Nimby Assessment

Spacing Restrictions Make it Necessary to Pursue a Special Use Permit

Background on the Impediment

The town has denied RC the certificate of occupancy necessary to move forward with the supportive housing project on the grounds that the project does not meet the spacing criterion that only allows the development of group homes located 2,500 feet from one another. That leaves RC to decide whether to seek another location, to ask for a reasonable accommodation (perhaps in the form of a special use permit), or to challenge the spacing restriction as discriminatory.

As discussed under the applying spacing restrictions in error impediment, RC has undertaken a thorough review of the spacing restriction; its underlying statutes, regulations, and ordinances; and the particulars of its application to the proposed RC project. If RC concludes that the town has properly applied its definition of "group home" and its spacing ordinance, it may still have a number of means at its disposal for overcoming the Spacing Restrictions barrier.

The source of the requirement, along with the agency's tolerance for risk and other factors, will determine which response is most appropriate for RC under the present scenario. Does the Spacing Restrictions requirement exist in state law or simply in agency regulations and ordinances? Before responding to the Spacing Restrictions barrier, RC and its legal counsel will have to review the applicable state statutes and regulations to determine the source of the requirement.

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