Nimby Assessment

Spacing Restrictions Make it Necessary to Pursue a Special Use Permit


If the town concludes that RC will be operating a group home, RC has three choices: (1) it can walk away from the property and find another; (2) it can accept the town's decision and seek an exception to the spacing restriction; or (3) it can challenge the determination as being discriminatory. Think about the scenario from the perspective of RC as you consider questions it might ask related to challenging or changing the Spacing Restrictions requirement.

Is RC willing to walk away from the property in question and find another that would not invoke the spacing restriction?

The answer to this question will depend on RC's risk tolerance, its investment in and commitment to the current property, and its willingness to stand on principle. If RC works in a defined geographic area, there may not be other appropriate properties available at a price RC can afford, or other locations may compromise some of RC's programmatic requirements concerning safety, access to transportation and services, or proximity to employment and education.

Is RC prepared to go through the process necessary to acquire a special use permit to allow it to operate at its preferred site?

In most localities, a special or conditional use permit is a means by which local government can make an exception to a general zoning rule, such as the spacing restriction on group homes. Even before the Federal Fair Housing Amendments Act of 1988 (Act) required local governments to make "reasonable accommodations" (changes in rules, policies, practices, and services to increase housing opportunities for persons with disabilities), towns and cities had special and conditional use permit provisions in place to allow otherwise prohibited uses of property under certain conditions.

Here, RC might be asking for a special use permit as a form of reasonable accommodation. It could ask that the definition of group home be relaxed so that it would not apply, or it could ask for an exception to the spacing restriction, or it could ask for both. The Act requires local governments to make such accommodations unless doing so would impose an undue burden or constitute a fundamental alteration of the town's zoning scheme.

RC should realize that special use permits and requests for reasonable accommodation usually require notification of interested parties and public hearings to discuss the merits and burdens of the requests. If RC believes a public process would be harmful to its interests and those of its residents, the agency would be more likely to avoid this conflict and seek another location.

Does the spacing restriction discourage housing opportunities for persons with disabilities, violating the protections found in the Fair Housing Act, Americans with Disabilities Act, and other Federal laws?

  • Is RC willing to use the legal system to obtain a "reasonable accommodation" or to otherwise challenge the Spacing Restrictions barrier?
  • Are there other providers or allies who might join such a challenge?

The spacing restriction may discourage the development of housing for RC's target population: individuals with dual diagnoses of mental illness and substance abuse.

If the rule is applied rigidly, a waiver is not available, and RC can demonstrate a significant unmet need for housing for individuals with dual diagnoses, then RC has a strong case for using the legal system to challenge the restriction and its application to RC, and to ask that the ordinance itself be invalidated by a court.

To establish that significant unmet need exists for housing for individuals with dual diagnoses, RC can:

  • Demonstrate that providers of similar services have waiting lists because they cannot meet the demand for supportive housing for formerly homeless people with dual diagnoses.
  • Demonstrate that state or local departments of mental health and substance abuse services have waiting lists of eligible clients.
  • Review the local jurisdiction's "Consolidated Plan," a plan for housing and community development activities that is required of localities receiving Federal funds. The consolidated plan may contain a valuable description of the housing needs in the community.
  • Review the local jurisdiction's "Analysis of Impediments," a document required by HUD to identify barriers to fair housing. The analysis may contain valuable information that bolsters RC's case. Many analyses of impediments are now posted on the Internet.
  • Assess whether the spacing requirement rule impedes RC and other providers in their attempt to move people out of institutional settings and into more integrated housing and services settings in the community. If so, the state agency may be violating fair housing law.

If the town refused to permit the accommodations RC requested, RC might consider two legal strategies for challenging the Spacing Restrictions requirement in state or Federal court:

  1. RC might request a reasonable accommodation (waiver) for the RC project because it is necessary to provide an equal housing opportunity for people with dual diagnoses. No showing of intent to discriminate is required to sustain such an argument, but its success would result in an exception for RC only. Other providers would have to obtain similar waivers or seek to invalidate the provision altogether.
  2. RC might argue that the requirement is discriminatory, either on its face (meaning that there is no circumstance in which such a rule can be justified) or as applied to RC. In response to this argument, the state would need to justify the disparate treatment (or intentional discrimination) by demonstrating that it achieves an important government objective and that no less discriminatory alternatives are available. The difficulty with this approach is that RC would have to demonstrate the state's intent to discriminate.

Has RC filed a fair housing complaint with the U.S. Department of Housing and Urban Development (HUD)?

States and localities must affirmatively further fair housing to continue to receive HUD funding. By filing a complaint with HUD questioning the state's commitment to affirmatively further fair housing, RC may be able to motivate the state to work more collaboratively towards a solution to the Spacing Restrictions issue. Visit HUD's website to learn more about reporting fair housing concerns.

Has RC met with state officials or legislators who might influence enforcement of the Spacing Restrictions requirement, arrange for a waiver, or advocate for changing the underlying policies?

If RC determines that it will not pursue a legal challenge, the organization will need to decide whether to seek political intervention to overcome the spacing criterion.

The state legislature has the power to amend any statute with a spacing criterion, or to command the state government to change any regulation or ordinance containing such a requirement. Elected officials within the state government may also be able to stimulate change in the state's regulations and ordinances and their enforcement of state rules.


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