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requires some careful thought about the com-
<br />munity's needs and the demand for such uses.
<br />Regardless of the special attention the attorney
<br />fees provisions may demand, it is best to plan
<br />for all types of group living arrangements at the
<br />same time and under the same terms, except
<br />as is necessary to recognize that there are dif-
<br />ferences between them. It should not be the
<br />threat of the FHAA that drives a local govern-
<br />ment to plan and regulate for just those types
<br />of group living arrangements that are within the
<br />reach of the federal law.
<br />The first step is to identify all types of
<br />group living arrangements that are needed now
<br />and in the future in your community. Survey
<br />social service agencies locally and regionally;
<br />interview state -level departments with re-
<br />sponsibilities for those who might live in such
<br />homes. The agencies will have a list of existing
<br />group homes. Some of the homes will likely
<br />predate local regulation or may have become
<br />established by variances. It is useful to under-
<br />stand what is in place now in order to be able
<br />to determine current and future needs.
<br />The operators serving the residents of
<br />area group homes can provide insight into gaps
<br />in coverage and challenges, particularly op-
<br />position, that may lie ahead. As you get further
<br />the planning process, you will likely find that
<br />access to public transportation is important for
<br />many types of facilities. Also, it is important to
<br />note that in some states, group homes oper-
<br />ated by, contracting with, or funded by a state
<br />agency may be immune from local zoning ordi-
<br />nances (Kelly 2016).
<br />The U.S. Census Bureau collects data
<br />on the disability status of respondents to the
<br />American Community Survey (ACS), and that
<br />data is helpful in developing a needs -driven
<br />comprehensive planning element. The census
<br />data categorizes disabilities as visual, hearing,
<br />ambulatory, cognitive, health care, and inde-
<br />pendent living. The data is also disaggregated
<br />by gender, age, race, education level, employ-
<br />ment, and health insurance coverage. The ACS
<br />also has data on "Group Quarters" generally, of
<br />all types (2o16).
<br />What is often lacking in the available data
<br />and in the surveys conducted is the ability of
<br />families to care for those who are disabled
<br />and who may be prospective residents of a
<br />group home. There are many advocacy groups
<br />for people with all types of disabilities that
<br />may prove helpful in identifying the hidden
<br />demand —families who are caring for their own,
<br />often struggling and anxious about the future
<br />care of their family members. Among these
<br />organizations are the American Association of
<br />People with Disabilities, the National Disabili-
<br />ties Rights Network, the National Information
<br />Center for Children and Youth with Disabilities,
<br />the National Organization on Disability, and the
<br />National Supportive Housing Network.
<br />After the need for various types of group
<br />homes, the number of beds for each, and the
<br />time frame within which they must be devel-
<br />oped, the planning process involves identifying
<br />appropriate locations and reaching out to the
<br />neighborhoods to attempt to mitigate communi-
<br />ty opposition through meetings and workshops.
<br />One essential decision is whether to
<br />concentrate group homes in one area, partic-
<br />ularly where they have access to services, or
<br />to disperse them throughout the community
<br />to avoid clustering and to facilitate main-
<br />streaming the residents. The courts are not
<br />settled on which is the preferred approach.
<br />Spacing requirements establishing minimum
<br />separating distances between group homes
<br />have met with mixed results in the courts.
<br />Ultimately, a hybrid approach may be best,
<br />locating group homes in a somewhat more
<br />clustered way with ready access to services
<br />and transportation, while the same time dis-
<br />persing group homes throughout moderately
<br />low -density residential neighborhoods so
<br />that they blend seamlessly with the rest of
<br />the population.
<br />THE REGULATIONS
<br />Good regulations start with good definitions.
<br />Spend plenty of time talking about the types
<br />of group homes and how you will define them.
<br />See the many types listed in the ACS. You must
<br />define "family" and "disability." And to reiter-
<br />ate, providing for group housing is not just
<br />about persons with disabilities. There remains
<br />a critical need to accommodate all manner of
<br />group living arrangements, most of which have
<br />no protection under federal law, although they
<br />may under state law. For example, local regu-
<br />lations may address the many other types of
<br />group homes noted at the outset, chief among
<br />them shelters for victims of domestic violence,
<br />homes for juveniles, halfway houses for those
<br />released from incarceration or as alternatives
<br />to incarnation, homeless shelters, congregate
<br />housing, job corps shelters, workers' group liv-
<br />ing quarters (pejoratively labeled "man camps"
<br />by some), religious homes such as convent and
<br />clergy houses, retirement homes, and even
<br />fraternity and sorority houses.
<br />They are all deserving of careful review
<br />and attention to whether current and future
<br />needs are being met, where such uses might
<br />be best located, how many beds are needed
<br />during the planning period, what design and
<br />siting considerations may be established in
<br />advance as criteria for approval, and what
<br />processes might be followed —all of which may
<br />vary from one type of group living arrangement
<br />to another.
<br />Regulation may range from highly discre-
<br />tionary to as -of -right. The most discretionary
<br />would be to use a "floating zone" for group
<br />homes, where approval requires rezoning the
<br />subject parcel. That application typically in-
<br />cludes a conceptual site plan so the regulators
<br />know what they will get if they vote to allow the
<br />floating zone to descend and apply. It is the
<br />best of both worlds for planners because the
<br />local officials are making a legislative decision
<br />in rezoning the land. Courts give the greatest
<br />deference to legislative decisions, as distin-
<br />guished from quasi-judicial decisions such as
<br />variances, and administrative decisions, which
<br />include subdivision and site plan approvals.
<br />At the same time, the locality gets to see
<br />what it is going to get by having a conceptual
<br />site plan as part of the rezoning application.
<br />The applicants for group homes also may pre-
<br />fer this approach because the conceptual site
<br />plan is inexpensive to produce, and once they
<br />have the zoning they will have a vested right to
<br />develop it consistent with the conceptual site
<br />plan. At that point they can finance the detailed
<br />architectural and engineering work to get to the
<br />final site plan approval stage.
<br />At the other end of the continuum is the
<br />as -of -right approach, with zoning districts
<br />allowing group homes subject only to compli-
<br />ance with the code and issuance of a certificate
<br />of zoning compliance and building permits.
<br />In between these end points is the
<br />quasi -discretionary conditional use permit,
<br />sometimes called a special permit, special use
<br />permit, or special exception. In these cases,
<br />the group home use is permitted, but an appli-
<br />cation and public hearing are required to deter-
<br />mine if it is appropriate for a particular site.
<br />Take care not to stigmatize the potential
<br />residents. Federal appellate courts covering
<br />about half of the country have found that a
<br />formal, discretionary approval, such a condi-
<br />tional use permit, is not acceptable when used
<br />in making a decision regarding persons with
<br />disabilities or those otherwise protected under
<br />the FHAA, because they stigmatize the resi-
<br />ZONINGPRACTICE 6.16
<br />AMERICAN PLANNING ASSOCIATION (Pages
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