Agenda - Planning Commission - 07/21/2016

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religious activities involving the use of land to go forward, overriding local plans and local regulations as necessary. The Telecommunications Act of 1996 requires that local governments not regulate in a manner that prohibits or has the effect of prohibiting antennas and towers provid- ing personal wireless services. The Act also directs that communities act on applications within a reasonable time and that any denial of an application must be made in writing and supported by substantial evidence. The Act is unusual in that it expressly preempts local regulation under certain circumstances. It does so if the local decision denying an application is based directly or indirectly on the environ- mental effects of radiofrequency emissions (47 U.S.C. §332(c)(7)). One of the most direct initiatives from our federal government is the Air Installations Compatible Use Zones (32 CFR §256.5). The program mandates that the secretaries of mili- tary departments coordinate with local govern- ments around military air installations "to work toward compatible planning and development in the vicinity of military airfields...." Federal law similarly influences local plan- ning and regulation for group homes for people with disabilities. That law is the Fair Housing Amendments Act (FHAA), enacted in 1988 to extend the protections of the 1968 Fair Housing Act to people with disabilities. The FHAA pro- hibits a party from discriminating "in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter be- cause of a handicap" (42 U.S.C. §36o4(0(1)). A "handicap" is defined with three alternatives: "'Handicap' means, with respect to a person, (1) a physical or mental impairment which sub- stantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in z1 U.S.C. §802)" (42 U.S.C. §36o2(h)). This is essentially the same definition of the term as has been incorporated in the Americans with Disabilities Act (42 U.S.C. §12102). Note that federal law, and many state and local laws, use the now -outmoded term "handicapped." The more accurate, appropri- ate, and respectful description is to use the phrase "a person with a disability" and not a "handicapped person" or a "disabled person." There is by no means universal agreement on Q A facility for persons with cognitive disabilities in Denver. this terminology and grammatical structure. Some argue that the generally preferred phras- ing "a person with a disability" suggests a medical, rather than the social model (e.g., see Eagan 2012). While the FHAA does not explicitly ad- dress group homes, the U.S. Department of Justice makes it clear (in a joint statement with the U.S. Department of Housing and Urban Development) that the FHAA does prohibit local governments from discriminating against residents on the basis of "race, color, national origin, religion, sex, handicap [disability] or familial status [families with minor children]" through land -use regulation (2015). The upshot is that group homes occupied by unrelated in- dividuals with disabilities have special protec- tion from exclusionary zoning under the FHAA. Not included within the reach of the fed- eral law, except to the extent that the residents also are disabled, are group homes that are alternatives to incarceration, temporary hous- ing for workers, halfway houses for ex -offend- ers, homeless shelters, places of sanctuary and prayer, homes for those who are victims of domestic violence, college dormitories ... you can readily add to this list. Providing for these other types of group homes is important and can be done at the same time as the com- munity addresses its required compliance with the FHAA, but (now take a deep breath) there is one important and dramatic distinction for those types of group homes falling under the protection of the FHAA. SHOW ME THE MONEY That distinction has to do with the endgame of an FHAA action. In a typical zoning appeal, for example when a homeless shelter developer is denied a conditional use permit and appeals and wins, the developer still has to pay for all of its own legal costs. However, consider what happens if the developer of a group home with- in the reach of the FHAA—one for adults with developmental disabilities, for example —is de- nied a conditional use permit. lithe developer appeals and also brings an action under the FHAA—and wins —that developer is a prevailing party in a fair housing suit, and is allowed, in the court's discretion, reasonable attorney fees (42 U.S.C. §3613(c)). If the action is brought under the Civil Rights Acts of 1871, a so-called Section 1983 action for a violation of federal constitutional or statutory law, the prevailing party may re- cover attorney fees under the 1976 Civil Rights Attorney's Fees Act (42 U.S.C. §1988). Unless there are special circumstances, a prevailing plaintiff should be awarded attorney fees, but a prevailing defendant, for example the local planning board, is entitled to attorney fees only if the suit was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so" (Hensley v. Eckerhart, 461 U.S. 424 (1983)). The attorney fees provision, enacted to encourage lawyers to take on these cases, brings a heavy thumb down on the scales of justice. How bad can that be? Last year, Newport Beach, California, settled some long -running litigation against the city brought by providers of group homes who claimed the city violated the FHAA in effectively prohibiting group homes with seven or more residents in most of the residential areas, as well as requiring that existing group homes go through the same permit process as is required for new homes, including a public review process (Fry 2015). The city of Newport Beach spent more than $4 million of its own money defending its position ZONINGPRACTICE 6.16 AMERICAN PLANNING ASSOCIATION Ipage3