Siting of Facilities
By: Allison Colker, Esq.
Summary of: “TAP 14: Siting Drug and Alcohol Treatment Programs: Legal Challenges to the NIMBY Syndrome”
June 30, 2005
Introduction
This issue brief is a summary of a SAMHSA Technical Assistance Publication (TAP 14). The publication, Siting Drug and Alcohol Treatment Programs: Legal Challenges to the NIMBY Syndrome, which is intended to provide technical assistance to treatment providers, discusses ways in which an alcohol or other drug treatment provider can use the law to challenge the “Not in My Backyard” (NIMBY) syndrome or overcome it through other means. This summary, which is intended to provide technical assistance to state legislators and legislative staff, will provide policymakers with and overview of the NIMBY syndrome and the legal challenges for treatment providers in siting facilities. The full TAP 14 report can be found at http://www.treatment.org/Taps/Tap14/tap14toc.html.
Overview
Many people recognize the pervasiveness of alcohol and other drug problems. However, such widespread concern has not always resulted in communities welcoming alcohol and other drug treatment programs into their neighborhoods. Community opposition—commonly known as the NIMBY (not in my backyard) syndrome—often prevents or delays the siting of a treatment program. The manual examines the legal remedies available to treatment providers who wish to challenge discriminatory zoning and siting decisions that result from the NIMBY syndrome.
The NIMBY syndrome is not new, and it does not arise solely in opposition to alcohol and other drug treatment programs. Community resistance often is mobilized to prevent the opening or expansion of many types of health and social service facilities, including shelters for the homeless, group homes for the mentally ill, halfway houses for ex-offenders, and health-related facilities for those with acquired immunodeficiency syndrome.
The opening of an alcohol or other drug treatment program, regardless of treatment modality, often is met by community resistance. Neighborhood opposition has delayed or prevented the siting of many treatment programs and has even disrupted the relocation of existing programs. Unfortunately, even if a program ultimately prevails, the fight can be costly, not only in terms of resources, but also in its effects on the clients.
A community may battle to keep out alcohol and other drug treatment programs for a number of reasons.
Five Myths about Siting a Treatment Facility
- Residents may fear that property values will decline.
- Merchants may be concerned that crime will increase.
- The community may believe that a treatment program will bring in "outsiders"—perhaps outsiders of a different class or ethnic group.
- The community may believe that there already is an over-concentration of services in the vicinity.
- The community may simply confuse the problem's solution with its manifestations.
In almost every instance, a community's fear of having an alcohol or other drug treatment program located within its borders is unfounded. In reality, treatment programs pose no legitimate danger to the health or welfare of the residents, nor do they draw substance abusers and pushers to the area. In fact, alcohol and other drug treatment programs improve neighborhoods by helping people get well.
If a locality attempts to keep out a treatment facility through discriminatory zoning ordinances and practices, these actions may be more than just unreasonable: they also may be unlawful. Federal disability based antidiscrimination laws (including the Fair Housing Act, the Rehabilitation Act and the Americans With Disabilities Act), the equal protection clause of the fourteenth amendment to the U.S. Constitution, and many individual state laws have been used successfully to overturn the actions of local governments that preclude the siting of both outpatient and residential alcohol and other drug treatment programs.
Local Government Approaches
Zoning and Other Requirements that Affect Siting
Zoning ordinances are by far the most common barriers treatment programs face in attempting to site or relocate their facilities. Sometimes a locality's zoning ordinances are written specifically to exclude a facility such as an alcohol or other drug treatment program. Sometimes a locality interprets its zoning laws to keep out a program or deny a program the variance necessary to comply with the zoning requirements. In either case, a treatment program may face formidable obstacles to winning the permission it needs to open its doors. It may even have to engage in a prolonged and costly legal battle before it can prevail.
State Government Approaches
Other Barriers To Siting
Zoning laws present the most common obstacles to treatment program siting, but they are not the only legal and procedural requirements with which the program may have to comply. Before the program can be opened, it also may have to meet state certification or licensure requirements; provide an environmental impact statement; obtain building permits and certificates of occupancy; and comply with health, safety and fire codes.
In some cases, these requirements pose more formidable barriers than do zoning ordinances. In a limited survey of 45 alcohol and other drug treatment providers seeking licensure, the California Department of Alcohol and Drug Programs' NIMBY Workgroup found that the number of programs that need to bring their facilities up to local fire standards in order to obtain fire clearances was greater than the number of programs that identified problems with zoning restrictions or community opposition. In New York, actions taken by state agencies (such as the licensure of a drug treatment facility) must be accompanied by an environmental quality review, which includes an examination of a proposed facility's effect on the character of its location. Some communities, unable to deny a special use permit or a variance to an unwanted drug treatment program, have attempted to exploit the environmental quality review process in order to delay or stop treatment providers from siting their facilities.
In addition, environmental approvals or applications for state licensure may require the locality to conduct public hearings or may require the proposed program to submit proof of community acceptance. In New York city, all organizations that operate facilities under contract with the municipal government must undergo an extensive process of public review and consultation, called fair share, before opening new programs or expanding existing ones. While this process has successfully defused much community distrust and resistance in New York City, public-notice requirements often provide foes in the community with an opportunity to intervene in and influence the process to the detriment of proposed facilities.
Administrative Procedures and State Court Actions
Adverse siting decisions also may be challenged through local administrative proceedings and state court actions. If zoning officials have erred in applying a local zoning ordinance or state law, these forums are usually used, although alleged constitutional violations or state disability law violations also may be challenged in a state court procedure. This approach may be a quick way to resolve certain disputes that have led to denial of siting.
The procedures for initiating such actions vary from state to state. Although it is difficult to provide anything more than general guidance on state court zoning actions, it is useful to understand a few standard principles that can help a program decide whether to use this avenue to challenge an adverse zoning decision.
Federal Government Approaches
Legal Challenges to Siting Barriers
It is clear that efforts to site alcohol and other drug treatment programs will not always be successful, and legal interventions may be necessary to force local officials to approve a zoning variance, grant a special or conditional use permit, implement fire and safety codes fairly, or stop interfering with siting plans. Understanding the various legal grounds for challenging an adverse siting decision is important at all stages of the siting process. If a provider identifies potentially illegal or discriminatory activity early in the process, it can alert local officials and possibly persuade them to comply with the law. This will avoid expensive and protracted legal battles for all.
Several legal avenues can be pursued to challenge adverse siting decisions by local officials or actions by private individuals or groups that seek to block the establishment of treatment programs. A lawsuit may be filed in state court to appeal a zoning decision as violating local zoning ordinances, state zoning laws, or state constitutional equal protection guarantees. A lawsuit also may be filed in state or federal court challenging a zoning decision or some action as discriminatory on the basis of disability under the Rehabilitation Act, the Fair Housing Act (FHA) or the Americans With Disabilities Act (ADA). These laws protect individuals with disabilities—including individuals with alcohol and drug problems—against discrimination in housing, in the provision and enjoyment of benefits and services that receive federal financial assistance, and in any official state or local action. Cases may also be brought in federal court challenging adverse decisions under the equal protection clause of the fourteenth amendment to the U.S. Constitution.
Antidiscrimination Laws
The Rehabilitation Act, the Fair Housing Act (FHA), and the Americans with Disabilities Act (ADA) are three powerful tools to challenge both official and private barriers to siting treatment programs. Together, the three laws establish the basis for challenging virtually all discriminatory siting decisions. The three laws build on one another by applying consistent definitions and nondiscrimination standards. Although substantial overlap exists in terms of who is protected against discrimination, who can sue and be sued, and how discrimination is proved, there are important differences in applying each law.
Equal Protection Claims Under the U.S. Constitution
The equal protection clause of the 14th amendment of the U.S. Constitution also provides protection against discriminatory siting practices. Although few programs will need to use this vehicle for suits because of the FHA's and the ADA's expansive protections, it is useful to understand the basic legal arguments involved in proving a violation of equal protection.
The equal protection clause prohibits states and localities from denying any person the equal protection of the laws. It requires state and local officials to treat individuals who are similarly situated the same. When laws classify individuals into different groups and distinguish between groups, an equal protection violation may exist.
Under constitutional case law, three different standards have been established for evaluating whether statutes or official actions violate the equal protection clause. First, as a general rule, legislation is presumed to be valid and will be sustained if the classification between groups under the statute is rationally related to a legitimate state interest. When social or economic legislation—such as regulations or licensure of health providers or zoning ordinances—is challenged, the equal protection clause gives states wide latitude to structure their programs and therefore does not interfere frequently by striking down statutes as unconstitutional. A stricter standard is applied for cases alleging gender discrimination, and an even tougher standard—called strict scrutiny—is used when a statute classifies by race, national origin or alienage.
 Back to Main Site
 NCSL Home Page
|
