Welcome to the Monday, April 4th edition of SoberLawNews.com.
The St. Paul (Minnesota) StarTribune reported last week on April 2, 2016 about how communities in the otherwise accommodating neighborhood are pushing for limits on recovery residences (sober homes) as well as other group housing. [Coincidentally, perhaps, the reporter of the well-written article is Ms. Jessie Van Berkel, an award-winning reporter who has spent the past two years covering local government in Florida for the Sarasota Herald-Tribune before moving back to Minnesota]
In the article, Jessie writes about the typical American family – Michael and Emily Reif – who have children and live in the typical American upper class Midwestern neighborhood. They say the sober living house across the street from their St. Paul home has been a good neighbor. In fact, residents there even held an open house after they moved in.
However, like in Florida, the question of concentration, or overconcentration of any form of communal housing, continues to become a key question.
At what point does “one too many” sober homes actually (factually) change the character of a neighborhood?
The more important question – the legal question is – when does an oversaturation of recovery residences actually do the resident in recovery harm?
This question, apparently, has never been studies, and never been asked.
However, on the land use/zoning/urban planning side, the American Planning Association in one of their very first “policy papers” on Community Residences ever issued, in 1997, looked at the question.
Similar to the “Group Home” or “Community Residential Home” statute that many states passed in response to federal block grant requirements, itself provides, generally:
“The local government shall not deny the siting of a community residential home unless the local government establishes that the siting of the home at the site selected…. [w]ould result in such a concentration of community residential homes in the area in proximity to the site selected, or would result in a combination of such homes with other residences in the community, such that the nature and character of the area would be substantially altered.”
Before reaching that conclusion, the APA made some very important findings which remain true to this day:
- Community residences are a residential use of land – For zoning purposes, community residences are much closer in terms of land use to a residence ordinarily occupied by a conventional family than any other land use. The majority of courts have ruled that are a community residence is the opposite of an institution, boarding house, or a commercial use.
- Community residences have no effect on the value of neighboring properties – More than 50 studies have examined their impact on property values probably more than for any other small land use. Although they use a variety of methodologies, all researchers have discovered that group homes and halfway houses do not affect property values of even the house next door.
- Community residences have no effect on neighborhood safety – A handful of studies have also looked at whether community residences compromise neighborhood safety.
- Community residences do not generate adverse impacts on the surrounding community – Other studies have found that group homes and halfway houses for persons with disabilities do not generate undue amounts of traffic, noise, parking demand, or any other adverse impacts.
- Community residences should be licensed or certified to protect the welfare of their residents – The individuals who occupy a community residence constitute a vulnerable population unable to fully care for themselves. Licensing helps ensure that the operator is qualified to furnish the requisite care and support services the group home residents need. It helps assure that staff is qualified and properly trained, and sets a minimum standard of care. The welfare of the residents of a community residence constitutes a legitimate government interest, narrowly tailored to the individuals who live in a group home, and whose benefits clearly outweigh whatever burden may result.
- Community residences should be scattered throughout residential districts rather than concentrated in any single neighborhood or on a single block.
“For a group home to enable its residents to achieve normalization and integration into the community, it should be located in a normal residential neighborhood. If several group homes were to locate next to one another, or be placed on the same block, the ability of the group homes to advance their residents’ normalization would be compromised. Such clustering would create a de facto social service district in which many facets of an institutional atmosphere would be recreated and would change the character of the neighborhood.
Normalization and community integration require that persons with disabilities be absorbed into the neighborhood’s social structure. The existing social structure of a neighborhood can accommodate no more than one or two group homes on a single block. Neighborhoods seem to have a limited absorption capacity for service dependent people that should not be exceeded. Social scientists note that this level exists, but they can’t quite determine a precise level. Writing about service dependent populations in general, Jennifer Wolch notes, At some level of concentration, a community may become saturated by services and populations and evolve into a service dependent ghetto.
According to one leading planning study, While it is difficult to precisely identify or explain, saturation is the point at which a community’s existing social structure is unable to properly support additional residential care facilities [group homes]. Overconcentration is not a constant but varies according to a community’s population density, socioeconomic level, quantity and quality of municipal services and other characteristics. There are no universally accepted criteria for determining how many group homes are appropriate for a given area.
Nobody knows the precise absorption levels of different neighborhoods. However, the research strongly suggests that as the density of a neighborhood increases, so does its capacity to absorb people with disabilities into its social structure. Higher density neighborhoods presumably have a higher absorption level that could permit group homes to locate closer to one another than in lower density neighborhoods that have a lower absorption level.
This research demonstrates there is a legitimate government interest to assure that group homes do not cluster. While the research on the impact of group homes makes it abundantly clear that group homes a block or more apart produce no negative impacts, there is concern that group homes located more closely together can generate adverse impacts on both the surrounding neighborhood and on the ability of the group homes to facilitate the normalization of their residents, which is, after all, their raison dtre.”
It’s not discrimination. It’s common sense. And it follows the law.
But the question of overconcentration apparently was never studied, but rather assumed, to be a negative.
Cases interpreting the federal Fair Housing Act and the federal Fair Housing Amendments Act of 1988 have determined that any such spacing requirement to be unlawful as there is no basis for it that has been demonstrated by states or local governments enforcing it, and therefore has a discriminatory impact without justification which otherwise proves that the separation requirement otherwise benefits the disabled class.
But is the solution to the “South Florida Sober Home Problem” really that simple?
Simply undertake a fair, impartial, third-party study to determine whether the clustering of sober homes/recovery residences is either good, or bad, for people in recovery?
Let’s look at the consequences of conducting such a study.
First, spending any taxpayer money on the issue would be implicit recognition that we are actually trying to do what is in the best interests of an imported population (mostly from New Jersey and Philadelphia) that we would rather not come here in the first place, or remain. So much for “medical tourism.”
Second, if the outcome of any such study resulting in a finding that concentration of such homes was actually good – meaning, it supports the concept of the social therapeutic community and ameliorates the disease by disrupting relapse – then any law which imposes a separation distance requirement between such homes is unlawful.
And we are not willing to go there. We would prefer to keep discriminatory laws on the books and continue to have would-be housing providers seek zoning relief at great time and expense.
Perhaps this is the government sector keep a “check” on bad providers until such time as we fix this admittedly failing social experiment.
However, if concentration of sober homes was deemed by a viable study to be beneficial, do we all need to be prepared for de-facto ghettos to continue springing up, at least in areas where there are also high concentrations of treatment centers?
First, we are not really talking about Recovery Residences. We are talking about “treatment homes,” or stated otherwise, boarding homes where people live where they undergo outpatient treatment (particularly as health insurance is loath to pay for the scientifically recognized 90-day inpatient residential care they truly kickstarts recovery). We also talking about de-facto warehouses where “marketers” “store” patients until they have a willing buyer [treatment center] (and there is ALWAYS a willing buyer).
We are not talking about the “Oxford Houses” where people who are established in their recovery choose to live together in sobriety.
Second, sober ghettos will pop up because people who are not in recovery do not want to live in a recovery cluster. No different than your average non-Orthodox Jewish American does not want to live in the middle of a Hassidic neighborhood, or people who enjoy a rural lifestyle leave when there is urban sprawl.
People will leave neighborhoods.
It is not racism. It is tribalism. It is in our DNA. It goes back millennia. There are lifetimes of instinctual self-preservation built into our bodies.
To that point, ghettos (defined as “a part of a city in which members of a particular group live”) generally cause the displacement of other groups.
Not always a bad thing.
The APA has rightfully stated that, when a proposed group home for persons with disabilities does not comply with the jurisdictions definition of “Family,” (such as, no more than 3 unrelated people may reside together) then the jurisdiction should be required to make a reasonable accommodation in its zoning code to allow group homes, but proposes to award that right only if the home/applicant meets these two requirements:
(1) That a rationally based spacing requirement be provided to avoid an undue concentration of community residences; and
(2) When the proposed group home or its operator must be licensed or certified by the appropriate state, national, regional, or local licensing or certification body.
Again, this was not studied from the basis of, what is in the addict’s best interests, but what is in the best interests of the overall community.
When dealing with recovery residences, and transient residents, who have the disease of a diagnosable behavioral disorder, which are now recognized as medical in nature by the Affordable Care Act and the Mental Health Parity and Addiction Equity Act, where do we start to discuss balance?
What is a “rationally based spacing requirement?”
Back in St. Paul, the families seem welcoming and reasonable and the same time.
“It’s not like we’re against them… It’s more striking a balance and maintaining the identity that made this an attractive place.”
On the other side, the limits proposed in St. Paul on spacing won’t be recommended to the council by city planners, who are concerned (read: scared) that such regulations are discriminatory and could violate federal law.
Chris Edrington, president of the Minnesota Association of Sober Homes, and a nationally-respected advocate for recovery residences, has said “communities cannot put up barriers to prevent them from getting housed. People with disabilities and sober people seeking recovery are protected under the federal Fair Housing Act and the Americans with Disabilities Act.” And he is absolutely correct.
Barriers to housing causes homelessness. Barriers to housing restricts a fundamental right to shelter.
But that hasn’t allayed concerns in places like West St. Paul, which has imposed a yearlong moratorium on transitional housing, sober homes and other congregate living facilities as it studies potential zoning and code changes.
Kevin Anderson, one of the neighbors pushing for the change, said that would still allow more sober homes in the neighborhood. But he said it would prevent the area from reaching a “tipping point” where the sense of community and stability that comes with singlefamily homes is lost.
West St. Paul’s moratorium on various types of congregate housing is still in place, and Burnsville has maintained its legislative position on standards to space out residential care facilities.
“There’s a move to require regulation and spacing requirements,” Kastler said, but those tactics “come from the perspective that group housing is a problem.”
Clearly, in some areas of South Florida, group housing for people in recovery is a problem. But federal law was adopted to address generations of discrimination which led to homelessness.
Meanwhile, cities like Costa Mesa, California, continue to spend taxpayer dollars to take back homerule authority over the issue. Whether it is to discriminate, or to find a balance, remains to be seen.
South Florida’s federal legislators are trying to do the same thing, by consistently writing to the U.S. Department of Housing and Urban Development (HUD) and to the U.S. Department of Justice (DOJ), asking them to reconsider their May 17, 2004 Joint Statement on Reasonable Accommodations Under the Fair Housing Act.
However, notwithstanding repeated requests by yours truly and other people who seek fair balance within the treatment and housing aspects of the treatment industry to be involved in those legal discussions, those legislators continue to hold closed-door, secret meeting with mayors and local elected officials.
If the process was truly intended to be collaborative and within the best interests of those in recovery, one would think the process would be more inviting and transparent.
In the meantime, we are highly doubtful that our society will endeavor to find a balanced solution. It will be either inclusive housing. Or exclusive housing. Black, or white. Republican, or Democrat. Conservative, or Liberal.
We will continue to advocate for a balanced solution that actually helps people. All people. Addiction, treatment, and recovery is not a political issue. It is a human issue.
Have a great week.