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In communities throughout Connecticut and the United States, a zoning war involving group homes is being fought one battle at a time. It has been more than a decade since Congress enacted legislation on the issue, but group homes, a term loosely defined as housing occupied by groups of unrelated individuals with disabilities, are still encountering local resistance in residential districts nationwide. The 1988 federal Fair Housing Amendments Act, although it does not specifically preempt local laws, includes provisions that prohibit municipalities from enacting zoning or land use policies that exclude or discriminate against persons with disabilities. The act also specifically recognized as “handicapped” people suffering from conditions such as mental illness, mental retardation, HIV infection, and alcohol or drug addiction (as long as they are not currently using). According to a federal Housing and Urban Development report in the wake of the FHAA, there has been a profusion of litigation concerning the act’s effect on local governments’ ability to exercise control over group-living arrangements. The tug of war comes at a time when community programs are particularly needed. According to a recent surgeon general’s report, national statistics show that only about a third of individuals who need mental health and addiction treatment services receive them. Susan Jacobs, an attorney with the Legal Action Center in New York, a private not-for-profit law firm that specializes in serving both treatment programs and individuals, says the zoning litigation is epidemic nationwide. “Behind every case that gets litigated are dozens of cases in which people give up,” said Jacobs. A report released in July by the Connecticut Department of Mental Health and Addiction Services, authorized through Governor Rowland’s Blue Ribbon Commission on Mental Health, addressed the problem in the state. Findings in the report, according to an executive summary, “suggest that Connecticut is facing a crisis in access to public and private mental health care.” Factors such as statewide reductions in hospital psychiatric services and “limited community-based resources” are cited as signs of the crisis. The report also says “[h]ighly publicized neighborhood opposition to the development of behavioral-health programs (e.g., group homes and other residential and psychosocial programs) has made it very difficult for DMHAS and DCF (state Department of Children and Families) to find suitable homes and programs (sic) locations in communities throughout Connecticut.” Prescribed remedies in the report include “legislation to prohibit municipalities from using local zoning regulations to prevent the development of behavioral health services” in the state. In 1991, Congress determined that more community-based services for mental illness and substance-abuse treatment were needed and allocated money to support programs of “peer support and group homes.” Yet, despite a well-documented success rate for community-based programs and a universally recognized need for them, NIMBY (“not in my backyard”) resistance to such programs continues to be a prime obstacle to their development. In the absence of state legislation, the zoning battles must be fought on a case-by-case basis and often wind up in federal court. A bundle of FHAA case law regarding group homes has been established within the 2nd Circuit, and a handful of attorneys has established precedent within Connecticut’s U.S. District Court. Phillip D. Tegeler, legal director of the Connecticut Civil Liberties Union, served as co-counsel in the 1992 McKinney vs. Fairfield case, the first big case in the state to apply the FHAA’s reasonable accommodation clause to local zoning restrictions. Tegeler is also intervening in a similar case currently pending in Connecticut. “This issue,” said Tegeler, “is about protecting the rights of people with disabilities to live freely throughout the state.” Currently in Connecticut, there are three similar cases pending in federal district court that vividly illustrate the issue. The cases in point involve zoning actions against community-based group-recovery homes for alcohol and substance abusers in the towns of West Haven, New London, and North Haven. The case in West Haven involves an Oxford House, one of 375 individually operated non-profit facilities nationwide that Congress endorsed as a national model for community-based recovery houses. Founded in 1975 by a group of men recovering from alcohol and drug addiction, Oxford houses were designed to offer a post-treatment, family-structured living environment of mutual support. They are single-family dwellings meant to help tenants make the transition back to mainstream society. Tenants are required, among other stipulations, to remain sober and self-reliant and to maintain employment and active membership in a sobriety program. The success of such facilities, which are designed to offer normalized living conditions in a community setting, is dependent upon location in residentially zoned districts. Attorney Sarah Poston, of Zeldes, Needle & Cooper in Bridgeport, Conn., has undertaken the defense of the West Haven Oxford House on a pro-bono basis. On behalf of the owner and tenants of the facility, Poston filed FHAA and Americans with Disabilities Act (ADA) claims in district court to pre-empt local zoning restrictions that would effectively close the facility. A similar case in the town of North Haven, involving a group-recovery home based on the Oxford House model, is being argued by a coalition of attorney activists, including lawyers from the CCLU and New Haven Legal Assistance. Attorney Thomas Londregan, of Conway & Londregan, has argued on both sides of this type of case. In his private practice, Londregan successfully defended a group recovery home in 1997 against the Groton Zoning Board of Appeals. Although Londregan tried to introduce fair housing and ADA statutes, the case was ultimately decided on other zoning-related issues. In his capacity as city attorney for New London, Londregan is currently trying to enforce zoning regulations to shut down three group-recovery facilities operated by the Stonington Institute. According to Londregan, who sees no conflict in his role reversal, there are vivid distinctions between the group-housing units in question, one of which happens to be located on the same block as his law office, and those that the city’s zoning regulations would allow. Londregan points to an existing Oxford House within the city as a model that, as far as he can discern, does not constitute a problem for the city. According to Londregan, among the key distinctions that separate the Stonington facilities from the Oxford House model are the larger number of residents in the former’s facilities (13, 14 and 22 respectively), the fact that they are for-profit entities, and the fact that they are housed in multiple-occupancy units. That many of the tenants are involved in treatment programs at the institute’s treatment facility is another distinction which, according to Londregan, effectively makes the group homes off-campus institutional housing. Although there are no stipulations in the FHAA’s protections concerning either profit status or the number of tenants allowed, the town feels strongly enough about its case that it has refused to grant “reasonable accommodation” of its zoning codes and has denied administrative appeal of the matter at every level. Stonington Institute had sought an amendment within the town’s zoning regulations to create a new use, “group home for the disabled,” that would allow, under special permit, residential facilities for up to 16 people with disabilities. Dwight Merriam, of Robinson & Cole, who has previously won precedent-setting cases of a similar nature, is the attorney defending the Stonington Institute. After the ZBA denied the appeal, Merriam filed on October 17 a motion in the U.S. District Court of Bridgeport claiming FHAA and ADA violations. A temporary restraining order was issued, allowing the occupants of the group homes to remain pending the appeal. The federal court was scheduled to hear a continuation of the zoning appeal this month. Merriam, who happens to live in the same residential neighborhood in Hartford in which a methadone clinic is located, said that group homes are important for mutual support. “These people live clean and sober lives under zero-tolerance rules, and they are highly motivated in getting their lives back together. One of the keys to their success is the mutual support of living together.”

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