Municipal Regulation Of Group Homes And Sober Living Arrangements

Presenting a live 90-minute webinar with interactive Q&AMunicipal Regulation of Group Homesand Sober Living ArrangementsNavigating Complex Legal and Policy Issues When Zoningfor Community Residences for People With DisabilitiesWEDNESDAY, APRIL 26, 20171pm Eastern 12pm Central 11am Mountain 10am PacificToday’s faculty features:Daniel Lauber, AICP, Law Office of Daniel Lauber, River Forest, Ill.Henry C. Luthin, First Assistant Corporation Counsel, City of Boston, BostonPlease note that the materials distributed and available on Strafford's website for presenter DanLauber do not include several of the slides you will see during today's presentation. The slides thatare not included are nonsubstantive slides that require the accompanying narrative to be useful.The audio portion of the conference may be accessed via the telephone or by using your computer'sspeakers. Please refer to the instructions emailed to registrants for additional information. If you haveany questions, please contact Customer Service at 1-800-926-7926 ext. 10.

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Strafford Webinars - April 26, 20174/19/2017708–366–5200Strafford Publishing Webinar. April 26, 2017. Copyright 2017 by Daniel Lauber. All rights reserved. Used by Permission.Strafford Webinars - April 26, 2017

Strafford Webinars - April 26, 2017 Be intended to achieve a legitimategovernment interest Actually achieve that legitimate governmentinterest Constitute the least drastic means necessaryto achieve that legitimate government interestStrafford Webinars - April 26, 20174/19/2017

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Whichhouseis thegrouphome?Strafford Webinars - April 26, 2017

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Strafford Webinars - April 26, 2017“The group home is not, for purposes of a zoningordinance, a temporary living arrangement as would be agroup of college students sharing a house and commuting to anearby school. Every year or so, different college studentswould come to take the place of those before them. Therewould be none of the permanency ofcommunity that characterizes a residential neighborhood ofprivate homes. Nor is it like the so-called “commune” style ofliving. The group home is a permanent arrangementand akin to the traditional family, which also may besundered by death, divorce, or emancipation of the young.The purpose is to emulate the traditional family and not tointroduce a different “life style.”— City of White Plains v. Ferraioli, 313 N.E.2d 756 (N.Y.1974) at 758.Strafford Webinars - April 26, 20174/19/2017

“Zoning is intended to control types of housingand living and not the genetic or intimateinternal family relations of human beings. Solong as the group home bears the genericcharacter of a family unit as a relativelypermanent household, and is not a frameworkfor transients or transient living, it conforms tothe purpose of the ordinance.”— Moore v. City of East Cleveland, Ohio, 431 U.S. 494(1974) at 517, n. 9.

Strafford Webinars - April 26, 2017Best explained in United States v. City of Chicago Heights, 161 F.Supp.2d819 (N.D.Ill. 2001) which is in the downloaded materials for this webinar.Strafford Webinars - April 26, 20174/19/2017

Strafford Webinars - April 26, 20174/19/2017Adds “handicap” to list of protected classes,but also makes unique provisions for peoplewith “handicaps”“(3) For purposes of this subsection,discrimination includes (B) a refusal to make reasonableaccommodations in rules, policies, practices,or services, when such accommodationsmay be necessary to afford such person equalopportunity to use and enjoy a dwelling.”— §3604 (f)(3)(B)Strafford Webinars - April 26, 2017

Strafford Webinars - April 26, 20174/19/2017“The Committee intends that the prohibitionagainst discrimination against those withhandicaps apply to zoning decisions andpractices. The Act is intended to prohibit theapplication of special requirements throughland–use regulations, restrictive covenants,and conditional or special use permits thathave the effect of limiting the ability of suchindividuals to live in the residence of theirchoice in the community.”— House of Representatives Report Number 711, 100thCongress, 2d Session 311 (1988), reprinted in 1988U.S.C.C.A.N. 2173Strafford Webinars - April 26, 2017

Strafford Webinars - April 26, 20174/19/2017“Another method of making housingunavailable has been the application orenforcement of otherwise neutral rules andregulations on health, safety, and land-use ina manner which discriminates against peoplewith disabilities. Such discrimination oftenresults from false or over–protectiveassumptions about the needs of handicappedpeople, as well as unfounded fears ofdifficulties about the problems that theirtenancies may pose. These and similarpractices would be prohibited.”— House of Representatives Report Number 711, 100thCongress, 2d Session 311 (1988), reprinted in 1988 U.S.C.C.A.N.2173Strafford Webinars - April 26, 2017

Sober Homes inMassachusettsNuances and Cautionary NotesHenry C. LuthinFirst Assistant Corporation CounselCity of BostonHenry.Luthin@Boston.gov617.635.4024

State Issues Since the early 2000s, cities and towns inMassachusetts struggled with trying tocontrol Sober Homes which were extremenuisances in neighborhoods and wereexploiting the residents of the homes. In 2012, Sober Home operators and aphysician were indicted for conducting aninsurance scam involving unnecessaryand repeat drug tests for residents. Thiswas one of many issues involving theSober Home industry.

Sober Homes - Challenges In 2012, in response to a legislativemandate, the Massachusetts Departmentof Public Health conducted acomprehensive study on alcohol and drugfree housing, or Sober Homes. The study looked at the Fair HousingAmendments Act, the statutory andregulatory authority of DPH, the ability oflocal government to regulate, andsuggested a course of legislative action.

Sober Homes - ChallengesAmong the findings in the Study were that nocomprehensive directory of Sober Homes ispossible. Sober Homes do not need to belicensed in order to operate. Individuals inrecovery are disabled under the Fair HousingAmendments Act and the Americans withDisabilities Act.This presents a challenge with Sober Homeswhich are poorly run – or run by marginaloperators whose focus is to make a lot ofmoney on the backs of people in recovery.

Sober Homes - Challenges The Study noted the impact of a provision of theMassachusetts Zoning Act. [L]ocal land use and health and safety laws,regulations, practices, ordinances, by-lawsand decisions of a city or town shall notdiscriminate against a disabled person.Imposition of health and safety laws orland-use requirements on congregateliving arrangements among non-relatedpersons with disabilities that are notimposed on families and groups ofsimilar size or other unrelated personsshall constitute discrimination

Sober Homes - Challenges When Sober Homes are well run,neighbors may not be aware thatthere is a group home in theneighborhood. The effects of poorlyrun Sober Homes – which can runfrom noise complaints to run downproperty to household violence –have to be addressed by themunicipality.

Sober Homes - ChallengesSober Homes are subject to local zoning,building, fire, sanitary, and other codes.These codes are enforced by differentregulatory or public safety bodies.Nuisance and criminal complaints arehandled by the police; building codeviolations are handled by the buildinginspector; fire code violations by the firedepartment; fraud in billing by the AttorneyGeneral.

Sober Homes - Challenges Bottom line:It is difficult toquantify the impact of poorly runSober Homes on a neighborhoodbecause there is no centralrepository of complaints about aspecific address.

Sober Homes - Challenges The Joint Statement of DOJ and HUD on State and LocalLand Use Laws and the Application of the FHA states: Neutral laws that govern groups of unrelatedpersons who live together do not violate the Act solong as (1) those laws do not intentionallydiscriminate against persons on the basis ofdisability (2) those laws do not have anunjustified discriminatory effect on the basis ofdisability and (3) state and local governmentsmake reasonable accommodations when suchaccommodation may be necessary for a personwith a disability to have an equal opportunity touse and enjoy a dwelling.

City of Boston and Safe Haven In 2006, a project was built in theRoxbury section of Boston consisting ofeleven town houses. This was presentedto the City and the neighborhood as aproject of single-family residences. The developers proceeded to convertbasements and garages into bedrooms,without obtaining building permits oroccupancy permits.

City of Boston and Safe Haven Each building had 13 tenants, who wereall said to be in recovery from drug oralcohol addiction. Weekly rent wasinitially 140 per week, raised to 160per week. The operator of Safe Haven assignedrooms, moved tenants from one room orbuilding to another, scheduled drug andalcohol testing. There were no sharedmeals, and no pooling of funds topurchase food.

City of Boston and Safe Haven Over two years, approximately 800 tenantsresided in these 11 homes. The legal history is very convoluted. Bottomline, Safe Haven sued the City for failing tomake “reasonable accommodation”,violations of civil rights, violations of the FairHousing Act. After years of litigation, Safe Haven did notprevail on any issue, the City prevailed on itsbuilding and occupancy violations, andlitigation finally appears to be over. This wasa nightmare for the City and for residents inthe area.

City of Boston Response In 2012, the City of Boston enacted a ProblemProperties ordinance to address the problems not theparticular use. The City: Created an interdepartmental Task Forceconsisting of the Police, Fire, and InspectionalServices Commissioners, the Chief of Housing,staff of the Public Health Commission, theNeighborhood Services Director and others. A representative of the Law Department andthe Tax Title Division attends meetings. Task Force meets regularly to share data onproperties with significant or numerouscomplaints.