Group Homes and Restrictive Covenants
Bonnie, Richard J., Developments in Mental Health Law
In a recent decision in the case of the Omega Corporation of Chesterfield v. D. Duane Malloy et al. [No. 812080 (Sept. 7, 1984)], the Supreme Court of Virginia upheld a Circuit Court order restraining construction and operation of two group homes for mentally retarded adults in two Chesterfield County residential subdivisions. The Court's decision is troubling not only because it nullifies an eight-year effort to establish these particular group homes but also because it reflects an unfortunate insensitivity to the human fights of mentally retarded persons. In a larger sense, the Court's ruling also exemplifies the many obstacles which impede the development of suitable community living arrangements for mentally disabled citizens.
The Omega Group Homes
Section 15.14852 of the Virginia Code, enacted in April 1977, declares it to be the policy of the Commonwealth to afford physically handicapped, mentally ill, mentally retarded, and other developmentally disabled persons "the benefits of normal residential surroundings" and to promote their "optimal assimilation" in the community. The planning for the two Omega group homes reflects a coordinated effort by federal, state and local governments to promote and implement this policy, and thereby to help moderately retarded citizens realize their full potential as human beings and to restore to them the full benefits of citizenship.
In March 1976, an interagency task force was created, at the urging of the Virginia ARC and the state DMHR, to oversee a program of building group homes for mentally retarded Virginians. Under the Task Force's plan, the homes would be financed by low-interest loans from the Virginia Housing Development Authority (VHDA); in turn, these loans would be serviced by rent subsidies from the Housing Assistance Payments Program administered by the federal Department of Housing and Urban Development (HUD). it was also anticipated that some of the group homes would qualify as Intermediate Care Facilities eligible for Medicaid support
To implement this plan, the VHDA solicited proposals, in October 1976, from Virginia's local governments. In response to this request, the Chesterfield Community Services Board (CSB) proposed the building of two 4-resident group homes in residential neighborhoods, it turned out that funds were not available from VHDA for several years, and the Chesterfield CSB renewed its interest in February 1979. In September, the Chesterfield County Board of Supervisors approved construction of the proposed group homes. During the next eight months, the CSB, together with an architect and real estate agent, inspected more than 100 residential lots in search of property which would satisfy the VHDA criteria. Eventually, in June, contracts to purchase two lots were signed by Omega, a nonprofit corporation established for the sole purpose of carrying out the purchase of the land and construction of the homes. (Tax-exempt status for Omega was approved by the General Assembly in January 1981.)
In July 1980, the VHDA formally notified the Board of Supervisors of the proposed construction, giving the Board sixty days to object The Board did not object and, in April 1981, sent a letter of support for the project to VDHA. The construction loan was formally approved by VDHA on April 21, 1981. The architectural review committees of the two subdivisions approved the plans for the two group homes in June. After a five-year effort, involving the coordinated efforts of the legislative and executive branches of the county and state governments, the construction of the group homes appeared to be imminent For eight moderately retarded individuals--some living with families, some residing in state or local facilities--these homes offered the promise of individual dignity and "the benefits of normal residential surroundings."
Unfortunately, support for the project was not universal. Homeowners in the two subdivisions filed separate suits, in June and July 1981, to enjoin construction of the group homes. In so doing, they relied on the so-called "restrictive covenants" in the subdivision deeds. These covenants limit use of the land to "residential purposes" and bar construction of any structure other than a "single-family dwelling." In November 1981, the Chesterfield County Circuit Court ruled that "a single family use does not include occupancy by unrelated persons who live in the home with a counselor"; it therefore permanently enjoined Omega from making use of the property as it had proposed.
The Virginia Supreme Court affirmed. Although the Court conceded that the covenant would not be violated merely by group living arrangements involving "unrelated persons," it agreed with the trial judge that "the single-family nature of the use is destroyed when the element of supervision by counselors is added to the occupancy of unrelated persons." This factor, the Court reasoned, Converts "what might otherwise have been a single-family use into ... 'a facility.'" The Court explained:
[C]ounselors who are public employees qualified by training and experience to handle handicapped persons would be present in the homes on a rotating basis" providing needed supervision" at all times, even while the residents of the home are asleep. We can conceive of nothing more antithetical to the concept of a family homelife than the constant surveillance of purported family members by government employees assigned to supervise them.
From a purely legal standpoint, the Court's decision in Omega is a questionable one. As Justice Thomas pointed out in dissent, it is well settled that restrictive covenants are to be strictly construed and that any ambiguity is to be resolved against the patty seeking to limit the free use of the property. The ambiguity in these subdivision deeds relates to the use of the term "single-family dwelling." However, as Justice Thomas noted, this phrase is typically characterized as a "structural" restriction, not a "use" restriction; that is, it precludes the building of apartment buildings, duplexes, etc. The only "use" restriction in the covenant is the requirement that the property be devoted to "residential purposes." Quite clearly, Omega's proposed use was residential.
Nonetheless, the majority of the Court construed the phrase "single-family dwelling" as a restriction on use rather than as a structural limitation. The question then arises as to the nature of the "use" restriction thereby imposed. What, for purposes of this covenant, is a "family"? Again, Justice Thomas properly takes the Court to task for its conclusion that the presence of a counselor is incompatible with the idea of a family:
The majority states that it is to accept a broad definition of the word family. As a result, the majority accepts as a single-family three unrelated school teachers who live together in a house, households containing maids, governesses, tutors, butlers and others. Indeed, the majority does not attempt to say what groups will be included in its broad definition of family. All it concludes is that four unrelated mentally retarded persons and a counselor do not fall within that broad definition. The explanation for the exclusion of the family group proposed by Omega is that the counselors will surveil and supervise the mentally retarded family members. The suggestion is that watching over and supervising individuals is somehow antithetical to the concept of family. In my view, watching over and supervising members of a family who need such attention is central to families.
As Justice Thomas' dissenting view demonstrates, the covenant was ambiguous and should have been construed in Omega's favor. At the very least, there was sufficient latitude for the Court to take account of public policy in its construction of the covenant Instead, however, by endorsing a questionable interpretation of the term "family," the Court in effect legitimized private discrimination against mentally retarded persons.
The Omega decision reinforces community prejudices against mentally retarded persons and impedes their opportunity to enjoy the benefits of citizenship on the same terms as other citizens. The Court's own insensitivity to the rights of retarded persons is reflected in its observation that some of the prospective residents of the proposed group homes "are presently inmates of state institutions." Although the term "inmate" was often used in the nineteenth century to refer to residents of institutions for the "insane and feebleminded," the Court's choice of this term in 1984 is, to put it bluntly, shocking.
The Court's legal conclusion that "surveillance" by counselors is incompatible with the idea of family living reflects an unstated--and false--supposition that the "surveillance" in the proposed group homes is provided to prevent antisocial behavior. One wonders, for example, whether the Court would have ruled that the covenant precludes use of the house by two elderly sisters and a nurse retained by their families to care for them. If not, one wonders whether it would make any difference if the women were unrelated and the necessary oversight were provided by a nurse paid by a government program. I suspect that these uses of the property would have been permitted. If so, the Omega decision hinges either on an arbitrary distinction between nurses and counselors or on an equally arbitrary distinction between physically disabled persons and mentally retarded persons.
If the Omega decision really turns on the presence in the home of government-paid employees, the case has far-reaching implications for the rights of handicapped or disabled persons. Many handicapped or disabled individuals can live successfully in the community if they have assistance; the necessary assistance often includes personal supervision; and sometimes the supervision is subsidized by the government. Notwithstanding their need for supervisory services, handicapped or disabled persons, including the mentally retarded, are entitled to equal access to residential living. To deny such access whle granting it to other unrelated people is to discriminate, in the final analysis, on the basis of their disability.
Beyond Restrictive Covenants
The number of residential areas with restrictive covenants similar to the one involved in Omega is not clear. Certainly the legislature readily can reverse the Omega ruling on restrictive covenants. ** However, the Court's decision opens a window on a larger problem. Local zoning ordinances often define "single-family" use in prime residential zones as occupancy by persons related by blood or marriage or by a limited number (often 4) of unrelated persons. Thus, the location of group homes in many residential areas may be effectively precluded by numerical limitations or by interpretations of the zoning ordinances which exclude the proposed use.
Even apart from the legal obstacles which may exist in restrictive covenants or zoning ordinances, homeowner uneasiness about the location of group homes in their neighborhoods is often brought to bear on local government in an informal way. This is the message which lies embodied in the history of the Omega case.
Omega Corporation Responds
Editor's Note: The following is excerpted from a press release issued by Omega Corporation on December 7, 1984.
Omega is determined to use all of its resources to enable mentally retarded persons to live in a normal residential environment.
Three separate actions are being undertaken by Omega in this regard. First, because rye believe the Virginia Supreme Court's ruling was incorrect, we are appealing that ruling to the United States Supreme Court. We agree with Justice Thomas' dissent that the exclusion of four mentally retarded persons and a counselor from the definition of family was improper and discriminatory.
Second, Omega has developed several alternative uses for the property. All of these alternatives provide a residential program for mentally retarded adults. However, based on our interpretation of the Virginia Supreme Court ruling, each of these alternatives would be permitted under the terms of that ruling. We have requested the Circuit Court Judge who issued the injunction to rule on each of the alternatives. We are hopeful that his ruling will enable us to proceed with construction of the homes shortly.
Third, Omega is supporting legislation which would revise the Code of Virginia to make such discriminatory use of restrictive covenants illegal. We are working with the Virginia Association for Retarded Citizens and the Virginia Association of Community Services Boards in this effort.
Omega is concerned not only about the eight individuals who would live in the two group homes but also about the sixty-five mentally retarded citizens in Chesterfield currently on the waiting list for residential services and the countless others throughout the state. Many families have devoted much of their lives to providing a normal living environment for their mentally retarded son or daughter in their own homes. These families would like to arrange for a comparable residential setting for their offspring when they are no longer able to provide it themselves. If these mentally retarded citizens are excluded from subdivisions, many would have no alternatives. This is the situation Omega is working to prevent.
** Editor's Note: An example of the legislative proposals which are currently circulating among Virginia Associations of Retarded Citizens, Community Services Boards and others and which are likely to surface in the 1985 General Assembly appears below. The underscored words and sections comprise the proposed changes in existing statutes.
[section] 36-91. Certain restrictive covenants void; instruments containing such covenants.--(a) Any restrictive covenant purporting to restrict occupancy or ownership of property on the basis of race, color, religion, national origin or handicap, whether heretofore or hereafter included in an instrument affecting the title to real or leasehold property, is declared to be huff, void and of no affect, and contrary to the public policy of this State.
(b) Any person who is asked to accept a document affecting title to real or leasehold properly may decline to accept the same if it includes such a covenant until the covenant has been removed from the document. Refusal to accept delivery of an instrument for this reason shall not be deemed a breach of a contract to purchase, lease, mortgage or otherwise deal with such properly.
(c) Notwithstanding any restrictive covenant purporting to restrict occupancy or ownership of real or leasehold property to residential use or to members a single family, a family care home, foster home or group home in which ten or fewer physically handicapped, mentally ill, mentally retarded or developmentally disabled persons reside, with or without one or more resident counselors or other staff persons, shall be considered for all purposes residential use by single family.
[section] 36-92. Exemptions.--Nothing in this chapter shall prohibit a religious organization, association or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental, or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preferences to such persons, unless membership in such religion is restricted on account of race, color, national origin or, sex or handicap. Nor shall anything in-this chapter apply to a private membership club which is a bona fide club and which is exempt from taxation under [section] 501 (c) of the Internal Revenue Code of 1954. Nor shall anything in this chapter be constructed to prohibit any private, state-owned or state-supported educational institution, hospital, nursing home, religious or correctional institution, from requiting that persons of both sexes not occupy any single-family residence, or room or unit in dwellings, or other buildings or restrooms in said room or unit in dwellings or other buildings, which it owns or operates.
[section] 15.1-485.2. Zoning ordinances relating to homes for certain handicapped persons; policy; permitted use of property.--A. It is the policy of this State that physically handicapped, mentally ill, or mentally retarded and other developmentally disabled persons should not be excluded by county or municipal zoning ordinances, or restrictive covenants, from the benefits of normal residential surroundings. Furthermore, it is the policy of this State to encourage and promote the dispersion of residences for the physically handicapped, mentally ill, mentally retarded and other developmentally disabled persons to achieve optimal assimilation and mainstreaming into the community. Toward this end it is the policy of this State that the number of such group homes and their location throughout the State and within any given political subdivision should be proportional, insofar as possible, to the population and population density within the State and local political subdivisions.
B. Notwithstanding any other provision of law, pursuant to the policy set out in subsection A, locally adopted zoning regulations shall provide for family care homes, foster homes or group homes serving physically handicapped, mentally ill, mentally retarded or other develop mentally disabled persons, not related by blood or marriage, in an appropria residential zoning district or districts.
C. Conditions which am not required of other dwellings in the same zone may be imposed on such homes only when such additional conditions are related to the physical or mental handicap of the residents and are necessary to protect the health and safety of the residents of such homes. Reasonable conditions may also be imposed on such homes to assure their compatibility with other permitted uses in the area.
D. Any restrictive covenant purporting to restrict occupancy or ownership of property to residential use or to members of a single family related by blood or marriage, whether heretofore or hereafter included in an instrument affecting the title to real or leasehold property, is declared to be null, void, and of no effect, and contrary to the public policy of this State expressed herein, where the occupants or owners of the property are ten or fewer physically handicapped, mentally retarded, mentally ill, or developmentally disabled persons who reside together, with or without one or more counselors or staff persons, in a family care home, foster home, or group home.
by Richard J. Bonnie *
* Richard J. Bonnie is Director of the Institute of Law, Psychiatry and Public Policy and Professor of Law at the University of Virginia. He currently serves as Chairman of the State Human Rights Committee.…
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Publication information: Article title: Group Homes and Restrictive Covenants. Contributors: Bonnie, Richard J. - Author. Magazine title: Developments in Mental Health Law. Volume: 4. Issue: 3-4 Publication date: July-December 1984. Page number: 17+. © 2009 Institute of Law, Psychiatry & Public Policy. COPYRIGHT 1984 Gale Group.
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