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Chapter 1 of TAP 14: Siting Drug and Alcohol Treatment Programs

Chapter 1—Introduction

All neighborhoods and, most families in the United States today have witnessed or suffered the tragic effects of alcohol and other drug abuse. In 1990, a Washington Post-ABC News poll found that 40 percent of Americans believed that drug abuse was the most serious problem facing the Nation.¹ While many people recognize the pervasiveness of alcohol and other drug problems, however, such widespread concern has not always resulted in communities welcoming alcohol and other drug treatment programs into their neighborhoods. Community opposition—commonly known as the NIMBY (not in my backyard) syndrome—often prevents or delays the siting of a treatment program. This manual examines the legal remedies available to treatment providers who wish to challenge discriminatory zoning and siting decisions that result from the NIMBY syndrome.

The NIMBY syndrome is not new, and it does not arise solely in opposition to alcohol and other drug treatment programs. Community resistance is often mobilized to prevent the opening or expansion of many types of health and social service facilities, including shelters for the homeless, group homes for the mentally ill, halfway houses for ex-offenders, and health-related facilities for persons with acquired immunodeficiency syndrome.

The opening of an alcohol or other drug treatment program, regardless of treatment modality, is often met by community resistance. Neighborhood opposition has delayed or prevented the siting of many treatment programs and even disrupted the relocation of existing programs. Unfortunately, even if a program ultimately prevails, the fight can be costly, not only in terms of resources, but in its effects on the clients as well. In one instance, a New Jersey town's campaign of harassment against a recovery home caused each of the home's residents to relapse.²

A community may battle to keep out alcohol and other drug treatment programs for a number of reasons. Residents may fear that property values will decline, and merchants may be concerned that crime will increase. The community may believe that a treatment program will bring in "outsiders"—perhaps outsiders of a different class or ethnic group. The community may believe that there is already an over concentration of services in the vicinity, or it may simply confuse the problem's solution with its manifestations. One provider remembers an opponent to his program stating: "This program shouldn't be here. There's already a homeless shelter and a crackhouse down the street."

In almost every instance, a community's fear of having an alcohol or other drug treatment program located within its borders is unfounded. In reality, treatment programs pose no legitimate danger to the health or welfare of the residents, nor do they draw substance abusers and pushers to the area. In fact, alcohol and other drug treatment programs improve neighborhoods by helping people get well.

If a locality attempts to keep out a treatment facility through discriminatory zoning ordinances and practices, these actions may be more than just unreasonable: they also may be unlawful. Federal disability-based antidiscrimination laws (including the Fair Housing Act, the Rehabilitation Act and the Americans With Disabilities Act), the equal protection clause of the fourteenth amendment to the U.S. Constitution, and many individual State laws have been used successfully to overturn the actions of local governments that preclude the siting of both outpatient and residential alcohol and other drug treatment programs.

This manual discusses ways in which an alcohol or other drug treatment provider can use the law to challenge the NIMBY syndrome or overcome it through other means. This manual is intended to provide technical assistance to treatment providers. While it is intended to be comprehensive, it is no substitute for professional legal advice on a specific situation. The interpretation of the laws may vary slightly from State to State, and the case law is always evolving. Therefore, it is essential that the treatment provider consult an attorney throughout the siting process.The information in this manual is presented in the following chapters:

• "Chapter 2—Zoning and Other Requirements That Affect Siting" provides general information on zoning ordinances and other codes that affect program siting. While these regulations vary from locality to locality, this chapter offers information helpful to understanding the bases for zoning ordinances and decisions. It explains variances and special use permits, and it summarizes the procedures that such applications might entail.
• "Chapter 3—Legal Challenges to Siting Barriers" describes the Federal laws and constitutional protections that a program can use to challenge a locality's refusal to allow the siting of a facility. These laws include the Fair Housing Act, the Americans With Disabilities Act, the Rehabilitation Act, the equal protection clause of the 14th amendment to the Constitution, and State zoning enforcement procedures. This chapter also includes a review of the case law developed under each statute.
• "Chapter 4—Applying the Legal Principles" demonstrates the application of the legal principles outlined in Chapter 3 to two representative case studies for in-patient and outpatient programs.
• "Chapter 5—Building the Case: To Site or To Sue" starts with the point that lawsuits may be won or lost long before they are filed. Using a model developed by the National Institute on Drug Abuse, this chapter provides advice on finding allies in the community, assuaging neighbors' fears, and averting local opposition. It also helps programs assemble information and documents throughout the siting process, which may later prove crucial to building a case.

The primary message of this manual is that while some communities may continue to oppose the opening of new programs, alcohol and other drug treatment providers should not be discouraged. There are various ways short of going to court to defuse, confront, and overcome the NIMBY syndrome. Furthermore, if a treatment provider must file suit, the provider should be confident in the knowledge that in case after case, in the face of groundless and irrational community fears, treatment programs have won the right to open their facilities and treat substance abusers in need.

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¹Noted in National Association of State Alcohol and Drug Abuse Directors (1990), Treatment Works, p. 3.

² June 1993 telephone conversation between Robb Cowie and Steve Polin, General Counsel, Oxford House, Inc.

Last Updated 11-7-02