Magazine article Developments in Mental Health Law

Group Homes and Restrictive Covenants

Magazine article Developments in Mental Health Law

Group Homes and Restrictive Covenants

Article excerpt

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."

The Litigation

Unfortunately, support for the project was not universal. …

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