Laws, Rules and Policies Affecting Community Residences, Apartments, and Houses for People with Disabilities
David Lazarus, Esq.
David Popiel, Esq.
Lois Krieger, Esq.
Community Health Law Project
Copyright © 1999, 2004 by Community Health Law Project
Reviews current federal and state laws prohibiting housing discrimination against persons with disabilities. It briefly summarizes the material presented in more depth in Chapters 3 and 5.
Provides answers to frequently asked questions regarding community residences.
Provides an in-depth discussion of the federal Fair Housing Amendments Act, the New Jersey Municipal Land Use Law, the state law requiring licensing of community residences, their regulation, and various other laws governing community residences.
Provides answers to frequently asked questions about rentals, condominiums, and housing discrimination.
Provides an in-depth discussion of federal and state law governing house purchases, rentals, evictions, and Section 8 vouchers.
Reproduces statutory, regulatory, and other authorities cited in the manual.
Note: All footnotes are superscripted numbers enclosed in parentheses. These footnote indicators link to the footnotes sites at the end of the page. Following the footnote site there is a "return" which will bring you back to just after the footnote indicator in the document.
Over the last generation, starting with the Rehabilitation Act of 1973 through the passage of the Americans with Disabilities Act (ADA), the rights of persons with disabilities have changed radically. Laws affecting public accommodations, transportation, education, employment, insurance coverage and government programs and services have all been dramatically impacted. But little has changed as much as the nation's laws regarding housing for persons with disabilities. The right of a person with a disability to be free from discriminatory housing practices has become a civil right that is protected by both State and Federal law. The first edition of this manual focused on laws governing community residences for persons with disabilities, how those residences are defined, the regulations they are subject to, protections afforded them by both Federal and State law, and the extent to which local government may exert control over the residences.
This new, revised edition also discusses housing discrimination laws affecting people with disabilities who live in apartments, condominiums, and houses. We hope that we have presented this material in terms understandable by the layperson. However, it is impossible within the context of a short work to answer and clarify all questions regarding this complicated subject. Therefore, any readers who have questions are invited to call or write the authors at the Community Health Law Project, 185 Valley Street, South Orange, NJ 07079, 973-275-1175, TTY 973-275-1721, Fax 973-275-5210, e-mail email@example.com.
Overview of Housing Discrimination Law
Under New Jersey law a community residence for persons with disabilities is defined as any residential facility, including apartments, group homes, halfway houses and other facilities, that is licensed by the New Jersey Department of Human Services (usually the Division of Mental Health Services, or the Division of Developmental Disabilities). They provide food, shelter and supervision as may be required, to persons with developmental disabilities or mental illness (and to other persons with disabilities) and are usually, but not exclusively, run by nonprofit organizations. From a zoning perspective, they may be located in any zone in which residential uses are permitted and have the same rights and limitations as single-family dwellings. If a community residence is located in a single-family detached home, it can be located in any zone in which single-fami-ly detached homes are allowed. If the residence is located in an apartment house, it is permitted in any zone that would permit that multiple dwelling. It should be noted that a community residence does not have to be located in a residential zone. It can be located in another zone in which residential uses are permitted. Therefore, if a business or commercial zone would permit residential uses, the community residence may be located in that zone as well.
The New Jersey Municipal Land Use Law that permits the location of community residences in residential districts(1)is a State law that dictates how municipalities can regulate land use. Because it is a State law, it cannot be superseded by local municipalities.(2)The power to zone land to determine its use originates with the State, not with municipalities. The power is given by the State to its municipalities and is a grant of authority that can be withdrawn at any time. This is, in fact, what has occurred with respect to community residences. The location, as well as the internal operation and management of community residences and their practices and procedures are established by State law and regulation and are a State function.(3) They are not subject to municipal regulation.
Federal law also provides similar protection for persons with disabilities. The Fair Housing Act was initially passed as part of the Civil Rights Act of 1968. The purpose of the Fair Housing Act was to protect certain classes of persons from discrimination in real estate transactions. These included persons who were subject to discrimination because of their race, sex, color, religion, and national origin (4) In 1988 the Fair Housing Act was amended to add two new classes of protected persons: persons with disabilities and families with children.
Congress, by enacting the Fair Housing Amendments Act of 1988, gave virtually the same protections to persons with disabilities as it had previously given to other protected classes. Simply put, action that is discriminatory when directed at a person who is Black, Jewish, Asian, Female, etc., is now discriminatory when directed at persons with disabilities.(5)
The Fair Housing Amendments Act not only equated persons who are disabled with other protected classes, but recognized that persons with disabilities might require additional accommodations to enable them to use and enjoy residential dwellings. The definition of disability (referred to as “handicap”) in the Fair Housing Act is exceedingly broad and includes a physical or mental impairment which substantially limits one or more of a person’s major life activities, having a record of such impairment, or being regarded as having such an impairment. (6)The Act recognized that persons with disabilities might require relaxation of rules or physical renovations to enable them to occupy a dwelling and thus discrimination includes a refusal to allow for reasonable physical renovations to the dwelling or for changes in policies or practices to enable a handicapped person to use and enjoy a dwelling. (7)Examples might include allowing a person with a mobility impairment to install a ramp, or allowing a person with a visual impairment a service animal in an apartment building with a no-pet policy. This provision of the Fair Housing Act has even been interpreted to require a zoning board of adjustment to allow the construction of a nursing home in a rural residential adult community zone.(8)
New Jersey's Law Against Discrimination (9) is the State law that is analogous to the Federal Fair Housing Act. It was amended after the passage of the Fair Housing Act for the express purpose of incorporating in State law all of the provisions of the Federal law. The two coexist independently, so that even if the Federal Fair Housing Act were repealed, State law would provide protection to all of the protected classes.
Frequently Asked Questions and Answers Regarding Community Residences
Q. Can community residences and the organizations that operate them be required to notify a municipality prior to purchasing or renting a home or an apartment?
A. No. The New Jersey Attorney General in an opinion addressing this issue has found that, given the history of community opposition and delay that resulted from prior notification and which tended to limit the housing opportunities for persons with disabilities, prior notification in most all cases would violate the Fair Housing Act. It also would be blatantly discriminatory if required of other protected classes; another indication that it is prohibited under the Fair Housing Act.
Q. Can community residences be required to be a minimal distance from each other, or be limited as to the number of residences in the municipality?
A. No. This practice was found to violate the Fair Housing Act by a U.S. District Court. (10)The Municipal Land Use Law was subsequently amended to comply with the decision.
Q. Can dangerous persons be excluded from residing in community residences?
A. Yes. The Fair Housing Act does not protect persons who pose a direct threat to others or to property,(11)and to exclude such persons would not violate the Fair Housing Act. However, such exclusion may not be based upon status (e.g., that someone had been guilty of a crime in the past) or upon dated acts of dangerousness, but must be based upon current evidence and assessments. One should also note that a direct threat is one that cannot be eliminated by a modification of policies, practices or procedures or by the provision of auxiliary aids or services. (12)
Q. Can a community residence be required to obtain a conditional use permit or a special use permit before commencing operation?
A. No. The Fair Housing Act prohibits such requirements, and the State Municipal Land Use Law makes community residences a permitted use. As Congress has said, “The [Fair Housing] 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.” (13)
Q. Can a municipality regulate the internal operations of the community residence such as determining the number of staff that should be on duty, the amount of supervision, or admission or discharge procedures?
A. No. Community residences are by statute required to be licensed by the Department of Human Services (DHS), and the law provides that DHS also regulate their operations.(14)Most persons would agree that this area of regulation has been “pre-empted” by the State and that municipalities have no authority over the internal operations of community residences.
Q. Is there a limit on how many community residences can be placed in one municipality?
A. No. Any attempt at setting quotas would violate the Fair Housing Act. However, the State law requiring licensing of community residences requires that such residences be available statewide without unnecessary concentration.(15) Although this provision of the licensing law has not been tested in the courts, there is at least good authority that the State does have a legitimate interest in assuring that community residences are available statewide.
Q. Can a requirement be imposed upon community residences which would require obtaining approvals from the planning board or the board of adjustment?
A. No. A community residence cannot be treated any differently than a singlefamily residence. Therefore, if the single-family residence were not required to obtain approval, this requirement could not be imposed upon community residences. If a single-family residence were required to obtain approvals such as a variance to build on an undersized lot or encroach on a setback, the same approvals would apply to community residences.
Federal and States Laws Governing Community Residences
I. What Are Community Residences?
State licensed community residences(16) provide homes in the community for persons with developmental disabilities, mental illness and head injuries. Their residents receive food, shelter, personal guidance and assistance in maintaining a basic level of self-care and in developing the potential to live independently in the community. Regulations governing the residences aim at assuring that the residents enjoy essential life-safety, health and comfort conditions in a home-like atmosphere.(17) The regulations also govern staffing ratios and staff educational and professional requirements.(18) The residences are not health care facilities.
Residences for persons with developmental disabilities and head injuries are licensed by the State Division of Developmental Disabilities, and may have up to 16 residents. Those for persons with mental illness are licensed by the Division of Mental Health Services and may have up to 15 residents.(19)
Though commonly referred to as group homes, community residences come in several varieties. They can include, but are not necessarily limited to, group homes, half-way houses, supervised apartments, hostels, and family care homes.[Link](20)
II. Local Regulation of Community Residences
Municipal efforts to regulate community residences are likely to fail. Attempts to utilize local zoning ordinances will run afoul of factors discussed in the next section. Other efforts, such as ordinances that set staffing requirements, are equally unlikely to survive scrutiny. The State’s scheme governing community residences is comprehensive. The licensing of community residences throughout the State as part of the State’s services for persons with disabilities calls for uniformity of regulation. Under such circumstances, it is likely that local regulation is pre-empted.(21) Any ordinance the policy or effect of which conflicted with State law would also fail, as would any ordinance which stood as an obstacle to accomplishing the Legislature’s “full purposes and objectives.”(22)
III. The Treatment of Community Residences for Zoning Purposes
Two watersheds mark the development of the State’s land use or zoning law as it relates to community residences for persons with disabilities. At its inception the first was considered a great step forward for persons with disabilities. But, within a decade, it was eclipsed by the rapid evolution of legal protections for such persons.
In 1978 New Jersey amended its Municipal Land Use Law, the statute that gives zoning authority to municipalities, so as to confer upon community residences for persons with disabilities limited protection from municipal zoning actions. The amendment classified community residences with six or fewer residents as “permitted uses in all residential districts” and mandated that, for zoning purposes, they be treated “the same as . . . single family dwelling[s]”.(23) This effectively immunized small community residences from local zoning authority. However, the amendment left municipalities free to place zoning limitations on larger community residences, those with seven or more residents. These limitations are known in zoning parlance as “conditional uses” - special conditions that must be met before zoning approval can be obtained. In addition, municipalities could deny zoning approval to any community residence located within 1500 feet of another community residence, and could wholly exclude additional community residences when the number of people residing in them exceeded 50 or amounted to 0.5% of the municipality’s population, whichever was greater.(24) Nonetheless, the 1978 amendments represented a marked advance for persons with disabilities, since previously they enjoyed virtually no protection from municipal zoning authority.
While they still held the power to differentiate between larger community residences and other types of housing, many municipalities enacted ordinances that effectively “zoned out” the larger residences. One common conditional use provision required community residence operators to obtain a million dollar insurance policy against harm caused by residents. The policy had to waive defenses based on the residents’ mental condition. Such policies cannot be obtained and, consequently, this provision effectively precluded the establishment of larger community residences. Other provisions reflected deep-seated prejudices against persons with disabilities. Thus, numerous municipalities required that community residences be visually “buffered” from their neighbors.
The law changed markedly again in 1988. This time the change came from the Federal level when Congress amended the Nation’s Fair Housing Act.(25) The amendment brought persons with disabilities within the Act’s purview.(26) Eight years later, in 1996, the Federal District Court for the District of New Jersey, relying on these changes, struck down those portions of the Municipal Land Use Law, including the minimum spacing and maximum population provisions, that permitted localities to impose zoning conditions upon larger community resi-dences.(27) A year later the State Legislature conceded the point, eliminating all municipal authority to zone against community residences.
Today, for zoning purposes, the fundamental legal truth regarding community residences for persons with disabilities is that they are single family residences. Regardless of the number of residents,(28) they are “permitted uses in all residential districts”, and must be treated “the same as . . . single family dwelling[s]”.(29)
IV. Notification that Community Residences are Coming to Your Neighborhood;
Community Participation in the Location of Community Residences and the Selection of Residents
The treatment of community residences as single family homes extends even beyond the realm of zoning. It encompasses, too, the controversial issue of notifying communities that a community residence is to be established. Just as there is no legal basis for demanding notification when African-Americans, Jews, Catholics, Italians, women, or persons of Irish descent are coming to a neighborhood, so there is no legal basis for demanding notification that persons with disabilities are moving in. The protection of community residences also precludes efforts by surrounding neighborhoods to have a say in the placement of the residences and in the nature of the persons who reside in them.
In 1998, an effort was made to require community notification of the establishment of community residences for persons with mental disabilities and to require that the surrounding community be afforded the opportunity to participate in locating the residences and selecting their residents. Neighbors of the prospective residence brought an action in Federal District Court.(30) They contended that persons with mental disabilities, recently discharged from state psychiatric hospitals to reside in community residences, posed a heightened risk of danger to the surrounding neighborhood. This danger, the neighbors alleged, arose from the fact that, after a generation of reducing the size of psychiatric hospitals, only the most ill and threatening patients remain to be discharged into the community. The threat is such, the argument concluded, that neighbors were constitutionally entitled to know that a residence was coming and to have input into its establishment.
Not so, the court held. The Federal Fair Housing Act(31) protects persons with mental disabilities in housing matters, and the neighbors’ argument fundamentally misconstrued constitutional law, there being no constitutional basis for overriding the statutory protections. Moreover, New Jersey’s comprehensive regulation of community residences and of discharge procedures for State Psychiatric Hospitals blunted allegations that the residences posed a community threat.
V. Space for Staff as Constituting Prohibited Offices Under Local Zoning Ordinances
Without the option of zoning ordinances aimed directly at community residences as such, municipalities sometimes resort to indirect means that invoke general zoning ordinances or other laws. One of the more common attacks aims at the space that community residences often provide for their staff and for the records kept by the residence. This space may be a room within a residence. It may even be a separate unit within a multi-unit residence. Many local zoning codes prohibit offices in residential districts, and municipal authorities may invoke such provisions against the space provided for staff and records within community residences.
The rebuttal to these efforts is that the space for the residence’s records and staff is not, legally speaking, an office at all. Rather, it is an integral and necessary part of the community residence. The State statutory and regulatory schemes that govern community residences contemplate that provider agencies will provide residents with “food, shelter[,]... personal guidance,...such supervision as [is] required,...[and] assistance” both temporary and permanent.(32)Staff must be on-site to provide these services.(33)Detailed records must be kept.(34)Naturally, the staff that attend to community residences must have a place from which to provide the counseling, supervision and support that State law requires of them. There must also be a place where the required records can be recorded and stored, at least temporarily. The space for records and staff serves both these purposes. It is part and parcel of a duly licensed community residence. Consequently, it is part of a use that is permitted “in all residential districts of a municipality.”(35)Municipalities cannot move against it.
VI. Community Residences as Boarding Homes
One occasionally encounters the argument that community residences are boarding homes and must meet the statutory and regulatory standards for such homes. In fact, prior to 1987, group homes for persons with mental illness were governed by boarding home laws as well as by the licensing laws for community residences. This anomaly grew from the fact that community residences did not have separate kitchen and bathroom facilities for residents, and they provided services that fit within the definition of a boarding home. However, in 1987 statutory revisions exempted community residences from the scope of boarding home law. They are now governed solely by their own licensing laws.(36)
VII. Community Residences and Construction Codes
Community residences for persons with disabilities are generally subject to the same construction code requirements as other residential buildings. Only rarely can they be classified as, and held to the more stringent construction requirements imposed on, institutions.
Local construction officials determine construction code classifications. However, they are overseen by and subject to regulation by the State Department of Community Affairs. The Department can also issue what are called Formal Technical Opinions or FTOs. FTOs are binding on local construction officials.(37)FTO-8, entitled “Use Group Classification - Department of Human Services Residential Programs”, currently governs the classification of community residences licensed by the State Division of Mental Health Services and the Division of Developmental Disabilities.(38)
FTO-8 sets out four factors that determine the construction classification of community residences: the number of residents, whether their residency is permanent (typically reside in the residence for 30 days or more) or transient (typically reside in the residence for fewer than 30 days); whether they can self-evac-uate; and the division within the Department of Human Services that licenses the residence.
Community residences virtually never have transients. Usually their residents can self-evacuate. However, that ability is not a strict requirement for classification as a residence. Residences licensed by the Division of Developmental Disabilities may have as many as five residents incapable of self-evacuation and still retain residential classification for construction code purposes if certain compensating measures are taken.(39)
When residents are permanent and self-evacuation is not an issue, the determining criteria for construction code classification are the number of residents and the licensing agency. Residences licensed by the Division of Mental Health Services or by the Division of Developmental Disabilities that have five or fewer residents are classified with one- and two-family dwelling units. Those with from six to fifteen residents and licensed by the Division of Mental Health Services are dealt with as multi-family dwellings with more than two units, as are residences with six to sixteen residents licensed by the Division of Developmental Disabilities. FTO-8 does not address residences with more than 15 residents licensed by the Division of Mental Health Services. Residences with 17 or more residents licensed by the Division of Developmental Disabilities are treated as institutions.
Current trends in serving persons with disabilities favor smaller community residences. In recent years it is unusual to find newly established community residences that have more than five residents and are therefore subject to anything more than the comparatively lenient construction requirements imposed upon one- and two-family homes.
FTO-8 is intended to preclude local construction officials from making intrusive inquiries into the nature of the disabilities of the residents of community residences. Instead, they are to rely on the Opinion’s four criteria, since State licensure assures that the residence will be occupied by appropriate individuals.(40)However, the Opinion applies only to State licensed community residences.(41)Unlicensed community residences (42)are subject to construction officials’ careful inquiry into the “characteristics of intended occupants”.(43)The residences must then be classified by direct application of relevant provisions from the State’s construction code, rather than by resort to FTO-8.(44)
VIII. Geographic Dispersal of Community Residences
From time to time municipalities claim that too many community residences are being established within their borders. Minimum spacing and maximum population standards are no longer permissible.(45)However, there remains one statutory provision that addresses this concern, at least indirectly.
One of the State Statutes governing community residences calls upon the Department of Human Services to “monitor” the “geographic location” of community residences and, “through the granting or withholding of licenses”, to “insure” that they are “available throughout the State.”(46) This provision has not been interpreted by the courts. It can be viewed as a measure to benefit persons with disabilities by assuring that they have easy access to residences statewide. Its purpose may also be to assure that community residences are not so heavily concentrated in a small area that the residences resemble an institutional setting, thereby depriving persons with disabilities of their right to a home in the community. Viewed in either of these manners, the provision no doubt would survive judicial scrutiny. However, if the provision’s purpose is to permit the State to surreptitiously utilize minimum spacing or maximum population requirements of the type that have been struck down in zoning cases,(47) the courts are not likely to respond favorably. Nor are the courts apt to sustain an interpretation that permits the State to “steer” community residences out of municipalities that complain of their presence.(48)
IX. Unlicensed Community Residences and the Definition of a Single-Family Home
So far the discussion has dealt solely with community residences that are licensed by the State. However, there is a credible argument that community residences for persons with disabilities do not have to be licensed by the State. For example, three or four families may decide to buy a house and establish a residence for their adult children with mental retardation. (49)What is the legal status of such homes?
From time to time municipalities have attempted to exclude community residences on the grounds that they do not constitute “families” as required by local zoning ordinances that establish zones for single-family residences. Licensed community residences are immune to these efforts by virtue of their statutorily mandated status as “permitted uses in all residential districts”, uses that must be treated “the same as . . . single family dwelling[s].”(50)However, unlicensed community residences are subject to local efforts to define what constitutes a family.
A typical ordinance’s definition of “family” might read: “ . . . one or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants.”(51)The municipality would argue that an unlicensed community residence such as a group home was not a permitted single-family use because its occupants were not related by blood, adoption, or marriage.
Other efforts to exclude community residences have resorted to imposing differential restrictions on the number of persons who could live in a single-family residence based on whether the residents were related to each other. Such an ordinance might accomplish this objective by defining “family” as persons [without regard to number] related by genetics, adoption or marriage, or a group of five or fewer [unrelated] persons.(52)
Neither type of effort can succeed. The Federal Fair Housing Act does exempt from its coverage “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.”(53)However, the United States Supreme Court has held that differential occupancy limitations based upon relationship by blood, marriage or adoption do not fall within this exemption.(54)
New Jersey’s courts have gone even further. They have entirely prohibited the differential treatment of families based on blood, marriage or adoption. Instead, they have adopted an approach that looks to functional relationships. If the residents of a house “bear the generic character of a family unit as a relatively permanent household,” they must be considered a single family for zoning purposes.(55)The only municipal limitations that can survive application of this rationale are ceilings on the number of persons who may reside in a house, regardless of their biological or legal relationship. These ceilings may be related to the size of the house, or they may be simple, absolute limitations. Either type would pass muster under New Jersey zoning law.(56)They would also be exempt from the Fair Housing Act as a reasonable restriction of the number of occupants permitted to occupy a dwelling.(57)
In determining whether, under New Jersey’s functional relationship test, unrelated residents of a residence “bear the generic character of a family unit,” courts look to such things as whether the residents share expenses and use common areas, perform household chores, participate in community activities, and shop together.(58)Residents of community residences generally have no trouble meeting these criteria. Of course, their disabilities sometimes preclude their performing household chores or independently functioning in other ways indicative of a family unit. However, this does not mean that the residences can be attacked as failing to meet the zoning criteria for families occupying single-family homes. Municipalities must make “reasonable accommodations in rules policies, [and] practices” so as to “afford . . . person[s] [with disabilities] equal opportunity to use and enjoy a dwelling[.]”(59) Such accommodation requires municipalities to ignore residents’ inability to function independently within a family unit unless the municipality can show that to do so would place an undue burden on the locality or fundamentally alter its zoning scheme. In the end, even unlicensed community residences for persons with disabilities are likely to stand as single-family residences and be afforded all the protections given other single-family residences.(60)
X. Excluding “Dangerous” Residents
Residents of community residences are commonly misperceived to be more dangerous than other neighbors. However, as with the general population, and in similar proportions, there are some residents of community residences whose backgrounds do suggest that caution is appropriate. How to respond to the needs of such persons is a social and political decision. However, that decision must be made within the bounds imposed by law, and the law has much to say on the subject.
While the Federal Fair Housing Act protects persons with disabilities from housing discrimination, it also excepts from protection persons “whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”(61)The Act goes into no further detail, but the direct threat exception also appears in the Americans with Disabilities Act where its scope is more precisely defined. The ADA’s exposition of the direct threat exception can guide discussion of the same exception in the Fair Housing Act, since courts are likely to draw on the ADA analogy when interpreting the Fair Housing Act.
The heart of the exception is that it applies to individuals. In other words, it cannot be used to exclude an identified group of persons from the protections of the Fair Housing Act. Thus, an effort to use the direct threat exception to exclude from group homes persons recently discharged from state psychiatric institutions has failed.(62) Even New Jersey’s statutory efforts to exclude from community residences persons previously found not guilty by reason of insanity or found unfit to stand trial in criminal cases(63)have been struck down. The court focused on the legislature’s attempt to exclude a whole category of persons from community residences and emphasized that the direct threat exception requires person-by-person application.[Link](64)
Proper application of the exception requires a “careful” and “particularized factual consideration of whether [a] person is currently dangerous.”(65)Direct threat must be “established on the basis of a history of overt acts or current conduct.” Evidence must be “sufficiently recent as to be credible.”(66) The danger to be considered is the danger posed in the specific placement under consideration.(67) Finally, in assessing the prospect of danger, the possibility of reducing the danger by accommodations such as programmatic changes must be explored.(68)