Family Care Homes, Housing for Persons with Disabilities, and Zoning
Family care homes are facilities that provide health, counseling, or related services to a small number of persons in a family type of environment. Both state and federal laws affect zoning regulation of these facilities.[1] The federal Fair Housing Act and Americans with Disabilities Act also limit local zoning regulation of housing for persons with disabilities.
Family Care Homes, Housing for Persons with Disabilities, and Zoning
[Adapted from Owens, Land Use Law in North Carolina (4th ed., 2023)]
Family care homes are facilities that provide health, counseling, or related services to a small number of persons in a family type of environment. Both state and federal laws affect zoning regulation of these facilities.[1] The federal Fair Housing Act and Americans with Disabilities Act also limit local zoning regulation of housing for persons with disabilities.
State Law
G.S. 160D-907, added to the statutes in 1981, provides that local ordinances must treat certain family care homes as if they were single-family homes. 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 use requirement.
To qualify for this treatment, the facility must be designed to provide room, board, and care for six or fewer disabled persons in a family environment. Disabled persons include those with permanent or temporary physical, emotional, or mental disabilities[2] but not those who have been deemed dangerous to themselves or to others.[3] As with the protection for housing for persons with disabilities under the federal Fair Housing Act, these protections do not extend to homeless shelters, group homes providing services for those being released from imprisonment, and other residential facilities for those who are not disabled.
G.S. 160D-907(c) allows zoning regulations to require a half-mile separation between family care homes. Whether these minimum separations are valid under the federal Fair Housing Act (discussed below) is determined on a case-by-case review of whether the required separation is reasonable.
Federal Law
Fair Housing
While constitutional challenges to alleged discriminatory housing practices are rarely successful,[4] plaintiffs have the additional option of basing such challenges on federal statutory protections against unlawful discrimination.
The Fair Housing Act[5] makes it unlawful to make a dwelling[6] unavailable to a person because of race, color, national origin, religion,[7] sex,[8] familial status, or disability.[9] The definition does not cover persons with either current illegal use of or addiction to a controlled substance, persons convicted of crimes involving the manufacture or sale of illegal drugs, or those who constitute a direct threat to the health or safety of others. Recovering substance-abuse patients are covered.[10] Persons associated or residing with individuals with defined disabilities are also covered.
Unlike with constitutional claims, a prima facie case for a statutory violation is established by showing that a policy or practice of a local government has a disparate impact on a protected class.[11] To establish a disparate-impact claim, a plaintiff must first demonstrate a causal connection between the defendant’s policy and the disparate impact on a protected class. The defendant then has the burden of showing the valid interest served by the policy. If that is done, the plaintiff then has the burden of showing the defendant’s interests could be served by another practice with a less discriminatory effect.
Reasonable Accommodation
Prohibited discrimination includes failure to make reasonable accommodation in rules and policies when such is necessary to afford a protected person equal opportunity to use and enjoy a dwelling.[12] The burden of establishing both the necessity and the reasonableness of the accommodation is on the plaintiff.[13] In order to be “reasonable,” the accommodation must be both efficacious and proportional to its implementation cost. The determination of what is reasonable is usually a fact-specific inquiry for each claim.[14] Also, as a general rule, the plaintiff must present the information supporting the need for and reasonableness of the accommodation to the local government, not on appeal to the courts.[15]
When discrimination is alleged, a local government generally must be provided an opportunity to make a reasonable accommodation. In United States v. Village of Palatine, the zoning regulation at issue required a special use permit if more than three unrelated individuals were to reside in a home. Oxford House, a facility for persons recovering from substance abuse, refused to apply for a permit, contending that the public notice and hearing associated with the permit would unfairly stigmatize the facility. The court held that a claim of failure to make a reasonable accommodation was not legitimate if a permit application was never submitted and that a blanket exemption from permit requirements is not reasonable.[16] However, a special permit or variance application is not required if such would be “manifestly futile.”[17]
The general rule for a zoning variance is that it must be related to conditions on the property, not the personal circumstances of the occupant of the property. G.S. 160D-705(c) was amended in 2019 to provide an exception to this general rule by authorizing the issuance of a variance upon a finding that the variance is “necessary and appropriate” in order to make a reasonable accommodation under the Federal Fair Housing Act. Some local development regulations also include a specific provision setting a process for a person to request that a reasonable accommodation be made.[18]
Accommodations held to be reasonable include conversion of a motel to a shelter[19] and a variance from setback requirements.[20] A total exclusion of all nursing-home facilities from a residential district has been held to be a failure to make reasonable accommodation.[21] The courts have held that when a reasonable accommodation is made, a condition can be imposed to require removal or restoration when the need for the accommodation no longer exists.[22]
There is no requirement to make accommodations that would impose an undue financial or administrative burden on the local government or require a fundamental alteration of nondiscriminatory land use policies.[23]
Reasonable accommodation has been held not to include the following: that part of a motel be allowed to be used as a residential treatment facility for teens with emotional or mental disabilities;[24] that multifamily housing be allowed in a single-family zoning district;[25] that “halfway houses” for recovering substance abusers be allowed in a single-family zoning district that does not allow “tourist dwellings” with frequent resident turnover;[26] that a group home be exempted from state sprinkler requirements;[27] that a disabled individual be allowed to place a carport inside a setback area;[28] that zoning density be increased to allow duplexes designed for wheelchair users;[29] or that a large care facility for the elderly be allowed on a site deemed by the town to be too small and to have traffic problems.[30]
Group Homes
The impact of the federal fair-housing law on local regulation of group homes has been a heavily litigated issue. One key issue is the validity of restrictions that limit the number of unrelated[31] individuals who may reside in a single dwelling unit.[32] The U.S. Supreme Court in City of Edmonds v. Oxford House, Inc.[33] held that a zoning regulation limiting the number of unrelated individuals living together is not exempt from the requirements of the fair-housing law.[34] However, the question of how many unrelated individuals should be allowed in a facility in order to constitute reasonable accommodation is unclear and often requires detailed fact-specific inquiries.[35]
Many land use regulations impose a minimum-separation requirement between facilities serving persons with disabilities in order to maintain the single-family, noninstitutional character of a neighborhood.[36] As with occupancy limits, the size of a separation requirement that will pass the reasonable-accommodation test is unclear. While some courts have upheld separation requirements,[37] others have invalidated substantially similar requirements.[38]
The court in Oxford House, Inc. v. City of Raleigh upheld the city’s 375-yard minimum separation between “supportive housing residences,” which included facilities serving disabled persons.[39] Wilmington’s half-mile separation was upheld in Oxford House v. City of Wilmington.[40] If a separation provision is included in a development regulation, a prudent local government would consider including an exception to minimum-separation requirements in situations where its purpose can be otherwise met.[41]
Accommodations Under the Americans with Disabilities Act
The protections afforded persons with disabilities by the Americans with Disabilities Act (ADA) closely parallel those provided under the Fair Housing Act. Title II of the ADA provides that a person shall not be denied the benefits of services, programs, or activities of public entities or be subject to discrimination by public entities by reason of disability.[42] Planning and development regulations are generally considered programs and activities that are covered by the ADA.[43]
As with the Fair Housing Act, courts have interpreted ADA protections to prohibit intentional discrimination or disparate treatment, disparate impacts, or failure to make reasonable accommodations.[44] If a local government acts in response to community views about whether persons have disabilities, those views may be attributed to the governmental unit. Therefore, community opposition to the siting of a facility serving those regarded by the community to have disabilities can trigger the protections of the ADA.[45]
The denial of a permit or a variance to a disabled person or for a facility for disabled persons does not in itself trigger an ADA violation if there is a legitimate land use basis for the denial decision and there is no evidence of discrimination based on a disability on the face of the ordinance or in its application.[46] However, if the plaintiff presents evidence that animus against a protected group was a significant factor in the decision, that establishes a prima facie case of discrimination, and the burden then shifts to the defendant to provide a legitimate, nondiscriminatory reason for the decision.[47]
Keeping a “service animal” where development regulations would not otherwise allow such is sometimes requested as a reasonable accommodation. Whether an animal qualifies as a service animal is a two-part test. The animal must be trained to do work or perform tasks for the benefit of an individual with a disability and the tasks performed by the animal must be directly related to the individual’s disability.[48] Animals that only provide emotional support, comfort, or companionship, such as a household pet, do not qualify as service animals.[49] Whether the requested accommodation is reasonable depends on the particular circumstances involved, such as whether the property is large enough to accommodate the animal without threatening legitimate safety requirements.[50]
[1]. The tendency of local governments to use zoning to exclude treatment facilities is as old as the zoning concept. A number of ordinances in the 1920s and 1930s sought to exclude hospitals for those with infectious diseases. The drafter of the original New York City zoning ordinance noted that concerns about “the depressing effect” on the surrounding inhabitants had prompted about nineteen of the twenty municipalities in the New York area to exclude hospitals for mental illnesses.
In addition to development regulations, treatment facilities are also subject to substantial social-service licensing and permitting. These rules address the operation of facilities and do not preempt zoning and development regulations generally. See, for example, G.S. 131D-2.4 regarding licensing for adult care homes.
[2]. In Taylor Home of Charlotte, Inc. v. City of Charlotte, 116 N.C. App. 188, 447 S.E.2d 438 (1994), review denied, 338 N.C. 524, 453 S.E.2d 170 (1995), the court addressed the definition of handicapped. (The term disabled is now used by the statute.) 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. 160D-907(b)(2) because they could not live within a normal residential environment. Subsequent treatment advances may well have rendered this opinion obsolete. A different case concluded that AIDS patients are clearly covered by the Federal Fair Housing Act. Support Ministries v. Vill. of Waterford, 808 F. Supp. 120 (N.D.N.Y. 1992). In Town of Newton Grove v. Sutton, 111 N.C. App. 376, 432 S.E.2d 441, review denied, 335 N.C. 181, 438 S.E.2d 208 (1993), the owners of a nonconforming residence in a business zoning district challenged the denial of a permit to locate a mobile home on their lot for the use of their mentally ill daughter. The town 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 affirmed the town’s decision and concluded that the state Fair Housing Act was not violated because the prohibition of mobile homes in the district applied to all property owners and was not in any way related to the defendant’s child’s condition. See also Parkwood Ass’n v. Capital Health Care Inv’rs, 133 N.C. App. 158, 514 S.E.2d 542, review denied, 350 N.C. 835, 539 S.E.2d 291 (1999) (holding that a temporary emergency shelter for undisciplined, delinquent, or at-risk youth is not a home serving disabled persons protected by state or federal fair-housing provisions).
[3]. This statute cross-references G.S. 122C-3(11)(b) for a definition of those persons with mental illnesses who are dangerous to themselves or others. This is the same definition used to qualify a person for involuntary commitment under G.S. 122C-261.
[4]. In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), an equal-protection challenge was made to a refusal to rezone a single-family site to multifamily use in order to allow a low-income-housing project. The U.S. Supreme Court held that proof of a racially discriminatory intent was necessary. A showing of disproportionate impact on minorities alone is insufficient. See also Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188 (2003). Standing issues relative to those who would challenge alleged discriminatory effects of zoning are also a significant barrier to litigation on this issue. See Warth v. Seldin, 422 U.S. 490 (1975) (denying standing to those challenging alleged discrimination by Rochester, New York, suburb); NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010) (denying standing to NAACP and builders’ association challenging a new requirement for masonry exteriors and an increase in minimum lot and home sizes).
[5]. 42 U.S.C. §§ 3601–3631. As enacted in 1968, this act addressed discrimination on the basis of race, color, religion, and national origin. Sex discrimination was added in 1974. Family-status and disability discrimination were added in 1988. Also, 42 U.S.C. § 3610(g)(2)(c) provides for HUD referral to the Attorney General proceedings involving the legality of land use regulatory ordinances. Metropolitan Housing & Development Corp. v. Village of Arlington Heights on remand set the factors used to determine if there is actionable racial discrimination. 558 F.2d 1283 (7th Cir. 1977). See also Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581 (2d Cir. 2016); Ave. 6E Invs. v. City of Yuma, 818 F.3d 493 (9th Cir. 2016); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974). Also see Parvati Corp. v. City of Oak Forest, 709 F.3d 678 (7th Cir. 2013), where the plaintiff alleged that racial discrimination motivated a refusal to rezone property to allow conversion of a motel to a retirement facility that would largely serve African Americans. The court found no evidence of a racial basis for the decision.
[6]. Courts are divided as to whether a facility that only provides transient or short-term housing is a “dwelling” under this law. Intermountain Fair Hous. Council v. Boise Rescue Mission Ministries, 655 F. Supp. 2d 1150 (D. Idaho 2009) (homeless shelter not a dwelling); Woods v. Foster, 884 F. Supp. 1169, 1173–74 (N.D. Ill. 1995) (homeless shelter covered); Johnson v. Dixon, 785 F. Supp. 1, 4 (D.D.C. 1991) (doubtful that emergency overnight shelter qualifies). The term has been held not to include jails and facilities for transient guests, such as hotels, motels, or bed-and-breakfast facilities. Group homes offering treatment services are generally considered included. See, e.g., Schwarz v. City of Treasure Island, 544 F.3d 1201, 1214 (11th Cir. 2008); Lakeside Resort Enters. v. Bd. of Supervisors of Palmyra Twp., 455 F.3d 154, 160 (3d Cir. 2006).
[7]. See, e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995) (zoning limitation on use of home for religious services).
[8]. See, e.g., Doe v. City of Butler, 892 F.2d 3315 (3d Cir. 1989) (alleging discrimination involving group home for abused women).
[9]. In the Fair Housing Act, the term handicap is used (in contrast with many federal statutes, which favor disability) and is defined to include persons with physical or mental impairments that substantially limit one or more major life activities. 42 U.S.C. § 3602(h)(1).
[10]. Elliott v. City of Athens, 960 F.2d 975 (11th Cir. 1992); United States v. S. Mgmt. Corp., 955 F.2d 914, 923 (4th Cir. 1992); St. Paul Sober Living, LLC v. Bd. of Cnty. Comm’rs, 896 F. Supp. 2d 982 (D. Colo. 2012); McKivitz v. Twp. of Stowe, 769 F. Supp. 2d 803 (W.D. Pa. 2010); Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1339 (S.D. Fla. 2007). When reviewing a claim regarding a proposed facility, the court reviews the criteria for admission to the facility to determine whether there will be qualifying residents with disabilities. McKivitz, 769 F. Supp. 2d at 822. For example, a proposed multifamily facility for homeless veterans was held not to qualify because admission was not limited to those with post-traumatic stress disorder or some other disability. Yates Real Estate, Inc. v. Plainfield Zoning Bd. of Adjustment, 404 F. Supp. 3d 889, 924–25 (D.N.J. 2019). See also Bragdon v. Abbott, 524 U.S. 624 (1998) (HIV-positive person covered under comparable definition).
[11]. Proof of disparate impact is sufficient; there is no need to show a deliberate intent to discriminate. See, e.g., Tex. Dep’t of Hous. and Cmty. Affairs v. The Inclusive Cmtys. Project, Inc., 576 U.S. 519, 524 (2015); Reyes v. Waples Mobile Home Park Ltd. P’ship, 903 F.3d 415, 421 (4th Cir. 2018); Simms v. First Gibraltar Bank, 83 F.3d 1546 (5th Cir. 1996); Mountain Side Mobile Estates P’ship v. Secretary of Hous. & Urban Dev., 56 F.3d 1243 (10th Cir. 1995); Jackson v. Okaloosa Cnty., 21 F.3d 1531 (11th Cir. 1994); Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988); Betsey v. Turtle Creek Assocs., 736 F.2d 983 (4th Cir. 1984); Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir. 1972); 5-Star Athlete Development, LLC v. City of Shelby, No. 1:21-CV-323-MR-WCM, 2022 WL 4287921 (W.D.N.C. May 26, 2022) (dismissing claim due to failure to allege disparate impact or disparate treatment). If a disparate-treatment claim is made, a discriminatory intent or motive must be shown. Federal executive actions also address potential disparate impacts of federal decisions on low-income and minority neighborhoods. See, e.g., Exec. Order No. 12,898, 59 Fed. Reg. 7,629 (Feb. 11, 1994), addressing environmental-justice issues. See also City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (invalidating denial of special use permit for group home for the mentally disabled where ordinance did not require permit for similar group housing).
[12]. Fair Housing Act, 42 U.S.C. § 3604(f)(3). A reasonable-accommodation claim may be brought by the entity claiming discrimination or by the federal government. See, e.g., United States v. Town of Garner, 720 F. Supp. 2d 721 (E.D.N.C. 2010) (action brought by federal government alleging failure to make reasonable accommodation for group home operated by Oxford House, with the group subsequently intervening).
[13]. Bryant Woods Inn, Inc. v. Howard Cnty., 124 F.3d 597, 603–04 (4th Cir. 1997). See also Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002); Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1045 (6th Cir. 2001); Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 178 (5th Cir. 1996). But see Lapid-Laurel, LLC v. Zoning Bd. of Adjustment, 284 F.3d 442, 458 (3d Cir. 2002) (once plaintiff meets burden of establishing necessity, burden shifts to government to show proposed accommodation is not reasonable).
[14]. Since the determination is fact specific, summary judgment is usually inappropriate. See, e.g., Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015) (need detailed facts to determine whether allowing miniature horse as service animal for disabled minor child would be reasonable).
[15]. See, e.g., Yates, 404 F. Supp. 3d at 912–13.
[16]. 37 F.3d 1230 (7th Cir. 1994). “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.” Id. at 1234. See also Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 578–79 (2d Cir. 2003); Oxford House, Inc. v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996); Oxford House, Inc. v. City of Virginia Beach, 825 F. Supp. 1251 (E.D. Va. 1993). But see ARC of N.J., Inc. v. New Jersey, 950 F. Supp. 637 (D.N.J. 1996) (invalidating conditional use permit, spacing, and maximum-occupancy requirements).
[17]. Id. at 1234.
[18]. See. e.g., Cary, N.C., Land Development Ordinance § 3.25; Winston-Salem/Forsyth County, N.C., Unified Development Ordinance § 6-1.6.
[19]. Judy B. v. Borough of Tioga, 889 F. Supp. 792 (M.D. Pa. 1995).
[20]. United States v. City of Phila., 838 F. Supp. 223 (E.D. Pa. 1993), aff’d, 30 F.3d 1488 (3d Cir. 1994). The court in Trovato v. City of Manchester, 992 F. Supp. 493 (D.N.H. 1997), required allowance of a paved parking area in the front yard as an accommodation under the Americans with Disabilities Act.
[21]. Hovsons, Inc. v. Twp. of Brick, 89 F.3d 1096 (3d Cir. 1996). But see 431 East Palisade Ave. Real Estate, LLC v. City of Englewood, 977 F.3d 277 (3d Cir. 2020) (limiting assisted-living facilities to single zoning district upheld).
[22]. Austin v. Town of Farmington, 826 F.3d 622 (2d Cir. 2016) (allowing variance to install an aboveground pool as an accessory use for a child with a disability is a reasonable accommodation, but town can also require reasonable restoration when child no longer resides there).
[23]. Erdman v. City of Fort Atkinson, 84 F.3d 960 (7th Cir. 1996).
[24]. Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d 917 (10th Cir. 2012).
[25]. Brandt v. Vill. of Chebanse, 82 F.3d 172 (7th Cir. 1996). However, refusal to allow a variance for a group home based solely on the residents’ disabled status would be a failure to make a reasonable accommodation. Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 580 (2d Cir. 2003).
[26]. Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008).
[27]. Summers v. City of Fitchburg, 940 F.3d 133 (1st Cir. 2019). See also Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale, 46 F.4th 1268 (11th Cir. 2022) (not discrimination to refuse to exempt facility from city fire-sprinkler and state fire-prevention code).
[28]. Robinson v. City of Friendswood, 890 F. Supp. 616 (S.D. Tex. 1995). See also County of Sawyer Zoning Bd. v. State, 605 N.W.2d 627 (Wis. Ct. App. 1999) (refusal to grant variance to shoreland setback not discrimination under the state’s fair housing law; Evans v. Zoning Hearing Bd., 732 A.2d 686 (Pa. Commw. 1999) (adding apartment above accessory building not a reasonable accommodation).
[29]. Hemisphere Bldg. Co. v. Vill. of Richton Park, 171 F.3d 437 (7th Cir. 1999).
[30]. Lapid-Laurel, LLC v. Zoning Bd. of Adjustment, 284 F.3d 442 (3d Cir. 2002).
[31]. 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 U.S. 494 (1977). The ordinance challenged in Moore used a complicated definition of “family” that largely limited residency in the single-family district to a nuclear family (parents and their children). The plaintiff was charged with a criminal offense because her son and two grandchildren (who were cousins rather than brothers) lived in her home. Since, under the ordinance, any number of unmarried children of whatever age would be allowed to live with parents but even a single brother and sister sharing a residence would be illegal, the Court held the regulation to be arbitrary. The Court also held this to be an unreasonable burden on familial association and, as such, a violation of substantive due process. It noted:
The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family.
Id. at 504–05 (citations omitted). See also 42 U.S.C. § 3607(b)(2)(c) (allowing housing to be restricted to persons fifty-five years of age or older).
[32]. Such limitations are common and generally are enforceable. Vill. of Belle Terre v. Boraas, 416 U.S. 1 (1974) (upholding regulation restricting number of unrelated individuals who may live together). Justice Douglas concluded:
A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. . . . The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.
Id. at 9. Some states have found restrictions on the number of unrelated individuals residing together to violate state constitutional provisions. See City of Santa Barbara v. Adamson, 610 P.2d 436, 442 (Cal. 1980) (limit of five unrelated people who may live in single-family zone violates fundamental right to privacy under the California Constitution); Charter Twp. of Delta v. Dinolfo, 419 Mich. 253, 351 N.W.2d 831 (1984) (limit of two unrelated persons violates the due-process clause of the Michigan Constitution); State v. Baker, 405 A.2d 368, 369–70 (N.J. 1979) (limit of no more than four unrelated persons violates right to privacy and due process under the New Jersey Constitution). Other state courts have approved limits on the number of unrelated individuals who may reside within an individual single-family housing unit. See, e.g., Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255 (Iowa 2007) (upholding limit of no more than three unrelated individuals residing together in a single-family zoning district). G.S. 160D-907 limits state-law protection for family care homes to those serving six or fewer disabled individuals, but there is no explicit number in the federal legislation.
[33]. 514 U.S. 725 (1995).
[34]. 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 cannot be imposed on housing for the disabled that are not imposed on other group-living arrangements. Marbrunak, Inc. v. City of Stow, 974 F.2d 43 (6th Cir. 1992); All. for the Mentally Ill v. City of Naperville, 923 F. Supp. 1057 (N.D. Ill. 1996).
[35]. See Bryant Woods Inn, Inc. v. Howard Cnty., 124 F.3d 597 (4th Cir. 1997) (upholding occupancy limit of eight disabled persons); Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996) (requiring limit of no more than six disabled persons per home be raised to nine but rejecting request to raise the limit to twelve disabled persons); Oxford House–C v. City of St. Louis, 77 F.3d 249 (1996) (upholding a limit of eight unrelated individuals or three unrelated, nondisabled individuals in group homes); Swanston v. City of Plano, 557 F. Supp. 3d 781 (E.D. Tex. 2021) (limit of eight residents per sober-living facility invalidated when plaintiff showed fifteen residents was a therapeutic necessity); Oxford House, Inc. v. City of Wilmington, No. 7:07-CV-61-F, 2010 WL 4484523 (E.D.N.C. Oct. 28, 2010) (no showing that nine rather than eight residents was a necessity); Human Res. Research & Mgmt. Grp., Inc. v. Cnty. of Suffolk, 687 F. Supp. 2d 237, 263–66, (E.D.N.Y. 2010) (holding a six-person limit for those receiving treatment for drug and alcohol problems in a group home facially invalid). See also United States v. City of Balt., 845 F. Supp. 2d 640 (D. Md. 2012) (invalidating provision that applied standards to group homes with less than seventeen residents but not to those with more residents).
[36]. Several states establish separation requirements by statute to avoid what they deem to be undue concentration of family care homes. A number of states have similar rules. See, e.g., Ariz. Rev. Stat. § 36-582H (1200-foot separation); Colo. Rev. Stat. § 30-28-115(2)(b) (750-foot separation); Conn. Gen. Stat. § 8-3F (1000-foot separation).
[37]. Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991) (upholding quarter-mile separation requirement). See also Twp. of Plymouth v. Dep’t of Soc. Servs., 198 Mich. App. 385, 501 N.W.2d 186 (1993) (upholding 1500-foot-separation requirement).
[38]. See, e.g., Valencia v. City of Springfield, 883 F.3d 959 (7th Cir. 2018) (invalidating 600-foot separation); Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002) (invalidating 2500-foot spacing requirement); Larkin v. Mich. Dep’t of Soc. Servs., 89 F.3d 285 (6th Cir. 1996) (invalidating 1500-foot separation requirement); Ass’n for the Advancement of the Mentally Handicapped v. City of Elizabeth, 876 F. Supp. 614 (D.N.J. 1994) (invalidating 1500-foot separation requirement); Horizon House Dev. Servs., Inc. v. Twp. of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992), aff’d, 995 F.2d 217 (3d Cir. 1993) (invalidating 1000-foot separation requirement).
[39]. No. 5:98-CV-113-BO(2), 1999 WL 1940013 (E.D.N.C. Jan. 26, 1999).
[40]. No. 7:07-CV-61-1, 2010 WL 4484523 (E.D.N.C. Oct. 28, 2010).
[41]. For example, see the exception to the minimum-separation requirement between adult uses discussed in Independence News, Inc. v. City of Charlotte, 568 F.3d 148 (4th Cir. 2008). The ordinance allowed a variance to the separation requirement upon showing manmade or natural features provided sufficient separation to prevent harmful secondary impacts.
[42]. 42 U.S.C.A. §§ 12131–12165. Implementing regulations are at 28 C.F.R. pt. 35. The ADA also incorporates the rights, procedures, and remedies of the Rehabilitation Act of 1973. 29 U.S.C. § 794 (prohibiting exclusion of persons with disabilities from participation in or receipt of benefits from programs or activities with federal funding.
[43]. See, e.g., A Helping Hand, LLC v. Baltimore County, 515 F.3d 356, 361 (4th Cir. 2008) (ADA protections applicable to zoning dispute regarding siting of methadone-treatment clinic). In this case the court held that there was no showing that clinic clients were disabled under the Act as a matter of law. The ADA defines “qualified individual with a disability” as a person with a physical or mental impairment that substantially limits one or more “major life activities,” someone with a record of impairment, or someone who is “regarded as” having such an impairment. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C.A. § 12102 (2011). Similarly, the court in Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 47–48 (2d Cir. 2002), noted that while alcoholism and drug addiction are impairments, neither is a per se disability without a showing that the condition substantially limits at least one major life activity. The court concluded that residents of a proposed halfway house did in fact have addictions that substantially limited their ability to live independently with their families. See also Bay Area Addiction Research v. City of Antioch, 179 F.3d 725, 730–32 (9th Cir. 1999) (applying ADA to zoning requirements).
[44]. See, e.g., Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), criticized by Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001) (invalidating denial of permit approvals for a drug-and-alcohol-rehabilitation treatment center). Many cases challenging land use restrictions on the basis of discrimination grounded in disability or a failure to make reasonable accommodation raise both Fair Housing Act and ADA claims. See, e.g., Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 578–80 (2d Cir. 2003) (failure to treat group home as a single-family dwelling was a failure to make reasonable accommodation for group home and violated both laws).
[45]. A Helping Hand, 515 F.3d at 366.
[46]. An example would be denial of a permit for a nonprofit facility serving persons with disabilities in a zone reserved for commercial uses. See, e.g., Wis. Cmty. Servs., 465 F.3d at 754–55 (to establish ADA violation, plaintiff must show that disability of clients was cause in fact of denial of special use permit for mental health clinic); Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144 (2d Cir. 1999) (no ADA violation where special use permit for assisted-living facility in commercial zone would not be issued for similar home for those without disabilities); Woodward v. City of Paris, 520 F. Supp. 2d 911 (W.D. Tenn. 2007) (denial of variance for carport in side yard proper where disabled plaintiff treated the same as any other resident in the same area with a lot of similar size and shape); Robinson v. City of Friendswood, 890 F. Supp. 616 (S.D. Tex. 1995) (denial of variance for carport in side yard not a violation). The court in Woodward held that a requested accommodation is not reasonable if it would fundamentally alter the nature of the zoning scheme.
[47]. Reg’l Econ. Cmty. Action Program, 294 F.3d at 48–51.
[48]. 28 C.F.R. § 35.14. Also, 28 C.F.R. § 35.136 specifically requires reasonable modifications for miniature horses where the horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. The court in C.L. v. Del Amo Hospital, Inc., 992 F.3d 901 (9th Cir. 2021), held that a formal certification of the service animal is not required.
[49]. Rose v. Springfield-Greene County Health Dept., 668 F. Supp. 2d 1206, 1215 (W.D. Mo. 2009) (holding plaintiff’s monkey not a service animal); Pruett v. Arizona, 606 F. Supp. 2d 1065 (D. Ariz. 2009) (diabetic person’s chimpanzee not a service animal).
[50]. See, e.g., Anderson v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015) (whether resident’s property was large enough to accommodate a miniature horse and whether a single miniature horse on the property would threaten public safety requires fact-specific inquiry).
