Serving the Underserved: Caring for People Who Are Both Old and Mentally Retarded: A Handbook for Caregivers

By Mary C. Howell; Deirdre G. Gavin et al. | Go to book overview

38
COMMUNITY HOUSING

Henry A. Beyer


Legal Issues

A right that practically all Americans will support, at least in the abstract, is that, economic factors permitting, citizens should live wherever they choose. Yet considerable advocacy efforts have been required over the past two decades to ensure the recognition of that right for citizens with mental retardation, particularly those who are attempting to move from large institutions to community arrangements.

The major legal impediment to the establishment of community residences has been exclusionary zoning. 1 In a typical case, a city or town board refuses permission to locate a residence in a preferred location because it would violate the "single family" zoning ordinance applicable to that neighborhood. In the great majority of cases in which such bans have been subject to judicial challenge, however, courts have ruled in favor of those establishing the home. 2

Some courts have reasoned that the home's prospective residents, even though not related by blood or marriage, should be considered a "family" for purposes of interpreting the ordinance, since they will share kitchen and dining facilities as a single housekeeping unit. 3 Other courts have ruled that a state policy of deinstitutionalization and communitization overrode local exclusionary ordinances 4 or restrictive covenants. 5 Yet others have held that community residences constitute "public educational" facilities, and are therefore exempt from local zoning ordinances under the laws of some states. 6 In this last set of cases, the judges recognized that "education" is a broad, comprehensive term for developing and training all capabilities of human beings and thus encompasses such instruction in activities of daily living as meal prep-

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