Act for any land use or zoning law or practice that bas an unjustified discriminatory effect

because of a protected characteristic. In 2015, the United States Supreme Court affinned this

interpretation of the Act in Texas Department of Housing and Community Affairs v. Inclusive

Communities Project, Inc. 1 The Court stated that "[t]hese unlawful practices include zoning laws and other housing restrictions that function unfairly to exclude minorities from certain

neighborhoods without any sufficient justification. "8

6 Viii. of Arlington Heights v. Metro. Hous. Dev. Co,p., 429 U.S. 252, 265-68 (1977).

U.S._, 135 S. Ct. 2507 (2015). B-

id. at 2521-22.

4

7

minatory effect if it caused or predictably will cause a disparate impact on a group of persons or if it creates, increases, reinforces, or perpetuates segregated housing patterns because of a protected characteristic. A state or local

government still has the opportunity to show that the practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests. These interests must be supported by evidence and may not be hypothetical or speculative. If these interests could not be served by another practice that has a less discriminatory effect, then the practice does not violate the Act

The standard for evaluating housing-related practices with a discriminatory effect are set forth in HUD's Discriminatory Effects Rule, 24 C.F.R § 100.500.

A land use or zoning practice results in a discri

Examples of land use practices that violate the Fair Housing Act under a discriminatory

effects standard include minimum floor space or lot size requirements that increase the size and cost of housing if such an increase has the effect of excluding persons from a locality or neighborhood because of their membership in a protected class, without a legally· sufficient

justification. Similarly, prohibiting low-income or multifamily housing may have a discriminatory effect on persons because of their membership in a protected class and, if so, would violate the Act absent a legally sufficient justification.

5. Does a state or local government violate the Fair Housing Act if it considers the fears or prejudices of community members when enacting or applying its zoning or land use laws respecting housing?

When enacting or applying zoning or land use laws, state and local governments may not act because of the fears, prejudices, stereotypes, or unsubstantiated assumptions that community members may have about current or p�ospective residents because of the residents' protected characteristics. Doing so violates the Act, even if the officials themselves do not personally share such bias. For example, a city may not deny zoning approval for a low-income housing development that meets all zoning and land use requirements because the development may

house residents of a particular protected class or classes whose presence, the community fears, will increase crime and lower property values in the surrounding neighborhood. Similarly, a local government may not block a group home or deny a requested reasonable accommodation in response to neighbors' stereotypical fears or prejudices about persons with disabilities or a particular type of disability. Of course, a city council or zoning board is not bound by everything that is said by every person who speaks at a public hearing. It is the record as a whole that will

be determinative ..

5

6. Can state and local governments violate the Fair Housing Act if they adopt or implement restrictions against children?

Yes. State and local governments may not impose restrictions on where families with children may reside unless the restrictions are consistent with the "housing for older persons"

exemption of the Act. The most common types of housing for older persons that may qualify for

this exemption are: (l) housing intended for, and solely occupied by, persons 62 years of age or

older; and (2) housing in which 80% of the occupied units have at least one person who is 55 years of age or older that publishes and adheres to policies and procedures demonstrating the

intent to house older persons. These types of housing must meet a11 requirements of the

exemption, including complying with HUD regulations applicable to such housing, such as

verification procedures regarding the age of the occupants. A state or local government that

zones an area to exclude families with children under 18 years of age must continually ensure

that housing in that zone meets all requirements of the exemption. If all of the housing in that

zone does not continue to meet all such requirements, that state or local government violates the

Act.

Questions and Answers on the Fair Housing Act and

Local Land Use and Zoning Regulation of Group Homes

7. Who qualifies as a person with a disability under the Fair Housing Act?

The Fair Housing Act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2)

individuals who are regarded as having such an impairment; and (3) individuals with a record of

such an impairment.

The term "physical or mental impairment'' includes, but is not limited to, diseases and

conditions such as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism,

epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV infection,

developmental disabilities, mental illness, drug addiction ( other than addiction caused by current,

illegal use of a controlled substance), and alcoholism.

The term "major life activity" includes activities such as seeing, hearing, walking

breathing, performing manual tasks, caring for one's self, learning, speaking, and working. This

list of major Life activities is not exhaustive.

Being regarded as having a disability means that the individual is treated as if he or she

has a disability even though the individual may not have an impairment or may not have an

impairment that substantially limits one or more major life activities. For example, if a landlord

6

n

)

u

refuses to rent to a person because the landlord believes the prospective tenant has a disability,

then the landlord violates the Act's prohibition on discrimination on the basis of disability, even

if the prospective tenant does not actually have a physical or mental impairment that

substantially limits one or more major life activities.

Having a record of a disability means the individual has a history of, or has been

misclassified as having, a mental or physical impairment that substantially limits one or more

major life activities.

8. What is a group home within the meaning of the Fair Housing Act?

The term "group home" does not have a specific legal meaning; land use and zoning officials and the courts, however, have referred to some residences for persons with disabilities

as group homes. The Fair Housing Act prohibits discrimination on the basis of disability, and

persons with disabilities have the same Fair Housing Act protections whether or not their

housing is considered a group home. A household where two or more persons with disabilities

choose to live together, as a matter of association, may not be subjected to requirements or

conditions that are not imposed on households consisting of persons without disabilities.

In this Statement, the term " group home" refers to a dwelling that is or will be occupied

by unrelated persons with disabilities. Sometimes group homes serve individuals with a

particular type of disability, and sometimes they serve individuals with a variety of disabilities.

Some group homes provide residents with in-home support services of varying types, while

others do not. The provision of support services is not required for a group home to be protected

under the Fair Housing Act. Group homes, as discussed in this Statement, may be opened by

individuals or by organizations, both for-profit and not-for-profit. Sometimes it is the group

home operator or developer, rather than the individuals who live or are expected to live in the

home, who interacts with a state or local government agency about developing or operating the

group home, and sometimes there is no interaction among residents or operators and state or

local governments.

In this Statement, the term " group home" includes homes occupied by persons in

recovery from alcohol or substance abuse, who are persons with disabilities under the Act.

Although a group borne for persons in recovery may commonly be called a "sober home," the

term does not have a specific legal meaning, and the Act treats persons with disabilities who

reside in such homes no differently than persons with disabilities who reside in other types of

group homes. Like other group homes, homes for persons in recovery are sometimes operated

by individuals or organizations, both for-profit and not-for-profit, and support services or

supervision are sometimes, but not always, provided. The Act does not require a person who

resides in a home for persons in recovery to have participated in or be currently participating in a

7

substance abuse treatment program to be considered a person with a disability. The fact that a

resident of a group home may currently be illegally using a controlled substance does not deprive

the other residents of the protection of the Fair Housing Act.

9. In what ways does the Fair Housing Act apply to group homes?

The Fair Housing Act prohibits discrimination on the basis of disability, and persons with disabilities have the same Fair Housing Act protections whether or not their housing is

considered a group home. State and local governments may not discriminate against persons

with disabilities who live in group homes. Persons with disabilities who live in or seek to live in

group homes are sometimes subjected to unlawful discrimination in a number of ways, including

those discussed in the preceding Section of this Joint Statement. Discrimination may be

intentional; for example, a locality might pass an ordinance prohibiting group homes in single­

family neighborhoods or prohibiting group homes for persons with certain disabilities. These

ordinances are facially discriminatory, in violation of the Act. In addition, as discussed more

fully in Q&A 10 below, a state or local government may violate the Act by refusing to grant a

reasonable accommodation to its zoning or land use ordinance when the requested

accommodation may be necessary for persons with disabilities to have an equal opportunity to

use and enjoy a dwelling. For example, if a locality refuses to waive an ordinance that limits the

number of unrelated persons who may live in a single-family home where such a waiver may be

necessary for persons with disabilities to have an equal opportunity to use and enjoy a dwelling,

the locality violates the Act unless the locality can prove that the waiver would impose an undue

financial and administrative burden on the local government or fundamentally alter the essential

nature of the locality's zoning scheme. Furthermore, a state or local government may violate the

Act by enacting an ordinance that has an unjustified discriminatory effect on persons with

disabilities who seek to live in a group home in the community. Unlawful actions concerning

group homes are discussed in more detail throughout this Statement.

10. What is a reasonable accommodation under the Fair Housing Act?

The Fair Housing Act makes it unlawful to refuse to make "reasonable accommodations" to rules, policies, practices, or services, when such accommodations may be necessary to afford

persons with disabilities an equal opportunity to use and enjoy a dwelling. A "reasonable

accommodation" is a change, exception, or adjustment to a rule, policy, practice, or service that

may be necessary for a person with a disability to have an equal opportunity to use and enjoy a

dwelling, including public and common use spaces. Since rules, policies, practices, and services

may have a different effect on persons with disabilities th?n on other persons, treating persons

with disabilities exactly the same as others may sometimes deny them an equal opportunity to

use and enjoy a dwelling.

8

Even if a zoning ordinance imposes on group homes the same restrictions that it imposes

on housing for other groups of unrelated persons, a local government may be required, in

individual cases and when requested to do so, to grant a reasonable accommodation to a group

home for persons with disabilities. What constitutes a reasonable accommodation is a case-by­

case determination based on an individualized assessment. This topic is discussed in detail in

Q&As 20-25 and in the HUD/DOJ Joint Statement on Reasonable Accommodations under the

Fair Housing Act.

11. Does the Fair Housing Act protect persons with disabilities who pose a "direct threat" to others?

The Act does not allow for the exclusion of individuals based upon fear, speculation, or

stereotype about a particular disability or persons with disabilities in general. Nevertheless, the

Act does not protect an individual 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 unless the threat or risk to property can be eliminated or significantly

reduced by reasonable accommodation. A determination that an individual poses a direct threat

must rely on an individualized assessment that is based on reliable objective evidence (for

example, current conduct or a recent history of overt acts). The assessment must consider: (1)

the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually

occur; and (3) whether there are any reasonable accommodations that will eliminate or) significantly reduce the direct threat. See Q&A 10 for a general discussion of reasonable

· accommodations. Consequently, in evaluating an individual's recent history of overt acts, a state or local government must take into account whether the individual has received intervening treatment or medication that has eliminated or significantly reduced the direct threat (in other words, significant risk of substantial harm). In such a situation, the state or local government may request that the individual show how the circumstances have changed so that he or she no longer poses a direct threat. Any such request must be reasonable and limited to information necessary to assess whether circumstances have changed. Additionally, in such a situation, a state or local government may obtain satisfactory and reasonable assurances that the individual will not pose a direct threat during the tenancy. The state or local government must have reliable, objective evidence that the tenancy of a person with a disability poses a direct threat before excluding him or her from housing on that basis, and, in making that assessment, the state or local government may not ignore evidence showing that the individual's tenancy would no longer pose a direct threat. Moreover, the fact that one individual may pose a direct threat does not mean that another individual with the same disability or other individuals in a group home may be denied housing.

u 9

12. Can a state or local government enact laws that specifically limit group homes for individuals with specific types of disabilities?

No. Just as it would be illegal to enact a law for the purpose of excluding or limiting group homes for individuals with disabilities, it is illegal under the Act for local land use and

zoning laws to exclude or limit group homes for individuals with specific types of disabilities.

For example, a government may not limit group homes for persons with mental illness to certain

neighborhoods. The fact that the state or local government complies with the Act with regard to

group homes for persons with some types of disabilities will not justify discrimination against

individuals with another type of disability, such as mental illness.

13. Can a state or local government limit the number of individuals who reside in a group home in a residential neighborhood?

Neutral laws that govern groups of unrelated persons who live together do not violate the Act so long as ( 1) those laws do not intentionally discriminate against persons on the basis of

disability (or other protected class), (2) those laws do not have an unjustified discriminatory

effect on the basis of disability (or other protected class), and (3) state and local governments

make reasonable accommodations when such accommodations may be necessary for a person

with a disability to have an equal opportunity to use and enjoy a dwelling.

Local zoning and land use laws that treat groups of unrelated persons with disabilities

less favorably than similar groups of unrelated persons without disabilities violate the Fair

Housing Act. For example, suppose a city's zoning ordinance defines a "family" to include up to

a certain number of unrelated persons living together as a household unit, and gives such a group

of unrelated persons the right to live in any zoning district without special permission from the

city. If that ordinance also prohibits a group home having the same number of persons with

disabilities in a certain district or requires it to seek a use permit, the ordinance would violate the

Fair Housing Act. The ordinance violates the Act because it treats persons with disabilities less

favorably than families and unrelated persons without disabilities.

A local government may generally restrict the ability of groups of unrelated persons to

live together without violating the Act as long as the restrictions are imposed on all such groups,

including a group defined as a family. Thus, if the definition of a family includes up to a certain

number of unrelated individuals, an ordinance would not, on its face, violate the Act if a group

home for persons with disabilities with more than the permitted number for a family were not

allowed to locate in a single-family-zoned neighborhood because any group of unrelated people

without disabilities of that number would also be disallowed. A facially neutral ordinance,

however, still may violate the Act if it is intentionally discriminatory (that is, enacted with

discriminatory intent or applied in a discriminatory manner), or if it has an unjustified

discriminatory effect on persons with disabilities. For example, an ordinance that limits the

number of unrelated persons who may constitute a family may violate the Act if it is enacted for

the purpose of limiting the number of persons with disabilities who may live in a group home, or

if it has the unjustified discriminatory effect of excluding or limiting group homes in the

jurisdiction. Governments may also violate the Act if they enforce such restrictions more strictly

against group homes than against groups of the same number of unrelated persons without

disabilities who live together in housing. In addition, as discussed in detail below, because the

Act prohibits the denial of reasonable accommodations to rules and policies for persons with

disabilities, a group home that provides housing for a number of persons with disabilities that

exceeds the number allowed under the family definition has the right to seek an exception or

waiver. If the criteria for a reasonable accommodation are met, the permit must be given in that 9instance, but the ordinance would not be invalid.

14. How does the Supreme Court's ruling in Olmstead apply to the Fair Housing Act?

In Olmstead v. L. C.,10 the Supreme Court ruled that the Americans with Disabilities Act (ADA) prohibits the unjustified segregation of persons with disabilities in institutional settings

nwhere necessary services could reasonably be provided in itegrated, community-based settings.

An integrated setting is one that enables individuals with disabilities to live and interact with

individuals without disabilities to the fullest extent possible. By contrast, a segregated setting

includes congregate settings populated exclusively or primarily by individuals with disabilities.

Although Olmstead did not interpret the Fair Housing Act, the objectives of the Fair Housing Act

and the ADA, as interpreted in Olmstead, are consistent. The Fair Housing Act ensures that

persons with disabilities have an equal opportunity to choose the housing where they wish to

live. The ADA and Olmstead ensure that persons with disabilities also have the option to live

and receive services in the most integrated setting appropriate to their needs. The integration

mandate of the ADA and Olmstead can be implemented without impairing the rights protected

by the Fair Housing Act. For example, state and local governments that provide or fund housing,

health care, or support services must comply with the integration mandate by providing these

programs, services, and activities in the most integrated setting appropriate to the needs of

individuals with disabilities. State and local governments may comply with this requirement by

adopting standards for the housing, health care, or support services they provide or fund that are

reasonable, individualized, and specifically tailored to enable individuals with disabilities to live

and interact with individuals without disabilities to the fullest extent possible. Local

governments should be aware that ordinances and policies that impose additional restrictions on

housing or residential services for persons with disabilities that are not imposed on housing or

9 Laws that limit the number of occupants per unit do not violate the Act as long as they are reasonable, are applied to all occupants, and do not operate to discriminate on the basis of disability, familial status, or other characteristics rirotected by the Act. o 527 U.S. 581 (1999).

11

residential services for persons without disabilities are likely to violate the Act. In addition, a locality would violate the Act and the integration mandate of the ADA and Olmstead if it required group homes to be concentrated in certain areas of the jurisdiction by, for example, restricting them from being located in other areas.

15. Can a state or local government impose spacing requirements on the location of group homes for persons with disabilities?

A "spacing" or "dispersal" requirement generally refers to a requirement that a group home for persons with disabilities must not be located within a specific distance of another group home. Sometimes a spacing requirement is designed so it applies only to group homes and sometimes a spacing requirement is framed more generally and applies to group homes and other types of uses such as boarding houses, student housing, or even certain types of businesses. In a community where a certain number of unrelated persons are pennitted by local ordinance to reside together in a home, it would violate the Act for the local ordinance to impose a spacing requirement on group homes that do not exceed that permitted number of residents because the spacing requirement would be a condition imposed on persons with disabilities that is not imposed on persons without disabilities. In situations where a group home seeks a reasonable accommodation t� exceed the number of unrelated persons who are permitted by local ordinance to reside together, the Fair Housing Act does not prevent state or local governments from taking into account concerns about the over-concentration of group homes that are located in close proximity to each other. Sometimes compliance with the integration mandate of the ADA and Olmstead requires government agencies responsible for licensing or providing housing for persons with disabilities to consider the location of other group homes when determining what housing will best meet the needs of the persons being served. Some courts, however, have found that spacing requirements violate the Fair Housing Act because they deny persons with disabilities an equal opportunity to choose where they will live. Because an across-the-board spacing requirement may discriminate against persons with disabilities in some residential areas, any standards that state or local governments adopt should evaluate the location of group homes for persons with disabilities on a case-by-case basis.

Where a jurisdiction has imposed a spacing requirement on the location of group homes for persons with disabilities, courts may analyze whether the requirement violates the Act under an intent, effects, or reasonable accommodation theory. In cases alleging intentional discrimination, courts look to a number of factors, including the effect of the requirement on housing for persons with disabilities; the jurisdiction's intent behind the spacing requirement; the existence, size, and location of group homes in a given area; and whether there are methods other than a spacing requirement for accomplishing the jurisdiction's stated pwpose. A spacing requirement enacted with discriminatory intent, such as for the purpose of appeasing neighbors' stereotypical fears about living near persons with disabilities, violates the Act. Further, a neutral

12

()

)

u

spacing requirement that applies to all housing for groups of unrelated persons may have an unjustified discriminatory effect on persons with disabilities, thus violating the Act. Jurisdictions must also consider, in compliance with the Act, requests for reasonable accommodations to any spacing requirements.

16. Can a state or local government impose health and safety regulations on group home operators?

Operators of group homes for persons with disabilities are subject to applicable state and l.ocal regulations addressing health and safety concerns unless those regulations are inconsistent with the Fair Housing Act or other federal law. Licensing and other regulatory requirements that may apply to some group homes must also be consistent with the Fair Housing Act. Such regulations must not be based on stereotypes about persons with disabilities or specific types of disabilities. State or local zoning and land use ordinances may not, consistent with the Fair Housing Act, require individuals with disabilities to receive medical, support, or other services or supervision that they do not need or want as a condition for allowing a group home to operate. State and local governments' enforcement of neutral requirements regarding safety, licensing, and other regulatory requirements governing group homes do not violate the Fair Housing Act so long as the ordinances are enforced in a neutral manner, they do not specifically target group homes, and they do not have an unjustified discriminatory effect on persons with disabilities who wish to reside in group homes.

Governments must also consider requests for reasonable accommodations to licensing and regulatory requirements and procedures, and grant them where they may be necessary to afford individuals with disabilities an equal opportunity to use and enjoy a dwelling, as required by the Act.

17. Can a state or local government address suspected criminal activity or fraud and abuse at group homes for persons with disabilities?

The Fair Housing Act does not prevent state and local governments from taking nondiscriminatory action in response to criminal activity, insurance fraud, Medicaid fraud, neglect or abuse of residents, or other illegal conduct occurring at group homes, including reporting complaints to the appropriate state or federal regulatory agency. States and localities must ensure that actions to enforce criminal or other laws are not taken to target group homes and are applied equally, regardless of whether the residents of housing are persons with disabilities. For example, persons with disabilities residing in group homes are entitled to the same constitutional protections against unreasonable search and seizure as those without disabilities.

13

18. Does the Fair Housing Act permit a state or local government to implement strategies to integrate group homes for persons with disabilities in particular neighborhoods where they are not currently located?

Yes. Some strategies a state or local govemrnent could use to further the integration of

group housing for persons with disabilities, consistent with the Act, include affirmative

marketing or offering incentives. For example, jurisdictions may engage in affirmative

marketing or offer variances to providers of housing for persons with disabilities to locate future

homes in neighborhoods where group homes for persons with disabilities are not currently

located. But jurisdictions may not offer incentives for a discriminatory purpose or that have an

unjustified discriminatory effect because of a protected characteristic.

19. Can a local government consider the fears or prejudices of neighbors in deciding whether a group home can be located in a particular neighborhood?

In the same way a local government would violate the law if it rejected low-income housing in a community because of neighbors' fears that such housing would be occupied by

racial minorities (see Q&A 5), a local govemrnent violates the law if it blocks a group home or

denies a reasonable accommodation request because of neighbors' stereotypical fears or

prejudices about persons with disabilities. This is so even if the individual government decision­

makers themselves do not have biases against persons with disabilities.

Not all community opposition to requests by group homes is necessarily discriminatory.

For example, when a group home seeks a reasonable accommodation to operate in an ar�a and

the area has limited on-street parking to serve existing residents, it is not a violation of the Fair

Housing Act for neighbors and local government officials to raise concerns that the group home

may create more demand for on-street parking than would a typical family and to ask the

provider to respond. A valid unaddressed concern about inadequate parking facilities could

justify denying the requested accommodation, if a similar dwelling that is not a group home or

similarly situated use would ordinarily be denied a pennit because of such parking concerns. If,

however, the group home shows that the home will not create a need for more parking spaces

than other dwellings or similarly-situated uses located nearby, or submits a plan to provide any

needed off-street parking, then par�ng concerns would not support a decision to deny the home

a permit.

14

Questions and Answers on the Fair Housing Act and

Reasonable Accommodation Requests to Local Zoning and Land Use Laws

20. When does a state or local government violate the Fair Housing Act by failing to grant a request for a reasonable accommodation?

A state or local government violates the Fair Housing Act by failing to grant a reasonable accommodation request if( l ) the persons requesting the accommodation or, in the case of a group home, persons residing in or expected to reside in the group home are persons with a disability under the Act; (2) the state or local government knows or should reasonably be expected to know of their disabilities; (3) an accommodation in the land use or zoning ordinance or other rules, policies, practices, or services of the state or locality was requested by or on behalf of persons with disabilities; (4) the requested accommodation may be necessary to afford one or more persons with a disability an equal opportunity to use and enjoy the dwelling; (5) the state or local government refused to grant, failed to act on, or unreasonably delayed the accommodation request; and ( 6) the state or local government cannot show that granting the accommodation would impose an undue financial and administrative burden on the local government or that it would fundamentally alter the local government's zoning scheme. A requested accommodation may be necessary if there is an identifiable relationship between the requested accommodation and the group home residents' disability. Further information is provided in Q&A IO above and

(J the HUD/DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act.

21. Can a local government deny a group home's request for a reasonable accommodation without violating the Fair Housing Act?

Yes, a local government may deny a group home's request for a reasonable accommodation if the request was not made by or on behalf of persons with disabilities (by, for example, the group home developer or operator) or if there is no disability-related need for the requested accommodation because there is no relationship between the requested accommodation and the disabilities of the residents or proposed residents.

In addition, a group home's request for a reasonable accommodation may be denied by a local government if providing the accommodation is not reasonable--in other words, if it would impose an undue financial and administrative burden on the local government or it would fundamentally alter the local government's zoning scheme. The determination of undue financial and administrative burden must be decided on a case-by-case basis involving various factors, such as the nature and extent of the administrative burden and the cost of the requested

· accommodation to the local government, the financial resources of the local government, and the benefits that the accommodation would provide to the persons with disabilities who will reside in the group home.

15

When a local government refuses an accommodation request because it would pose an

undue financial and administrative burden, the local government should discuss with the

requester whether there is an alternative accommodation that would effectively address the

disability-related needs of the group home's residents without imposing an undue financial and

administrative burden. This discussion is called an "interactive process." If an alternative

accommodation would effectively meet the disability-related needs of the residents of the group

home and is reasonable (that is, it would not impose an undue financial and administrative

burden or fundamentally alter the local government's zoning scheme), the local government

must grant the alternative accommodation. An interactive process in which the group home and

the local government discuss the disability-related need for the requested accommodation and

possible alternative accommodations is both required under the Act and helpful to all concerned,

because it often results in an effective accommodation for the group home that does not pose an

undue financial and administrative burden or fundamental alteration for the local government.

22. What is the procedure for requesting a reasonable accommodation?

The reasonable accommodation must actually be requested by or on behalf of the individuals with disabilities who reside or are expected to reside in the group home. When the

request is made, it is not necessary for the specific individuals who would be expected to live in

the group home to be identified. The Act does not require that a request be made in a particular

manner or at a particular time. The group home does not need to mention the Fair Housing Act

or use the words "reasonable accommodation" when making a reasonable accommodation

request. The group home must, however, make the request in a manner that a reasonable person

would understand to be a disabj}jty-related request for an exception, change, or adjustment to a

rule, policy, practice, or service. When making a request for an exception, change, or adjustment

to a local land use or zoning regulation or policy, the group home should explain what type of

accommodation is being requested and, if the need for the accommodation is not readily apparent

or known by the local government, explain the relationship between the accommodation and the

disabilities of the group home residents.

A request for a reasonable accommodation can be made eitber orally or in writing. It is

often helpful for both the group home and the local government if the reasonable accommodation

request is made in writing. This will help prevent misunderstandings regarding what is being

requested or whether or when the request was made.

Where a local land use or zoning code contains specific procedures for seeking a

departure from the general rule, courts have decided that these procedures should ordinarily be

followed. If no procedure is specified, or if the procedure is unreasonably burdensome or

intrusive or involves significant delays, a request for a reasonable accommodation may,

16

n nevertheless, be made in some other way, and a local gove�ent is obligated to grant it if the

)

requested accommodation meets the criteria discussed in Q&A 20, above.

Whether or not the local land use or zoning code contains a specific procedure for requesting a reasonable accommodation or other exception to a zoning regulation, if local government officials have previously made statements or otherwise indicated that an application for a reasonable accommodation would not receive fair consideration, or if the procedure itself is discriminatory, then persons with disabilities living in a group home, and/or its operator, have the right to file a Fair Housing Act complaint in court to request an order for a reasonable accommodation to the local zoning regulations.

23. Does the Fair Housing Act require local governments to adopt formal reasonable accommodation procedures?

The Act does not require a local government to adopt formal procedures for processing requests for reasonable accommodations to local land use or zoning codes. DOJ and HUD nevertheless strongly encourage local governments to adopt formal procedures for identifying and processing reasonable accommodation requests and provide training for government officials and staff as to application of the procedures. Procedures for reviewing and acting on reasonable accommodation requests will help state and local governments meet their obligations under the Act to respond to reasonable accommodation requests and implement reasonable accommodations promptly. Local governments are also encouraged to ensure that the procedures to request a reasonable accommodation or other exception to local zoning regulations are well known throughout the community by, for example, posting them at a readily accessible location and in a digital format accessible to persons with disabilities on the government's website. If a jurisdiction chooses to adopt formal procedures for reasonable accommodation requests, the procedures cannot be onerous or require information beyond what is necessary to show that the individual has a disability and that the requested accommodation is related to that disability. For example, in most cases, an individual's medical record or detailed information about the nature of a person's disability is not necessary for this inquiry. In addition, officials and staff must be aware that any procedures for requesting a reasonable accommodation must also be flexible to accommodate the needs of the individual making a request, including accepting and considering requests that are not made through the official procedure. The adoption of a reasonable accommodation procedure, however, will not cure a zoning ordinance that treats group homes differently than other residential housing with the same number of unrelated persons.

17

24. What if a local government fails to act promptly on a reasonable accommodation request?

A local government has an obligation to provide prompt responses to reasonable accommodation requests, whether or not a formal reasonable accommodation procedure exists.

nA local goverment's undue delay in responding to a reasonable accommodation request may be

deemed a failure to provide a reasonable accommodation.

25. Can a local government enforce its zoning code against a group home that violates the zoning code but has not requested a reasonable accommodation?

The Fair Housing Act does not prohibit a local government from enforcing its zoning code against a group home that bas violated the local zoning code, as long as that code is not

discriminatory or enforced in a discriminatory manner. If, however, the group home requests a

reasonable accommodation when faced with enforcement by the locality, the locality still must

consider the reasonable accommodation request. A request for a reasonable accommodation

may be made at any time, so at that point, the local government must consider whether there is a

relationship between the disabilities of the residents of the group home and the need for the

requested accommodation. If so, the locality must grant the requested accommodation unless

doing so would pose a fundamental alteration to the local government's zoning scheme or an

undue financial and administrative burden to the local government.

Questions and Answers on Fair Housing Act Enforcement of

Complaints Involving Land Use and Zoning

26. How are Fair Housing Act complaints involving state and local land use laws and practices bandied by HUD and DOJ?

The Act gives HUD the power to receive, investigate, and conciliate complaints of discrimination, including complaints that a state or local government has discriminated in

exercising its land use and zoning powers. HUD may not issue a charge of discrimination

pertaining to "the legality of any State or local zoning or other land use law or ordinance."

Rather, after investigating, HUD refers matters it believes may be meritorious to DOJ, which, in

its discretion, may decide to bring suit against the state or locality within 18 months after the

practice at issue occurred or terminated. DOJ may also bring suit by exercising its authority 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 public importance.

If HUD determines that there is no reasonable cause to believe that there may be a

violation, it will close an investigation without referring the matter to DOJ. But a HUD or DOJ

18

)

decision not to proceed with a land use or zoning matter does not foreclose private plaintiffs

from pursuing a claim.

Litigation can be an expensive, time-consuming, and uncertain process for all parties.

HUD and DOJ encourage parties to land use disputes to explore reasonable alternatives to

litigation, including alternative dispute resolution procedures, like mediation or conciliation of

the HUD complaint. HUD attempts to conciliate all complaints under the Act that it receives,

including those involving land use or zoning laws. In addition, it is DOJ's policy to offer

prospective state or local governments the opportunity to engage in pre-suit settlement

negotiations, except in the most unusual circumstances.

27. How can I find more information?

For more information on reasonable accommodations and reasonable modifications under the

Fair Housing Act:

• HUD/DOJ Joint Statement on Reasonable Accommodations under the Fair Housing Act, available at https://www.justice.gov/crt/fair-housing-policy-statements-and-guidance-0 or http://www.bud.gov/offices/fheo/library/huddojstatement.pdf.

• HUD/DOJ Joint Statement on Reasonable Modifications under the Fair Housing Act, available at https://www.justice.gov/crt/fair-housing-policy-statements-and-guidance-O or http://www.bud.gov/offices/fheo/ disabilities/reasonable modifications mar08 .pdf.

For more information on state and local governments' obligations under Section 504:

• HUD website at http://portal.hud.gov/hudportal/IB.JD?src=/program offices/ fair housing equal opp/disabilities/sect504.

For more information on state and local governments' obligations under the ADA and Olmstead:

• U.S. Department of Justice website, www.ADA.gov, or call the ADA information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).

• Statement of the Department of Justice on Enforcement of the Integration Mandate of Title lI of the Americans with Disabilities Act and Olmstead v. L.C., available at http://www.ada.gov./olmstead/g&a olmstead.htm.

• Statement of the Department of Housing and Urban Development on the Role of Housing in Accomplishing the Goals of Olmstead, available at http ://portal. hud. gov/hudportal/documents/huddoc?id=OlmsteadGuidnc0604 I 3 .pdf.

19

For more information on the requirement to affirmatively further fair housing:

• Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272 (July 16, 2015) (to be codified at 24 C.F.R. pts. 5, 91, 92, 570, 574, 576, and 903).

• U.S. Department of Housing and Urban Development, Version 1, Affirmatively Furthering Fair Housing Rule Guidebook (2015), available at

https://www.hudexchange.info/resources/documents/AFFH-Rule-Guidebook.pdf. • Office ofF;iir Housing and Equal Opportunity, U.S. Department of Housing and Urban

Development, Vol. 1, Fair Housing Planning Guide (1996), available at http://www.hud.gov/offices/fheo/images/tbpg.pdf.

For more information on nuisance and crime-free ordinances:

• Office of General Counsel Gwdance on Application of Fair Housing Act Standards to the Enforcement of Local Nwsance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services (Sept. 13, 2016), available at http://portal.hud.gov/hudportal/documents/ huddoc?id=FinalNuisanceOrdGdnce.pdf.

20

• 18

1 a current user under any definition.

2 At 444 in the record -- and I did not make

3 this point in my brief because, frankly, I didn't see it

4 initially, but at 444, the program documents state that

5 use of mood-altering substances or paraphernalia results

6 in -- what? Does it result in dismissal? It results in

7 a five-day suspension.

8 At page 470 in the record, drug use and

9 treatment, does that result in dismissal? It may result

10 in dismissal. A positive urine test -- Record 470 -­

11 while in treatment? It may. Not that it does, but it

12 may.

13 Now, what does "may" turn on? Well, at

14 470 that's answered. If a participant violates a

15 cardinal rule of the program -- and rule No. 1 is no use

16 of drugs, alcohol, or paraphernalia -- that person may be

17 dismissed from the program in the discretion of staff.

18 So it's discretionary.

19 So my question is, was it unreasonable for

20 the BZA to conclude that this program admits people who

21 are current users or addicts, or retains them there? If

22 a person who's using drugs in the program may be kept in

•

23 the program, in what sense can they be said not to be

Anita B. Glover & Associates, Ltd. 10521 West Drive

Fairfax, Virginia 22030

(703) 591-3004

• 19

1 current users or addicts? I mean, if they're not current

2 users or addicts, then we have to write this disqualifier

3 "current use or addiction" -- right out of all three

4 of the acts: the Housing Act, the Rehab Act, and the ADA.

s And the standard of review here is the

6 "substantial evidence" tests. It's not a proceeding de

7 novo. The BZA gets to be the trier-of-fact.

8 Another way the "substantial evidence"

9 test has been described is that for the Court to reverse

• 10

11

12

the BZA, the Court would have to conclude that a

reasonable person must, of necessity, to retain their

status as a reasonable person, conclude that this program

13 excludes people who are current users and excludes people

14 who have shown that they're current users while in the

15 program.

16 Not only was it reasonable for the BZA to

17 conclude that this use as designed and intended didn't do

18 that, but it was unreasonable for anyone else to -­

19 including the Zoning Administrator -- to conclude that it

20 excluded such people. The Zoning Administrator, not the

21 BZA, was wrong when she ruled "any evidence of drug use

22 during treatment will trigger immediate dismissal." Not

•

23 so

Anita B. Glover & Associates,10521 West Drive

Ltd.

Fairfax, Virginia 22030 (703) 591-3004

,.

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

VANGUARD SERVICES UNLIMITED, CLERK, U.S. DISTRICT COURT ALEXANDRIA, VIRGINIA

Plaintiff,

v. C.A. NO. 02-1707-A

BOARD OF ZONING APPEALS

OF FAIRFAX COUNTY, et al.,

De£endants.

DEFENDANTS BOARD OF SUPERVISORS OF FAIRFAX COUNTY AND JANE W.

GWINN, FAIRFAX COUNTY ZONING ADMINISTRATOR'S MEMORANDUM IN

OPPOSITION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

COME NOW Defendants, Board of Superviso:i;-s of Fairfax County

("the Board") and Jane W. Gwinn, Fairfax County Zoning

Administrator ( "the Zoning Administrator") (collectively ) "Defendants"), by counsel, and submit this Memorandum in

Opposition to Plaintiff Vanguard Services Unlimited's

("Vanguard") Motion for a Preliminary Injunction.

INTRODUCTION

Vanguard's Motion is yet another example of how Vanguard is

attempting to create a controversy with Defendants where none

exists in an effort to seek an advisory opinion from this Court

as to whether it can operate its program. In its Memorandum in

Support of Plaintiff's Motion for Preliminary

Injunction("Vanguard's Motion" or "Prelim. Inj. Mot.") Vanguard

U asserts that without an order from this Court, it is unable to

operate the Viviendo Saludable Residential Program ("Viviendo"),

attached to Vanguard's Motion as Exhibit 1, pending the outcome

of the litigation. Vanguard wholly fails to inform the Court,

however, that the program it proposes to operate during the

pendency of the litigation is vastly different from the program

that was before the Board of Zoning Appeals ("BZA"). The BZA's

decision, upheld by the Circuit Court, only dealt with the

program proposed by Vanguard at the time of the decision. There

is no BZA decision or state court order for the Zoning

Administrator to enforce regarding the implementation and

operation of the new Viviendo program. Therefore, Vanguard does

not need injunctive relief against Defendants to operate the

) program in its revised form.

To the extent, however that Vanguard seeks relief to

operate the program in the form it was in at the time of the BZA

hearing, Vanguard wholly fails to justify why it should be

awarded the extraordinary relief of a preliminary injunction.

Given that it has waited over 18 months since the adverse

decision of the BZA, it cannot possibly establish that any harm

it would suffer is either imminent or actual. Moreover,

Vanguard fails to comprehend that this Court cannot substitute

its judgment for Fairfax County's zoning officials, procedures,

and the BZA, and that to do so substantially harms Fairfax

2d..)

..

)

County's ability to enact and administer its land use policy-a

function specifically given it by Virginia's General Assembly.

See generally, Va. Code Ann. §§ 15.2-2200 through 15.2-2327

(LNMB 1997 and Supp. 2002). Therefore, Vanguard's Motion for

Preliminary Injunction should be denied.

I. A PRELIMINARY INJUNCTION IS NOT NECESSARY BECAUSE

THE PROGRAM DESCRIBED IN VANGUARD'S MOTION FOR A

PRELIMINARY INJUCNTION IS DIFFERENT THAN THE PROGRAM

RULED UPON BY THE BZA AND THE CIRCUIT COURT.

Defendants are troubled by Vanguard's apparent

attempt to conceal from the Court that the program Vanguard

points to in its Motion for a Preliminary Injunction is not

the same program that was before the Zoning Administrator,

the BZA, and the Circuit Court. 1 Although Vanguard implies

that the Viviendo Saludable ("Viviendo") description set

forth as Exhibit 1 and the accompanying Client Handbook set

forth as Exhibit 7 in its Motion is the same program

rejected by the BZA, a review of the documents easily

The Board and the Zoning Administrator only realized after examining Vanguard's exhibits to its Motion for PreliminaryInjunction that Vanguard has substantially altered its program.This information gives rise to a whole new basis for dismissal because the Complaint alleges that the only reason that the Board and the Zoning Administrator are parties in this.action is because they are "obliged to enforce the BZA [decision)." Compl. 1 53. As set forth more fully below, that decision does not govern or control this new program, and as such, the Board and the Zoning Administrator are not required to enforce againstit and thus, Vanguard has no claim against the Board or the Zoning Administrator.

,,

r dispels this notion. 2 Attached hereto as Exhibit A is the

) Viviendo program description that was presented to the

Zoning Administrator, the BZA, and the Circuit Court, and

attached hereto as Exhibit Bis the accompanying Client

Handbook also presented.

The differences between the program presented to

the Zoning Administrator, the BZA, and the Circuit Court

("the old program") and the program attached to Vanguard's

Motion ("the new program ") are not minor or insignificant.

Rather, Vanguard has put forward a fundamentally new

program that cures many of the defects in the old program

with which the BZA took exception. (See Def. Mem. in Supp.(

of Mot. to Dism, Ex. 19 at 16-19, argument of BZA counsel

before the Circuit Court). For example, Article 2, § 2.24b

of the old program provided that the sole admission

criteria for the program was limited to "Hispanic adults 18

2 Vanguard's distortion of the record before the BZA is

underscored by the fact that its contract with the Arlington Community Services Board ("CSB") was amended after the BZA ruled on whether Vanguard's program met the

definition of Group Residential Facility. Compare Prelim. Inj. Mot. Ex. 16 with Ex. 6 (setting forth that BZA issued its ruling on July 3, 2001, and Vanguard amended its

contract with the Arlington CSB on July 19, 2001).

years & older." Ex. A at 421. 3 In contrast, admission

criteria for the new program is extensive and detailed:

Admission criteria: [Viviendo] will admit Hispanic adults 18 years & older who are explicitly referred from the Fairfax-Falls Church, Arlington or Alexandria Community Services Board (CSB). The following criteria must be

met by the referring CSB when referring a client:

a) A comprehensive Bio-Psycho­social must be completed.

b) Documentation on Probation and Parole, Psychiatrist, Physician and previous treatment providers.

c) A review of the client's criminal conviction history.

d) An evaluation of current use or addiction to alcohol and other drugs.

e) Client must be determined to be free of drugs or alcohol for a minimum of

) 72 hours prior to admission.

Upon admission of client, the [Viviendo] program will complete an additional assessment that includes a comprehensive bio-psycho-social assessment and a urinalysis and breathalyzer tests. Client's who are determined to have used alcohol or illegal drugs at this time will not be eligible for admission and are discharged and referred back to the originating CSB.

[Viviendo] will administer random urinalysis tests to clients admitted to the program three times per week.

3 Page numbers for Exhibits A and B refer directly to pagesfrom the more than 1300-page BZA record. Exhibits l and 7 to Vanguard's Motion for a Preliminary Injunction do not appearanywhere in this record.

5

Breathalyzer tests shall be administered when a client re-enters the home after any period of unsupervised absence. Clients who are found to be usingillegal drugs or alcohol will be immediately discharged from the programand transported back to the originatingCSB.

Prelim. Inj. Mot., Ex. 1, § 2.24b {third bullet) at 12.

Furthermore, the old program stated that although

individuals convicted of murder would be excluded from the

program, "[t]he final decision to admit or exclude

individuals convicted of rape, or arson, will be based upon

documentation of therapeutic treatment specific to the

offense." {Ex. A, § 2.24b {third bullet) at 421.)

(

) (Emphasis in original). The decision to admit or exclude

these individuals would be made by the Vanguard

President/CEO. Id.

The new program, however, states that:

Inappropriate referrals to the Viviendo Saludable program are

• Clients who are suicidal or need Psychiatrichospitalization.

• Clients who are homicidal or have a conviction for murder.

• Clients how [sic] have a conviction [f]or rape, child sexual abuse, or arson.

6

• Clients assessed by CSB staff to otherwise pose a threat to self of [sic] others.

• Clients who have a conviction for distribution or manufacture of a controlled substance.

(Prelim. Inj. Mot., Ex. 1, § 2.24b (fifth bullet) at 12.)

In the old program, if a client violated the program's

rules, termination from the program was left to the

discretion of Viviendo staff. (Ex. A, § 320a, "Violation

of Program Rules," at 437.) In the new program, such a

violation results in an automatic discharge of the client

from the program. (Prelim. Inj. Mot., Ex. 1, § 320a,

"Violation of Program Rules," at 35.)( ) Nor has Viviendo's "Client Handbook" remained

unchanged. In the old program, if a client re-entering the

facility was found to possess alcohol or drugs of any kind

"discharge from the program may be considered." (Ex. B,

No. 1 o at 4 5 6 . ) (Emphasis added). In the new program,

such an offense unequivocally results in discharge from the

program. (Prelim. Inj. Mot., Ex. 7, No. 10 at 9.) In the

old program, a refusal upon request to produce a random

urine sample did not mandate dismissal (Ex. B, No. 14 at

458); whereas in the new program, such a refusal results in

7

dismissal from the program. (Prelim. Inj. Mot., Ex. 7, No.

14 at 11.)

A preliminary injunction is not warranted in this case

because Vanguard has set forth an entirely new program.

The Zoning Administrator has not determined one way or the

other, and has not been asked to determine, whether this

new program meets the definition of a Group Residential

Facility under the Fairfax County Zoning Ordinance ("Zoning

Ordinance"), and certainly the BZA's decision and the

Circuit Court's Final Order do not address this new

program. See Board of Zoning Appeals v. Univ. Square

Assocs., 246 Va. 290, 295, 435 S.E.3d 385, 388 (1993)(

(observing that the only issue before the Circuit Court and

the BZA was whether the Zoning Administrator's

determination was correct). The Zoning Administrator, the

BZA, and the Circuit Court reached a decision only as to

the old program, with all of its flaws and defects, and no

decision exists as to this fundamentally different program

that Vanguard now presents.

By apparently abandoning the program that the BZA and

the Circuit Court rejected, vanguard is free to either

operate its new program as a by-right use if it is a Group

8

Residential Facility, 4 or, if it remains concerned that

even the new program will run afoul of the Zoning

Ordinance, seek a determination from the Zoning

Administrator, just as it did in February of 2001, as to

whether its new program meets the Group Residential

Facility definition. Vanguard, however, cannot concoct a

controversy in this Court merely to avoid the state zoning

process. It essentially asks this Court for an advisory

opinion as to the new program. This Court should not grant

Vanguard's request for a preliminary injunction because no

such injunction is necessary at this time.

II. THIS COURT SHOULD NOT GRANT VANGUARD'S REQUEST FOR A PRELIMINARY INJUNCTION BECAUSE VANGUARD HAS NOT MET

) ITS BURDEN FOR SUCH DRASTIC RELIEF.

Assuming arguendo that the Court determines that Vanguard is

currently hindered by the BZA decision and the April 10, 2002,

Final Order of the Circuit Court of Fairfax County ("Final

Order") from placing eight people at Viviendo, Vanguard is not

entitled to a preliminary injunction because it has failed to

establish the factors necessary for this Court to grant such an

injunction.

4

u

It must be emphasized that a "by-right use" is exactly what the name implies. It is a use that may be undertaken without

any special approval or sanction by the Zoning Administrator,

BZA, or Board of Supervisors.

"A preliminary injunction is an 'extraordinary remedy

involving the exercise of very far-reaching power to be granted

only sparingly and in limited circumstances.'" Giant Brands,

Inc. v. Giant Eagle, Inc., 228 F. Supp. 2d 646,-, available at

No. Civ.A.AW-02-320, 2002 U.S. Dist. LBXIS 20817, at *10-11,

(quoting Direx Israel, Ltd. V. Breakthrough Med. Corp., 952 F.2d

(4 th802, 812 Cir. 1991)). Furthermore, "mandatory preliminary

injunctions do not preserve the status quo and normally should

be granted only in those circumstances when the exigencies of

the situation demand such relief." Wetzel v. Edwards, 635 F. 2d

(4 th 52 8 3 , 2 8 6 Cir . 19 8 O ) •

The plaintiff bears the burden of establishing that the

following factors favor granting the injunction: (1) the

likelihood of irreparable harm to the plaintiff if the

preliminary injunction is denied, (2) the likelihood of harm to

the defendant if the requested relief is granted, (3) the

likelihood that the plaintiff will succeed on the merits, and

s Despite Vanguard's attempt to characterize their request as

merely a prohibitory injunction, that is, to prohibit

enforcement of the BZA decision and Final Order, it is actually

a mandatory injunction because, in essence, they request an

order from this Court mandating that Vanguard be allowed to

place eight residents within its facility. Of course, as

Defendants repeatedly state, since Vanguard proposes a new

program, no injunctive relief is even necessary.U_j 10

(4) the public interest. Manning v. Hunt, 119 F.3d 254, 263 (4th

Cir. 1997) (quoting Direx Israel, 952 F.2d at 812).

Under the balance-of-hardship test set forth by the Fourth

Circuit in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550

(4thF.2d 189 Cir. 1977), this Court must first determine the

harm that will be suffered by the plaintiff if an injunction is

not granted. "The required irreparable harm must be neither

remote nor speculative, but actual and imminent." Direx Israel,

952 F.2d at 812. "A plaintiff, seeking preliminary relief, must

show the present threat of irreparable harm." Id. at 816. Once

a plaintiff successfully demonstrates that it will suffer actual

and immediate harm, the court must then balance this harm

) against the harm which would be suffered by the defendants if

his preliminary injunction is granted. Manning, 119 F.3d at

263. 6

If the balance does not tip decidedly in favor of the

plaintiff, then the plaintiff has the significant burden of

making a strong showing of likelihood of success on the merits.

6 While Vanguard recognizes that this Circuit employs the balance of hardship test in determining whether to grant a preliminary injunction, it then relies on law from other Circuits to suggest that the Court should look first to a likelihood of success on the merits and then presume irreparableharm if the plaintiff can persuade the court of the likelihood of success. (Prelim. Inj. Mot. at 9.) This is simply not the law of this Circuit.

11

Direx Israel, 952 F.2d at 818. Finally, the plaintiff must also

demonstrate that granting of the injunction is in the public's

interest. Manning, 119 F.3d at 263-264.

A. Vanguard Fails to Show That It Will Be Irreparably Harmed.

Vanguard's purported "irreparable harm" is neither

actual nor imminent. See Direx Israel, 952 F.2d at 812. First,

it claims that it may be forced to cease operating if it is not

permitted to operate with eight residents. (Prelim. Inj. Mot.

at 13.) It also claims that it is prevented from providing

treatment and recovery services to four individuals and their

families who are suffering from the effects of substance abuse

pending resolution of this case. (Prelim. Inj. Mot. at 11.)

Neither of these claims warrants the extraordinary relief of a

preliminary injunction.

With regard to its claim that its funding is in

jeopardy, Vanguard wholly fails to explain why it waited over 18

months to request this extraordinary relief at this late

juncture. This delay demonstrates not only a lack of imminent

harm, but also a lack of concern that funders would truly view

Viviendo's decreased capacity unfavorably.

Vanguard's claim relies solely on the declaration of

Deborah L. Volz, Vanguard's President and Chief Executive

12

,.

Officer. Prelim. Inj. Mot. Ex. 3. Volz states that Vanguard is

funded through September 2003. Prelim. Inj. Mot. Ex. 3, 5.

She then summarily concludes, however, that "continued funding

is unlikely;, unless Vanguard operates with eight residents, id.,

8, and that absent such funding, Vanguard will be "forced" to

close. Id., 9. Such assertions are mere speculation that

funding may not be granted. Indeed, Vanguard has provided no

facts to suggest funding will be provided if Vanguard has eight

residents from now until trial. Moreover, Vanguard expressly

acknowledges that this purported harm is not imminent because it

will not occur, if at all, until September 2003-more than eight

months from now. 7 Accordingly, Vanguard has not met the

· ) requirement of actual and immediate harm.

Vanguard is also unable to demonstrate to the Court

that it requires the extraordinary relief of a preliminary

injunction in order to provide treatment and recovery services

to four individuals and their families who are suffering from

the effects of substance abuse pending resolution of this case.

The basis of the pending action is the ruling made by the BZA

regarding a proposal submitted by Vanguard to the Zoning

Administrator and later to the BZA. Regardless of whether

7 Defendants will agree to a trial date prior to September30, 2003, in order to eliminate this concern.

13

Vanguard agreed with the BZA that the proposal submitted failed

() to ensure that Viviendo's residents are "handicapped" under the

FHA, from July 2001 to the present, Vanguard was free to revise

its program to address the concerns of the BZA and to begin to

operate Viviendo with eight residents. Contrary to Vanguard's

assertions, none of the Defendants have ever claimed that

residentially-based substance abuse treatment facilities are

limited to four people. As long as such a facility meets the

definition of a Group Residential Facility, the Zoning Ordinance

specifically permits up to eight residents.

In fact, as discussed in Part I, and unknown to the

Defendants, at some point subsequent to the BZA's decision,

Vanguard revised its program to address the concerns of the BZA.

It appears from Vanguard's Motion that the new program is the

program Vanguard now seeks a preliminary injunction to operate,

and that it has abandoned the program the BZA rejected. Thus,

Vanguard does not need relief from the BZA ruling or the Final

Order to operate the new program because the new program is not

the subject of either the BZA decision or the Final Order. See

Commonwealth v. Harley, 256 Va. 216, 219, 506 S.E.2d 852, 854

(1998) (observing that it is improper for a court to render

advisory opinions, decide moot questions, or to answer inquiries

that are merely speculative).

) 14

Vanguard incorrectly suggests that this Court may

consider the injury to the four potential, unidentified,

hypothetical individuals when considering the irreparable harm

factor. 8 (Prelim. Inj. Mot. at 12.) Clearly, however, Vanguard

must make some affirmative showing that the four individuals

purportedly excluded from its facility are handicapped as

alleged by Vanguard and meet the eligibility requirements of

Vanguard's program. Indeed, Vanguard's "proof" that such

individuals even exist is a self-serving letter from the

Arlington County Department of Human Services dated November 5,

2002. Prelim. Inj. Mot. Ex. 20. The letter does not state that

the listed individuals are recovering substance abusers, that

they have completed a period of detoxification, that they have

abstained from using drugs and/or alcohol for 72 hours, and that

they have never been convicted of a crime of violence or a crime

involving the distribution or sale of a controlled substance, as

required in their new program description. (Prelim. Inj. Mot.

8 It must also be noted that at least with regard to its ADA claims, Vanguard lacks standing to assert as its own injury the injury to potential residents. Title II of the ADA under which Vanguard brings this action expressly limits the class of

persons who may bring such claims to the "disabled." 42 U.S.C. § 12132. Because Vanguard is not itself "disabled," the ADA does not permit Vanguard to assert the injuries of others. See, e.g., Kessler Inst. For Rehab. v. Mayor and Council of Borough

of Essex Falls, 876 F. Supp. 641, 653 (D.N.J. 1995} (holding that entity serving the disabled was not a "qualified individual(s) with a disability," and dismissing entity's ADA claims}.U_j 15

Ex. 1 at 11-12.) Without any such showing, it is impossible to

assess whether these people are even being denied their housing

rights as provided by the FHA.

B. The Issuance of a Preliminary Injunction Will Irreparably Harm the Defendants.

Vanguard�s Motion fails to consider the

substantial, significant, and irreparable harm that the

Board and the Zoning Administrator will suffer if a

preliminary injunction is granted in this case. In sum,

vanguard's request, if granted, negates the ability of

Fairfax County and its duly-appointed officials to exercise

their sovereign right to establish and to administer

comprehensive land use policy. Vanguard's Complaint and

) this Motion attempt an end-run around the requirements of

Virginia law that when the Zoning Administrator has made a

determination regarding the application and interpretation

of the Zoning Ordinance, that determination may be appealed

to the BZA. Va. Code Ann. § 15.2-2311.

Vanguard asks this Court to serve as a kind of

"super BZA,"-a function that robs both the Commonwealth of

Virginia and Fairfax County of certain inalienable rights

and powers; it intrudes upon Virginia's inherent ability to

create a comprehensive land use policy, and it interferes

U_) 16

( with Fairfax County's inherent ability to establish and

administer that policy for its own jurisdiction. See

Gardner v. City of Baltimore Mayor, et al., 969 F.2d 63,

67-68 (4th Cir. 1992) (observing that "'Federal judges lack

the knowledge of and sensitivity to local conditions

necessary to a proper balancing of the complex factors'

that are inherent in municipal land-use

decisions.") (quoting Sullivan v. Town of Salem, 805 F. 2d

( 2 nd81 , 8 2 Cir . 19 8 6 ) ) .

Virginia's General Assembly has granted to local

governments wide-ranging authority to establish

comprehensive land use policy. See generally Va. Code Ann.

) § 15.2-2200 through -2337 (LNMB 1997 and Supp. 2002). This

authority includes, among others, the power to develop a

comprehensive plan, to subdivide, and to zone. See Va.

Code Ann. Chapter 22, Articles 3, 6, and 7 respectively.

The zoning power permits local governments to determine how

and in what manner land within its jurisdiction is to be

used, and it is a legitimate state objective for such

ordinances to facilitate "the creation of a convenient,

attractive and harmonious community." City of Manassas v.

Rosson, 224 Va. 12, 21, 294 S.E.2d 799, 804(1982). See

uJ also, Va. Code Ann. § 15.2-2280. Zoning has been described

17

as \\the most essential function performed by local

government . " Pomponio v. Fauquier County Bd. of

(4thSupervisors, 21 F.3d 1319, 1327 Cir. 1994) (quoting

Village of Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (J.

Marshall dissenting)).

Taken together, the zoning statutes strike a

deliberate balance between private property rights and

these important public interests. Board of Supervisors v.

Snell Constr. Corp., 214 Va. 655, 657, 202 S.E.2d 889, 892

(1974). Indeed, the Virginia General Assembly has

established a careful, complex, and comprehensive scheme

for carrying out this zoning function. It has determined

(

. ) how and in what manner a local government may adopt a

zoning ordinance. See, e.g., Va. Code Ann. § 15.2-2204

(setting forth specific requirements for providing notice

of any enactment or amendment of a zoning ordinance). It

has provided that a locality's zoning ordinance must treat

similarly situated property in a uniform manner. Va. Code

Ann. § 15.2-2282. The Virginia General Assembly has

authorized the appointment of a zoning administrator to

administer and enforce the ordinance, Va. Code Ann. § 15.2-

2286, and has provided an established method and forum for

challenging decisions of the Zoning Administrator. See

18u�_J

�

generally, Va. Code Ann. §§ 1s.2-230·9, 15.2-2311 through

-2314. That forum is the BZA, and, on appeal, the Circuit

Court of Fairfax County, not this Court.

Granting Vanguard's Motion for a Preliminary

Injunction upsets this carefully crafted scheme. First,

the Zoning Administrator will possibly be confronted with

two directly contradictory orders from two different

sovereigns: a state court order declaring that the

Viviendo program is not a Group Residential Facility versus

a federal court order declaring that the program is, or

probably is, a Group Residential Facility. Nor is there

any established forum or process that directs which order

takes precedence.

Second, having this Court step in and second-guess

the BZA seriously disrupts Virginia's ability, at both the

state and local governmental levels, to devise and maintain

a comprehensive and uniform system of local land use law.

It is simply disruptive for the federal judiciary, through

this Court, to interfere with this established law. It

deprives local citizens of the opportunity to participate

in matters that directly involve them, thus compromising

their due process rights. It essentially allows the

federal judiciary to rezone discreet parcels of land within

19

a locality, and to do so without any regard for other

similarly situated property, how that rezoning impacts

neighboring parcels, or the overall comprehensive plan for

that community. See Gardner, 969 F.2d at 67-68. These

vital, legitimate interests of state and local government

are wholly ignored by Vanguard.

C. Vanguard Wi11 Not Prevai1 On the Merits.

In order to establish a violation of the Fair Housing

Act, Vanguard must demonstrate either intentional discrimination

or discriminatory impact." Oxford House, Inc. v. City of

Virginia Beach, 825 F. Supp. 1251, 1258 (E.O. Va. 1993). While

the Complaint only pleads discriminatory impact, the Motion for

Preliminary Injunction also asserts a discriminatory intent on)

the part of the BZA. Regardless of whether discriminatory

intent was properly pled, Vanguard has failed to demonstrate a

strong likelihood of success on either basis and therefore the

preliminary injunction should be denied.

The BZA decided that Vanguard's proposed program would

accommodate residents who did not meet the definition of

"handicapped" under the Fair Housing Act ("FHA"). ( Prelim. Inj.

Mot., Ex. 4; Defendants' Memorandum in Support of Motion to

Dismiss, Ex. 14, 16, 17, 18 and 19.) In rendering its decision,

the BZA had before it Viviendo's proposed program description,

20'._)

21

the June 13, 2000, CSB Proposal, the Zoning Administrator's

determinations, the Staff Report of the Department of Planning

and Zoning, correspondence from counsel for Vanguard and counsel

for the Appellant Citizens, and several hours of testimony.

(See Def. Mem. in Supp. of Mot. to Diam., Ex. 3, 6, 7, 8, 9, 10,

11, 12, and 13.) The critical issue of concern to the BZA was

the exclusion of "current, illegal use of or addiction to a

controlled substance" from the FHA definition of "handicapped."'

This issue, which requires a determination of when a

person is no longer a current user or addict of a controlled

substance and instead is a recovering substance abuser, is

undoubtedly a close call. The FHA is vague on the issue and all

that can be gleaned from the case law is that someone who has)

been able to control a craving for illegal substances for some

undefined period of time must not be denied access to housing on

9 See Prelim. Inj. Mot., Ex. 4, at 5 ("So the question is

whether this Board really thinks that based on the facts that have been presented to us, whether the participants in this program are going to be involved in sufficiently current drugactivity to bring it within the Act where under 42USC3602H [sic]there is a specific exclusion for current illegal use or addition to a controlled substance."); Id. at 6 ("Is this use a group residential facility as that term is defined in the Ordinance because the residents are deemed handicapped. Or is the facility within the addiction exception, in subsection C of the definition of a group residential facility.") U_j

the basis of that craving. 10 See United States v. S. Mgmt.

Corp., 955 F.2d 914, 920 (4th Cir. 1992) (observing that the

"current, illegal drug use of or addition to a controlled

substance" exclusion is ambiguous). Congress' silence regarding

the definition and the absence of authority suggesting an

adequate time for abstinence when dealing with the FHA left room

for reasonable minds to disagree as to the outcome. As such,

Vanguard cannot contend that the issue is so clear or well­

settled that at this juncture it will prevail on the merits.

While the definition of "current illegal use or

addiction to a controlled substance" may be questionable, there

is no question that the BZA acted without a discriminatory(

,,) intent in reaching its decision. There are six factors to be

considered in determining a discriminatory purpose from a

defendant's conduct: "(l) the discriminatory impact of the

official action; (2) the historical background of the decision;

(3) the 'specific sequence of events leading up to the

challenged decision;' (4) departures from the 'normal procedural

sequence ... ;' (5) departures from normal substantive criteria;

10 Defendants continue to maintain that this period of

abstinence cannot be so lengthy as to obviate the need for treatment. Notwithstanding the BZA's decision and the Circuit Court's Order, the intent of Vanguard's original programprovided an adequate period of abstinence, even if Vanguard's

actual program materials were arguably defective in this regard.U_j 22

and (6) the legislative or administrative history of the

decision." Atkins v. Robinson, 545 F. Supp. 852, 871 (E. D. Va.

1982) (quoting Village of Arlington Heights v. Metro. Housing

Dev. Corp., 429 U.S. 252, 266-268 (1977)). There is little, if

anything, about the procedural posture of this case or the BZA

hearing that gives rise to a conclusion that the BZA acted in a

manner inconsistent with these factors.11

The verbatim transcript of the motion of the June 26,

2001, BZA public hearing clearly demonstrates that while the BZA

conducted an open, public hearing on the matter as it is

required to do under Virginia law, see Va. Code Ann. § 15.2-3707

(LNMB 2001), the members were clearly relying on the materials

) they had read, the case law they had reviewed, and the arguments

presented by counsel in reaching their decision, as opposed to

any discriminatory animus. (Prelim. Inj. Mot., Ex. 4.) The

transcript of the BZA hearing reveals that instead of being

11 Although some citizens expressed sentiments reflective of

their speculative fears about substance abusers, there is no

basis for concluding that the BZA's actions directly stemmed

from these comments. To suggest that merely because there was

vocal opposition to the program that the entire process is

somehow tainted contradicts principles of open debate and public

comment that are critical in a democracy. Moreover, in the

context of a public hearing, the BZA could not have controlled

or curtailed the unfortunate comments of some citizens.

Finally, although Vanguard disagrees with the ultimate result of

the BZA decision, without more, reaching the wrong result fails

to show a discriminatory intent.

23

motivated by unlawful discrimination, the various members

struggled with legal definitions that are confusing and

ambiguous. S. Mgmt. Corp., 955 F.2d at 920. Moreover, they

were reluctant to reach their decision because they recognized

and supported the critical need for substance abuse treatment

facilities such as Vanguard's. See Prelim. Inj. Mot., Ex. 4 at 1

{"I have a whole lot of stuff to refer to and sort of

incorporate into (the motion reversing the Zoning Administrator)

because I think this is a very difficult decision in many

respects."); id. at 7 {"Substance abuse is a major problem. It

cuts across all levels of society. Fairfax County needs these

facilities ... I personally believe these need to be located

) in residential areas of the community."); id. at 8 {"So I'm

going to have to support the motion, very, very reluctantly.").

Thus, Vanguard simply fails to sufficiently address

the factors outlined in Atkins by which this Court could

conclude that the BZA acted with a discriminatory intent. See

Atkins, 545 F. Supp. at 871. There is no history of the BZA

establishing that it discriminates against substance abusers.

See id. The sequence of events both before and after the BZA

hearing comported with the established law. See Va. Code Ann.

§§ 15.2-2286, 15.2-2311, and 15.2-2314. The BZA did not depart

from normal procedures or normal substantive criteria in

_) 24

l

I •f I

reaching its decision. See Atkins, 545 F. Supp. at 871.

Finally, and as set forth above, the actual hearing demonstrated

only that the BZA carefully considered the all of the arguments

before it and struggled with what was a very difficult decision.

D. Proper Regard for the Public Interest Weighs in Favor of the Defendants.

The issue regarding how the public interest would

be served by granting Vanguard's Motion does not require an

analysis of whether society would be better off by serving

an additional four substance abusers. See Prelim. Inj.

Mot. at 30. Neither the Board of Supervisors nor the Zoning

Administrator contest the real and substantial need for

substance abuse treatment facilities, or more particularly,

) the need for such programs conducted in Spanish. 12 Indeed,

even the BZA recognized the critical need for such

programs, and as noted above, it reached its decision

reluctantly. Vanguard, however, misconstrues the issue

because as set forth in Section I, no preliminary

injunction is necessary for it to operate its facility with

eight handicapped residents. The BZA's decision merely

held that the old program might admit people who did not

12 Of course, given the fact that the Board and the ZoningAdministrator contested the BZA's decision in the first place, it is well-established that they fully support the need for such

programs. 25

' . . .

meet the definition of handicapped under the FHA, and as

such, the proposed facility was not a Group Residential

Facility.

Vanguard, however, has concocted an injury of

purportedly federal proportions in an apparent effort to

circumvent the state and local process for assessing

whether its use is allowed by right under the Zoning

Ordinance. As set forth above in Section IIC, not only

does Vanguard not have the right to avoid this process, but

it would exact an irreparable injury to Fairfax County, its

officials, citizens, and to the Commonwealth of Virginia if

Vanguard were permitted to do so.

Zoning issues of this sort are uniquely and

inherently matters of local governmental concern. If

Vanguard's new program is, indeed, a Group Residential

Facility because its residents are handicapped under the

FHA, then it is a by-right use, and Vanguard does not need

any advance approval to operate. If, however, Vanguard is

reluctant to operate its facility without advance approval,

that review and approval is the prerogative of the Zoning

Administrator and not this Court. Moreover, under the

process established by Virginia's General Assembly, any

such determination of the Zoning Administrator may be

26� J

# • • •

appealed to the BZA-a fact which no doubt compels

Vanguard's actions here. See Va. Code Ann. § 15.2-2311.

In short, the public interest is in no way served by

sanctioning Vanguard's efforts to move the forum of this

dispute for its own purposes.

CONCLUSION

For all of the foregoing reasons, the Board of Supervisors

and the Zoning Administrator ask this Court to deny Vanguard's

Motion for a Preliminary Injunction, and to grant such other

relief as this Court deems appropriate.

BOARD OF SUPERVISORS OF FAIRFAX

COUNTY)

and

JANE W. GWINN, FAIRFAX COUNTY ZONING ADMINISTRATOR

U_j 27

. . , ,.

( DAVID P. BOBZIEN COUNTY ATTORNEY

By �� d� Cyntia A. Bailey�- 37822)

Sheila M. Costin (VSB No. 31452)

Assistant County Attorneys 12000 Government Center ParkwaySuite 549 Fairfax, Virginia 22035-0064 (703) 324-2421 Counsel for Defendants Board of Supervisors of Fairfax Countyand Jane W. Gwinn, Fairfax County Zoning Administrator

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was hand-delivered on the 8th day of January 2003, to:

Elizabeth Platts-Mills Lois Williams Reed Colfax

) Washington Lawyers' Committee for Civil Rights & Urban Affairs

11 Dupont Circle, N.W. #400 Washington, D.C. 20036

John P. Relman Christy LopezRelman & Associates 1350 Connecticut Ave., N.W. Washington, D.C. 20036-1738

John H. Foote Alice G. Haase Walsh, Colucci, Stackhouse, Emrich & Lubely,

P.C. 9324 West Street, Suite 300 Manassas, Virginia 20110

Counsel for Plaintiff Vanguard Services Unlimited, Inc.

28

. "' ,. .

Brian M. McCormack

Dunn, McCormack & MacPherson

3925 University Drive

Fairfax, Virginia 22030

John M. Bredehoft

Venable, Baetjer & Howard,

8010 Towers Crescent Drive

Suite 300

Vienna, Virginia 22182

LLP

Counsel

County

for the Defendant Board of Zoning Appeals of Fairfax

(

)

29

·' r"'\

•

VIVIENDO SALUDABLE

URINE PROCEDURE

The program Viviendo Saludable will conduct regular, routine, random urine testing on all clients. Each client will be required to produce a urine sample at the time of admission, and randomly thereafter as needed. The urine protocol is supervised by a residential staff to ensure that the established procedur.es are followed.

Admission Urine Test: All individuals presenting for intake are required to submit a urine sample, which will be tested at the facility to identify all drugs currently being used. Initial Drug Screening will be conducted using the Roche Diagnostic TestStik.

Regular, routine and random urine testing will be conducted using the same system mentioned above. Urine tests are conducted weekly at a minimum on all VS clients.

The test is done on a routine and random basis by a VS residential staff.

Transition clients urines are collected randomly· upon return form pass. Transition urines will be pulled in the established consecutive group schedule.

A urine collection form will be completed, and the residential staff will make the necessary documentation in the urine log book. A copy of the urine result should be sent to the jurisdictions at the end of each month. This report indicates to the jurisdictions the number of urines taken each month.

•STAT URINES: ·under certain circumstances it will be necessary to obtain immediate confinnation •regarding a client's_ urine. These conditions could include concern about the client community and

maintenance boundaries and integrity. .

Stat Urines can be taken to Arlington Hospital Lab after the staff has called and infom, the lab that urine · results are needed. The lab will then call with the results. When a positive result is confinned a printed

report is requested.

Universal precautions must be followed when handling all urine samples. Gloves must be worn and hand must be washed to assure that skin does not come in contact with body fluids.

Positive urine results must be communicated to the jurisdictional Case managers and P .O's immediately. After the confirmation of the positive urine test is completed, client may be discharged if it. is detennined that the client used while in treatment