Sunday, July 14, 2013
Substance abuse treatment is an important health care need. The Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act (for entities receiving federal funding), all protect people recovering from substance abuse against discrimination based on disability. Yet it remains difficult for treatment facilities to find appropriate locations in which to offer their services. Neighborhoods fear reduced property values, risks of violence, and other community disturbances and often voice these fears loudly in zoning board hearings. Elected public officials find these protests difficult to ignore. Although some NIMBY concerns are well founded, others are rooted in stereotypes or unfounded beliefs about the nature of substance abuse or the services provided by treatment facilities. Oxford Houses, a nationwide program of treatment facilities, has litigated recent NIMBY cases in a number of jurisdictions, with some success. (e.g., Oxford House, Inc. v. City of Baton Rouge, 2013 U.S. Dist. LEXIS 38002 (M.D. La. March 18)).
Nonetheless, it remains difficult for many facilities to obtain success in court when they are denied permits at the local level. A recent decision of the federal district court involving a facility in Detroit is illustrative. Get Back Up v. City of Detroit, 2013 U.S. Dist. LEXIS 91816 (E.D. Mich. July 1), involved a treatment program that had purchased a school located in an area zoned as a general business district. This zoning classification also permits some residential uses “by right” and some “conditional” uses. “By right” uses include hospitals and nursing homes; “conditional uses include fraternity houses, multiple family dwellings, rooming houses, pre-release adjustment centers, and substance-abuse service facilities. The court granted summary judgment to the City on claims that the ordinance discriminated on its face, that it differentially impacted people with disabilities, and that the City had failed to make reasonable accommodations. The court’s view was that this did not discriminate on its face merely by singling out treatment facilities; instead, it drew neutral lines among materially different types of institutions, treating substance abuse facilities like rooming houses and unlike nursing homes or hospitals. The physical infirmity of nursing home residents, in the judgment of the court, made a material difference between these institutions and substance abuse treatment facilities.
Most disturbing about the court’s decision is that it credits the City’s claims that residents from the facility had harassed people in a neighboring residential area and were responsible for increases in robberies in the area, without subjecting this evidence to the assessment of credibility it would have received in the case had gone to trial. If this decision stands, Get Back Up will presumably need to find new facilities in which to operate, losing its investment in the school that it had purchased.