NC Planning

 

Key Legal Issues

Family Care Homes and Zoning

David W. Owens, Professor
Institute of Government
The University of North Carolina at Chapel Hill, CB# 3330
Knapp Building, UNC-CH, Chapel Hill, N.C. 27599-3330
October 2002

State Law

            Family care homes are facilities that provide health, counseling, or related services to a small number of persons in a family type environment. Both state and federal laws affect zoning regulation of these facilities. G.S. 168-22, added to the statutes in 1981, provides that certain family care homes must be treated as single-family homes by local zoning ordinances. They cannot be prohibited in a district that allows single family residences nor can they be subject to any special review requirements, such as a special or conditional use requirement.

To qualify for this treatment, the facility must be designed to provide room, board, and care for six or fewer handicapped persons in a family environment. Handicapped persons include those with physical, emotional, or mental disabilities, [1] but not those who have been deemed dangerous to themselves or to others.

One area in which this statute has been amended relates to the question of whether is covers homes for children as well as for adults. When GS 168-21, which provides the definition for "family care homes" for zoning purposes, was adopted in 1981 it included all facilities providing care, room, and board for six or fewer handicapped individuals. Many zoning ordinances used that terminology when provisions were added to treat these homes as single-family residences. In 1995 the legislature updated the social services statutes by changing all the references to "domiciliary care" to "adult care." This update of the licensing statutes, however, also inadvertently picked up the zoning protection statue, amending G.S. 168-21 to add the term "adult" to the definition of family care home covered by the statute. As a result, some local governments amended their zoning ordinances to provide single-family residential status only to those family care homes serving adult handicapped persons. The 2002 technical corrections bill (S.L. 2002-159, S. 1217, effective 10/11/02) restored the language of GS 168-21 to its original version by removing the term "adult care" from the definition. The statute's protections now once again clearly apply to homes serving handicapped children as well as handicapped adults.

This state law does allow zoning ordinances to require a half-mile separation between these uses, but it is unclear if these minimum separations are valid under the federal law discussed below.

 

Federal Law

In 1988 the federal Fair Housing Act was amended to prohibit local governments from discriminating on the basis of handicapped status. [2] "Handicapped" in this law is defined to include a physical or mental impairment that substantially limits one or more of a person's major life activities. [3] It does not include current illegal use of or addiction to a controlled substance, though recovering substance abuse patients are covered. [4] It does not include persons whose tenancy would constitute a direct threat to the health or safety of others.

Discrimination includes failure to make reasonable accommodation in rules and policies when such is necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling. A local government must be provided an opportunity to make a reasonable accommodation. In United States v. Village of Palatine [5] the zoning ordinance required a special use permit if more than three unrelated individuals were to reside in a home. Oxford House refused to apply, contending the public notice and hearing associated with the permit would unfairly stigmatize their facility. The court held that a claim of failure to make a reasonable accommodation was not ripe if a permit application was never submitted and that a blanket exemption from permit requirements is not reasonable. "Public input is an important aspect of municipal decision making; we cannot impose a blanket requirement that cities waive their public notice and hearing requirements in all cases involving the handicapped." [6] However, a special or condition use permit or variance application is not required if such would be manifestly futile.

Several questions about the exact scope of these limitations remain unclear and subject to on-going litigation. One key question is the validity of zoning restrictions that limit the number of unrelated individuals who may reside in a single dwelling unit. [7] In 1995 the U.S. Supreme Court held in City of Edmonds v. Oxford House, Inc., [8] that a zoning ordinance limit on the number of unrelated individuals living together is not exempt from the requirements of this law. [9] However, the question of how many unrelated individuals must be allowed in a facility in order to constitute "reasonable" accommodation is unclear. [10] Likewise, many zoning ordinances impose a minimum separation requirement between facilities serving the handicapped in order to maintain the single family, non-institutional character of a neighborhood. While some courts have upheld separation requirements, [11] others have invalidated substantially similar requirements. [12]


[1] In Taylor Home of Charlotte, Inc. v. City of Charlotte, 116 N.C. App. 188, 447 S.E.2d 438 (1994), rev. denied, 338 N.C. 524, 453 S.E.2d 170 (1995), the court addressed the definition of "handicapped." The case involved a permit for the construction of a six bed facility to serve AIDS patients. The court held that AIDS patients were not "handicapped persons" within G.S. 168-21(2) because they could not live within a normal residential environment. Subsequent treatment advances may well have rendered this opinion obsolete. Also see Town of Newton Grove v. Sutton, 111 N.C. App. 376, 432 S.E.2d 441, rev. denied, 335 N.C. 181, 438 S.E.2d 208 (1993). In this case the owners of a nonconforming residence in a business zoning district were denied a permit to locate a mobile home on their lot for the use of their mentally ill daughter. The court held that the town properly concluded that placement of the unit would have been an unlawful expansion of a nonconforming use and could not be considered a customary accessory use. The court held the state Fair Housing Act was not violated because the prohibition of a mobile home in this district applied to all property owners and was not in any way related to the defendant's handicapping condition.

[2] 42 U.S.C. §§ 3601-3631 (Supp. 1997). 42 U.S.C. § 3604(f)(1) makes it unlawful to "discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." Both disparate treatment and disparate impacts are actionable. 42 U.S.C. § 3604(f)(3) provides it is unlawful discrimination if there is a "refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such [handicapped] person equal opportunity to use and enjoy a dwelling."

[3] 42 U.S.C. § 3602(h) (Supp. 1997).

[4] Elliot v. City of Athens, 960 F.2d 975 (11th Cir.), cert. denied, 506 US 940 (1992).

[5] 37 F.3d 1230 (7th Cir. 1994).

[6] Id. at 1234. Cf. Oxford House, Inc. v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996), cert. denied, 117 S.Ct. 65 (1996); Oxford House, Inc. v. City of Virginia Beach, 825 F. Supp. 1251, (E.D.Va.1993). But see ARC of New Jersey, Inc. v. New Jersey, 950 F. Supp. 637 (D. N.J. 1996) (invalidating conditional use permit, spacing, and maximum occupancy requirements).

[7] Such limitations are common and are generally enforceable. Village of Belle Terre v. Boraas, 416 US 1 (1974). G.S. 168-21 limits state law protection for family care homes to those serving six or fewer handicapped individuals but there is no explicit number in the federal legislation. Regulation of the number of related individuals who live together was invalidated as an undue infringement of a fundamental right in Moore v. City of East Cleveland, 431 US 494 (1977).

[8] 514 US 725 (1995).

[9] Minimum housing code provisions setting minimum square footage requirements for each individual resident (whether or not they are related) are unaffected by this law. However, special safety requirements can not be imposed on housing for the handicapped that are not imposed on other group living arrangements. Marbrunak v. City of Stow, 974 F.2d 43 (1992); Alliance for Mentally Ill v. City of Naperville, 923 F. Supp. 1057 (N.D. Ill, 1996).

[10] See Oxford House, Inc. v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996), cert. denied, 117 S.Ct. 65 (1996). The court upheld a provision in the zoning ordinance that limited occupancy in group homes to eight unrelated individuals (or three unrelated non-handicapped individuals).

[11] Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991) (upholding one-quarter mile separation requirement). See also Township of Plymouth v. Dep't of Social Services, 501 N.W.2d 186 (Mich. Ct. App. 1993), rev. denied, 503 N.W.2d 449 (Mich. 1993) (upholding 1,500 feet separation requirement).

[12] See, e.g., Larkin v. State of Michigan Dept. of Social Services, 89 F.3d 285 (6th Cir. 1996); Assoc. for the Advancement of the Mentally Handicapped v. City of Elizabeth, 876 F. Supp. 614 (D. NJ 1994) (invalidating 1,500 feet separation requirement); Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992), aff'd, 995 F.2d 217 (3rd Cir. 1993) (invalidating 1,000 feet separation requirement); United States v. Village of Marshall, 787 F. Supp. 872 (W.D. Wis. 1991) (invalidating 2,500 feet separation requirement).