Congress Abandons Ambiguity to the Court System
Because Congress has refused to clarify the large gray area around this issue, including overcrowding, overconcentration and separation, legal challenges have erupted around the country, at cost to both federal and local governments, Home Owners Associations, operators, and taxpayers.
Court rulings on the rights of the disabled to equitable, residential housing focus on ensuring that the disabled are not “institutionalized” and isolated from the community but are enabled to become integrated into the community and take part in the life of the community. Current commercial Recovery Residences isolate recovering addicts from the community, the opposite of the court’s interpretation of the ADA’s intent.
Thus, business-operated, transient housing in permanent neighborhoods is a “privilege” claimed by operators in order to exploit recovering addicts, their insurance policies and neighborhoods by claiming exemptions from regulations because their clients are entitled to unsubstantiated accommodations. These businesses know they are skating on thin ice legally, and therefore promote the term “Sober Living Homes” so they can claim their houses operate as “Cooperative Sober Homes” do, like a family and are not a commercial use of residential property.
Note that the Fair Housing Act entitles landlords to sue, claiming discrimination against their housing, based on the class of tenants they serve. When citizens or city council members have publicly and verbally attacked recovering addicts’ rights or the rights of recovering addicts to live in their communities, as opposed to the form of housing chosen for recovering addicts by businesses, courts have deemed their efforts to be prejudiced. The 9th Circuit Court ruled on March 4, 2014 in Pacific Shores Properties v. the City of Newport Beach that while the basic regulations Newport Beach had established were not facially discriminatory, public statements indicated that they had discriminatory intent. Newport Beach settled the case for $5.25 million, after spending $5 million to defend it.
Quite a few court cases have addressed whether or not different types of commercially-operated housing for the disabled may be subjected to “separation requirements” in order to either 1) preserve the character of the neighborhood or community or 2) prevent the disabled from being corralled into “enclaves.” In general, these cases have supported separation requirements so long as such requirements do not preclude the disabled from living in an area. No federal legislation has ever addressed overconcentration, but if it did, it would reduce unnecessary litigation.
Two cities besides Newport Beach, Prescott, AZ and Costa Mesa, CA, have been on the bleeding edge of establishing nondiscriminatory regulations balancing the needs of neighbors and recovering addicts, due to overconcentration in their communities, well exceeding local demand. Prescott created a set of ordinances around what it called “Structured Sober Living Homes.” Operators asked HUD and the DOJ to find the 800 feet separation requirement to be too onerous. Here is a map of Prescott’s recovery residences at about that time. In a February, 2017 article about the DOJ/HUD investigation of separation requirements instated by the city, the Prescott City Manager indicated:
Court rulings on the rights of the disabled to equitable, residential housing focus on ensuring that the disabled are not “institutionalized” and isolated from the community but are enabled to become integrated into the community and take part in the life of the community. Current commercial Recovery Residences isolate recovering addicts from the community, the opposite of the court’s interpretation of the ADA’s intent.
Thus, business-operated, transient housing in permanent neighborhoods is a “privilege” claimed by operators in order to exploit recovering addicts, their insurance policies and neighborhoods by claiming exemptions from regulations because their clients are entitled to unsubstantiated accommodations. These businesses know they are skating on thin ice legally, and therefore promote the term “Sober Living Homes” so they can claim their houses operate as “Cooperative Sober Homes” do, like a family and are not a commercial use of residential property.
Note that the Fair Housing Act entitles landlords to sue, claiming discrimination against their housing, based on the class of tenants they serve. When citizens or city council members have publicly and verbally attacked recovering addicts’ rights or the rights of recovering addicts to live in their communities, as opposed to the form of housing chosen for recovering addicts by businesses, courts have deemed their efforts to be prejudiced. The 9th Circuit Court ruled on March 4, 2014 in Pacific Shores Properties v. the City of Newport Beach that while the basic regulations Newport Beach had established were not facially discriminatory, public statements indicated that they had discriminatory intent. Newport Beach settled the case for $5.25 million, after spending $5 million to defend it.
Quite a few court cases have addressed whether or not different types of commercially-operated housing for the disabled may be subjected to “separation requirements” in order to either 1) preserve the character of the neighborhood or community or 2) prevent the disabled from being corralled into “enclaves.” In general, these cases have supported separation requirements so long as such requirements do not preclude the disabled from living in an area. No federal legislation has ever addressed overconcentration, but if it did, it would reduce unnecessary litigation.
Two cities besides Newport Beach, Prescott, AZ and Costa Mesa, CA, have been on the bleeding edge of establishing nondiscriminatory regulations balancing the needs of neighbors and recovering addicts, due to overconcentration in their communities, well exceeding local demand. Prescott created a set of ordinances around what it called “Structured Sober Living Homes.” Operators asked HUD and the DOJ to find the 800 feet separation requirement to be too onerous. Here is a map of Prescott’s recovery residences at about that time. In a February, 2017 article about the DOJ/HUD investigation of separation requirements instated by the city, the Prescott City Manager indicated:
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“Based on his recommendations, it looked like an 800-foot-buffer zone was in fact something that could be upheld by the DOJ as not violating the Fair Housing Act and help eliminating the congregation of group homes in one area.”
Podracky says the goal is to break up clusters of group homes in one area, not to target and shut down certain homes. "There was in fact a significant clustering problem of group homes in one area, thus creating the possibility of some sort of institutionalized location for these group homes,” he said. The DOJ and HUD closed the second investigation on the 800-foot group home buffer finding no violations. |
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Note that the “group homes” to which DOJ and HUD refer are NOT Cooperative Sober Homes or Treatment Residences but Recovery Residences.
Costa Mesa, in turn, instituted rules fairly similar to those of Prescott. It has been sued by at least 12 operators, hoping to end up with a settlement like that of Pacific Shores v. Newport Beach. Unfortunately for the operators, Costa Mesa’s new rules were written very tightly to the benefit recovering addicts. In February of 2020, U.S. District Court Judge James V. Selna required Casa Capri to prove, on a case-by-case basis, that individuals have “a major life activity substantially impaired by the alleged disability,” very specifically noting that the ADA did not allow anyone to just claim they were disabled, and importantly, a business to make such a claim on the behalf of individuals without proof. City attorneys argued, “There is no per se rule that all individuals in a drug rehabilitation program qualify as disabled or protected.” Likewise on June 9th, a three judge panel of the U.S. Ninth Circuit Court of Appeals reviewed the District Court’s work and agreed. To date, Costa Mesa has spent over $7 million on litigation.
In February of 2020, US District Xavier Rodriguez ruled that commercial operator Harmony Haus could put 12 unrelated adults in a home in the Parkstone neighborhood of Westlake, Texas. Without scientific evidence, the court concluded that a dozen residents provided “therapeutic value.” Limitations on the number of unrelated adults in a single-family home in Texas are set city by city.
Cities in other states that have been sued by operators claiming discrimination under federal law include: Covina and San Clemente, California; Delray Beach and Boca Raton, Florida; South Elgin and Hinsdale, Illinois, which has also been investigated by DOJ; Biddeford, Maine; Baltimore, Maryland; Boston, Worcester, Fitchburg and Methuen, Massachusetts; Anoka and Cambridge, Minnesota; Draper City and West Jordan City, Utah; Garner, North Carolina; Ft. Worth, Texas; and Dalton Township and Howell, Michigan; and Yorktown, New York. Counties involved in litigation include Ramsey County, Minnesota and Garfield County, Illinois.
State legislatures besides California and Arizona that have proposed legislation or passed legislation on the issue include: Colorado, Delaware, New Hampshire, New Jersey, Pennsylvania,and Tennessee.
Following Prescott’s foray into ordinances, the state of Arizona passed a law in 2018 requiring licenses of Recovery Residences and requiring that they have “good neighbor” policies. In the spring of 2020, the “Arizona Recovery Housing Association,” filed a lawsuit against Arizona claiming discrimination. Other states involved in litigation include Utah.
In short, at the intersection of the Fair Housing Act, the Americans with Disabilities Act and residential addiction recovery, the federal government has largely abandoned responsibility for institutional style, business-operated and -controlled housing in residential neighborhoods.
Costa Mesa, in turn, instituted rules fairly similar to those of Prescott. It has been sued by at least 12 operators, hoping to end up with a settlement like that of Pacific Shores v. Newport Beach. Unfortunately for the operators, Costa Mesa’s new rules were written very tightly to the benefit recovering addicts. In February of 2020, U.S. District Court Judge James V. Selna required Casa Capri to prove, on a case-by-case basis, that individuals have “a major life activity substantially impaired by the alleged disability,” very specifically noting that the ADA did not allow anyone to just claim they were disabled, and importantly, a business to make such a claim on the behalf of individuals without proof. City attorneys argued, “There is no per se rule that all individuals in a drug rehabilitation program qualify as disabled or protected.” Likewise on June 9th, a three judge panel of the U.S. Ninth Circuit Court of Appeals reviewed the District Court’s work and agreed. To date, Costa Mesa has spent over $7 million on litigation.
In February of 2020, US District Xavier Rodriguez ruled that commercial operator Harmony Haus could put 12 unrelated adults in a home in the Parkstone neighborhood of Westlake, Texas. Without scientific evidence, the court concluded that a dozen residents provided “therapeutic value.” Limitations on the number of unrelated adults in a single-family home in Texas are set city by city.
Cities in other states that have been sued by operators claiming discrimination under federal law include: Covina and San Clemente, California; Delray Beach and Boca Raton, Florida; South Elgin and Hinsdale, Illinois, which has also been investigated by DOJ; Biddeford, Maine; Baltimore, Maryland; Boston, Worcester, Fitchburg and Methuen, Massachusetts; Anoka and Cambridge, Minnesota; Draper City and West Jordan City, Utah; Garner, North Carolina; Ft. Worth, Texas; and Dalton Township and Howell, Michigan; and Yorktown, New York. Counties involved in litigation include Ramsey County, Minnesota and Garfield County, Illinois.
State legislatures besides California and Arizona that have proposed legislation or passed legislation on the issue include: Colorado, Delaware, New Hampshire, New Jersey, Pennsylvania,and Tennessee.
Following Prescott’s foray into ordinances, the state of Arizona passed a law in 2018 requiring licenses of Recovery Residences and requiring that they have “good neighbor” policies. In the spring of 2020, the “Arizona Recovery Housing Association,” filed a lawsuit against Arizona claiming discrimination. Other states involved in litigation include Utah.
In short, at the intersection of the Fair Housing Act, the Americans with Disabilities Act and residential addiction recovery, the federal government has largely abandoned responsibility for institutional style, business-operated and -controlled housing in residential neighborhoods.