Outdated: being updated
The Fair Housing Toolkit brings together available resources to help appointed and elected leaders, and municipal planning, housing and redevelopment officials, developers, citizen board members, and other volunteers understand how to affirmatively further fair housing. Zoning for group homes accommodating people with disabilities has become a focus for fair housing over the past twenty years. This issue should be considered in assessing fair housing, the housing section of the master plan and any consideration of zoning changes.
This section reviews accessibility through group homes to ensure groups of unrelated persons with disabilities are treated the same as groups of unrelated persons without disabilities. The following also explains municipal responsibility to grant reasonable accommodations, modifications or exceptions to rules, policies, practices, or services, when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use or enjoy a dwelling.
What is the need for group homes?
Group homes are the alternative to institutionalization for many people with disabilities whose needs are better met by supportive housing. Often the residents of those larger institutions may not get the services, supports, and decent, safe, integrated housing they need. Group homes enable people with disabilities to live integrated with their community, as envisioned by the Americans with Disabilities Act. The following presents some examples of such people with disabilities in Massachusetts.
Persons living with HIV/AIDS
The Massachusetts Department of Public Health Bureau of Infectious Diseases reports that in 2011, there were 18,170 people living with HIV/AIDS in the Commonwealth. A total of 5,724 of these individuals were living in the Boston Health Service Region (HSR) and 2,554 were living in the MetroWest HSR. The annual number of HIV diagnoses is decreasing while the number of people living with HIV/AIDS in Massachusetts is increasing, as fewer people have been dying from the disease.
People with Physical Disabilities
Individuals living with an Acquired Brain Injury (ABI), which include injuries caused by stroke, lack of oxygen, and external force, are receiving treatment in community facilities in greater numbers. As a result of the 2008 settlement of the class action suit, Hutchinson v. Patrick, people with ABI have new opportunities to leave institutional settings and live in the community through federal waivers approved by the Centers for Medicare and Medicaid Service. The Massachusetts Rehabilitation Commission and MassHealth offer a program for home and community based services for persons with ABIs.
Individuals with Psychiatric Disabilities
According to the State’s Consolidated Plan (2010 – 2014) an estimated 44,000 Massachusetts residents have long-term serious psychiatric disabilities, about 60 percent of whom are involved with the Department of Mental Health (DMH) services system. The number of adults receiving mental health services in state facilities has declined by fifty percent since 1990, while the number receiving mental health services in the community has tripled. The agency advises that 872 adults in its Metropolitan Boston region are eligible for services.
Individuals with Cognitive Disabilities
The State’s Consolidated Plan (2010 – 2014) reports that there has been a decline in the number of individuals with cognitive disabilities residing in institutionalized settings, and a corresponding increase in the number receiving home and community-based services. The Department of Developmental Services (DDS) works with housing providers to develop community-based housing for its clients. DDS estimates that in the next five year period between 2010 and 2014, it will require a total of just over 2,000 units (beds). In 2008, about 8,200 individuals were receiving residential supports through state and private providers in homes in the community, ranging from group homes to independent apartments. The MAPC’s Fair Housing and Equity Assessment [create link] notes that there were 49,917 in the metropolitan area with a cognitive difficulty in 2010.
Substance Abuse
The most recent data published by the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) estimates that the statewide prevalence rate for dependence or abuse of alcohol or illicit drugs is approximately 10 percent for persons age 12 and older. SAMHSA’s national survey gives specific data for Massachusetts. A percentage of these individuals are likely to seek community based treatment and living arrangements.
What case law and regulations relate to group homes?
Olmstead, Commissioner, Georgia Department of Human Resources, et al. v. L.C.: 1999 The Olmstead case and the integration mandate of the Americans with Disabilities Act (ADA) have responded to a documented need that is present at the municipal level. Many individuals with disabilities are segregated in various types of smaller group facilities that may have the physical appearance of a home but, in fact, are quite isolated from mainstream community life. These are the facilities that Olmstead addresses when they are publicly planned and financed, regardless of whether they are government operated or privately run.
The physical location of a living setting in the community, its private ownership, or the absence of characteristics generally associated with a hospital do not guarantee that residents with disabilities are free of the discrimination and segregation prohibited by the ADA. Olmstead establishes the principle that people with disabilities should receive benefits, services, and housing in the most integrated community setting appropriate to their individual needs.
The Dover Amendments of Massachusetts state law Chapter 40A dictate that group homes will be allowed in all districts.
Joint Statement of the Department of Justice and the Department of Housing and Urban Development: Group Homes, Local Land Use and the Fair Housing Act defines disabilities, identifies zoning that violates the Fair Housing Act, and defines reasonable accommodation related to group homes. The Joint Statement notes that ‘group home’ does not have a specific legal meaning, but it also distinguishes between a group home occupied by groups of unrelated individuals with disabilities, compared to a group home of unrelated persons such as a group of students.
Reasonable accommodation guidelines
In general terms, reasonable accommodation issues concerning group homes are often reached at the administrative level. Four steps can provide a guideline for consideration of a group home:
- The housing that is the subject of the request for reasonable accommodation is for people with disabilities as defined in federal or state fair housing laws;
- The reasonable accommodation requested is necessary to make specific housing available to people with disabilities who are protected under fair housing laws;
- The requested accommodation will not impose an undue financial or administrative burden on the local government. Such a burden might be to pave an extended unpaved roadway; and
- The requested accommodation will not result in a fundamental alteration in the local zoning code, such as the development of a large multi-family building in a single family district.
Initially, developers and providers of housing for people with disabilities must establish that the housing is specifically for people with disabilities. In most instances, this threshold requirement can be met by describing generally the use of the dwelling, such as licensed residential care facility. An applicant seeking a reasonable accommodation is not required to identify the nature or severity of the disabilities of the residents. Typically, the developer/provider is able to present a letter of intent by Massachusetts Department of Mental Health (DMH) or the Massachusetts Department of Developmental Service (DDS). The agency will license the facility when occupied.
The accommodation sought must be necessary to make the specific housing available to people with disabilities. DDS makes it a practice to work with a municipality to achieve a site plan consistent with neighborhood zoning requirement, with some flexibility on issues such as parking.
State resources supporting group homes
Two state agencies are the principal providers of residential care for people with mental disabilities: The Department of Mental Health (DMH) and the Department of Developmental Services (DDS). Both agencies are regionalized. When siting a group home, DDS can work directly with the municipality or through a non-profit. Both DMH and DDS have a similar policy regarding group homes: that they should have about 4 to 5 residents. At one time, group homes accommodated a higher number of residents. Agencies found that the lower number led to better care and greater neighborhood acceptance. DDS site planners work so that group homes are not concentrated in any one neighborhood. Both DMH and DDS are working to implement the Massachusetts Community First Olmstead Plan, intended to help individuals transition from institutional care; expand access to community-based long-term supports; improve the capacity and quality of community-based long-term supports; expand access to affordable and accessible housing with supports; promote employment of persons with disabilities and elders; and promote awareness of long-term supports.
Municipal approaches to group homes
Some municipalities deal directly with group homes in the zoning ordinance. For instance, the City of Lawrence zoning ordinance allows group homes by right in all districts.
The City of Northampton ordinance defines lodging housing but not group homes. The City makes an administrative exemption for any reasonable accommodation and then is treated as a resident use, conforming to the single family district where it is located. In terms of any site review, the ordinance allows for reduction of parking spaces, which is granted administratively. The zoning ordinance includes a special classification for special needs housing as a multi-family dwelling. Parking, often a contested item in site review, is handled as a reasonable accommodation.
Private resources
The Bazelon Center for Mental Health Law frames the law and appropriate regulation and suggests approaches to handle opposition to housing for those with disabilities.
The Housing Alliance of Pennsylvania’s publication Addressing Community Opposition to Affordable Housing Development: A Fair Housing Toolkit presents workable strategies and tactics to address NIMBYism (derived from Not in My Back Yard). The toolkit reviews common allegations concerning affordable housing and group homes and prescribes steps to deal with them.