Henry C. Luthin, First Assistant Corporation Counsel, City of Boston, Boston

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Municipal Regulation of Group Homes and Sober Living Arrangements Navigating Complex Legal and Policy Issues When Zoning for Community Residences for People With Disabilities WEDNESDAY, APRIL 26, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Daniel Lauber, AICP, Law Office of Daniel Lauber, River Forest, Ill. Henry C. Luthin, First Assistant Corporation Counsel, City of Boston, Boston Please note that the materials distributed and available on Strafford's website for presenter Dan Lauber do not include several of the slides you will see during today's presentation. The slides that are 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's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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4 Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the left-hand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 Strafford Webinars - April 26, /19/ Strafford Publishing Webinar. April 26, Copyright 2017 by Daniel Lauber. All rights reserved. Used by Permission. Strafford Webinars - April 26, 2017

6 Strafford Webinars - April 26, /19/2017 Be intended to achieve a legitimate government interest Actually achieve that legitimate government interest Constitute the least drastic means necessary to achieve that legitimate government interest Strafford Webinars - April 26, 2017

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8 Which house is the group home? Strafford Webinars - April 26, 2017

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12 Strafford Webinars - April 26, /19/2017 The group home is not, for purposes of a zoning ordinance, a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school. Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes. Nor is it like the so-called commune style of living. The group home is a permanent arrangement and akin to the traditional family, which also may be sundered by death, divorce, or emancipation of the young... The purpose is to emulate the traditional family and not to introduce a different life style. City of White Plains v. Ferraioli, 313 N.E.2d 756 (N.Y. 1974) at 758. Strafford Webinars - April 26, 2017

13 Zoning is intended to control types of housing and living and not the genetic or intimate internal family relations of human beings... So long as the group home bears the generic character of a family unit as a relatively permanent household, and is not a framework for transients or transient living, it conforms to the purpose of the ordinance... Moore v. City of East Cleveland, Ohio, 431 U.S. 494 (1974) at 517, n. 9.

14 Strafford Webinars - April 26, /19/2017 Best explained in United States v. City of Chicago Heights, 161 F.Supp.2d 819 (N.D.Ill. 2001) which is in the downloaded materials for this webinar. Strafford Webinars - April 26, 2017

15 Strafford Webinars - April 26, /19/2017 Adds handicap to list of protected classes, but also makes unique provisions for people with handicaps (3) For purposes of this subsection, discrimination includes (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling (f)(3)(b) Strafford Webinars - April 26, 2017

16 Strafford Webinars - April 26, /19/2017 The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community. House of Representatives Report Number 711, 100th Congress, 2d Session 311 (1988), reprinted in 1988 U.S.C.C.A.N Strafford Webinars - April 26, 2017

17 Strafford Webinars - April 26, /19/2017 Another method of making housing unavailable has been the application or enforcement of otherwise neutral rules and regulations on health, safety, and land-use in a manner which discriminates against people with disabilities. Such discrimination often results from false or over protective assumptions about the needs of handicapped people, as well as unfounded fears of difficulties about the problems that their tenancies may pose. These and similar practices would be prohibited. House of Representatives Report Number 711, 100th Congress, 2d Session 311 (1988), reprinted in 1988 U.S.C.C.A.N Strafford Webinars - April 26, 2017

18 Sober Homes in Massachusetts Nuances and Cautionary Notes Henry C. Luthin First Assistant Corporation Counsel City of Boston

19 State Issues Since the early 2000s, cities and towns in Massachusetts struggled with trying to control Sober Homes which were extreme nuisances in neighborhoods and were exploiting the residents of the homes. In 2012, Sober Home operators and a physician were indicted for conducting an insurance scam involving unnecessary and repeat drug tests for residents. This was one of many issues involving the Sober Home industry.

20 Sober Homes - Challenges In 2012, in response to a legislative mandate, the Massachusetts Department of Public Health conducted a comprehensive study on alcohol and drug free housing, or Sober Homes. The study looked at the Fair Housing Amendments Act, the statutory and regulatory authority of DPH, the ability of local government to regulate, and suggested a course of legislative action.

21 Sober Homes - Challenges Among the findings in the Study were that no comprehensive directory of Sober Homes is possible. Sober Homes do not need to be licensed in order to operate. Individuals in recovery are disabled under the Fair Housing Amendments Act and the Americans with Disabilities Act. This presents a challenge with Sober Homes which are poorly run or run by marginal operators whose focus is to make a lot of money on the backs of people in recovery.

22 Sober Homes - Challenges The Study noted the impact of a provision of the Massachusetts Zoning Act. [L]ocal land use and health and safety laws, regulations, practices, ordinances, by-laws and decisions of a city or town shall not discriminate against a disabled person. Imposition of health and safety laws or land-use requirements on congregate living arrangements among non-related persons with disabilities that are not imposed on families and groups of similar size or other unrelated persons shall constitute discrimination

23 Sober Homes - Challenges When Sober Homes are well run, neighbors may not be aware that there is a group home in the neighborhood. The effects of poorly run Sober Homes which can run from noise complaints to run down property to household violence have to be addressed by the municipality.

24 Sober Homes - Challenges Sober Homes are subject to local zoning, building, fire, sanitary, and other codes. These codes are enforced by different regulatory or public safety bodies. Nuisance and criminal complaints are handled by the police; building code violations are handled by the building inspector; fire code violations by the fire department; fraud in billing by the Attorney General.

25 Sober Homes - Challenges Bottom line: It is difficult to quantify the impact of poorly run Sober Homes on a neighborhood because there is no central repository of complaints about a specific address.

26 Sober Homes - Challenges The Joint Statement of DOJ and HUD on State and Local Land Use Laws and the Application of the FHA states: 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 (2) those laws do not have an unjustified discriminatory effect on the basis of disability and (3) state and local governments make reasonable accommodations when such accommodation may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling.

27 City of Boston and Safe Haven In 2006, a project was built in the Roxbury section of Boston consisting of eleven town houses. This was presented to the City and the neighborhood as a project of single-family residences. The developers proceeded to convert basements and garages into bedrooms, without obtaining building permits or occupancy permits.

28 City of Boston and Safe Haven Each building had 13 tenants, who were all said to be in recovery from drug or alcohol addiction. Weekly rent was initially $140 per week, raised to $160 per week. The operator of Safe Haven assigned rooms, moved tenants from one room or building to another, scheduled drug and alcohol testing. There were no shared meals, and no pooling of funds to purchase food.

29 City of Boston and Safe Haven Over two years, approximately 800 tenants resided in these 11 homes. The legal history is very convoluted. Bottom line, Safe Haven sued the City for failing to make reasonable accommodation, violations of civil rights, violations of the Fair Housing Act. After years of litigation, Safe Haven did not prevail on any issue, the City prevailed on its building and occupancy violations, and litigation finally appears to be over. This was a nightmare for the City and for residents in the area.

30 City of Boston Response In 2012, the City of Boston enacted a Problem Properties ordinance to address the problems not the particular use. The City: Created an interdepartmental Task Force consisting of the Police, Fire, and Inspectional Services Commissioners, the Chief of Housing, staff of the Public Health Commission, the Neighborhood Services Director and others. A representative of the Law Department and the Tax Title Division attends meetings. Task Force meets regularly to share data on properties with significant or numerous complaints.

31 City of Boston Response Those properties with four or more substantiated complaints - nuisance, code violations, police action - may be deemed problem properties subject to heightened scrutiny by city enforcement agencies. A companion ordinance increases the penalties for loud and unruly gatherings on premises and imposes liability on property owners. Where the incidents of code violations, crime or nuisance is unabated and the owner is refusing to cooperate with city officials, the property is subject to heightened surveillance and enforcement, and an electronic signboard may be placed by police in front of property.

32 City of Boston Response To date over 300 properties which have been cited as problem properties have had the problems addressed, and others in the preproblem stage have been brought up to code. We do not know how many Sober Homes are on this list.

33 State Issues The MZA has been used successfully by operators of Sober Homes to fight regulations which go beyond that imposed on residences occupied by a family related by blood, marriage or adoption. In Brockton Fire Department v. St. Mary Broad Street, LLC, 181 F. Supp. 3 rd 155 (2016), the City of Brockton, following a kitchen fire at the defendant ADF house, sought to require the installation of a sprinkler system pursuant to Massachusetts law. Defendants removed the case to federal court citing the Fair Housing Act.

34 State Issues The case was decided on state law grounds. State law does not require installation of sprinkling systems for homes of families containing six or more people. The Massachusetts Zoning Law (MZA) prohibits the imposition of health and safety laws on congregate living arrangements of non-related people with disabilities.

35 State Issues The Court noted: [T]he court does not doubt the sincerity of the plaintiffs representation that their motive arises from a genuine concern for the safety and welfare of the home s residents. Nor does it discount the potentially tragic consequences should an unsuppressed fire erupt in the home.

36 State Issues The Court held: For better or worse, however, the MZA [Massachusetts Zoning Act] unequivocally prohibits the facially disparate imposition of the Sprinkler Law on a group residence sheltering disabled individuals. [at 157].

37 State Issues Query: Would the Court have ruled against the installation of sprinklers following a fire if the occupants needed wheelchairs to move? Note: The City of Fitchburg is attempting to impose a sprinkler order on a Sober Home in that community. The Fat Lady has yet to sing.

38 State Issues Legislation was drafted as a result of the study. The legislation appears in the General Laws as Chapter 17, 18A, which Establishes a voluntary training and accreditation program for operators of Sober Houses; The program is conducted under the auspices of the Bureau of Substance Abuse Services of the Department of Public Health;

39 State Issues The program shall uphold best industry practices, support healthy recovery environments, evaluate the ability of the operator to assist persons in recovery goals, protect occupants from unreasonable and unfair practices in setting and collecting rents, and verify good standing in adherence to state, local, and federal laws, regulations, codes, including maximum occupancy.

40 State Issues The state contractor conducting the certification, the Massachusetts Association of Sober Housing (MASH), as part of the certification process, conducts health and safety inspections and document review.

41 State Issues Section h of Chapter 18A: A state agency or vendor with a statewide contract that is providing treatment or services to a person, or a state agency or officer setting terms and conditions for the release, parole or discharge of a person from custody or treatment, shall not refer that person to alcohol and drug free housing and shall not otherwise include in such terms and conditions a referral to alcohol and drug free housing unless the alcohol and drug free housing is certified pursuant to this section..

42 Materials Included in the materials are the documents referenced in this presentation, as well as model forms for Reasonable Accommodation requests, articles from the Boston Globe on challenges resulting from unscrupulous sober house operators and other relevant materials.

43 Strafford Webinars - April 26, /19/2017 Be intended to achieve a legitimate government interest Actually achieve that legitimate government interest Be the least drastic means necessary actually to achieve that legitimate government interest Strafford Webinars - April 26, 2017

44 Strafford Webinars - April 26, /19/2017 Fits within cap on number of unrelated individuals or no cap on number of unrelated Allowed people as of right in all residential districts with no additional requirements Do not enforce definition of family Exceeds cap on number of unrelated individuals that constitutes a family Reasonable accommodation required Use least drastic means that actually achieve legitimate government interest Strafford Webinars - April 26, 2017

45 Strafford Webinars - April 26, /19/2017 Use least drastic means that actually achieves legitimate government interest Relatively permanent tenancy (group home, recovery community): No time limit on length of residency Allow as of right in all residential districts if: More than 660 feet from existing community residence, and Licensed, certified, or sanctioned by Congress If the two criteria are not met: Require special use permit Relatively transient tenancy (halfway house): Residency limited to weeks or months Allow as of right in all multifamily districts if: More than 660 feet from existing community residence, and Licensed, certified, or sanctioned by Congress If the two criteria are not met or proposed site is in a single family district: Require special use permit Strafford Webinars - April 26, 2017

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47 Strafford Webinars - April 26, /19/2017 When definition of family allows any number of unrelated people to live together as a single housekeeping unit When number of residents fits within the zoning code s cap on the number of unrelateds in definition of family Jurisdiction fails to conduct research that provides factual justification for the spacing and licensing requirements, either before it adopts the zoning or in court Strafford Webinars - April 26, 2017

48 Strafford Webinars - April 26, /19/ Strafford Publishing Webinar. April 26, Copyright 2017 by Daniel Lauber. All rights reserved. Used by Permission. Strafford Webinars - April 26, 2017