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Chapter 4 of TAP 14: Siting Drug and Alcohol Treatment Programs

Chapter 4—Applying the Legal Principles

To understand how the above laws and legal strategies operate in a real situation, consider these two hypothetical cases, one involving the siting of a halfway house and the other, an outpatient methadone maintenance treatment program. The discussion that follows outlines how a legal challenge would be structured and the possible enforcement mechanisms and remedies.

Case 1

The Situation

The Fresh Start alcohol and drug treatment program operates a residential treatment program for women and their children. Women who complete the 1-year rehabilitation program move into a halfway house as the second stage of their rehabilitation. The halfway house provides accommodations for 6 women and up to 10 children, who range in age from infancy to 15 years. At least two staff live in the house, and others come in to provide continuing care and other social services to the women and their children. Fresh Start has been operating one halfway house in the town without any problems, but it needs to open a second to serve six single women, who are ready to graduate, and their nine children.

Fresh Start believes that it is important to locate its halfway houses in residential neighborhoods that are removed from neighborhoods rife with open drug trafficking. This permits the women and children to escape the negative influences that undermine recovery and to develop healthy new relationships in the community.

Fresh Start has found a large house in a residential neighborhood that, with a few modifications, fits its needs perfectly. The house was used previously as a convalescent home for the elderly, but it has been vacant for 6 months. It would need to be renovated to subdivide some rooms to accommodate women with several children and to have the electrical system and plumbing updated to comply with safety codes.

The program's attorney contacted the town's zoning commission to determine the permitted uses of property in the particular zone. The commission informed her that single- and multifamily residential uses were permitted. She then contacted the property manager and negotiated a 5-year rental agreement. The program paid a large security deposit and signed contracts with building contractors, electricians, and plumbers to do the renovations. The program also applied for an occupancy permit, which was required of all renters, and for building permits.

Fresh Start contacted the residents of the neighborhood and invited them to the treatment facility in an effort to introduce the halfway house program to them and to facilitate the transition for the women. Few people attended, but those who did expressed concern that a halfway house did not fit into their neighborhood. They noted that the neighborhood was a mixture of elderly people, who would be disturbed by the large number of children, and young families, whose children would be negatively influenced by the children of drug-abusing women. They also expressed their fears of having men come into the neighborhood to visit the women and provide drugs in exchange for sex.

Fresh Start attempted to allay the neighbors' concerns by discussing the strict standards with which the women must comply in order to reside in the halfway house and the women's need to reside in this type of a neighborhood. The program also discussed the experience of the neighborhood in which its other halfway house was located, noting that none of the stated fears had materialized.

Despite the initial opposition, Fresh Start proceeded with its plans to renovate the dwelling. As part of the occupancy permit process, a building inspector visited the site. He indicated that the dwelling needed substantially more renovations than had been anticipated to comply with the building and zoning codes. According to the inspector, the facility was classified as an "intermediate care facility" that required additional safety features, including a sprinkler system and alarms as well as bars on all windows, and that required extra bathrooms because children would reside in the facility. These renovations were estimated to cost $40,000, which was far beyond the program's budget.

Fresh Start's attorney met with the zoning commissioner and the town attorney to discuss the classification of the program as an intermediate care facility and the required renovations. The attorney explained that the facility was not providing any medical services that would bring it within the intermediate-care-facility classification, and she noted that the elder-care home that had occupied the dwelling previously had not been classified as such, even though it had provided medical services. Moreover, Fresh Start's other halfway house was not classified as an intermediate care facility. In addition, Fresh Start's attorney noted that other single- and multifamily dwellings with children did not have to install bars on their windows or provide a certain number of bathrooms according to family size. She asked that these building requirements be waived because of the financial burden.

The zoning commissioner and town attorney refused to change the classification of the dwelling or to waive the requirements for obtaining an occupancy permit. The officials also noted that they had been receiving complaints from the neighborhood that residents did not want the facility.

When the town council learned of the dispute, it decided to hold a public hearing to gather information about the halfway house and to ascertain the community's views. The public hearing was well attended. The spokesperson for the residents of the neighborhood told the town council that the halfway house did not belong in the neighborhood and that the halfway house residents presented a threat to other children and adults. He explained that the residents of the neighborhood did not want drugs brought among them and that they feared drug-related violence. He also warned Fresh Start that if it moved people into the home, neighbors would take every action to drive them out. Several other individuals expressed their personal views that mothers who use drugs should be thrown into jail to learn their lesson. Fresh Start representatives discussed the goals and successes of the treatment program and addressed the concerns of the neighbors. They offered to have staff and residents of the halfway house work with the neighborhood patrol to prevent drugs from being brought into the neighborhood. They also reiterated the view that the halfway house was being erroneously classified as an intermediate care facility.

The town council and zoning commission members went into executive session following the hearing to determine what action to take. When Fresh Start's attorney met with the zoning commission chair the next day, the chair told her that the commission would like to help out, but it could not do so in the face of the intense community opposition, which was based on legitimate safety concerns. A sympathetic member of the zoning commission who had attended the executive session told the program's attorney that several commission members had agreed that the neighborhood should not have to open its doors to "a lot of drug- using women who should be punished for having children while smoking crack."

Several months have passed since Fresh Start first rented the house. The program has been paying rent throughout this period while not being able to proceed with the renovations. In addition, the women's graduation date is upon them, and the program needs to take action to find a halfway house so that new clients can be enrolled in the residential program. Fresh Start has decided that it will have to take legal action to resolve the problem.

The Legal Challenge

Fresh Start has several legal options. It could file an administrative action under the State's zoning enforcement procedures to challenge the zoning board's classification of the halfway house as an intermediate care facility and the application of special building requirements based on the presence of children. If it prevailed on this basis, it could eliminate many of the costly renovations, obtain an occupancy permit, and then move the residents in. However, it would still face the prospect of intense community opposition, which would make life more difficult for the women and children and possibly jeopardize their ability to remain in the house. The administrative agency that decides the appeal probably would not be able to enjoin the community prospectively from harassing the future residents. Therefore, Fresh Start would face the need to take additional legal action or to find another dwelling.

Alternatively, Fresh Start could initiate a civil action under the Fair Housing Act or the Americans With Disabilities Act (ADA). Suit could also be brought under the Rehabilitation Act to the extent that the zoning commission receives any Federal financial assistance. It is clear that all three antidiscrimination statutes apply because women who are recovering from alcohol and other drug problems have disabilities that affect the major life activity of being able to care for themselves. In addition, because of the community's reaction, the women are not able to obtain housing, which also constitutes a major life activity.

Under the Fair Housing Amendments Act, the program could allege that it has been prohibited from renting the house because of its relationship with women who have disabilities. It could also allege that the town has failed to make a reasonable accommodation by refusing to waive the building requirements. In addition, the prospective tenants of the halfway house could sue the town for refusing, on the basis of disability, to provide them housing of their choice.

In proving a violation, Fresh Start could prove that the town has operated with a discriminatory intent and that its classification of the program as an intermediate care facility and its refusal to waive the additional requirements have a discriminatory effect.

With regard to discriminatory intent, the program would point to several factors that indicate that the zoning commission's decision was based on its desire to exclude the women because they had drug problems:

• The comments of several zoning commission members during the executive session meeting provide direct evidence of their discriminatory bias against women who use drugs. The same discriminatory attitudes characterized the community opposition, and the zoning officials admitted that they were carrying out the will of the community.
• The zoning commission departed from substantive criteria by classifying the halfway house as an intermediate care facility. That classification had not been applied to Fresh Start's other halfway house and, more important, had not been applied to the elder-care facility that had previously occupied the dwelling, even though medical services were, in fact, provided. In addition, the commission imposed building requirements—bars on windows and extra bathrooms—that were not required of other dwellings in which children resided.

These factors clearly suggest that the classification and the additional building requirements were pretexts for not wanting to provide housing to women with drug problems.

To prove disparate impact, Fresh Start would argue that the zoning commission's decision to impose costly renovations has a greater adverse impact on individuals with alcohol and other drug problems than on others. The cost of the renovations effectively precluded the halfway house from being established. The requirements also denied the recovering women the opportunity to reside in housing of their choice. If the zoning commission applied the same requirements to every dwelling in a residential neighborhood that Fresh Start sought to use as a halfway house, the women would be totally excluded from the town.

Moreover, the disparate impact could be remedied easily by providing a reasonable accommodation of waiving all the additional building requirements and interpreting the intended use to mean that the halfway house would not be an intermediate care facility.

To bolster its claim of disparate impact, Fresh Start would also be able to point to the evidence of discriminatory intent and the fact that it is seeking to get the town to remove barriers that prevent recovering women from getting housing rather than to compel the town to provide housing.

To counter evidence of discriminatory effect, the town would probably argue that its concern about the continued safety of the neighborhood was a legitimate, nondiscriminatory reason for imposing the requirements. Fresh Start could rebut that argument in the following ways:

• There was no basis for claiming that the program would attract drug-related activities or that the children would negatively influence other children in the neighborhood (the experience of Fresh Start's other halfway house would prove that claim)
• Fresh Start had committed itself to work with the neighborhood to keep drug-related activities out
• The building requirements that were imposed would have no effect on remedying the neighbors' primary safety concern: the threat of drug-related activity.

The town would also have a difficult time proving that it could not accommodate the halfway house by waiving all the additional building requirements. Because it did not impose the same safety codes on the elder-care home or on Fresh Start's other halfway house and did not require other multifamily dwellings to have bars on the windows for children, waiving these requirements would not have changed the town's zoning practices and would not alter the nature of the neighborhood.

Proving a violation of the ADA would follow similar lines. Fresh Start could allege that the town has violated the ADA by denying the program the benefits of the zoning authority by imposing burdensome building requirements because the intended residents will be recovering women, by refusing to make reasonable accommodations in its building requirements, and by using its authority to issue occupancy permits in a way that limits the ability of recovering women to reside where they want and to receive the health services they need.

Having developed its legal claims, Fresh Start would likely file a civil action in Federal court asking for several forms of relief:

• It would ask the court to enjoin the town from imposing the additional building requirements and classifying the halfway house as an intermediate care facility
• It would ask the court to enjoin the community and individuals from the community from interfering with the residents' enjoyment of the dwelling upon moving in and from taking any retaliatory actions against them
• It would seek to recover the monetary damages that it incurred by being forced to pay rent on the dwelling while not being able to enter it to do the necessary renovations, as well as any other costs incurred as a result of the town's discriminatory actions
• It would request reimbursement for the costs of litigation, including attorney fees.

Finally, because Fresh Start needs to occupy the dwelling very soon, it might seek preliminary relief to temporarily enjoin the town from imposing the additional requirements and ordering the issuance of an occupancy permit so that it can begin to make the necessary renovations.

Case 2

The Situation

The South Side Methadone Maintenance Treatment Program is an outpatient facility located in the business district of a large metropolitan area. It currently serves 130 clients. The State in which South Side is located has been increasing its funds for methadone treatment in order to rapidly expand services to individuals at high risk for human immunodeficiency virus disease. With its new funds, South Side will be able to provide services to an additional 100 people, many of whom have been on the program's waiting list. However, its current facility is crowded and cannot accommodate the new clients.

South Side would like to build a second building next to its existing facility, on property that it already owns, so that the administrative staff can more easily supervise the services that will be provided in the second building, to keep staff in close proximity, and to have clients in one general location to facilitate group counseling sessions, which are integral to the program. Placing the services in one location will also help South Side monitor the activities of its clients.

It would take 1 year to construct a building on the property South Side owns. To make services available immediately, South Side has decided to buy a large mobile trailer, locate it on the vacant property, and commence services within 2 months.

South Side's attorney contacted the city's zoning commission to determine whether a mobile treatment unit could be placed on the vacant lot. The zoning commission explained that, under the zoning ordinance, a freestanding medical facility could not be placed within 4,500 feet of another such facility. The only way to get around the space limitation was to obtain a variance, which could be granted only after submission of an application and a public hearing.

South Side's attorney applied for a variance. As part of the application, the program described the need for the services, the benefits that would come to the city if services were expanded, and the program's reasons for wanting to locate the trailer next to the existing facility.

A public hearing was held shortly thereafter and was attended by virtually all the business owners within a six-block radius of the treatment program. Every person who spoke at the hearing opposed the request for a variance. Most expressed concern that having substantially more individuals with alcohol and other drug problems enter the immediate neighborhood would increase crime, drug trafficking, and loitering. Others complained that many prospective clients would have human immunodeficiency virus disease, which would bother those who shop and work at nearby stores. They noted that these factors would have a negative effect on business, which was already lagging. Others complained that the trailer would be an eyesore and detract from the neighborhood's aesthetics. Many expressed the view that they had put up with enough drug addicts in their neighborhood and should not have to tolerate more.

South Side's director addressed many of the concerns of the speakers. He noted that the program had been operating in the neighborhood for over 10 years and had a good relationship with neighboring businesses. He explained that the program was very concerned about loitering and had instituted and would continue to enforce a strict policy to prohibit loitering. He also presented the most recent crime statistics for the area, which revealed that the crime rates for the neighborhood in which South Side was located were lower than those for every other neighborhood in the area. The director attributed the low crime rate, in part, to South Side's cooperation with local law enforcement and businesses to keep drug dealers out of the neighborhood.

Finally, he noted that many other businesses and health facilities have used trailers as temporary structures, just as South Side intended to do. As an example he cited a health clinic two blocks from South Side that was using a trailer to provide medical and dental services while it built a second structure next to its original facility. The two facilities would eventually be located within the 4,500-square-foot space limitation, and the trailer was also within the space limitation.

Two weeks after the hearing, the zoning commission denied South Side's request for a variance. The commission identified two reasons for the denial. First, it placed a heavy emphasis on the community's sentiment, which was unanimously opposed to granting a variance. Second, it determined that granting the variance would constitute "spot zoning," which means that a zoning ordinance is unreasonably altered solely as it applies to a particular parcel of land.

Having no other property on which it could locate its new facility, South Side decided to take legal action.

The Legal Challenge

South Side has two options to challenge the city's decision: First, it could appeal the decision through the administrative appeal procedure; second, it could bring a civil action under the ADA.

In evaluating the first option, South Side's attorney might determine that the zoning board often defers to the zoning commission's decision that a variance would result in spot zoning and thus that it would deny the appeal. He should also evaluate whether the zoning board gives fair weight to evidence of discrimination. If it does not, it would probably not be willing to override the commission's decision.

South Side's second option—a civil action under the ADA—would hold greater promise of success. The program could claim that it was denied a variance because of its association with individuals who have disabilities (alcohol and other drug problems and human immunodeficiency virus disease) and that the city failed to provide a reasonable accommodation (a variance to site the facility within the 4,500-square-foot space limitation).

To prove this claim, South Side would be able to show that individuals who are waiting to receive services at the new facility are persons with current alcohol and other drug problems who are protected under the ADA because they have disabilities that affect a major life activity. Even though the prospective clients are currently engaged in the illegal use of drugs, they are protected under the ADA because they are seeking health services.

Second, South Side would be able to prove that the variance was denied because of the disabilities of such individuals. The community's opposition to the project focused exclusively on the fact that the clients were drug abusers, many of whom might have human immunodeficiency virus disease, and that the community did not want any more drug abusers in its neighborhood. While the community expressed fear of increased crime rates and drug trafficking, the fears were speculative, considering the evidence that crimes were at comparatively low rates in the neighborhood.

The zoning commission's rationale, that granting a variance would constitute spot zoning, appears to be a pretext for not wanting drug abusers in the neighborhood. The commission had previously granted a variance for the health clinic several blocks away, thereby permitting other freestanding health facilities to be located within the 4,500-square-foot limitation.

South Side could also prevail on its claim that the city failed to make a reasonable accommodation by not granting a variance. Permitting a second methadone program within the 4,500-square-foot limitation would not constitute an undue burden on the community's plan or alter its character. The city had already permitted the location of other health facilities in close proximity to each other. In addition, South Side had rebutted any concern that the program would increase crime or loitering and had committed its resources to continuing its efforts to prevent crime and loitering.

In requesting relief, South Side would seek an order requiring the zoning commission to grant a variance. It would also request that the court award it the costs of litigation, including attorney fees, if it prevailed. Finally, to ensure that it can begin to provide new services as soon as possible, the program could request that the court consider the matter on an expedited basis.

Last Updated 11-7-02