Abstract
Important progress has been achieved in recent years toward providing humane habilitative programming for developmentally disabled persons. This goal requires that these individuals not be warehoused in large, traditional institutions but rather be afforded the opportunity to live in community-based residential settings. This approach is called “normalization” — the principle of providing the “patterns of life and conditions of everyday living which are as close as possible to the regular circumstances and ways of life of society.”1 According to the principle, disabled persons, if unable to live with their families, should reside in homes of normal size, located in normal neighborhoods that provide opportunities for normal societal integration and interaction.2 Such community living permits developmentally disabled persons to reach their human potential and to become contributing, productive members of society.
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References
B. Nirje, “The Normalization Principle,” in Changing Patterns in Residential Services for the Mentally Retarded 231 (R. Kugel & A. Shearer eds. 1976).
Id. at 232.
See generally M. Kindred, Written Testimony submitted to Ohio General Assembly in support of Substitute Senate Bill 71 (June 15, 1977),
and J. Chandler and S. Ross, Jr., “Zoning Restrictions and the Right to Live in the Community,” in The Mentally Retarded Citizen and the Law 313 (M. Kindred ed. 1976).
See generally ARA Commission on the Mentally Disabled, “Community-BaseJ Mental Health Treatment: Impact of Zoning Development,” Clearinghouse Rev. 356 (Aug. 1977).
E.g., Wyatt v. Stickney, 344 F.Supp. 373 (M.D. Ala. 1972), aff’d sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Suzuki v. Quisenberry, 411 F.Supp. 1113 (D. Hawaii 1976).
E.g., Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§6001–6081 (Supp. V 1975).
E.g., COLO. REV. STAT. §§27–10.5–101 to 123 (Supp. 1976); FLA. STAT. ANN. §393.13 (West Supp. 1978); NEB. REV. STAT. §§83–1, 141 (Reissue 1976); OHIO REV. CODE ANN. §§5123.67 to .99 (Page Supp. 1977).
A variety of terms, such as “group homes,” “foster homes,” and “community residences” have been used to describe community-based residential facilities serving developmentally disabled persons. For purposes of this commentary, the generic term “community homes” has been used. The Act uses the term “family home” to define a particular type of community home covered by the Act. See the Model Act, Section 3, Definitions, infra at
N. Williams, 1 American Land Planning Law, ch. 16, at 327–43 (1974) [hereinafter cited as N. Williams].
Planning bodies in several political subdivisions have been sufficiently concerned about property values to conduct research on the question of the effect of community facilities on property values in residential neighborhoods. In none of these studies were the researchers able to verify any significant impact of such facilities upon property values. See generally The Social Impact of Group Homes: A Study of Small Residential Service Programs in First Residential Areas, prepared for the Green Bay, Wis. Plan Commission, prepared by Eric Knowles and Ronald K. Baba (June 1973); The Influence of Halfway Houses and Foster Care Facilities Upon Property Values, or City of Lansing, Mich., Planning Dept. (Oct. 1976); The Effect of Siting Group Homes on the Surrounding Environs, (White Plains, N.Y.) by Stuart Breslow (Nov. 1976); Michael Dear, “Impact of Mental Health Facilities on Property Values,” 13(2) Community Mental Health Journal 150 (1977).
R. Hopperton, Zoning for Community Homes: A Handbook for Local Legislative Change, 3 (Ohio State University Law Reform Project 1975).
416 U.S. 1 (1974).
See supra note 11. Comment, “Exclusionary Zoning and its Effect on Group Homes in Areas Zoned for Single Family Dwellings,” 24 Kan. L. Rev. 677, 683 (1976).
In some areas apartment buildings and duplex homes are increasingly being utilized in the placement of developmentally disabled persons. One reason for this development is that the use of multiple family dwelling units by small numbers of developmentally disabled persons living independently can many times avoid zoning obstacles that face community homes located in free-standing single-family dwelling units because local definitions of “family” permit only up to three, four, or five unrelated persons to live together. A second reason may be that apartments and duplexes are a dominant form of housing in a given area and therefore provide a ready source for community living opportunities regardless of local zoning laws. No value judgment is offered on the question of the use of freestanding single-family homes versus apartments or duplexes. It should be said, nevertheless, that (1) a “family home” is defined for purposes of this Act as requiring “supervision in a family environment ...,” and (2) apartments are usually used for developmentally disabled persons capable of independent living without supervision in a family environment. In this latter case, as already indicated, zoning restrictions are a significantly lesser problem, and for this reason such apartment and duplex living arrangements are not treated in this Act.
A “conditionally permitted use” is a land use authorized in a particular zoning district only if certain requirements or standards are met and only after approval is given by the local zoning appeals board or other public body. The terms “conditional use,” “special use,” “special use permit,” and “special exception” are other terms often used by political subdivisions to designate a “conditionally permitted use.” “Conditionally permitted uses” are sometimes confused with “variances” which are granted normally only to relieve a particular hardship arising from application of a zoning ordinance. Finally, a “permitted use” is to be contrasted with a “conditionally permitted use.” The former is a use by right specifically authorized in a particular zoning district. See M. Meshenberg, The Language of Zoning (American Society of Planning Officials, Planning Advisory Service Report No. 322, Nov. 1976).
See J. A. Chandler and S. Ross, Jr., “Zoning Restriction and the Right to Live in the Community,” in The Mentally Retarded Citizen and the Law 313 (M. Kindred ed. 1976).
Id. at 314.
See “Crackdown Planned on Homes for Mentally III,” Dayton Journal Herald.. (Dayton, Ohio) April 13, 1978, at 9.
Id.
The Ohio experience prior to passage of SB 71, legislation of the sort contemplated by this Act, is instructive. Major efforts aimed at breaking down zoning barriers facing community homes were undertaken by various reform groups at the local level in 1975 and 1976. The Ohio Association for Retarded Citizens formed a special zoning subcommittee of its Legal and Governmental Affairs Committee. The Ohio Developmental Disabilities Planning and Advisory Council and the Law Reform Project at the Ohio State University, College of Law, jointly undertook the development, publication, and distribution of zoning handbooks aimed at local legislative change. See R. Hopperton, Zoning for Community Homes: A Handbook for Local Legislative Change, and Zoning for Community Homes: A Handbook for Municipal Officials, (Ohio State University Law Reform Project 1976). In addition, various ad hoc zoning committees were established in communities around the state. At the time these efforts were undertaken, approximately six Ohio political subdivisions permitted community homes for developmental disabled persons in some manner (usually conditionally). After approximately one year of intensive efforts, only five more communities had reformed their zoning regulations to permit community homes (again, usually on a conditional basis). Thus, notwithstanding a major investment of time and resources only eleven of Ohio’s over 930 municipal corporations specifically allowed community homes for devel-opmentally disabled persons. In numerous communities in the state, reform efforts were met by flat rejection or interminable delays. One community tightened its zoning ordinance to close a possible loophole that could have permitted a community home. Increasingly, the response given by cities for not reforming their local zoning regulations was, If we allow one community home, we will be deluged by others.” It became obvious to conoerned groups and individuals in Ohio that no amount of time or effort would result in any significant number of Ohio’s political subdivisions voluntarily admitting community homes. As a consequence, Ohio reform organizations led by the Ohio Association for Retarded Citizens and the Law Reform Project concluded that state-wide legislation constituted the only answer to local zoning barriers. Substitute Senate Bill 71 was drafted, introduced, and passed overwhelmingly by the Ohio General Assembly (OHIO REV. CODE ANN. §5123.18 (Page Supp. 1977), effective October 31, 1977). For discussion see “Review of Recent State Legislation.”
See Chart on State Zoning Laws Regulating Community Facilities for Developmentally Disabled Persons [hereinafter cited as Chart], infra, at
Id.
Additionally, state courts have increasingly provided more active and informed judicial review of local legislation restricting or excluding community homes. These cases, which strike down exclusionary regulations and practices, are well summarized in the recent concurring opinion of Mr. Justice Stevens in Moore v. East Cleveland, 431 U.S. 494 (1977). Mr. Justice Stevens states [I]n well-reasoned opinions, the courts of Illinois, New York, New Jersey, California, Connecticut, Wisconsin and other jurisdictions have permitted unrelated persons to occupy single family residences notwithstanding an ordinance prohibiting, either expressly or implicitly, such occupancy. The state decisions have upheld zoning ordinances which regulated the identity, as opposed to the number, of persons who may comprise a household only to the extent that the ordinances require such households to remain non-transient, single-housekeeping units. [Footnotes omitted.] Id. at 516–17, 519. Both Mr. Justice Stevens and Mr. Justice Powell, writing for the court, indicate the legitimacy of zoning regulations which are directed specifically at typical zoning problems such as adequate parking and overcrowding of physical structures. Both indicate, however, that those problems can be addressed specifically and not directed toward restricting certain persons from living in a single-housekeeping unit. Mr. Justice Stevens also reviews state judicial opinions in which group living arrangements and community homes have not received favorable treatment. See also Comment, supra note 13, for an in-depth review of state case law regarding community homes.
E.g., architectural design and site layout.
As will be seen in the Model Act, the approaches taken by Rhode Island and Tennessee are not recommended since licensure of such homes is needed to insure appropriate levels of care for residents. Moreover, the Rhode Island approach creates unjustifiable reverse discrimination by exempting community homes from zoning requirements (e.g., height, parking restrictions) that apply to all other dwellings in the zone. The State of Maryland appears to have attempted to treat community homes very much like Rhode Island. The Maryland provision is contradictory, however, (“Although the public group home is exempt from any local zoning rule or regulation, public group homes may not be located in any area where specifically prohibited by the local zoning law.”) and therefore the effect of this provision has yet to be determined.
See supra note 15.
The validity of the California statute (CALIF. WELF. AND INST. CODE §§5115–5116) was upheld in City of Los Angeles v. California Department of Health, No. 116571 (Cal. Super. Ct. October 24, 1975), 1 Mental Disability L. Rep. 26. In its complaint, filed March 5, 1975, the city [of Los Angeles] sought, inter alia, an injunction prohibiting the State Department of Health and other defendants from licensing community care facilities in areas where such facilities would violate the Los Angeles Planning and Zoning Code. Los Angeles maintained that as a chartered city, it was not subject to State regulation or control with regard to municipal affairs, and that its regulation of land-use through zoning requirements constituted “municipal affairs.” Thus the city argued that it was entitled to exclude community care facilities from single family and certain other residential zones. In other words, the city contended that it was exempt from the California Welfare and Institutions Code (§§ 5115 and 5116), which requires that community care facilities serving six or fewer persons on a 24-hour non-medical basis be permitted in all residential zones, including single family areas. The California Department of Health argued in its answer, filed April 17, 1975, that the sections of the State code pertaining to community care facilities “embody a subject of statewide concern and said provisions must prevail over local ordinances which might otherwise be deemed appropriate municipal action.” In granting the defendants’ motion for summary judgment, the court declared that it was not necessary to decide the matter on constitutional grounds, since under the California code, “a state authorized, certified, or licensed family or group home serving six or fewer mentally disordered or otherwise handicapped persons [must] be considered a residential use of property” and such a use must be permitted in all residential zones in the city of Los Angeles. The court thus declared invalid and void those provisions of the Los Angeles Planning and Zoning Code prohibiting family and group homes in residential areas. 1 Mental Disability L. Rep. 26–27 (1976). See infra. note 34.
The Supreme Court of Montana upheld that states statute (MONT. REV. CODES ANN. §§11–2702.1-.2 (Supp. 1977)) that exempts community homes for developmentally disabled persons serving eight or fewer residents from local exclusionary zoning requirements. State ex. rel. Thelen v. City of Missoula, No. 13192 (Mont. Sup. Ct., Dec. 8, 1975), 543 P.2d 173, 1 Mental Disability L. Rep. 27 (1976).
The validity of. the New Jersey Statute (N.J. STAT. ANN. §30:4C-26 and §40:5533.2 (West Supp. 1977)) was sustained in Berger v. State of New Jersey, 71 N.J. 206, 364 A.2d 993 (1976), 1 Mental Disability L. Rep. 214 (1976).
See generally R. Anderson, 1 American Law of Zoning 2d, §§2.14–18(1977).
“Provisions of some sort for home rule are contained presently in constitutions of forty states....” See Alas. Const. art. X; Ariz. Const. art. XIII, §§2–3; Cal. Const. art. XI, §§35–37; Colo. Const. art XX; Conn. Const. art. X; Fla. Const. art. XIII 1(g), 2(b); Ga. Const. art. XV; Hawaii Const. art. VII, §2; Idaho Const. art. XII, §2; III. Const. art. VII, §6; Iowa Const. art. III, §40; Kan. Const. art. XII, §5; La. Const. art. VI; Me. Const. art. VIII-A; Md. Const. arts. XI-A, XI-E, XI-F; Mass. Const. art. of amend. II; Mich. Const. art. VII, §§2, 22; Minn. Const. art. XI, §3; Mo. Const. art. VI, §18(a)-(s), 19–19(a); Mont. Const. art. XI, §§5–6; Neb. Const. art. XI, §§2–5; Nev. Const. art. VIII, §8; N.H. Const. pt. I, art. XXXIX; N.M. Const. art. X, §6; N.Y. Const. art. IX; N.D. Const. art. VI, §130; Ohio Const. art. XVIII; Okla. Const. art. XVIII, §3–4; Ore. Const. art. XI, §2; Pa. Const. art. IX; §2; R.I. Const. art. of amend. XXVIII; S.C. Const. art. VIII, §11; S.D. Const. art. IX, §2; Tenn. Const. art. XI, §9; Tex. Const. art. XI, §5; Utah Const. art. XI, §5; Wash. Const. art. XI, §§10–11; W. Va. Const. art. VI, §39(a); Wis. Const. art. XI, §3; Wyo. Const. art. XIII, §1. K. Vanlandingham, “Constitutional Municipal Home Rule Since the AMA (NLC) Model,” 17 William and Mary L. Rev. 1, 4 n.9 (1975).
Ohio Const. art. XVIII, §3.
Cal. Const. art. XI, §7.
For Ohio, see Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 (1923); Youngstown v. Evans, 121 Ohio St. 342, 168 N.E. 844 (1929); and Village of West Jefferson v. Robinson, 1 Ohio St. 2d 113, 205 N.E.2d 382 (1965). For California, see In Re Porterfield, 28 Cal.2d 91, 168 P.2d 706 (1946); Johnston v. Board of Sup’rs of Martin County, 31 Cal. 2d 66, 187 P.2d 686 (1947); Oakland Raiders v. City of Berkeley, 65 Cal. App:. A.3d 623, 137 Cal. Rptr. 648 (1976). See also City of Los Angeles v. California Department of Health, supra note 26.
CAL. WELF. AND INST. CODE §§5115–5116 (Deering Supp. 1978).
OHIO REV. CODE ANN., §5123.18 (Page Supp. 1977).
This limitation on local zoning powers is likely to be a controversial issue in most states. Yet, it is negligible compared to the overriding importance of implementing state policies and programs to guarantee the right to humane care and habilitation and the right to live in a community setting for developmentally disabled persons. In addition, the proposed limitation is minimal in comparison to the vast range of zoning powers enjoyed by cities, townships, villages, and boroughs of the various states throughout the country. Moreover, given the unique nature and significance of these rights it is also important to note that such state action regarding zoning should in no way be viewed as the precursor of any broad inroads into the area of local land use regulation. Thus, the title of this Act accurately describes its thrust: first and foremost, it is state legislation designed to advance important rights of developmentally disabled persons and only secondarily is it a bill which imposes a limitation of local zoning power. This emphasis is important to remember when efforts are undertaken to achieve political support for the legislation.
See Berger v. State of New Jersey 71 N.J. 206, 364 A.2d 993 (1976) and Adams v. The Toledo City Plan Commission, No. 77–1198 (Lucas Co., Ohio Ct. of Common Pleas Dec. 7, 1977) holding that use of residential dwellings as community homes for mentally disabled children was not in conflict with private covenants. See also J. Morales, Missoula, MT. letter to M. Kindred, Sept. 28, 1977. For a case which held that a foster home for mentally retarded children was in violation of a private restrictive covenant, see Bellarmine Hills Association v. The Residential Systems Co., No. 77–156161 C2 (Oakland Co., Mich. Aug. 25, 1977).
Sections 5 and 6 of the Act are carefully and purposefully patterned after Sections 4 and 5 of the Mental Health Law Project’s zoning legislation draft for homes serving the mentally handicapped. The MHLP materials are thoughtfully designed and well-drafted. While the coverage and approach of the MHLP legislation is somewhat different, its general purposes are virtually identical to those of this Act. Thus, it is recommended that persons interested in zoning law reform with regard to community homes review both sets of materials carefully. The differences between this Act and the MHLP draft legislation are: (1) This Act includes a title clause; the MHLP draft does not. (2) This Act is designed to serve the “developmentally disabled person”; the MHLP draft serves the “mentally handicapped person.” (3) This Act defines “developmental disability”; the MHLP draft does not define either this term or “mental handicap.” (4) In order to assign appropriate responsibilities to state officers, this Act defines “director” [of developmental disabilities]; the MHLP draft does not define any analogous term or official. (5) This Act defines “permitted use” in order to make the zoning treatment for “family homes” as explicit and clear as possible. (6) This Act defines “political subdivision” to provide a means of dealing with municipal home rule problems. (7) This Act establishes a state licensing system for community homes. As indicated above, licensing is of fundamental importance to the protection of community home residents, to the effectiveness of density control provisions, and to the avoidance of local political pressures. (8) This Act establishes a procedure for notifying the governing body of the political subdivision in which a family home is to be located. Robert J. Hopperton, Associate Professor of Law at the University of Toledo College of Law, had primary responsibility for drafting the model statute.
See supra note 15.
N. Williams, supra note 3, at 330.
See MHLP, supra note 39.
Id. at §5 and Comment to §5.
See supra note 38.
1977 Wis. Laws, Ch. 205, §2 [to be codified in WIS. STAT. §46.03 (22)(d)].
See N.Y. General Obligations Law §5–331 (McKinney 1978) and TEX. REV. CIV. STAT. ANN. art. 1293a (Vernon Supp. 1978).
Massillon Savings and Loan Co. v. Imperial Finance Co., 114 Ohio St. 523, 151 N.E. 645 (1926).
Industrial Development & Land Co. v. Goldschmidt, 56 Cal. App. 507, 206 P.134 (1922).
See also Home Building & Loan Ass’n. v. Blaisdell 290 U.S. 398(1934).
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Sales, B.D., Powell, D.M., Duizend, R.V. (1982). Zoning for Community Homes. In: Disabled Persons and the Law. Springer, Boston, MA. https://doi.org/10.1007/978-1-4757-0794-6_12
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