Zoning Board of Adjustment Needs More Time to Understand Issues
In fairness, it seems we all need time to understand the issues raised when a city’s responsibility for adoption and oversight of zoning ordinances appears to be in conflict with the needs of persons in recovery from addiction to live in a mutually supportive and drug-free home.
An estimated 23 million Americans live fully independent and abled lives in sustained recovery from alcoholism and addiction, and their path to recovery never crosses the desk of a city Planning Office.
But some — not all — people in recovery from addiction have been dis-abled by their disease to the extent that they need to live and share in a recovery-focused, peer-supported, drug-free, structured home. It’s this type of “recoverer” who causes headaches for City Hall.
The FHAA and Reasonable Accommodation
The Fair Housing Amendments Act of 1988 prohibits discrimination in housing on the basis of disability, including “the refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.”
Reasonable accommodation based on disability is an important responsibility in the honoring of civil liberties — for both the municipality and the person requesting the accommodation. A city must provide a process for requesting an accommodation and the person with disability must make the request.
This mechanism of reasonable accommodation allows a town to make adjustments or exceptions in zoning ordinances that would otherwise prevent the person(s) with disability from exercising the same liberties in housing as persons without disability. Federal law mandates that an accommodation is reasonable if it does not impose an undue burden on the city or town or does not fundamentally alter the zoning scheme of a neighborhood. The State of New Hampshire defines reasonable as “in harmony with the general purpose and intent of the zoning ordinance.” (RSA 674:33) The State also explicitly requires that an accommodation based on disability is attached to the nature of the disability rather than to the property.
Who Knew?
Most people in recovery aren’t even aware that addiction and alcoholism can classify as a disability, never mind that federal law offers protections to aid in recovery. But, you know, put the internet at the fingertips of a righteous recovering alcoholic and more will be revealed. And it turns out that plenty of towns and cities aren’t even aware that reasonable accommodation laws exists, never mind that cities have an obligation to comply with the concept. And that’s where the fight begins — the site visits and variance forms and appeals and facebook pages and bad press and a new Mercedes for every attorney. But really:
“There are few among us who do not have a friend or relative who has suffered the ravages of drugs or alcohol. They are persons who need our compassion and require our support . . . what this matter truly needs is not judicial action, whether it be state or federal, but for the parties to search their consciences, recognize the needs and hopes of the plaintiffs and the concerns and fears of the neighbors, and arrive at an accommodation which serves and enriches all who are involved in and affected by it.” — Oxford House-Evergreen v. City of Plainfield, 769 F.Supp. 1329 (D.N.J. 1991)
The City of Franklin is asking for more time. Because, really, who knew all this RSA and 42 USC and ADA, FHA, FHAA, and Oxford House case law even existed? We didn’t when we started. It’s a lot to get through.
DBC’s Frustration
So the guys at 60 Depot Street just want to live together in peace and mutual support, attending AA and NA meetings, meeting curfews, doing each others’ laundry, leaning on each other for strength and encouragement and brotherhood, giving each other rides to work and the supermarket, and staying clean and safe in a very large and stringently drug-free home. But the City of Franklin says a sober group home violates zoning ordinances, that we don’t constitute a single household and, best case scenario, DBC can apply for a variance to be a rooming house, but rooming houses aren’t allowed in Franklin. We’re appealing the rooming house classification. Which sums up the fuss….except…
We want to be responsible participants in the City’s processes and we’d like to make a request for a reasonable accommodation based on disability. We’d like to live as a single household in a single family home. Period. You can read our grounds for appeal.
We brought up reasonable accommodation in our October 8 letter to the City. We sent a specific letter to the City on December 24, and we went into the Planning Office and asked for the form one would use to make a request for reasonable accommodation. Nothing. No response. Just to give you a sense of our frustrations, here’s an email conversation that took place this week. We’ve redacted the name of the city official, because it’s important to emphasize that the fuss is about a City action, not about the actions of one individual.
On Tue, Jan 5, 2016 at 1:23 PM, a Franklin Official wrote:
Jim,
Thanks for taking the time to speak with my quickly earlier today. The items of immediate interest are:
- Per our conversation, I would like to get approval from you for a continuation for the scheduling of the hearing with the Zoning Board of Adjustment. As I said, this is a very complex issue, and in order to best sort out the issues so that we can have an educated and fair discussion of the issues, I propose pushing the hearing to the April meeting of the ZBA [April 6, 2016]. This will allow all of the participants to be fully prepared to evaluate all of the issues, legal concerns, federal and state statutes, etc. If you are okay with this continuation to April 6th, please send me a email response indicating your acceptance of this proposed date.
- For the eventual hearing, if you want to put all of materials you have provided [court cases, law reviews, and related reports] into the record for review by the members of the ZBA, then we will need either an electronic data set, or printed hard copies. My office is okay with copying 10-20 pages of material, but when we get into the hundreds of pages then the applicant needs to provide the material in some format for distribution.
On point # 2, maybe once we have an opportunity to review all of the material and better understand the issues and how they intersect, it may be possible for you to rely upon a smaller set of materials in order for you to present your case. We can work that out later in the next couple of months.
On point # 1, I pushed the continuation date to April ….; I think we will need until April in any event.
Thanks for your cooperation in this matter. Please call or email me any time you have a question.
On Wed, Jan 6, 2016 at 8:18 AM, Driven by Circumstances wrote:
Dear Franklin official,
Absolutely it would be no problem to provide you with an electronic version of the materials. Each item is indexed and downloadable from the DBC website, but if it would be more convenient, we could provide them on a USB drive.
Again, to emphasize that we would like to work within the City’s processes, we are really anxious for direction from your office concerning the official mechanism for request of reasonable accommodation based on disability, referenced in our October 8 and December 24, 2015 letter (attached again here).
If the City has such a mechanism and we were to promptly satisfy the requirements of that process, in the event that the City were to grant the accommodation and classify our use as single family, based on consideration of disability, wouldn’t an appeal hearing then become unnecessary? Our understanding is that any accommodation based on disability is determined on a case-by-case basis and that a municipality’s granting of accommodation in no way sets precedent that affects or compromises a City’s overall authority in zoning matters. We also understand that any accommodation is attached to the nature of disability, rather than to the dwelling, so that if DBC were to dissolve, the accommodation would dissolve with it.
If the City has no mechanism, or if our October 8 letter serves as an official request for accommodation based on disability and the City’s November 30 email correspondence serves as an official denial of that request for accommodation, we again ask for written confirmation of either from the City.
We are considering the City’s request to postpone the hearing and will get back to you on that point as soon as possible. And thank you for working with us on this matter.
On Wed, Jan 6, 2016 at 9:14 AM, the Franklin official wrote:
Jim,
Thank you for reply. I too am eager to work with you to see this matter through to an appropriate resolution.
One favor, your reply did not directly address the proposed continuation to the April meeting of the ZBA. Can you please confirm that you are in agreement with this continuation.
Thanks very much and we will be in touch within the next 10-14 days in order to keep the conversation moving forward.
On Wed, Jan 6, 2016 at 2:15 PM, Driven by Circumstances wrote:
Without proper understanding/information about the mechanism for request of reasonable accommodation based on disability, It would be difficult for us to make a responsible decision about, or to give fully informed consent to, a delay of the hearing, But we do respect your need to juggle scheduling priorities. Whatever your decision in terms of scheduling the hearing, we again request that the Cease and Desist and any action on fire, life, or safety codes be held in abeyance until the appeal of the rooming house classification/single family declassification and/or request for reasonable accommodation processes have been brought to a conclusion.
On Wed Jan 6, 2016 at 3:14 PM, the Franklin Official wrote:
Jim,
First, you are completely correct that any continuation will come with a full abeyance of any Cease and Desist actions. Nothing more on the Cease and Desist side of the equation will occur until such time as all appeals, any court action, or any related discussions and decision making timeframes are wrapped up. You can continue to operate as you are now until everything is completed.
Second, I would say to the members of the ZBA and I would say to you, that you have raised some interesting and applicable points of law, and in order for me and the City Attorney to provide some level of guidance to the members of the ZBA, we need to sort out all of the issues that create the complex intersection of federal, state, and local laws and regulations, and it will take some time to put all of the issues into the proper perspective so that the best decision possible is made by the ZBA.
Again, if you can give me a final approval for the continuation to the April meeting that would be appreciated. Thanks very much.
End of this particular conversation.
We are THRILLED that the City has decided to hold off on any action until everything is resolved! But…
WHAT IS THE MECHANISM FOR REQUESTING A REASONABLE ACCOMMODATION BASED ON DISABILITY?
And thank you to everyone who took the time to read this!
Driven By Circumstances 
Sooo frustrating. They hate to give a straight answer don’t they. I suspect he doesn’t have a clue and wants some time to find out. I’m guessing I know who this came from and he is a great guy. I’m learning that they often get caught up in trying to make everyone happy. Historically they didn’t know that there were so many of us in recovery and they could railroad us but now the work is getting out and we will be an undeniable force.
Great work and let us know how we can help:)
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Thank you Melissa! We want to be responsible and fair in emphasizing that all correspondence has come from the City, even if it might carry the signature of a particular individual. Mayor Merrifield, City Manager Dragon, and City Attorney Fitzgerald have been engaged throughout, and the actions and attitudes expressed by the City of Franklin have been expressed in unison.
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Has your lawyer looked into group home classification for operation of your facility rather than rooming house? This doesn’t address the question of reasonable accommodation under the ADA, but it might give the City a way out. And it better fits who you are and what you do.
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Thanks Pamela. Over and over again, since 1988, cities and towns — mostly motivated by complaining neighbors — which isn’t the case here — have classified single family homes with single households as boarding houses or rooming houses because the residents were disabled by addiction, alcoholism, intellectual disability, developmental delay, or HIV. Almost invariably, the towns claimed that any zoning conflict had nothing to do with disability, but there are no cases or reports or news stories of these same towns making site visits to other single family households for the purpose of “classification” when the residents are non-disabled. In single household peer-support homes, no clinical services were offered or needed, no clinical or professional staff were employed or needed, and no state licensing or regulation was applied or needed. Because they were/are homes, not facilities, the issue in many of these cases has come down to the definition of family — cities and towns deciding that the residents don’t qualify for single family living and so therefore they must be classified as “something else.” The US Supreme Court, the United States Department of Justice, the United States Court of Appeals for the 2nd and 9th District, and dozens of United States District Courts found these zoning re-classifications to be discriminatory because they did not comply with the spirit of the ADA or the FHAA. If cities and towns were to enact zoning ordinances that defined “group homes” and applied that classification to non-clinical, non-regulated, single household single family homes occupied by persons with disability in need of a collaboratively structured, recovery-focused, bonded home life as an aid in the maintenance of their disability, the same argument of discrimination would be applicable. We don’t think the City of Franklin is looking for a way out; we think they are facing a complex issue for the first time and want to do the right thing, in accordance with state law and federal protections for persons with disabilities.
That said, our position is that since our entire purpose is to live as a single household, and since the City’s definition of family does not require household members to be related by blood, marriage, or adoption, and since we do not exceed the occupancy of the former family residing at 60 Depot, we are not and never have been in violation of the City’s zoning ordinances. The City’s re-classification of DBC as a rooming house — a prohibited use in Franklin — PUTS us in violation of the zoning ordinance. That’s why we are appealing that administrative determination.
Yet, as you pointed out, none of this answers the question about how to make a request for reasonable accommodation based on disability.
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Somebody I know really oughta go to law school after you win this one. Good work!
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