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Chapter 2 of TAP 14: Siting Drug and Alcohol Treatment Programs

Chapter 2—Zoning and Other Requirements That Affect Siting

Zoning ordinances are by far the most common barriers treatment programs face in attempting to site or relocate their facilities. Sometimes a locality's zoning ordinances are written specifically to exclude a facility such as an alcohol or other drug treatment program. Sometimes a locality interprets its zoning laws to keep out a program or deny a program the variance necessary to comply with the zoning requirements. In either case, a treatment program may face formidable obstacles to winning the permission it needs to open its doors. It may even have to engage in a prolonged and costly legal battle before it can prevail.

This chapter discusses how zoning and other ordinances may affect the siting of an alcohol or other drug treatment program. It outlines the legal basis of zoning ordinances, explains how such ordinances are applied, defines such terms as "special use permit" and "variance," and introduces some of the basic concepts central to challenging unfavorable zoning decisions. This chapter also addresses other types of codes that a newly opened program may have to meet and attempts to identify points throughout the siting process that may require public hearings or otherwise present opportunities for community opposition to rally against a program. Advance planning can create conditions that enable the director of a proposed alcohol or other drug treatment facility to gain community support.

Legal Basis of Zoning Ordinances

Zoning ordinances are local laws that regulate a landowner's use of his or her property. Zoning regulations commonly divide a community into areas where specific types of development are allowed to occur. For example, they limit the construction of houses to residential areas, the placement of a shopping mall to a commercial zone, the location of a garment factory to a manufacturing zone, and the siting of a steel mill to a zone designated for heavy industry. These limits are called land use restrictions. In addition to regulating how land may be used, zoning ordinances may impose numerous requirements on how a building may be constructed or situated on the property. For example, a zoning ordinance might limit the maximum height and floor size of a building or require that it be set back certain distances from the road and adjoining lots.

The authority to make zoning decisions is usually conferred upon a local government through a city charter, through the State constitution, or through legislation. Such authorization is called an enabling act.¹ Most enabling statutes are modeled on the Standard Zoning Enabling Act, a Federal law drafted in 1922 by the Hoover Commission to provide a benchmark for the zoning laws that were springing up throughout the country at that time.

The existence of an enabling act, however, does not provide a local government with unlimited and unchallengeable prerogatives in zoning. Zoning ordinances must have a rational basis in their enactment and enforcement. If not, they may be challenged in court on the ground that the locality has overstepped its authority, sometimes referred to as the "police power." The police power is a legal concept that gives government the right to make decisions that advance and protect "the health, morals, safety and general welfare of the community,"² as long as such decisions are not arbitrary, unreasonable, or capricious. If a zoning ordinance is unjustifiable or has no rational underpinnings, then it is an abuse of the police power and it may be struck down by a court.

For example, a town could prohibit locating a hospital or a nursing home on a floodplain. Such an ordinance would be a legitimate use of the police power in that the town is acting out of a reasonable concern for the safety of vulnerable residents or to protect important facilities.

On the other hand, zoning decisions may be open to attack on the ground that they are unreasonable if a town chooses to interpret or apply its ordinances selectively or inconsistently. For example, a court in upstate New York found that a city zoning board arbitrarily and capriciously exercised its authority when it denied a drug treatment program's application for permission to site a facility, since the program had met all the requirements set out in the zoning ordinance and because other similarly classified facilities (including two nursing homes) had been allowed to open.³

Zoning and Discrimination

For the most part, a community cannot use its zoning ordinances to discriminate against classes of people that it does not want to accept, such as alcohol- and other-drug-dependent persons. Courts have consistently ruled that if an ordinance is intended to exclude certain groups from the community, or in some cases, if an otherwise "neutral" ordinance has a discriminatory effect, then the zoning decision may be voided on the grounds that it violates antidiscrimination statutes or rights and protections guaranteed by the U.S. Constitution.

Chapter 3 explains how specific provisions of the antidiscrimination laws and the Constitution relate to zoning and discuss their use in challenging zoning decisions.

What a Zoning Ordinance Entails

Zoning ordinances divide localities into different districts, usually based upon the type of land use permitted within each area. For example, one zone might be reserved for multiple-family dwellings and another might be reserved for small-scale commercial use. In most instances, the ordinance is accompanied by a map that delineates the boundaries of each zoning district. A town may have any number of zoning districts, and each district may vary in the diversity of uses permitted within it.

On the whole, the responsibility for zoning rests almost entirely with local governments. This means that the specific requirements of zoning ordinances vary from municipality to municipality, and the prospects for siting a program in a desired location will depend upon the local ordinances governing the use of that land. For example, New York City allows both residential and outpatient, nonprofit drug treatment programs to be sited in all residential and most commercial zones, but not in areas zoned for manufacturing. Other localities might be more restrictive; for example, a town that limits "health care facilities" to a specific kind of commercial zone might require a methadone maintenance treatment program to be sited in that particular area, along with doctor's offices, hospitals, or family-planning clinics.

Zoning ordinances typically regulate the following aspects of development:

Site layout (such as setback and lot size restrictions)
• Structural requirements (such as limits on the height of a building, the number of units, and the number of occupants per square foot)
• Uses to which the property may be put and any permitted exceptions (for example, an area zoned for single-family residences might make exceptions for light commercial structures, such as convenience stores)
• Important procedural issues (who determines whether a building plan conforms with the ordinance, whether public hearings are required prior to approval, and the mechanisms for appealing an adverse determination).⁴

An ordinance also may describe the purpose and intent of the requirements included in it. Such language may be drawn from the "master plan," a statement reflecting the locality's goals and objectives for controlling growth (usually developed by the local planning commission or a planning consultant). The master plan, which is ideally implemented after public hearings that allow the community an opportunity to voice its concerns or approval, provides a coherent foundation for the locality's zoning ordinances, thereby protecting it from legal attack on the ground of irrational decisionmaking. However, a master plan is not essential as long as the locality can demonstrate that its zoning ordinances are the product of comprehensive and reasonable decisionmaking.

Individuals can usually review a local zoning ordinance and the zoning map at the local library or planning office.

Exceptions to Zoning Ordinances

Once a program has selected a potential site on which to locate, it must determine whether the use of that site conforms with the uses allowed under the governing zoning ordinance. As noted at the beginning of this chapter, most of the zoning problems that treatment programs encounter involve complying with (or applying for exceptions to) land use restrictions.

If a facility conforms with the allowed uses, then it may proceed "as of right." Building as of right means building under the assumption that the program to be sited falls within the land uses allowed in the zoning district. For example, if an alcohol or other drug treatment program wants to open a large residential treatment center in an area zoned for high-density apartments or multiple-family dwellings, then it is likely that the proposed facility would fall within that classification and would not conflict with the land use restrictions of the zoning ordinance. However, the program might still have to meet other criteria in the ordinance, such as site plan and structural requirements (though these often are flexible and sometimes can be negotiated with the locality's planning or zoning board).

The locality decides how a proposed development or project should be classified. Usually, a town officer (such as a building inspector or a planner) will review the plans for the development and make a determination as to whether the plans meet criteria set forth in the zoning ordinance, including the land use restrictions. For example, a town could decide that the residential treatment center described in the paragraph above is a business and must therefore be located in a commercial rather than a residential zone. A program that receives an adverse decision can appeal to an administrative body, commonly called a zoning board of adjustment.

If a program is not permitted as of right on the property selected, the provider may have to ask the locality for an exception to the zoning ordinance. Two common types of exceptions are special use permits and variances.

Special Use Permits

Special use permits (or conditional use or special exception permits) allow certain types of development in zones where these types would not normally be eligible for siting. The specific types of land uses eligible for a special use permit, along with the criteria for approval, usually are stated in the zoning ordinance. Special use permits are designed to allow the community some flexibility in zoning, while maintaining regulatory control. For example, a community may choose to allow day-care centers, gas stations, and restaurants to be located in a residential zone through special use permits, so that the residents can have those services close at hand, while the community's planners can limit their proliferation and their impact on the neighborhood.

In reviewing an application for a special use permit, the board of adjustment or the planning agency will examine the following issues:

• Whether the zoning ordinance allows the granting of a special use permit for the category of land use that is being proposed
• The effect of the proposed development on neighboring property use and values
• The compatibility of the proposed development with neighboring uses and facilities
• The impact of the proposed development on "public health, safety, morals, or general welfare."⁵

These or similar standards should be included in the actual ordinance, and the provider should be prepared to address them in the process of applying for a special use permit.

For example, suppose a provider is attempting to locate an outpatient facility on a crowded main street that is zoned for commercial use and the ordinance requires any "health, educational, or social services facility" to obtain a special use permit. It is likely that the board of adjustment will be concerned about the impact that the proposed program could have on traffic patterns and parking availability. To address this concern, the provider could inform the board about the percentage of its clients who use public transportation or it could commission a planning consultant to make a trip generation study.

In addition, the board of adjustment may also be required to hold a public hearing before granting a special use permit. If this is the case, the provider should be prepared to encounter community residents who may oppose the siting of the program. Chapter 4 describes objections that communities typically voice in opposition to treatment programs and suggests strategies to allay such fears.

Variances

If a zoning ordinance does not provide for the issuance of a special use permit, a provider may want to consider asking the board of adjustment to grant a different type of exception, called a variance. There are two types of variances: area variances and use variances. An area variance eases the layout or structural requirements that make building on a piece of property difficult "due to some odd configuration of the lot or some peculiar natural condition which prevents normal construction in compliance with zoning restrictions."⁶ A use variance allows an exception to the land use restrictions contained in a zoning ordinance (for example, if a provider wants to open a small residential facility in an area solely zoned for single-family residences and the ordinance makes no allowances for any other use through a special use permit, the provider must apply for a use variance before it can open its program).

Variances are most commonly granted where the enforcement of the zoning ordinance would result in an unnecessary hardship for the property owner. "Unnecessary hardship" is usually interpreted to mean that a strict adherence to the limitations imposed by the zoning ordinance would likely deny the landowner a reasonable return on the value of his or her property.⁷

However, some States allow variances to be granted in instances where the proposed land use will contribute to the public good or the welfare of the region (as long as the variance does not contradict the purpose and intent of the zoning plan and the ordinance).⁸ This standard is clearly more applicable to an alcohol or other drug treatment program than is the unnecessary hardship standard, and it is clearly more advantageous, because a treatment program should not have difficulty demonstrating that it would provide a public service or address a need in the community.

To obtain a variance, a provider has to make an application to the local zoning board of adjustment. This process may be time consuming, and it will likely involve public hearings. Since use variances allow exceptions to an existing zoning ordinance without the explicit approval of the ordinance, they are often highly controversial.

Other Barriers To Siting

Zoning laws present the most common obstacles to treatment program siting, but they are not the only legal and procedural requirements with which the program may have to comply. Before the program can be opened, it may also have to meet State certification or licensure requirements, provide an environmental impact statement, obtain building permits and certificates of occupancy, and comply with health, safety, and fire codes.

In some cases, these requirements pose more formidable barriers than do zoning ordinances. In a limited survey of 45 alcohol and other drug treatment providers seeking li-censure, the California Department of Alcohol and Drug Programs' NIMBY Workgroup found that the number of programs needing to bring their facilities up to local fire standards in order to obtain fire clearances was greater than the number of programs that identified problems with zoning restrictions or community opposition.⁹ In New York State, actions taken by State agencies (such as the licensure of a drug treatment facility) must be accompanied by an environmental quality review, which includes an examination of a proposed facility's impact on the character of its location. Some communities, unable to deny a special use permit or a variance to an unwanted drug treatment program, have attempted to exploit the environmental quality review process in order to delay or stop treatment providers from siting their facilities.

In addition, environmental approvals or applications for State licensure may require the locality to conduct public hearings or may require the proposed program to submit proof of community acceptance. In New York City, all organizations operating facilities under contract with the municipal government must undergo an extensive process of public review and consultation, called fair share, before opening new programs or expanding existing ones. While this process has successfully defused much community distrust and resistance in New York City, public-notice requirements often provide foes in the community with an opportunity to intervene in and influence the process to the detriment of proposed facilities.

Conclusion

Local zoning ordinances and other regulatory requirements will greatly affect a provider's ability to site its program successfully. The provider may encounter instances where a resistant community uses zoning ordinances to delay or prevent its treatment program from opening, or the provider may face legitimate zoning difficulties that could require it to modify its plans for the facility, to apply to the zoning board of adjustment for a special use permit or a variance, or to choose another site altogether.

Whatever the obstacle, preparation is critical. When a provider selects the location for its program, it must know the zoning restrictions governing the use of land in that area and the types of exceptions allowed through special use permit. The provider should be familiar with other aspects of the zoning ordinance: How many residents will the zoning ordinance allow in the facility? How much parking must be available for clients and staff? The provider needs to know what offices must review its plans: The planning commission, the building inspector, or the community board? The provider should be ready with information about the effect that its program will have on neighbors and the burden it will place on local services.

Understanding the process does not guarantee a successful outcome. However, choosing a location that is appropriately zoned, meeting with the locality's planners and incorporating their suggestions into building plans, attending public hearings and addressing community concerns, all improve a program's chances. If the community still refuses to approve the facility, the provider has at least complied with all necessary procedural requirements and has begun to lay the groundwork for a legal challenge.

¹ Susan Webber Wright (1985), Land Use in a Nutshell (Second Edition), St. Paul, MN: West Publishing Co., 136.

² Ibid., 133.

³ Vento v. Graziano, No. 87-225 (N.Y. Sup. Ct. April 17, 1987).

⁴ John M. Levy (1991), Contemporary Urban Planning (Second Edition), Englewood Cliffs, NJ: Prentice Hall, 103.

⁵ Peter W. Salsich, Jr. (1991), Land Use Regulation, Planning, Zoning, Subdivision Regulation, and Environmental Control, Colorado Springs, CO: Shepard's/McGraw-Hill, 193.

⁶ Wright, Land Use in a Nutshell, 146.

⁷ Salsich, Land Use Regulation, 195-96.

⁸ Ibid., 196.

⁹ NIMBY Workgroup, Department of Alcohol and Drug Programs, State of California Health and Welfare Agency, to Carl Sechrist,

Last Updated 11-7-02