Tap 14 — TAPs <<<Documents<<<Home

Chapter 5 of TAP 14: Siting Drug and Alcohol Treatment Programs

Chapter 5—Building the Case: To Site or To Sue

Siting an alcohol or drug treatment facility does not have to lead to a legal battle. Many treatment providers have overcome the not-in-my-backyard (NIMBY) syndrome through outreach and educational efforts that have dispelled neighbors' misconceptions and fears about treatment and persons in recovery, leading opponents to reconsider their resistance. Other providers prefer to go about siting their facilities as quietly as possible, hoping not to stir up any attention that could lead to opposition. If opposition does arise, these providers use the threat of litigation to dissuade the community from taking any discriminatory actions. A provider should make every effort to site a program without resorting to legal challenges, while keeping in mind that community and official responses to its efforts may be valuable evidence if it ends up in court. This chapter discusses the nonlegal strategies that have proved to be particularly effective in defusing neighborhood hostility. It also provides suggestions on steps that a provider should take and information that it should gather throughout these efforts in the event that legal action is ultimately required.

Reaching Out to The Community

For many programs, outreach is the key to opening new facilities and avoiding prolonged and difficult disputes with neighbors. By being aware of and sensitive to community concerns, many programs are able to turn opposition into acceptance, making the siting of the facility easier for community residents, for the treatment program, and ultimately for the program's clients.

To assist programs with such outreach and educational efforts, the National Institute on Drug Abuse recently developed a resource manual entitled Overcoming Barriers to Drug Abuse Treatment.¹ Based on extensive research and the experiences of treatment providers, communities, and single State agencies, the manual recommends that a program do its homework on a community in which it plans to site a facility, approach the community and its leaders openly, dispel myths about alcoholics and other drug abusers who are in recovery, and try to help community residents understand what treatment is and the benefits that it provides. The following guidelines are based on the principles outlined in the National Institute on Drug Abuse manual and suggestions from treatment providers who have waged successful community outreach and education campaigns.

Knowing the Community

Before proceeding with its plans, a provider should become familiar with the particular character and attitudes of the community in which it intends to site a facility. The provider should determine who is likely to understand the need for treatment and to lend support for the proposed facility. Natural allies could include teachers, the police, human service providers, and charitable organizations. The provider should also determine who the likely opponents are, such as real estate developers and homeowner associations.

If the provider is planning to site the facility in a specific neighborhood due to its high incidence of drug abuse, it should try to assemble statistics that demonstrate the need for treatment in that area. Such data may also be valuable in litigation to demonstrate that excluding the program would have a discriminatory effect on the neighborhood or that establishing the program would contribute to the general welfare of the region.

Finally, the provider should determine who the important "formal" (mayor, councilpersons, zoning board of adjustment members) and "informal" (religious and business leaders) decisionmakers are, as well as the factors that might influence their support. The provider should consider the timing of its efforts; political leaders are often more sensitive to community pressure during an election year. It should also determine whether there have been battles in the past over the siting of similar facilities. This information could be useful to prove a pattern or tendency to discriminate against persons with alcohol or other drug problems. The more a provider knows about the community before it starts the siting process, the better its chances of success.

Cultivating Community Support

The provider of a proposed treatment facility should attempt to meet with as many community leaders as possible, even those who are not directly involved in approving the facility. Program representatives should speak to block and tenant associations, business groups, and churches, as well as local government officials. Often, NIMBY opposition is triggered by a community's belief that it has not been fully informed or consulted. By meeting with leaders throughout the community, the provider can ensure that all interested parties have been included.

One way the provider can overcome community distrust is to have leaders and residents from other communities in which it provides services discuss their experiences with members of the new community. It can arrange meetings between mayors, members of community boards, and police departments, or it can have a homeowner meet with the families who live close by the site of the proposed facility. There are two advantages to this tactic: the community is more likely to trust and identify with others in its position, and the treatment provider's ability to turn out support from other communities in which its programs are located represents a tremendous vote of confidence.

Another key to successful siting is to build strong relationships with the local media. The National Institute on Drug Abuse has developed public service announcements that emphasize the effectiveness of treatment, which community programs can provide to local television and radio stations.

An especially effective means of cultivating community support is to form an advisory board that includes community leaders. Giving community leaders a role in the planning and operation of the facility can stem fears and reassure residents that the program has proper oversight. One treatment provider in California was able to overcome local resistance by placing a leader of the community group opposing its facility on the program's board.

To the extent that these efforts do not win community approval, they provide a fertile ground for gathering evidence of discriminatory intent. Documenting the comments of residents and local officials and the media's characterization of the program or its residents are critical if the provider has to build a legal case and to prove that disability was considered inappropriately in a siting decision. In addition, if local officials refuse to meet with the provider or discuss its proposal, it can evaluate whether this behavior reveals a bias, particularly if officials routinely meet with groups that try to site other types of facilities.

Carefully Selecting a Site

One of the most important decisions a provider will make is determining where to locate a facility. It must take into account not only the zoning ordinances that govern the property, which may affect the type and size of facilities that can be constructed or sited, but also additional factors that can determine the degree of community resistance that it may encounter.

For example, if the provider decides to build a treatment facility close to a school or in an area already saturated with similar services, it could face difficulties that it would not have encountered if it had chosen a different site that still met its needs. The provider may succeed in ultimately siting its program in the original location, either through extensive negotiations or litigation, but adopting strategies to avoid such costly efforts should be emphasized.

Obtaining Legal Advice

A provider should obtain legal advice as early as possible when selecting a site for its program. An attorney should be able to identify all the zoning, health, and safety requirements that apply to the prospective facility under the zoning ordinance. The attorney should also be able to determine whether any requirements are facially invalid or will have a discriminatory effect or whether a reasonable accommodation would enable the provider to satisfy the ordinance requirements.

The attorney can also threaten to file a lawsuit to the extent that local officials are not willing to work with the provider to find an appropriate site, are bowing to community pressure to not site the program, or are applying the zoning ordinance erroneously. Officials often change their positions when informed about legal precedents that prohibit the decisions and actions that they are considering. Sometimes, local officials need the "cover" provided by legal precedents to make the right decision.

Legal help may also be available from public or private fair housing enforcement groups. For example, the Department of Housing and Urban Development provides funds to approximately 25 fair housing agencies to enforce the Fair Housing Amendments Act. In addition, protection and advocacy agencies exist in all States and provide legal assistance on discrimination in housing to individuals with disabilities.

It is important to remember that this manual is only a guide on the legal challenges that may be available. It is necessary to have an attorney who will be able to evaluate the provider's particular situation for possible statutory or constitutional violations.

Planning a Facility Carefully and Being Prepared To Make Accommodations

Many communities are concerned that proposed development projects will not "fit in." Many projects, including commercial developments, are delayed for this reason. A provider should take community concerns into account and modify whatever aspects of the new facility it can to meet their concerns. Again, the provider might be able to challenge successfully official or community requests to modify particular features on the ground that such requirements will have a discriminatory effect or are inappropriately based on the disability of future residents. However, if such challenges can be avoided without burdening the program, the provider should accommodate the requests.

Altering the size or appearance of a facility in order to make it architecturally consistent with neighboring buildings might make a community more receptive. Changing the name of the program might reduce opposition. For example, a program agreed to substitute "rehabilitation" for "alcoholism" in its name in order to win approval.

Planning and zoning boards, as well as fire and health inspectors, may require numerous technical modifications for a new or expanded facility. Such requirements may be legitimate, or they may be used as a pretext to block the opening of the program. Regardless of the motivation for the requirements, the program is obligated to bring the facility up to them to the extent that they are warranted by the unique needs of the individuals who will be using the facility. Again, an attorney would be useful to help evaluate which requirements are necessary versus those that could be construed as unnecessary and discriminatory hurdles.

Educating the Community

Many communities have tremendous misconceptions about treatment programs and the people they serve. As noted above, a critical component of any siting effort is to dispel these myths through community education. It is important that local decisionmakers and residents understand that treatment programs help communities by reducing many of the costly problems associated with active alcohol and other drug abuse and that treatment enables former users to return to productive lives.

A community board or zoning commission hearing, which is a standard element in most siting processes, presents a provider with an excellent forum to speak directly to its opponents and to demonstrate that its treatment program will be effective in treating alcohol and other drug abuse. The provider should explain the goals of the program, how it works, and why the disputed site has been chosen. Having an individual in recovery attend the hearing and describe how treatment has benefited his or her life may be useful.

Many communities resist treatment programs because the fear that active users and dealers will be drawn to the neighborhood and that crime will subsequently increase. The provider can address these fears in various ways. For example, it could explain to the community—

• How treatment encourages abstinence and prevents clients from relapsing,
• How the program monitors client drug use through urinalysis and other measures, and
• The program's rules of conduct, including how it enforces curfews and supervises individuals who are allowed to travel outside the program site.

The provider might also agree to participate in anticrime activities in the neighborhood. This would demonstrate its commitment to maintaining a safe community.

Another common fear is that the presence of a treatment program in the neighborhood will cause property values to decline. One way the provider can address this issue is to examine property values in other neighborhoods in which treatment programs operate. The single State alcohol and other drug agency may have conducted a study on the impact of alcohol and other substance abuse treatment on local property values that will provide assistance.² Even if the provider cannot obtain such information, it can still explain that its program will provide an important service that can only improve the community.

The hearing process also serves several important purposes if litigation becomes necessary (the provider should therefore obtain a transcript or a recording of the hearing proceedings):

• The provider can gather statements from residents and local officials who oppose the siting, which will be useful to prove that the locality is acting with a discriminatory intent to exclude persons with alcohol or drug problems.
• The provider can create a record that proves that it has responded to any of the neighborhood's legitimate health and safety concerns. To the extent that an adverse decision is then based on these concerns, the provider can demonstrate that they are simply pretexts for an underlying discriminatory intent.
• The provider can perhaps get the local officials to identify their reasons for opposing the project and then evaluate whether or not those reasons are legitimate. Moreover, if the reasons for opposing the project change over time, the provider can perhaps demonstrate that these reasons are simply pretexts to obscure an underlying desire to exclude individuals with alcohol and other drug problems from the community.
• The provider can identify ways to modify the locality's practices and procedures in order to accommodate the program's needs and demonstrate why such modifications will not impose a burden on the locality or alter the nature of the neighborhood. If the locality refuses to provide an accommodation by claiming an undue burden, the provider will have a record to demonstrate that such an accommodation is reasonable.

Demonstrating Willingness To Be Part of The Community

There are a number of tangible benefits that a provider of treatment services can offer a community to demonstrate its commitment to being a good neighbor. First of all, it can offer what it does best: provision of alcohol and other drug treatment. It can perhaps guarantee that local residents will have priority in receiving services. In addition, the program counselors can go into local schools and community centers to provide prevention and outreach services for youth, or they can work with the police and the courts to assess persons arrested for driving while intoxicated.

The provider can also propose to be a resource in other ways. Staff and residents can work as volunteers at the local nursing home, clean the park, or rebuild an abandoned apartment house. Representatives of the program can get involved in civic groups. The provider can pledge to hire from within the community and make purchases from local merchants. Whatever it chooses to do, it is important that it show that it is willing to have a stake in the community.

To the extent that the provider's efforts to reach out are rejected or met with hostility, it can use these responses as further evidence of community opposition to site its program on the basis of the disability of the individuals who will eventually use the facility.

Initiating Legal Action

While the above recommendations have proved to be helpful to many programs, they certainly do not guarantee success. A provider must continually evaluate whether there is any likelihood of winning approval without initiating legal action. An attorney can help the provider determine when it may be necessary to discuss with local officials the legal protections that prohibit discrimination on the basis of disability and to discontinue conciliatory efforts.

If the provider decides to take legal action, it should consult an attorney to determine the best approach to take. It will need to determine the following:

• What legal claims it has and the strength of its case
• Whether it wants to sue in State or Federal court or file an administrative action under the Federal antidiscrimination laws
• Whether it wants to ask the Attorney General to become involved in the matter so that it can benefit from the Federal Government's resources and expertise in developing and litigating cases.

If the provider has few resources to pursue litigation, it should not walk away from the problem. The Federal antidiscrimination laws authorize the party that wins a suit to recover attorney fees and the costs of litigation. The provider may be able to find an attorney who will take its case without a large investment of funds if the prospect of winning and recovering fees exists. The provider may also choose to pursue the administrative complaint procedure that exists under the antidiscrimination laws, particularly that under the Fair Housing Amendments Act, because the administrative agency will conduct the investigation and gather evidence on the provider's behalf without cost. While the remedies may differ under an administrative complaint procedure and a civil court action, the provider can still accomplish its primary goal of siting its program.

____________________

¹ National Institute on Drug Abuse (1992), Overcoming Barriers to Drug Abuse Treatment, Rockville, MD: National Institute on Drug Abuse.

² The Bazelon Center for Mental Health Law (formerly the Mental Health Law Project) in Washington, DC, has extensive information on housing discrimination, including a bibliography of social science research on the economic and environmental impact of group homes on neighboring property.

Last Updated 11-7-02