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Pompano Beach, Florida:

Principles to Guide

Zoning for Community

Residences for People

With Disabilities

Prepared by

Daniel Lauber,

AICP

February 2018

Law Office Daniel Lauber

Attorney/Planner: Daniel Lauber, AICP

Published by:

PLANNING/COMMUNICATIONS

City of Pompano Beach, Florida to use, reproduce, and distribute this report solely in

conjunction with the City of Pompano Beach, Florida. Reproduction and use by any

other entity or government jurisdiction is strictly prohibited.

Cite this report as:

Daniel Lauber, Pompano Beach, Florida: Principles to Guide Zoning for Community

Residences for People With Disabilities (River Forest, IL:

Planning/Communications, Feb. 2018)

Table of Contents

Introduction........................................................1

Community residences ..............................................6

Types of community residences ........................... 9

Family community residences ........................... 9

Transitional community residences ........................ 12

Rational bases for regulating community residences...................14

Clustering and de facto social service districts ........................23

Recommended zoning approach .....................................34

Community residences in general ......................... 36

Misusing the definition of “family” to create de facto mini–institutions .....36

Additional issues to consider ........................... 40

Family community residences ........................... 40

Transitional community residences ........................ 41

Special exception backup ............................. 42

Maximum number of occupants .......................... 43

Other zoning regulations for community residences ...............45

Factoring in the Florida state statute on locating community residences ....46

Impact of Florida statute on vacation rentals ..................51

Summary..........................................................53

Appendix A: Representative studies of community residence impacts . . 55

Appendix B: Sample zoning compliance application form .........58

Introduction

The United States continues to struggle to win the War on Drugs and Alco-

hol Abuse while in the midst of an opioid, drug, and alcohol addiction epidemic

of unprecedented proportions for the past decade. One of the most essential

weapons in the War on Drugs and Alcohol Abuse is the recovery residence, re-

covery community, or sober home. Properly operated and located, these types of

community residences offer a supportive family–like living environment that

fosters the normalization and community integration essential to attain long–

term, permanent sobriety for their residents.

The State of Florida has been experiencing an “Opioid Crisis” with opioids,

2015, the direct cause of 2,538 deaths and present in an additional 3,896 fatali-

ties. This crisis does not respect municipal boundaries. While opioid deaths are

concentrated in southeast Florida, only Palm Beach County has experienced

more deaths due to opioid overdoses than Broward County where Pompano

Beach sits.

Source: Palm Beach County, Addressing the Opioid Epidemic: County Staff Report to the

Board of County Commissioners (April 4, 2017) 5.

Figure 1: Florida’s Opioid Crisis Death Map 2015

In Broward County, the frequency of fatalities due to opioid overdoses and

alcohol soared by 43 percent from 2014 to 2015, the most recent years for which

data are available.

Sober living homes or recovery residences are a crucial component to achieve

long–term recovery and sobriety. Just a few miles north of Pompano Beach is Delray

Beach, dubbed “the recovery capital of America” by the newspaper of record a de-

cade ago. The New York Times reported that “Delray Beach, a funky outpost of sobri-

ety between Fort Lauderdale and West Palm Beach, is the epicenter of the country’s

largest and most vibrant recovery community, with scores of halfway houses, more

than 5,000 people at 12–step meetings each week, recovery radio shows, a recovery

motorcycle club and a coffeehouse that boasts its own therapy group.…”

But as

noted earlier, this epidemic does not respect municipal boundaries.

During the past decade, operators of recovery residences have expanded be-

yond Delray Beach, As noted on page 24 of this report, there are at least 138 veri-

Figure 2: Deaths in Broward County To Which Drug and/or Alcohol Use Contributed: 2012–2015

Source: Annual Drug Raw Data spreadsheets for 2012 through 2015 prepared by Policy and Special

Programs, Medical Examiners Commission, Florida Department of Law Enforcement, 2016.

1. Jane Gross, “In Florida, Addicts Find an Oasis of Sobriety,” New York Times, Nov. 11, 2007.

Available online at http://www.nytimes.com/2007/11/16/us/16recovery.html

fied recovery residences in Pompano Beach plus at least another 102 that are

thought to be recovery residences but not confirmed as such. Delray Beach had

183 verified sober homes and another 64 thought to be sober homes in 2017.

In more than 40 years of working on zoning for community residences for

people with disabilities, the author of this study has rarely seen such large

numbers and intense concentrations of community residences of any type in a

single town of any size, much less in two nearby cities.

As this report explains, clustering community residences — especially recov-

ery residences — on a block and neighborhood reduces their efficacy by ob-

structing their ability to foster normalization and community integration. For

the residents of these homes to achieve long–term sobriety, it is critical to es-

tablish regulations and procedures that assure a proper family–like living envi-

ronment, free of drugs and alcohol, that weed out the incompetent and

unethical operators, and protect this vulnerable population from abuse, mis-

treatment, exploitation, enslavement, and theft.

The southeast Florida media have been reporting

on ongoing criminal in-

vestigations of sober living operators. These investigations have found so–

called sober homes that kept residents on illegal drugs, patient brokering, en-

slavement of residents into prostitution, kickbacks, bribery, and other abuses.

In the absence of mandatory state licensing or certification of recovery resi-

dences, a key expert estimates that at least half of the sober homes in Pompano

Beach do not comply with the minimum “Quality Standards” that the National

Alliance of Recovery Residences has promulgated.

This failure to comply with even minimal standards of the recovery industry

and the clustering of community residences in Pompano Beach may help ex-

plain the inability of so many sober living homes in Pompano Beach and south-

east Florida to achieve sobriety among their residents and for high recidivism

rates. These failures are in contrast to the much lower recidivism rates around

the country of residents of certified sober living homes and of homes in the Ox-

ford House network which are subject to the demanding requirements of the

Oxford House Charter and an inspection regime Oxford House maintains.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 3

2. Daniel Lauber, Delray Beach, Florida: Principles to Guide Zoning for Community Residences for

People With Disabilities (River Forest, IL: Planning/Communications, 3rd ed. August 2017).

3. A sampling of articles: “Kenny Chatman pleads guilty to addiction treatment fraud,”

mypalmbeachpost.com (March 16, 2017); Christine Stapleton, “Three more sober home

operators arrested in Delray Beach,” Palm Beach Post (Feb. 27, 2017); Lynda Figueredo, “Two

Delray Beach sober home owners arrested for receiving kickback,” cbs12.com (Nov. 19, 2016);

Pat Beall, “Patient–brokering charges against treatment center CEO ramped up to 95,”

mypalmbeachpost.com (Dec. 27, 2016).

4. Email from John Lehman, CEO and Board Chair, Florida Association of Recovery Residences to

Daniel Lauber, Law Office of Daniel Lauber (Nov. 16, 2017, 9:34 a.m. CST) (on file with the Law

Office of Daniel Lauber).

5. L. Jason, M. Davis, and J. Ferrari, The Need for Substance Abuse Aftercare: Longitudinal Analysis

of Oxford House, 32 Addictive Behaviors (4), (2007), at 803-818. For additional studies, also see

The failure to comply with minimal standards was a focus of a grand jury

that the Palm Beach County State Attorney’s Office convened to investigate

fraud and abuse in the addiction treatment industry. The grand jury reported:

The Grand Jury received evidence from a number of sources

that recovery residences operating under nationally recognized

standards, such as those created by the National Alliance for

Recovery Residences (NARR), are proven to be highly beneficial

to recovery. The Florida Association of Recovery Residences

(FARR) adopts NARR standards. One owner who has been op-

erating a recovery residence under these standards for over 20

years has reported a 70% success rate in outcomes. The Grand

Jury finds that recovery residences operating under these na-

tionally approved standards benefit those in recovery and, in

turn, the communities in which they exist.

In contrast, the Grand Jury has seen evidence of horrendous

abuses that occur in recovery residences that operate with no

standards. For example, some residents were given drugs so

that they could go back into detox, some were sexually abused,

and others were forced to work in labor pools. There is cur-

rently no oversight on these businesses that house this vulner-

able class. Even community housing that is a part of a DCF

[Department of Children and Families] license has no oversight

other than fire code compliance. This has proven to be

extremely harmful to patients.

The grand jury reported 484 overdose deaths in Delray Beach in 2016, up

from 195 in 2015.

It recommended certification and licensure for “commercial

recovery housing.”

For full details on the grand jury’s findings and recommen-

Office of Substance Abuse and Mental Health, Recovery Residence Report Fiscal Year 2013–2014

General Appropriations Act, Florida Department of Children and Families (Oct. 1, 2013), 21–25.

Since the report focused on Palm Beach County, it did not provide similar data for cities outside

that county.

Oxford House is discussed throughout this study. The later discussion of Oxford House will make

it clear that, unlike the recovery residences so prevelent in Pompano Beach and southeast

Florida, each Oxford House is a self–run and self–governed sober home completely independent

from any treatment center. Also see footnote 8 below.

6. Palm Beach Grand Jury in the Circuit Court of the 15th Judicial Circuit In and For Plam Beach

County, Florida, Report on the Proliferation of Fraud and Abuse in Florida’s Addiction Treatment

industry, (Dec. 8, 2016) 16–17. While the report focused on Palm Beach County which is

immediately north of Broward County, the applicability of its recommendations, like the opiod

epidemic, is not limited by municipal boundaries.

7. Ibid. 99–101.

8. Ibid. 18. In contrast to the self–governed Oxford Houses that adhere to the Oxford House Charter

and are subject to inspections by Oxford House, “commercial recovery housing” is operated by a

profit–making third party entity, sometimes affiliated with a specific treatment program,

complete with supervisory staff like most community residences for people with disabilities. In

Florida, as elsewhere, such homes are almost always requried to obtain a license from the state.

dations, readers should see the grand jury’s report.

Thanks in large part to the crackdown on patient brokering and other discor-

dant practices of illegitimate predator sober homes in Palm Beach County, it

has been noted that there is a migration of patient brokering and of sober

homes to Broward County. According to the head of the Florida Association of

Recovery Residences (FARR), requiring certification or licensing of sober

homes appears to deter “those who are driven to enter the recovery housing

arena by opportunities to profit off this vulnerable population. When seeking

where to site their programs, this predator group evaluates potential barriers

to operation. For them, achieving and maintaining FARR Certification is a sig-

nificant barrier.”

**************************************

This report explains the basis for text amendments that will be proposed to

revise the sections of Pompano Beach’s Zoning Code that govern community

residences for people with disabilities. The proposed amendments based on this

study will seek to make the reasonable accommodations for community resi-

dences for people with disabilities that are necessary to achieve full compliance

with national law and sound zoning and planning practices and policies. The

recommended zoning approach is based upon a careful review of:

The functions and needs of community residences and the people with

disabilities who live in them

Sound city planning and zoning principles and policies

The Fair Housing Amendments Act of 1988 (FHAA) and amended

Title VIII of the Civil Rights Act of 1968, 42 U.S.C. Sections 3601–

3619 (1982)

Report No. 100–711 of the House Judiciary Committee interpreting

the FHAA amendments (the legislative history)

The HUD regulations implementing the amendments, 24 C.F.R.

Sections 100–121 (January 23, 1989)

Case law interpreting the 1988 Fair Housing Act amendments

relative to community residences for people with disabilities

Joint Statement of the Department of Housing and Urban

Development and the Department of Justice, State and Local Land

Use Laws and Practices and the Application of the Fair Housing Act

(Nov. 10, 2016)

Florida state statutes governing local zoning for different types of

community residences: Title XXIX Public Health, chapters 393

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 5

9. The grand jury’s report is available online at: http://www.trbas.com/media/media/acrobat/

2016-12/70154325305400-12132047.pdf.

10. Email from John Lehman, CEO and Board Chair, Florida Association of Recovery Residences to

Daniel Lauber, Law Office of Daniel Lauber (Nov. 16, 2017, 9:34 a.m. CST) (on file with the Law

Office of Daniel Lauber).

11. At http://www.justice.gov/crt/page/file/909956/download

(Developmental Disabilities), 394 (Mental Health), 397 (Substance

Abuse Services), 419 (Community Residential Homes); Title XXX,

chapters 429 (Assisted Care Communities — Part 1: Assisted Living

Facilities, Part II: Adult Family–Care Homes); and Title XLIV,

Chapter 760 (Discrimination in the Treatment of Persons; Minority

Representation) (2016)

Florida state statute establishing voluntary certification of recovery

residences: Title XXIX Public Health, chapter 397 (Substance Abuse

Services) §397.487 (2016)

The actual Florida certification standards for recovery residences as

promulgated and administered by the certifying entity, the Florida

Association of Recovery Residences based on standards established by

the National Alliance of Recovery Residences

The existing provisions of Pompano Beach’s Zoning Code

Community residences

Community residences are crucial to achieving the adopted goals of the

State of Florida and the nation to enable people with disabilities to live as nor-

mal a life as possible in the least restrictive living environment. The nation has

made great strides from the days when people with disabilities were ware-

housed in inappropriate and excessively restrictive institutions, out of sight

and out of mind.

People with substantial disabilities often need a living arrangement where

they receive staff support to engage in the everyday life activities most of us

take for granted. These sorts of living arrangements fall under the broad rubric

“community residence” — a term that reflects their residential nature and fam-

ily–like living environment rather than the institutional nature of a nursing

home or hospital or the non–family nature of a boarding or lodging house. Their

primary use is as a residence or a home like yours and mine, not a treatment

center, an institution, nor a boarding house.

One of the core elements of community residences is that they seek to emulate

a family in how they function. The staff (or in the case of a recovery community,

the officers) function as parents, doing the same things our parents did for us

and we do for our children. The residents with disabilities are in the role of the

siblings, being taught or retaught the same life skills and social behaviors our

parents taught us and we try to teach our children.

Community residences seek to achieve “normalization” of their residents

and incorporate them into the social fabric of the surrounding community, of-

ten called “community integration.” They are operated under the auspices of a

legal entity such as a non–profit association, for–profit private care provider, or

a government entity.

The number of people who live in a specific community residence tends to de-

pend on its residents’ types of disabilities as well as therapeutic and financial

needs.

Like other cities across the nation, Pompano Beach needs to adjust its

zoning to enable community residences for people with disabilities to locate in all

residential zoning districts, subject to objective conditions via the least drastic

means needed to actually achieve a legitimate government interest.

Since 1989, the nation’s Fair Housing Act has required all cities,

counties, and states to make a “reasonable accommodation” in their

zoning when the number of residents exceeds the local zoning code’s

cap on the number of unrelated people who can live together in a

dwelling so that community residences for people with disabilities can

locate in all residential zoning districts.

When President Reagan signed the Fair Housing Amendments Act of 1988

(FHAA), he added people with disabilities to the classes protected by the nation’s

Fair Housing Act (FHA). The 1988 amendments recognized that many people

with disabilities need a community residence (group home, recovery community,

sober living home, halfway house) in order to live in the community in a family–

like environment rather than being forced into an inappropriate institution.

Consequently, the act requires all cities, counties, and states to allow for

community residences for people with disabilities by making some exceptions

in their zoning ordinance provisions that, for example, may limit how many un-

related people can live together in a dwelling unit.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 7

12. While the trend for people with developmental disabilities is toward smaller group home

households, valid therapeutic and financial reasons lead to community residences for people

with mental illness or people in recovery from drug and/or alcohol addiction to typically house

eight to 12 residents. However, all community residences must comply with minimum floor area

requirements like any other residence. If the local building code or property maintenance code

would allow only six people in a house, then six is the maximum number of people that can live in

the house whether it’s a community residence for people with disabilities or a biological family.

City of Edmonds v. Oxford House 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995).

13. As explained in this study, “family community residences” should be allowed as a permitted use

in all zoning districts where dwellings are allowed when located outside a rational spacing

distance from the nearest existing community residence and if licensed or certified. “Transitional

community residences” should be allowed as of right in districts where multiple family dwellings

are permitted uses (subject to spacing and licensing) and as a special use in other residential

districts. A special use back–up is needed for proposed community residences that would be

located within the spacing distance or for which a license or certification is not available.

The Fair Housing Amendments Act’s (FHAA) legislative history states that:

“The Act is intended to prohibit the application of special re-

quirements through land–use regulations, restrictive cove-

nants, and conditional or special use permits that have the

effect of limiting the ability of such individuals to live in the

residence of their choice within the community.”

While many advocates for people with disabilities suggest that the Fair Hous-

ing Amendments Act prohibits all zoning regulation of community residences,

the Fair Housing Amendments Act’s legislative history suggests otherwise:

“Another method of making housing unavailable has been the

application or enforcement of otherwise neutral rules and regu-

lations on health, safety, and land–use in a manner which dis-

criminates against people with disabilities. Such discrimination

often results from false or overprotective assumptions about

the needs of handicapped people, as well as unfounded fears of

difficulties about the problems that their tenancies may pose.

These and similar practices would be prohibited.”

Many states, counties, and cities across the nation continue to base their

zoning regulations for community residences on these “unfounded fears.” The

1988 amendments require all levels of government to make a reasonable ac-

commodation in their zoning rules and regulations to enable community resi-

dences for people with disabilities to locate in the same residential districts as

other residential uses.

It is well settled that for zoning purposes, a community residence is a residen-

tial use, not a business use. The Fair Housing Amendments Act of 1988 specifi-

cally invalidates restrictive covenants that would exclude community residences

from a residential district. The Fair Housing Act renders these restrictive cove-

People without disabilities and people with disabilities who pose “a

direct threat to the health or safety of others” such as prison pre–

parolees and sex offenders are not covered by the 1988 amendments

to the Fair Housing Act. Therefore, cities do not have to make the

same reasonable accommodation for them as cities must for people

with disabilities who do not pose “a direct threat to the health or

safety of others.” The zoning amendments to be based on this study

will not allow as a permitted use halfway houses for people who fall

into these categories of dangerous people.

14. H.R. Report No. 711, 100th Cong., 2d Sess. 311 (1988), reprinted in 1988 U.S.C.C.A.N. 2173.

15. Ibid.

16. 42 U.S.C. §3604(f)(B) (1988).

nants unenforceable against community residences for people with disabilities.

Types of community residences

Within the broad category of community residences are two types of living

arrangements that warrant slightly different zoning treatments tailored to

their specific characteristics:

Family community residences which include uses commonly

known as group homes and those recovery communities and sober

living homes that offer a relatively permanent living environment that

emulates a biological family;

Transitional community residences which include such uses

commonly known as halfway houses as well as those recovery

communities and sober living homes that offer a relatively temporary

living environment like a halfway house does.

The label an operator places on a community residence does not determine

whether it is a family or a transitional community residence. That is ascertained

by the relevant performance characteristics of each community residence.

Family community residences

A family community residence offers a relatively permanent living ar-

rangement for people with disabilities that emulates a family. They are usually

operated under the auspices of an association, corporation, or other legal entity,

or the parents or legal guardians of the residents with disabilities. Some, like

recovery communities for people in recovery from alcohol and/or drug addic-

tion, are self–governing.

Residence, not treatment, is the home’s primary function. There is no limit to

how long an individual can live in a family community residence. Depending on

the nature of a specific family community residence, there is an expectation that

each resident will live there for as long as each resident needs to live there. Ten-

ancy is measured in years, not months. Family community residences are most

often used to house people with developmental disabilities (mental retardation,

autism, etc.), mental illness, physical disabilities including the frail elderly,

and individuals in recovery from addiction to alcohol or drugs (legal or illegal)

who are not currently “using.”

Family community residences are often called group homes and, in the case

of people with alcohol or drug addictions, recovery communities, recovery resi-

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 9

17. H.R. Report No. 711, 100th Cong., 2d Sess. 311 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2184.

The overwhelming majority of federal and state courts that have addressesd the question have

concluded that the restrictive covenants of a subdivision and the by–laws of a homeowner or

condominium association that exclude businesses or “non–residential uses” do not apply to

community residences for people with disabilities — even before passage of the Fair Housing

Amendments Act of 1988.

dences, sober living homes, or sober homes.

Their key distinction from transi

tional community residences is that people with disabilities can reside, are

expected to reside, and actually do live in a family community residence for a

year or longer, not just months or weeks. In a nation where the typical house-

hold lives in its home five to seven years, these are long–term, relatively perma-

nent tenancies. There is no limit on how long someone can dwell in a family

community residence as long as they obey the rules or do not constitute a dan-

ger to others or themselves, or in the case of recovering alcoholics or drug ad-

dicts, do not use alcohol or illegal drugs or abuse prescription drugs.

To be successful, a community residence needs to be located in a conven-

tional residential neighborhood so that normalization can take place. The un-

derlying rationale for a community residence is that by placing people with

disabilities in as “normal” a living environment as possible, they will be able to

develop to their full capacities as individuals and citizens. The atmosphere and

aim of a community residence is very much the opposite of an institution.

The family community residence emulates a family in most every way. The

activities in a family community residence are essentially the same as those in

a dwelling occupied by a biologically–related family. Essential life skills are

taught, just like we teach our children. Most family community residences pro-

vide “habilitative” services for their residents to enable them to develop their

life skills to their full capacity. Habilitation involves learning life skills for the

first time as opposed to rehabilitation which involves relearning life skills.

While recovery communities are like group homes in most respects, they tend

to engage more in rehabilitation where residents relearn the essential life skills

we tend to take for granted, although for some very long–term alcoholics or drug

addicts in recovery, they may be learning some of these life skills for the first

time. Recovery communities have been referred to as three–quarter houses be-

cause they are more family–like and permanent than the better known halfway

house which falls under the transitional community residence category.

The original recovery community concept popularized by Oxford House does

not limit how long somebody can live in one. In an Oxford House, the residents

periodically elect officers who act in a supervisory role much like parents in a

biological family while the other residents are like the siblings in a biological

family.

In a group home and in structured sober living homes, the staff func-

tions in the supervisory parental role.

Recovery communities are essential for people in recovery for whom a sup-

18. For example, those “sober living homes” that limit how long occupants may live there are most

accurately characterized as “transitional community residences.” It is crucial that a jurisdiction

evaluates each proposed community residence on how it operates and not on how its operator

labels it.

19. Each Oxford House is subject to the demanding requirements of the Oxford House Charter which

includes a monthly financial accounting and at least an annual inspection. This procedure

constitutes a functional equivalent of licensing and for the purposes of zoning ordinances, would

serve as a proxy for formal licensing or certification.

portive living environment is needed to learn how to maintain sobriety — before

they can return to their family. Tenancy in a recovery community can last for

years in contrast to tenancy in a sober living environment or small halfway

house where there is a limit on length of tenancy measured in weeks or months.

Interaction between the people who live in a community residence is essen-

tial to achieving normalization. The relationship of a community residence’s in-

habitants is much closer than the sort of casual acquaintances that occur

between the residents of a boarding or lodging house where interaction be-

tween residents is merely incidental. In both family and transitional commu-

nity residences, the residents share household chores and duties, learn from

each other, and provide one another with emotional support — family–like re-

lationships not essential for, nor present in lodging houses, boarding houses,

fraternities, sororities, nursing homes, or other institutional uses.

Interaction with neighbors without severe disabilities is an essential compo-

nent to community residences and one of the reasons planners and the courts

long ago recognized the need for them to be located in residential neighbor-

hoods. Their neighbors serve as role models which helps foster the normaliza-

tion and community integration at the core of community residences.

As was realized a century ago, being segregated away in an institution only

teaches people how to live in an institution. It does nothing to facilitate learn-

ing the skills needed to be all you can be and live as independently as possible

integrated into the community.

For example, filling an apartment building with people in recovery segre-

gates them away with other peope in recovery as their neighbors, depriving

them of the interaction with sober neighbors that fosters normalization and

community integration. Placing recovery residences in a series of adjacent sin-

gle–family homes or townhouses has the same effect. While these arrange-

ments possess some of the characteristics of community residences, they also

possess many institutional characteristics and function more like mini–institu-

tions than the biological family a community residence is supposed to emulate.

As the courts have consistently concluded, community residences foster the

same family values that even the most restrictive residential zoning districts pro-

mote. Family community residences comply with the purpose statements for each

of Pompano Beach zoning district that allows residential uses.

Even before passage of the 1988 amendments to the Fair Housing Act, most

courts concluded that family community residences for people with disabilities

must be allowed as of right in all residential zones. Under the Fair Housing Act,

a city can require a spacing distance between community residences and a li-

cense of community residences allowed as permitted uses when the number of

residents in a proposed community residences exceeds the cap on unrelated oc-

cupants in the city’s zoning code definition of “family.”

Table 1 illustrates the many functional differences between community resi-

dences for people with disabilities, institutional uses, and lodging or boarding

houses.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 11

Transitional community residences

In contrast to the group homes and recovery communities that fit in the cat-

egory of family community residences, transitional community residences are a

comparatively temporary living arrangement that is more transitory than a

group home or recovery community and a bit less family–like. Residency is

measured in weeks or months, not years. A recovery community or sober living

residence that imposes a limit on how long someone can live there exhibits the

performance characteristics of a transitional community residence, much like

Table 2: Differences Between Community Residences, Institutional Uses, and Rooming or Boarding Houses

the better known small halfway house.

Typical of the people with disabili-

ties who need a temporary living ar-

rangement like a halfway house are

people with mental illness who leave

an institution and need only a rela-

tively short stay in a halfway house be-

fore moving to a less restrictive living

environment. Similarly, people recov-

ering from addictions to alcohol or

drugs move to a halfway house, short–

term recovery community, or sober liv-

ing home following detoxification in an

institution until they are capable of liv-

ing in a relatively permanent long–

term recovery community or other less

restrictive environment.

Halfway houses are also used for prison pre–parolees. However, such indi-

viduals are not, as a class, people with disabilities. Zoning can be more restric-

tive for halfway houses for people not covered by the Fair Housing Act.

Consequently zoning codes can and should treat halfway houses for prison pre–

parolees or other populations not covered by the Fair Housing Act differently

than classes that the Fair Housing Act

protects.

The community residences for people

with disabilities that limit the length of

tenancy are residential uses that need to

locate in residential neighborhoods if

theyaretosucceed.Butsincetheydonot

emulate a family as closely as a more per-

manent group home or recovery resi-

dence does, and the length of tenancy is

relatively temporary, it is likely that a ju-

risdiction can require a special exception

for them in single–family districts while

allowing them as a permitted use in mul-

tiple family districts subject to the two

requisite conditions explained later in

this report. However, it is important to re-

member that a special use permit — a spe-

cial exception in Pompano Beach’s zoning

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 13

Federal “Direct threat”

exclusion

Individuals with disabilities who

“constitute a direct threat to the

health or safety of others” are not

covered by the Fair Housing

Amendments Act of 1988. 42 U.S.C.

§ 3602(f)(9) (1988). Consequently,

municipal ordinances that prohibit

such individuals from living in

community residences do not run

afoul of the Fair Housing Act.

Florida “Direct threat”

exclusion

“Nothing in this section shall

permit persons to occupy a

community residential home who

would constitute a direct threat to

the health and safety of other

persons or whose residency would

result in substantial physical damage

to the property of others.” Florida

Statutes §419.001 (10) (2016). This

prohibition which applies to homes

the state licenses is equivalent to

the Fair Housing Act’s exclusion for

people who constitute a direct

threat.

20. As used in this study, the term “halfway house” refers to the original halfway house concept that

is small enough to emulate a biological family; not to the large halfway houses occupied by 20,

50, or 100+ people. The latter are mini–institutions and not residential uses. Consequently, sound

zoning principles call for them to be located in commerical or institutional zoning districts. A

residential neighborhood is not essential for them to function successfully.

code — cannot be denied on the basis of neighborhood opposition rooted in un

founded myths and misconceptions about the residents with disabilities of a pro-

posed transitional community residence.

Rational bases for regulating community residences

Community residences have probably been studied more than any other

small land use. To understand the rationale for the guidelines to regulate com-

munity residences that are suggested in this report, it is vital to review what is

known about community residences, including their appropriate location, num-

ber of residents needed to succeed both therapeutically and financially, means

of protecting their vulnerable populations from mistreatment or neglect as well

as excluding dangerous individuals from living in them, and their impacts, if

any, on the surrounding community.

Relative location of community residences. For at least 40 years, re-

searchers have found that some community residence operators will locate

their community residences close to other community residences, especially

when zoning does not allow community residences for people with disabilities

as of right in all residential districts. They tend to be clustered in a commu-

nity’s lower cost or older neighborhoods and in areas around colleges.

In every

jurisdiction for which Planning/Communications has conducted an Analysis of

Impediments to Fair Housing Choice, there was clustering or concentrations of

community residences when the zoning did not require a rationally–based

spacing distance between community residences allowed as of right. As dis-

cussed below, counterproductive clustering of community residences has devel-

oped in quite a few blocks and neighborhoods in Pompano Beach.

Why clustering is counterproductive. Placing community residences too

21. Note that the proposed definitions of “community residence,” “family community residence,”

and “transitional commmnity residence” all speak of a family–like living environment. These

definitions exclude the large institutional facilities for many more occupants that are often called

“halfway houses.”

The city’s current zoning treatment of those large facilities will remain unchanged. The proposed

zoning, however, will provide for an administrative “reasonable accommodation” process under

which the operator of a proposed “community residence” for more than ten individuals with

disabilities can seek zoning approval if it can prove therapeutic and/or financial need for more

than ten residents and demonstrate that the home will emulate a biological family. Spacing and

licensing/certification requirements would still apply.

22. See General Accounting Office, Analysis of Zoning and Other Problems Affecting the

Establishment of Group Homes for the Mentally Disabled (August 17, 1983) 19. This

comprehensive study found that 36.2 percent of the group homes for people with developmental

disabilities surveyed were located within two blocks of another community residence or an

institutional use. Also see Daniel Lauber and Frank Bangs, Jr., Zoning for Family and Group Care

Facilities, American Society of Planning Officials Planning Advisory Service Report No. 300 (1974)

at 14; and Family Style of St. Paul, Inc., v. City of St. Paul, 923 F.2d 91 (8th Cir. 1991) where 21

group homes that housed 130 people with mental illness were established on just two blocks.

close to each other can create a de facto social service district and can seriously

hinder their ability to achieve normalization for their residents — one of the core

foundations on which the concept of community residences is based. In today’s

society, people tend to get to know nearby neighbors on their block within a few

doors of their home (unless they have children together in school or engage in

walking, jogging, or other neighborhood activities). The underlying precepts of

community residences expect neighbors who live close to a community residence

to serve as role models to the occupants of a community residence — which re-

quires interacting with them.

For normalization to occur, it is essential that community residence resi-

dents have such so–called “able–bodied” neighbors as role models. But if an-

other community residence is opened very close to an existing group home —

such as next door or within a few doors of it — the residents of the new home

may replace the “able–bodied” role models with other people with disabilities

and quite possibly hamper the normalization efforts of the existing community

residence. Clustering three or more community residences on the same block

not only undermines normalization but could inadvertently lead to a de facto

social service district that alters the residential character of the neighborhood.

All the evidence recorded to date shows that one or two nonadjacent community

residences for people with disabilities on a block do not alter the residential

character of a neighborhood.

The research strongly suggests that as long as several community residences

are not clustered on the same block face they will not generate these adverse im-

pacts. Consequently, when community residences are allowed as a permitted use, it

is most reasonable to impose a spacing distance between community residences that

keeps them about a block apart in terms of actual walking distance, generally about

660 feet.

It is also reasonable to not allow another community residence to locate

adjacent to an existing community residence as a permitted use.Butthereare

times when locating another community residence within the spacing distance of

an existing community residence will not interfere with normalization or commu-

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 15

23. See General Accounting Office, Analysis of Zoning and Other Problems Affecting the

Establishment of Group Homes for the Mentally Disabled 27 (August 17, 1983).

24. Some cities and counties establish a different spacing distance between community residences

allowed as of right based on the density of the zoning district. The denser the district, the shorter

the spacing distance. See Peter Natarelli, Zoning for a New Kind of Family 17 (Westchester

County Department of Planning, Occasional Paper 5, 1976) where spacing distances vary by the

number of persons per square mile. The spacing distance in Clark County, Nevada reduces the

660–foot spacing distance to 100 feet when there is a street, freeway, or drainage channel wider

than 99 feet between community residences. See Table 30.44-1, Clark County Code, Section 4.

Title 30, Chapter 30.44. Also see An Ordinance Amending Title 6 of the Village of Lincolnshire

Village Code (Community Residential Homes), Ordinance No. 90–1182–66, adopted December 10,

1990, Lincolnshire, Illinois, which established spacing distances ranging from 500 to 1,500 feet

between community residences depending on the zoning district. Lincolnshire has some zoning

districts with extremely large minimum lot sizes greater than an acre. Probably due to the

complexity involved, very few jurisdictions establish different spacing distances in different

zoning districts. Most use the same spacing distance throughout the city or county.

nity integration. Proposals to locate another community residence so close to an

existing one warrant the case–by–case consideration.

If the operator of a proposed community residence wishes to locate it within

the spacing distance, then the heightened scrutiny of a special use permit is

warranted. The special use permit process allows a jurisdiction to evaluate the

cumulative effect of locating so close to an existing community residence and

whether the proposed community residence would interfere with normaliza-

tion at the existing community residence or alter the character of the neighbor-

hood. For example, if there is a geographic feature such as a freeway, drainage

channel, or hill between the proposed and existing community residences that

acts as a barrier between the two, it is unlikely that allowing the proposed com-

munity residence would interfere with normalization or alter the community’s

character — and the special use permit should be granted.

There are several schools of thought on the most appropriate way to mea-

sure a spacing distance. They measure from the lot line nearest the existing

community residence that is closest to a proposed community residence. One

school of thought calls for measuring along the public or private pedestrian

right of way. The idea is to measure the actual distance people would have to

walk to go from one community residence to another, as opposed to measuring

as the crow flies. This approach works when a jurisdiction does not contain any

“superblocks,” namely blocks that are substantially lengthier than the typical

American urban block of 660 feet. The greater length of a superblock — twice

that of a typical block — would facilitate the creation of concentrations by en-

abling a community residence to locate back to back or lot corner to lot corner

with an existing community residence as of right — one of the scenarios that

spacing distances seek to prevent from happening. Using the right of way sys-

tem would render the zoning approach suggested here inoperable due to the

presence of a significant number of superblocks in Pompano Beach.

The other school of thought holds that the spacing distance should be measured

from the closest lot lines of the existing community residence and the proposed

community residence. This method establishes a predictable radius around exist-

ing community residences that can quickly be measured using a jurisdiction's geo-

graphic information system. Even with superblocks, this approach would preclude

a new community residence from locating back to back or lot corner to lot corner

with an existing community residence as of right. It is the more appropriate ap-

proach to use in Pompano Beach and most other jurisdictions.

Whichever approach is used, it is necessary for the operator of every proposed

communityresidencetocompletea“Community Residence Zoning Application”

form that is recommended for Pompano Beach to use so the city can measure spac-

ing distances from existing community residences and implement its zoning provi-

sions for community residences. The city should also maintain a confidential

database and map

of the locations of all existing community residences so it can

25. Confidentiality is recommended because it is possible that releasing the actual addresses of

community residences could violate privacy laws. City attorneys will need to determine how this

apply the spacing distance to any proposed community residence.

The technical explanation. Normalization and community integration re-

quire that persons with disabilities substantial enough to need a supportive liv-

ing arrangement like a community residence be absorbed into the

neighborhood’s social structure. Generally speaking, the existing social struc-

ture of a neighborhood can accommodate no more than one or two community

residences on a single block face. Neighborhoods seem to have a limited absorp-

tion capacity for service–dependent people that should not be exceeded.

Social scientists note that this capacity level exists, but an absolute, precise

level cannot be identified. Writing about service–dependent populations in gen-

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 17

Figure 3: Block Face Illustrated

The area within the orange rectangle is a “block face.”

concern over privacy interacts with the requirements of Florida’s public record laws. The

proposed zoning approach, however, cannot be implemented without maintaining the

recommended database and map.

26. It is critical to note that when the number of occupants of a community residence falls within the

zoning code’s cap on unrelated individuals permitted in the city’s definition of “family,”

“household,” or “single housekeeping unit,” the zoning ordinance must always treat the

community residence as a “family” or “household” — to do otherwise would constitute

discrimination on its face in violation of the Fair Housing Act. In Pompano Beach, the cap on

unrelated individuals is three. Such homes cannot be used to calculate spacing distances for

zoning purposes. Spacing distances are applicable only to community residences for people with

disabilities that exceed the cap on unrelated people in the definition of “family,” “household,” or

“single housekeeping unit.” This principle is most clearly ennunciated in United States v. City of

Chicago Heights, 161 F. Supp. 2nd 819 (N.D. Ill. 2001). Also see Joint Statement of the

Department of Housing and Urban Development and the Department of Justice, State and Local

Land Use Laws and Practices and the Application of the Fair Housing Act (Nov. 10, 2016) 10–12.

27. Kurt Wehbring, Alternative Residential Facilities for the Mentally Retarded and Mentally Ill 14 (no

date) (mimeographed).

eral, Jennifer Wolch notes, “At some level of concentration, a community may

become saturated by services and populations and evolve into a service–de-

pendent ghetto.”

According to one leading planning study, “While it is difficult to precisely

identify or explain, ‘saturation’ is the point at which a community’s existing so-

cial structure is unable to properly support additional residential care facilities

[community residences]. Overconcentration is not a constant but varies accord-

ing to a community’s population density, socio–economic level, quantity and

quality of municipal services and other characteristics.” There are no univer-

sally accepted criteria for determining how many community residences are ap-

propriate for a given area.

This research strongly suggests that there is a legitimate government interest

to assure that community residences do not cluster. While the research on the

impact of community residences makes it abundantly clear that two commu-

nity residences separated by at least several other houses on a block produce no

negative impacts, there is very credible concern that community residences lo-

cated more closely together on the same block — or more than two on a block —

can generate adverse impacts on both the surrounding neighborhood and on

the ability of the community residences to facilitate the normalization of their

residents, which is, after all, their raison d’être.

Limitations on number of unrelated residents. The majority view of the

courts, both before and after enactment of the Fair Housing Amendments Act of

1988, is that community residences constitute a functional family and that zoning

should treat the occupants of a community residence as a “family” even if the com-

munity residence does not fit within a jurisdiction’s zoning code’s definition of family.

At first glance, that approach appears to fly in the face of a 1974 Supreme

Court ruling that allows cities and counties to limit the number of unrelated

people that constitutes a “family” or “household.” Zoning ordinances typically

define “family” or “household” as (1) any number of related individuals and (2) a

limited number of unrelated persons living together as a single housekeeping

unit. As explained in the paragraphs that follow, the U.S. Supreme Court ruled

that a local zoning code’s defnition of “family” can place this cap on the number

of unrelated persons living together as a single housekeeping unit.

But the

Fair Housing Act requires jurisdictions to make a reasonable accommoda-

tion for community residences for people with disabilities by making narrow ex-

ceptions to these caps on the number of unrelated people living together that

qualify as a “family” or “household.”

28. Jennifer Wolch, “Residential Location of the Service–Dependent Poor,” 70 Annals of the

Association of American Geographers, at 330, 332 (Sept. 1982).

29. S. Hettinger, A Place They Call Home: Planning for Residential Care Facilities 43 (Westchester

County Department of Planning 1983). See also D. Lauber and F. Bangs, Jr., Zoning for Family and

Group Care Facilities at 25.

30. Belle Terre v. Borass, 416 U.S. 1 (1974).

In Belle Terre, the U.S. Supreme Court upheld the resort community’s zon

ing definition of “family” that permitted no more than two unrelated persons to

live together. It’s hard to quarrel with the Court’s concern that the specter of

“boarding housing, fraternity houses, and the like” would pose a threat to es-

tablishing a “quiet place where yards are wide, people few, and motor vehicles

restricted.… These are legitimate guidelines in a land–use project addressed to

family needs.…”

Unlike the six sociology students who rented a house during

summer vacation in Belle Terre, Long Island, a community residence emulates

a family, is not a home for transients, and is very much the antithesis of an in-

stitution. In fact, community residences for people with disabilities foster the

same goals that zoning districts and the U.S. Supreme Court attribute to sin-

gle–family zoning.

One of the first community residence court decisions to distinguish Belle

Terre clearly explained the difference between community residences and other

group living arrangements like boarding houses. In City of White Plains v.

Ferraioli,

New York’s highest court refused to enforce the city’s definition of

“family” against a community residence for abandoned and neglected children.

The city’s definition limited occupancy of single–family dwellings to related in-

dividuals. The court found that it “is significant that the group home is struc-

tured as a single housekeeping unit and is, to all outward appearances, a

relatively normal, stable, and permanent family unit.…”

Moreover, the court found that:

“The group home is not, for purposes of a zoning ordinance, a

temporary living arrangement as would be a group of college

students sharing a house and commuting to a nearby school.

(c.f., Village of Belle Terre v. Boraas, [citation omitted]). Every

year or so, different college students would come to take the

place of those before them. There would be none of the perma-

nency of community that characterizes a residential neighbor-

hood of private homes. Nor is it like the so–called ‘commune’

style of living. The group home is a permanent arrangement

and akin to the traditional family, which also may be sundered

by death, divorce, or emancipation of the young…. The purpose

is to emulate the traditional family and not to introduce a dif-

ferent ‘life style.’”

The New York Court of Appeals explained that the group home does not con-

flict with the character of the single–family neighborhood that Belle Terre

sought to protect, “and, indeed, is deliberately designed to conform with it.”

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 19

31. Ibid. at 7–9.

32. 313 N.E.2d 756 (N.Y. 1974).

33. Ibid. at 758–759.

34. Ibid. at 758 [citation omitted]. Emphasis added.

35. Ibid.

In Moore v. City of East Cleveland,

Justice Stevens favorably cited White

Plains in his concurring opinion. He specifically referred to the New York Court

of Appeals’ language:

“Zoning is intended to control types of housing and living and

not the genetic or intimate internal family relations of human

beings. So long as the group home bears the generic character

of a family unit as a relatively permanent household, and is not

a framework for transients or transient living, it conforms to

the purpose of the ordinance.”

Justice Stevens’ focus on White Plains echoes the sentiments of New York

Chief Justice Breitel who concluded that “the purpose of the group home is to be

quite the contrary of an institution and to be a home like other homes.”

Since 1974, the vast majority of state and federal courts have followed the

lead of City of White Plains v. Ferraioli and treated community residences as

“functional families” that should be allowed in single–family zoning districts

despite zoning ordinance definitions of “family” that place a cap on the number

of unrelated residents in a dwelling unit. In a very real sense, the Fair Housing

Amendments Act of 1988 essentially codifies the majority judicial treatment of

zoning ordinance definitions with “capped” definitions of “family.”

Pompano Beach’s definition of “family” allows a single housekeeping unit of

up to three unrelated people to live together. The full definition reads:

An individual or two or more persons related by blood, mar-

riage, state-approved foster home placement, or court–ap-

proved adoption — or up to three unrelated persons — that

constitute a single housekeeping unit.

Any community residence for people with disabilities that would house more

than the three unrelated individuals allowed under Pompano Beach’s definition

of “family” is entitled to a “reasonable accommodation” which is the regulatory

landscape this study proposes for Pompano Beach’s Zoning Code within the pre-

cepts of the nation’s Fair Housing Act.

However, as explained below, no matter what cap a city’s zoning ordinance

places on the number of unrelated individuals that constitutes a “family,” the city

code provisions applicable to all rental residential uses determines the maximum

number of people that can occupy any type of rental residence.

Since the occu-

36. 431 U.S. 494 (1977) at 517 n. 9.

37. Ibid. Emphasis added.

38. City of White Plains v. Ferraioli, 313 N.E. 2d at 758.

39. City of Pompano Beach, Florida, Land Usage Code, Chapter 155, “Zoning,” Article 9, Part 5 “Terms

and Definitions.”

40. Pompano Beach has adopted the Rental Housing Code which serves as the “Minimum Housing

Code ” of the City of Pompano Beach for the purposes provided for in the Florida Building Code.

The Rental Housing Code requires every room used for sleeping purposes to have a gross floor

pants of community residences are effectively tenants, community residences

constitute a rental use subject to the same Rental Housing Code as all other

rentals in Pompano Beach.

The U.S. Supreme Court brought this point home in its 1995 decision

in City of Edmonds v. Oxford House.

The Court ruled that housing codes that

“ordinarily apply uniformly to all residents of all dwelling units … to protect

health and safety by preventing dwelling overcrowding” are legal.

Zoning or-

dinance restrictions that focus on the “composition of households rather than

on the total number of occupants living quarters can contain” are subject to the

Fair Housing Act.

As the discussion above implies, classifying community residences on the

basis of the number of residents is inappropriate. A more appropriate and ratio-

nal approach is proposed beginning on page 36 of this report.

Protecting the residents. People with disabilities who live in community res-

idences constitute a vulnerable population that needs protection from possible

abuse and exploitation. Community residences for these vulnerable individuals

need to be regulated to assure that their residents receive adequate care and

supervision. Licensing and certification are the regulatory vehicles used to as-

sure adequate care and supervision.

Florida, like many other states, has not

established licensing or certification for some populations with disabilities that

community residences serve. In these situations, certification by an appropri-

ate national certifying organization or agency that is more than simply a trade

group can be used in lieu of formal licensing. Licensing or certification also

tends to exclude from community residences people who pose a danger to oth-

ers, themselves, or property. As noted earlier, such people are not covered by

the Fair Housing Act.

Therefore, there is a legitimate government interest in requiring that a com-

munity residence or its operator be licensed in order to be allowed as of right as

a permitted use. If state licensing does not exist for a particular type of commu-

nity residence, the residence can meet the certification of an appropriate na-

tional certifying agency, if one exists, or is otherwise sanctioned by the federal

or state government.

Florida law appears to allow a city or county to establish

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 21

area of at least 70 square feet. A room in which more than one person sleeps must have at least

50 square feet for each occupant. Pompano Beach, Florida Code of Ordinances, §153.23.

41. 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995).

42. Ibid. at 1781[emphasis added]. See the discussion of minimum floor area requirements beginning on

page 18.

43. Ibid. at 1782.

44. Any local or state licensing must be consistent with the Fair Housing Act. Joint Statement of the

Department of Housing and Urban Development and the Department of Justice, State and Local

Land Use Laws and Practices and the Application of the Fair Housing Act (Nov. 10, 2016) 13.

45. For example, the U.S. Congress has recognized and sanctioned the recovery communities that

operate under the auspices of Oxford House. Oxford House maintains its own procedures and

its own licensing requirements for community residences not covered by state

licensing. If there is no governmental or quasi–governmental body that re-

quires licensing or certification for a particular type of community residence

and no level of government has sanctioned it, then the heightened scrutiny of a

special exception is warranted so the city can make sure that the residents of a

proposed community residence are protected.

The State of Florida does not require licensing or certification of recovery

residences. Instead, in 2015, the state established voluntary certification for re-

covery residences.

The state statute required the state’s Department of Chil-

dren and Family Services to approve at least one credentialing entity by

December 1, 2015.

The department named the Florida Association of Recov-

ery Residences as a credentialing entity. As §397.487 mandates, the associa-

tion promulgates and administers requirements for certifying recovery

residences and established procedures for the application, certification,

recertification, and disciplinary processes. It has established a monitoring and

inspection compliance process, developed a code of ethics, and provided for

training for owners, managers, and staff.

As the state statute requires, the operator of a proposed recovery residence

must submit with its application and fee a policy and procedures manual that

includes job descriptions for all staff positions; drug–testing requirements and

procedures; a prohibition of alcohol, illegal drugs, and using somebody else’s

prescription medications; policies that support recovery efforts; and a good

neighbor policy.

Each certified recovery residence must be inspected at least

once a year for compliance. The certification process allows for issuance of pro-

visional certification so the home can open. Actual certification is issued only

after the home has been inspected and residents and staff interviewed after the

home has been in actual operation for a specific length of time.

The requirements of Florida’s voluntary certification process and standards

for recovery residences are comparable to the state’s existing licensing pro-

cesses and standards for community residences that serve other populations of

people with disabilities.

Impacts of community residences. The impacts of community residences

have been studied more than those of any other small land use. Over 50 statisti-

cally–valid studies have found that licensed community residences not clus-

tered on a block face do not generate adverse impacts on the surrounding

neighborhood. They do not affect property values, nor the ability to sell even the

houses adjacent to them. They do not affect neighborhood safety nor neighbor-

hood character — as long as they are licensed and not clustered on a block face.

They do not create excessive demand on public utilities, sewer systems, water

supply, street capacity, or parking. They do not produce any more noise than a

conventional family of the same size. All told, licensed, unclustered group

homes, recovery communities, and small halfway houses have consistently

been found to be as good a neighbor as biological families.

Clustering community residences only undermines their ability to achieve

their core goals of normalization and community integration. A community res-

idence needs to be surrounded by so–called “normal” or conventional house

holds, the sort of households this living arrangement seeks to emulate.

Clustering community residences adjacent to one another or within a few doors

of each other increases the chances that their residents will interact with other

service–dependent people living in a nearby community residence rather than

conventional households with non–service dependent people who, under the

theory and practice that provide the foundation for the community residence

concept, are to serve as role models.

Appendix A is an annotated bibliography of representative studies. The evidence

is so overwhelming that few studies have been conducted in recent years since the

issue is well settled: Community residences that are licensed and not clustered on a

block face do not generate adverse impacts on the surrounding community.

Clustering and de facto social service districts

Development Services Department staff at the City Pompano Beach have

compiled the following maps that show two categories of community residences

for people with disabilities:

“Licensed Community Residences” which are community residences

for people with disabilities that have been either (1) certified under the

Florida state statute establishing voluntary certification of recovery

residences: Title XXIX Public Health, chapter 397 (Substance Abuse

Services) §397.487 (2016) or (2) licensed under Title XXIX Public Health,

chapters 393 (Developmental Disabilities), 394 (Mental Health), 397

(Substance Abuse Services), 419 (Community Residential Homes); Title

XXX, chapters 429 (Assisted Care Communities — Part 1: Assisted Living

Facilities, Part II: Adult Family–Care Homes); and Title XLIV, Chapter

760 (Discrimination in the Treatment of Persons; Minority Representation)

(2016).

“Confirmed Community Residences” are locations that the

Broward County Sheriff’s Department has concluded are operating as

a recovery residence. These are recovery residences that have not

applied for state certification issued through the Florida Association of

Recovery Residences and that have not obtained the required zoning

approval or reasonable accommodation. In each instance, the Sheriff’s

Department has conducted a site visit which either found signage

indicating the site is a recovery residence or received a verbal

confirmation from the owner or an occupant of the home that is it

operating as a recovery residence.

“Unconfirmed Community Residences” are locations where the

Broward County Sheriff’s Department has reason to conclude that a

recovery residence is operating, but has not yet confirmed it. These,

too, are recovery residences that have not applied for state

certification issued through the Florida Association of Recovery

Residences and that have not obtained the required zoning approval

or reasonable accommodation. The Sheriff’s Deparment concluded

that these sites — many of which were the subject of a phone call

made to Code Compliance or the Sheriff’s Department — are likely to

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 23

be operating as recovery residences based on field observations that

suggest use as a recovery residence: large multi–passenger

commercial vans routinely parked at the property or loading/

unloading groups of passengers from the property; “no trespassing”

signs used to keep drug dealers away from the home; commerical–

style warnings that unauthorized vehicles will be towed; numerous

vehicles parked on the lawn or overflow parking on the street; and

significantly greater amounts of litter including cigarette butts and

soda cans on the front lawn than would be expected from a biological

family of comparable size. Language on official forms filed with the

city also suggests that some of these sites are operating as recovery

residences.

To facilitate analysis, the maps divide the city into seven subareas as shown in

the map below. The maps that follow show the relative locations of community res-

idences for people with disabilities in each of the seven subareas based on licensing

or certification information or are a suspected, but unconfirmed location.

As shown in the legend of the citywide map on page 25, Pompano Beach has

verified the existence of 66 certified or licensed community residences for peo-

ple with disabilities within its borders. In addition, there appear to be 102 loca-

tions that the Broward County Sheriff has confirmed are recovery residences as

well as another 102 locations thought to be recovery residences, but not con-

firmed as such. These are unusually large numbers for a community the size of

Pompano Beach with an estimated 109,000 residents in 2016.

The city is aware of at least nine “recovery residences” in Pompano Beach lo-

cated in multifamily buildings where the operators place up to three individu-

als in an apartment. One operator has set up four apartments housing a total of

24 people in each of four buildings on the same block — for a total of 96 people in

recovery in the four buildings.

Another operator has placed 168 people in recovery on the same block. Still

another operator has filled 28 apartments with 58 people in recovery at the

same address. Another has placed 29 people in recovery in six apartments in

the same building. At least four others have placed ten to 18 people in recovery

in three to eight dwelling units in a building.

These kinds of de facto social service districts fall far outside the foundations

upon which the courts have long based their decisions to treat community resi-

dences as residential uses including emulating a biological family and utilizing

nearby neighbors without disabilities as role models to help achieve normaliza-

tion as well as participation in the nondisabled community to achieve commu-

nity integration.

The above map shows the relative locations of the seven subareas in the

maps that follow as well as an overview of where community residences are cur-

rently located in Pompano Beach.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 25

Figure 4: Seven Subareas of Pompano Beach

Source: City of Pompano Beach, Florida, November 2017.

Figure 5 above shows at least two clusters of community residences in the

Highlands, Cresthaven Subarea. One cluster of more than 20 community resi-

dences runs from the north border of the subarea to two blocks south of NE 49th

Street between Dixie Highway and North Federal Highway. The concentration

is particularly intense close to NE 49th Street where it appears that a de facto

social service district may be developing.

An intense concentration of seven community residences appears about two

blocks south of NE 48th Street and just east of Dixie Highway — very possibly

Figure 5: Locations of Known and Unconfirmed Community Residences for People With

Disabilities in Subarea 1, Highlands, Cresthaven in August 2017

Source: City of Pompano Beach, Florida, November 2017.

already a de facto social service district.

While other community residences are pretty well scattered in the rest of the

subarea, there are a few areas in what could be the early stages of clustering if

additional community residences were to locate within a few doors or a block of

existing community residences.

The sort of clustering and concentrations in Subarea 1 is not present in

Northwest Pompano. There is one instance of two community residences very

close to each other and another with three very close to each other. There are a

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 27

Figure 6: Locations of Known and Unconfirmed Community Residences for People With

Disabilities in Subarea 2, Northwest Pompano Beach, as of August 2017

Source: City of Pompano Beach, Florida, November 2017.

small number of other community residences located within a block of each

other, but most community residences are pretty scattered in Subarea 2.

As shown in Figure 7 above, many of the community residences in Northeast

Pompano Beach are clustered together on a block and within a block of each

other. There’s a pretty dense concentration of about a dozen community resi-

dences on the blocks south of NE 14th Street and just east of North Federal High-

way. There’s a cluster of eight community residences just north of East Atlantic

Boulevard and west of North Federal Highway. Most of the other community res

Figure 7: Locations of Known and Unconfirmed Community Residences for People With

Disabilities in Subarea 3, Northeast Pompano Beach, as of August 2017

Source: City of Pompano Beach, Florida, November 2017.

idences here are located within a few lots of another community residence.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 29

Voluntary Certification of Sober Homes in Pompano Beach

Since the state’s voluntary certification law described beginning on page 22

went into effect, 17 different providers have applied for certification for 112

single family or multiple family dwelling units at 37 locations in Pompano

Beach. These recovery communities can house a total of 598 individuals.

Eleven of these 17 programs with locations in Pompano Beach have been

certified. As of this writing, six applications are pending from providers with 71

dwelling units and 247 beds in 14 locations.

The Florida Association of Recovery Residences (FARR) uses a demanding

certification process that determines whether a recovery residence is actually

operated in accord with certification standards rather than depending on a

prospective operator’s promises of how she will operate the home. The six

steps required to achieve certification are available at http://farronline.org/

certification/apply-for-certification. Detailed certification and compliance

protocols are available to download at http://farronline.org/document-library

FARR requires unrestricted access to interview management, staff, and

residents to ensure that policies, procedures, and protocols are actually being

followed at the recovery residence.

So while an applicant must meet FARR’s initial criteria to open a recovery

residence, FARR makes its final determination on certification after the

recovery residence has existed for a specified period of time.

When a jurisdiction requires licensing or certification for community

residences, FARR issues an initial provisional certification until annual

certification can be determined.

46. Emails from John Lehman, Executive Director of the Florida Association of Recovery Residences

to Daniel Lauber, Law Office of Daniel Lauber (Nov. 17, 2017, 9:34 a.m. CST and Nov. 20, 2017,

11:27 a.m. CST) (on file with the Law Office of Daniel Lauber).

As Figure 8 above shows, the city has identified 16 community residences for

people with disabilities in Beach (North) plus one unconfirmed. All are located

in the central third of the subarea. Nearly a dozen are located within four

blocks of each other with several pairs on a block. This situation is illustrative

of a concentration developing.

Figure 8: Locations of Known and Unconfirmed Community Residences for People With

Disabilities in Subarea 4, Beach (North), as of August 2017

Source: City of Pompano Beach, Florida, November 2017.

There appear to be seven community residences on two blocks in the center

of Subarea 5. As explained beginning on page 14, this clustering of community

residences for people with disabilities in the Beach (South) subarea runs coun-

ter to the underlying principles of community residences and interferes with

achieving their core goals of normalization and community integration. In ad-

dition, clustering can effectively create a de facto social service district.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 31

Figure 9: Locations of Known and Unconfirmed Community Residences for People With

Disabilities in Subarea 5, Beach (South), as of August 2017

Source: City of Pompano Beach, Florida, August 2017.

Most of the community residences in Southeast Pompano are scattered.

However there is a cluster of seven on just a few short blocks in the center of the

north end of Subarea 6. Note also the concentration of community residences

just north of East Atlantic Boulevard in adjacent Subarea 3.

Figure 10: Locations of Known and Unconfirmed Community Residences for People With

Disabilities in Subarea 6, Southeast Pompano, of August 2017

Source: City of Pompano Beach, Florida, November 2017.

There is a small cluster of four community residences in the southwest corner of

Subarea 7. There is a much more intense and larger concentration of community

residences south of West Atlantic Boulevard between I–95 and South Dixie High-

way West. The core of this concentration consists of a dozen community residences

on three adjacent blocks with two clusters, each consisting of three more commu-

nity residences to the east. There is a strong possibility that this intense concen-

tration may hinder the ability to achieve normalization and community

integration and of the area becoming an identifiable de facto social service district.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 33

Figure 11: Locations of Known and Unconfirmed Community Residences for People With

Disabilities in Subarea 7, Southwest Pompano, as of August 2017

Source: City of Pompano Beach, Florida, November 2017.

Another concentration of a dozen community residences has developed a few

blocks south with a core cluster of five community residences in the center of

the concentration. Here, too, there is a good possibility that this concentration

may hinder the ability to achieve normalization and community integration

and of the area becoming an identifiable de facto social service district.

Overall, there is some clustering of community residences in every subarea

of Pompano Beach. Most intense concentrations of community residences have

developed and are developing in Pompano Beach in six of seven subareas.

Without adequate zoning safeguards, these concentrations can — and likely

will — grow more intense and expand creating de facto social service districts and

altering the character of the residential neighborhoods in which they have located.

Recommended zoning approach

The 1988 amendments to the nation’s Fair Housing Act require all govern-

ment jurisdictions to make a “reasonable accommodation” in their zoning codes

and other rules and regulations to enable group homes and other community

residences for people with disabilities to locate in the residential districts es-

sential to them succeeding. The zoning ordinance amendments that will be pro-

posed for Pompano Beach make this reasonable accommodation that the Fair

Housing Amendments Act of 1988 requires for those people with disabilities

who wish to live in a community residence. The legislative history of the Fair

Housing Amendments Act of 1988 makes it clear that jurisdictions cannot re-

quire a conditional use permit or special exception in residential districts for

family community residences for people with disabilities. It does not, however,

prohibit requiring a conditional use permit or special exception in single–fam-

ily districts for transitional community residences. Nor does the Fair Housing

Amendments Act of 1988 require that a city allow community residences for

persons who do not have disabilities in residential districts.

General principles from the case law.

Like any other dwelling, when a

community residence — whether it be “family” or “transitional” — fits within

the cap on the number of unrelated persons the zoning definition of “family” or

“single housekeeping unit” sets, it must be allowed as of right in all residential

districts the same as any other family or single housekeeping unit. The case

law is very clear: No additional zoning restrictions can be imposed on a commu-

nity residence for people with disabilities that fits within the cap on the number

of unrelateds in the local definition of “family.” Consequently, if a zoning code

allows up to three unrelated people to constitute a “family,” the zoning ordi-

nance cannot require licensing or a spacing distance around a community resi-

dence with as many as three occupants with disabilities.

47. However, there is a distinction to be made between local zoning and licensing. A licensing statute

or ordinance can require licensing of community residences of any number of residents, including

recovery residences, and licensing can establish rational spacing requirements between

As explained beginning on page 20, Pompano Beach’s Land Usage Code al

low up to three unrelated people living as a single housekeeping unit to be a

family. As explained earlier, any community residence for people with disabili-

ties that fits within this cap of three must be treated as a “family” and it cannot

be used for calculating spacing distances required by local zoning, as explained

in a footnote beginning on page 17.

But when a proposed community residence would house more than the max-

imum of three unrelated individuals that Pompano Beach’s zoning code allows

to live together as a single housekeeping unit, the zoning must make a “reason-

able accommodation” to enable these homes to locate in the residential districts

in which they need to locate to achieve their purpose.

Taken as a whole, the case law suggests that any reasonable accommodation

must meet these three tests:

The proposed zoning restriction must be intended to achieve a

legitimate government purpose.

The proposed zoning restriction must actually achieve that legitimate

government purpose.

The proposed zoning restriction must be the least drastic means

necessary to achieve that legitimate government purpose.

In Bangerter v. Orem City Corporation, the federal Court of Appeals said the

same thing a bit differently, “Restrictions that are narrowly tailored to the par-

ticular individuals affected could be acceptable under the FHAA if the benefits

to the handicapped in their housing opportunities clearly outweigh whatever

burden may result to them.”

But the nation’s Fair Housing Act is not the only law that affects how cities

and counties in Florida can regulate community residences for people with dis-

abilities. The State of Florida has adopted several statutes that restrict local

zoning of community residences for specific populations with disabilities that

are licensed by the state.

The proposed zoning amendments take into account both federal fair hous-

ing law and the Florida statutes that restrict local zoning.

The proposed zoning amendments seek to enable community residences to

locate in all residential zoning districts through the least drastic regulation

needed to accomplish the legitimate government interests of preventing clus-

tering (which undermines the ability of community residences to accomplish

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 35

community residences of any number of residents — even those that fit within a jurisdiction’s

definition of “family.” This is a nearly universal practice by states across the nation.

48. 46 F.3d 1491 (10th Cir. 1995) 1504.

49. Our review suggests that there is a need to coordinate the state statutes and revise them to

eliminate their weaknesses and facilitate more rational zoning treatment of community

residences for people with disabilities throughout the State of Florida. The state statutes contain

provisions that likely do not fully comply with the nation’s Fair Housing Act.

their purposes and function properly, and which alters the residential charac

ter of a neighborhood) and of protecting the residents of the community resi-

dences from improper or incompetent care and from abuse. They are narrowly

tailored to the needs of the residents with disabilities to provide greater

benefits than any burden that might be placed upon them. And they constitute

the requisite legitimate government purpose for regulating community resi-

dences for people with disabilities.

Key to establishing a zoning approach in compliance with the Fair Housing

Act is classifying community residences on the basis of functionality rather

than on the number of people living in the community residence — at least as

much as the legal provisions of Florida’s statutes allow.

As they are now, community residences for people with disabilities (both family

and transitional) that house no more than Pompano Beach’s cap of three unre-

lated residents in a single housekeeping unit would be treated the same as any

other family and would not be included when calculating spacing distances be-

tween community residences for people with disabilities.

Community residences in general

As emphasized throughout this report, emulating a biological family is an

essential core characteristic of every community residence. It is difficult to

imagine how more than ten to 12 individuals can successfully emulate a biolog-

ical family. Once the number of occupants exceeds a dozen, the home tends to

take on the characteristics of a mini–institution rather than a family or a resi-

dential use. Pompano Beach should consider defining community residences as

housing no more than a ten or 12 people,

while allowing for a reasonable ac-

commodation process for proposed community residences that demonstrate

they can emulate a family and need more than 10 or 12 residents for therapeu-

tic and/or financial reasons.

Misusing the definition of “family” to create de facto mini–institutions

Across the country, some recovery residence operators seek to skirt the zon-

ing provisions to prevent adverse clustering by misusing the cap on the number

of unrelated individuals in the zoning code’s definition of “family.” In these in-

stances, when a city has a cap of three unrelateds in its definition of “family”

like Pompano Beach does, the operator places three people in recovery in multi-

ple units in an apartment building or sets up a series of recovery residences in

50. The maximum number of residents allowed as of right should be an even number to

accommodate the established need of assuring all recovery home residents have a roommate.

51. As explained beginning on page 43, community residences for people with disabilities are subject

to the building code provisions to prevent overcrowding that apply to all residential uses. So if

the building code would allow just seven people in a dwelling unit, then that is the maximum

number of people who can live in that dwelling unit whether it is occupied by a biological family,

children in foster care, or the functional family of a community residence for people with

disabilities.

adjacent houses and town homes with three people in each dwelling unit. They

theorize that since they are keeping the number of occupants in each dwelling

unit within the zoning definition of “family” cap on the number of unrelated in-

dividuals, they must be treated the same as any other “family.”

As noted on page 24, some operators in Pompano Beach have packed multifam-

ily buildings with people in recovery: 96 people at four addresses on a single block,

168 people at three addresses on a block, 58 people in 28 units in one building, The

reality is that these are functionally segregated mini–institutions operating under

the guise of recovery residences.

It is difficult to imagine how these arrangements are anything but a mini–

institution as opposed to a simple dwelling unit or residence. Operators are

known to move residents around between apartments or houses — unlike how

a family or three roommates behave. This sort of arrangement certainly does

not constitute a community residence in any sense of the words — remember

that community residences are supposed to emulate a biological family. The

segregated housing it creates runs counter to the core purpose of a community

residence: to achieve normalization and community integration with your

“able–bodied” neighbors as your role models.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 37

Figure 12: Cluster of Four Uncertified Recovery Communities in Pompano Beach

Four of the buildings in the center of this photo from Google Earth are each occupied by

24 people in recovery, for a total of 96 in 16 apartment units.

As noted earlier, a key basis for community residences locating in residen-

tial zoning districts has long been that the “able–bodied” neighbors serve as

role models for the people with disabilities. Consequently, this essential ra-

tionale for community residences expects the occupants of the community resi-

dences to interact with their neighbors. Filling apartment buildings or adjacent

single–family structures with people in recovery is hardly conducive to achiev-

ing these fundamental goals. Instead the occupants of the apartments will al-

most certainly interact nearly exclusively with the other people in recovery

rather than with people in the surrounding neighborhood in sobriety.

Introducing such mini–institutions alters an area’s residential character. In

addition, there is no evidence that such arrangements do not affect property

values, property turnover rates, or neighborhood safety — studies of the im-

pacts of community residences examined actual community residences that

emulate a family, not these mini–institutions. These kinds of de facto social ser-

vice districts fall far outside the foundations upon which the courts have long

based their decisions to treat community residences as residential uses includ-

ing emulating a biological family and utilizing nearby neighbors without dis-

abilities as role models to foster normalization as well as participation in the

broad community to achieve community integration.

Figure 13: Uncertified Recovery Community in Pompano Beach

This 28–unit apartment building with pool housed 58 people in recovery. The Florida

Association of Recovery Residences recently rejected its application for certification. The

mini–institution has since ceased operating.

It is important to remember that zoning is based on how each land use functions.

The original community residence concept is based on the community residence be-

having as a “functional family” that emulates a biological family. Such homes need

to be in a residential neighborhood where the so–called “able bodied” neighbors

serve as role models. Those are key cornerstones upon which the court rulings that

require community residences to be allowed in residential districts rest.

But filling a multifamily building with people in recovery — or filling a block

of houses with people in recovery — hardly emulates a biological family in a

residential neighborhood. Instead of so–called “able–bodied” people in the sur-

rounding dwelling units to act as role models, everybody is surrounded by other

people in recovery. It is difficult to imagine how such segregated living arrange-

ments foster the normalization and community integration at the core of the

community residence concept. Such arrangements are like a step back to the

segregated institutions in which people with disabilities were placed before

deinstitutionalization became the nation’s policy more than half a century ago.

These are among the reasons why spacing distances are so crucial to estab-

lishing an atmosphere in which community residences can enable their occu-

pants to achieve normalization and community integration. And these are

among the reasons that zoning should be treating these arrangements as the

mini–institutions that they functionally are.

In Larkin v. State of Michigan Department of Social Services, the Sixth Cir-

cuit Federal Court of Appeals arrived at the same conclusion when it refer-

enced the decisions in Familystyle . In the Familystyle case, the operator sought

to increase the number of group homes on one and a half blocks from 21 to 24

and the number of people with mental illness housed in them from 119 to 130.

Referring to the federal district and appeallate court decisions in Familystyle,

the Larkin court noted, “The courts were concerned that the plaintiffs were

simply recreating an institutionalized setting in the community, rather than

deinstitutionalizing the disabled.”

That is exactly what is happening at the sites in Pompano Beach described

above as well as other sites in the city and elsewhere in southeast Florida. In

fact, the density of these mini–institutions is often greater than in the

Familystyle case. The operators have recreated an institutional setting in the

midst of a residential district. These mini–institutions not only interfere with

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 39

56. The case law that requires zoning to treat a community residence residence that fits within the

cap on unrelateds in the definition of “family” is based on fact situations involving actual,

individual community residences. The case law under the Fair Housing Act regarding community

residences for people with disabilities is very fact specific. It is difficult to imagine that a court

would fail to recognize that, for example, placing 96 people with disabilities in four buildings on a

block is an attempt to subvert the definition of “family” and would be anything but an

institutional use plopped down in a residential area.

57. Larkin v. State of Michigan Department of Social Services, 89 F.3d 285 6th Cir. 1996). See also

Familystyle of St. Paul, Inc. v. City of St. Paul, 728 F.Supp. 1396 (D. Minn. 1990), aff’d, 923 F.2d 91

(8th Cir. 1991).

the core goals of normalization and community integration, but also alter the

character of the neighborhood and the city’s zoning scheme.

Additional issues to consider

The precise language of the zoning amendments will need to make allow-

ances for the legal provisions in the Florida state statutes on zoning for certain

types of community residences for people with specific disabilities.

Note that the state statute governing local zoning for most types of community

residences for people with disabilities (called “community residential homes”) al-

lows local governments to adopt zoning that is less restrictive than the state stat-

utes.

While the zoning proposed here is broader in scope than the state statutes

— covering all types of community residences for all types of disabilities — some of

the suggested zoning regulations fall within this statutory provision.

The state statutes, however, do not establish any zoning standards for recov-

ery residences — sober homes, recovery communities, and small halfway

houses for people in recovery. As discussed earlier, the state statutes do estab-

lish a voluntary credential for recovery residences administered by the Florida

Association of Recovery Residences. The credentialing standards and processes

are as demanding or even more demanding than some existing licensing laws

in other states.

While there are few Oxford Houses in Florida as of this writing, local zoning

provisions for community residences must provide for these unstructured, self–

governed recovery communities. Oxford House has been recognized by Con-

gress and has its own internal monitoring system in place to inspect and main-

tain compliance with the Oxford House Charter.

The standards and

procedures that both Oxford House and the State of Florida’s voluntary certifi-

cation of recovery residences employ are functionally comparable to licensing

requirements and procedures for recovery communities in other states. The

zoning approach suggested here recommends that Oxford House and certified

recovery residences be treated the same as state certification.

Family community residences

Unlike the transitional community residences discussed below, tenancy in

family community residences is relatively permanent. There is no limit on how

long people can live in them. In terms of stability, tenancy, and functionality,

family community residences for people with disabilities are more akin to the

traditional owner–occupied single–family home than are transitional commu-

58. Florida Statutes, §419.001(12). “State law on community residential homes controls over local

ordinances, but nothing in this section prohibits a local government from adopting more liberal

standards for siting such homes.”

59. Oxford House does not allow its recovery communities to open in a state until Oxford House has

established its monitoring and inspection processes to assure that Oxford Houses will operate

within the standards the Oxford House Charter establishes.

nity residences for people with disabilities.

To make this reasonable accommodation for more than three people with

disabilities who wish to live in a community residence, the proposed zoning or-

dinance amendments will make family community residences for four to 10

people with disabilities a permitted use in all zoning districts where residential

uses are currently allowed, subject to two objective, nondiscretionary adminis-

trative criteria:

The specific community residence or its operator must receive

authorization to operate the proposed family community residence by

receiving the license that the State of Florida requires, the voluntary

certification available through the Florida Association of Recovery

Residences, or a self–imposed inspection and set of criteria that are the

functional equivalent of certification or licensing (Oxford House);

and

The proposed family community residence is not located within a

rationally–based distance (660 feet, the length of a typical block) of an

existing community residence as measured from the nearest lot lines.

Transitional community residences

Residency in transitional community residences is more transitory than in

family community residences because transitional community residences either

impose a maximum time limit on how long people can live in them or actually

house people for a few months or weeks.

Tenancy is measured in months or

weeks, not years. This key characteristic makes a transitional community resi-

dence more akin to multiple–family residential uses with a higher turnover rate

typical of rentals than single–family dwellings with a lower turnover rate typical

of single–family ownership housing. Even though multiple–family uses are not

allowed in single–family districts, the Fair Housing Act requires every city and

county to make a “reasonable accommodation” for transitional community resi-

dences for people with disabilities. This reasonable accommodation can be ac-

complished via the heightened scrutiny of aspecialexceptionwhenanoperator

wishes to locate a transitional community residence in a single–family district.

However, in multiple–family districts, a transitional community residence

for four or more people with disabilities should be allowed as a permitted use

subject to two objective, nondiscretionary administrative criteria:

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 41

60. There appears to be no legal reason why any local Florida jurisdiction could not require recovery

residences to obtain certification from the State of Florida to satisfy this criterion. As noted

above, Oxford House, which is recognized by Congress, maintains its own standards and

procedures that are comparable to the standards and procedures of licensing laws in jurisdictions

outside Florida. Consequently, Oxford Houses, as well as recovery residences certified by the

State of Florida, would meet this first criterion.

61. Time limits typically range from 30 days to 90 days, and as long as six, nine, or 12 months,

depending on the nature of the specific transitional community residence and the population it

serves. With no time limit, residents of family community residences can live in them for many

years, even decades.

The specific community residence or its operator must receive

authorization to operate the proposed transitional community

residence by receiving the license that the State of Florida requires,

the voluntary certification available through the Florida Association of

Recovery Residences, or a self–imposed inspection and set of criteria

that are the functional equivalent of certification or licensing (Oxford

House);

and

The proposed transitional community residence is not located within a

rationally–based distance (660 feet, the length of a typical block) of an

existing community residence as measured from the nearest lot lines.

Special exception backup

Sometimes an operator will seek to establish a new community residence

within the spacing distance of an existing community residence. For some types

of community residences, the local jurisdiction, the State of Florida, and the

federal government may not require a license, certification, or accreditation,

nor recognize or sanction the congregate living arrangement. In these situa-

tions, the heightened scrutiny of a special exception review is warranted to pro-

tect the occupants of the prospective community residence from the same

mistreatment, exploitation, incompetence, and abuses from which licensing,

certification, accreditation, or recognition from Congress protects them. There

are two circumstances under which a special exception could be sought:

62. There appears to be no legal reason why any local Florida jurisdiction could not require recovery

residences to obtain certification from the State of Florida to satisfy this criterion. As noted

above, Oxford House, which is recognized by Congress, maintains its own standards and

procedures that are comparable to the standards and procedures of licensing laws in jurisdictions

outside Florida. Consequently, Oxford Houses, as well as recovery residences certified by the

State of Florida, would meet this first criterion.

dents that is comparable to typical licensing standards.

In evaluating an application for a special exception, a city can consider the

cumulative effect of the proposed community residence because altering the

character of the neighborhood or creating a de facto social service district inter-

feres with the normalization and community integration at the core of a com-

munity residence. A city can consider whether the proposed community

residence in combination with any existing community residences will alter the

character of the surrounding neighborhood by creating an institutional atmo-

sphere or by creating a de facto social service district by concentrating commu-

nity residences on a block or in a neighborhood.

It is vital to stress that the decision on a special exception must be based on a

record of factual evidence and not on neighborhood opposition rooted in un-

founded myths and misconceptions about people with disabilities. As explained

earlier in this report, restrictive covenants cannot exclude a community resi-

dence for people with disabilities — and such restrictions are, of course, irrele-

vant when evaluating an application for the special exception.

Maximum number of occupants

State licensing regulations for community residences often establish the

maximum number of individuals that can live in a community residence. Even

with these state–imposed caps, the number of residents cannot exceed the

number permissible under the occupancy provisions of Pompano Beach’s build-

ing code that apply to all residences. For example, if the formula in the city’s

housing or building code limits the number of residents in a dwelling unit to

five, no more than five people can live there whether the residence is occupied

by a biological family or a functional family of a community residence.

Pompano Beach’s Rental Housing Code establishes minimum dwelling

space requirements to prevent overcrowding.

The code requires a minimum of

150 square feet of floor space for the first occupant of a dwelling unit and at

least 100 additional square feet for each additional occupant, based on the total

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 43

Under the proposed zoning amendments if the required license,

certification, or accreditation has been denied to a proposed

community residence or its operator, it is ineligible for a special

exception and cannot be located in Pompano Beach.

63. When evaluating a proposed recovery residence’s application for a special exception under these

circumstances, a local jurisdiction would be perfectly within its rights to apply the standards for

the state’s voluntary credentialing program in the interest of protecting the health, safety, and

welfare of the residents of the proposed recovery residence.

64. City of Pompano Beach, Florida, Land Usage Code, Chapter 153, “Rental Housing Code,” §153.23.

“Minimum Standards for Interior of Buildings.””

area of all habitable rooms. No dwelling unit shall have less than 350 square

feet of gross floor area.

The code also requires a minimum of 70 square feet gross floor area for a

sleeping area occupied by one person. For bedrooms occupied by two or more

people, the code requires at least 50 additional square feet for each occupant of

the sleeping area.

These minimum floor area requirements apply to all

residences in Pompano Beach, including community residences for peo-

ple with disabilities.

Under this formula, a bedroom in which just one person sleeps could be no

smaller than seven feet by ten feet or other dimensions that add up to 70 square

feet. A bedroom in which two people sleep could be no smaller than 100 square

feet, or ten by ten, for example. A bedroom for three people must be at least 150

square feet, or ten by 15, for example.

Keep in mind that these are minimum

criteria to prevent overcrowding based on health and safety standards. Bed-

rooms, of course, are often larger than these minimums. This sort of provision is

the type that the U.S. Supreme Court has ruled applies to all residences includ-

ing community residences.

Under fair housing case law, it is quite clear that for determining the maxi-

mum number of occupants, community residences established in single–family

structures are to be treated the same as all other single–family residences.

Those located in a multiple–family structure are to be treated the same as all

other multiple–family residences. The number of occupants is typically regu-

lated for health and safety reasons. Pompano Beach’s current occupancy provi-

sions meet these criteria.

Under the Fair Housing Act, it is clearly improper to apply building or hous-

ing code standards for institutions, lodging houses, boarding houses, rooming

houses, or fraternities and sororities to community residences for people with

disabilities.

However, given that emulation of a biological family is a core component to

65. Ibid. at §153.23 (A)(1).

66. Ibid. at §153.23 (A)(2).

67. Obviously these dimensions are examples. A 150 square foot room could also be 12 feet by 12.5

feet as well as other dimensions that add up to 150 square feet.

68. City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995).

“Maximum occupancy restrictions… cap the number of occupants per dwelling, typically in

relation to available floor space or the number and type of rooms. See, e. g., International

Conference of Building Officials, Uniform Housing Code § 503(b) (1988); Building Officials and

Code Administrators International, Inc., BOCA National Property Maintenance Code §§ PM-405.3,

PM-405.5 (1993) (hereinafter BOCA Code); Southern Building Code Congress, International, Inc.,

Standard Housing Code §§ 306.1, 306.2 (1991); E. Mood, APHA—CDC Recommended Minimum

Housing Standards § 9.02, p. 37 (1986) (hereinafter APHA— CDC Standards).[6] These restrictions

ordinarily apply uniformly to all residents of all dwelling units. Their purpose is to protect health

and safety by preventing dwelling overcrowding. See, e. g., BOCA Code §§ PM-101.3, PM-405.3,

PM-405.5 and commentary; Abbott, Housing Policy, Housing Codes and Tenant Remedies: An

Integration, 56 B. U. L. Rev. 1, 41-45 (1976).” At 733. [Emphasis added]

community residences for people with disabilities, it is reasonable for a juris

diction to establish the maximum number of individuals in a community resi-

dence that certainly can emulate a biological family. It is likely that as many as

ten to 12 unrelated individuals in a community residence can emulate a biologi-

cal family. It is very doubtful if larger aggregations can. Consequently the pro-

posed zoning amendments will cap community residences at 10 occupants and

establish a structured administrative “reasonable accommodation” procedure

to lift the cap for a specific community residence on a case–by–case basis. The

burden will be on the applicant to show the therapeutic or financial need for

more than 10 residents and to convincingly demonstrate how the residents will

emulate a biological family. The proposed community residence will be subject

to the spacing and licensing/certification requirements applicable to all com-

munity residences for people with disabilities.

Other zoning regulations for community residences

All regulations of the zoning district apply to a community residence includ-

ing height, lot size, yards, building coverage, habitable floor area, off–street

parking, and signage. There is no need for the land development code to repeat

these requirements in its sections dealing with community residences.

The state’s statute reinforces this basic concept:

A dwelling unit housing a community residential home estab-

lished pursuant to this section shall be subject to the same lo-

cal laws and ordinances applicable to other noncommercial,

residential family units in the area in which it is established.

Off–Street Parking. Even within the context of the state statute quoted im-

mediately above, localities can establish off–street parking requirements for

community residences for people with disabilities. Some community residences

generate parking needs that exceed what a biological family might generate.

However, there has to be a rational, factual basis for imposing other zoning re-

quirements on community residences for people with disabilities that exceed

the cap of three in Pompano Beach’s definition of “family.” For example, differ-

ent types of community residences may generate very different off–street park-

ing needs. Generally the residents of community residences do not drive.

People with developmental disabilities and the frail elderly do not drive and

will not generate a need for off–street parking for their occupants. They will get

around town with a vehicle and driver the operator provides. A very small per-

centage, if any, of people with mental illness may drive.

But unlike the other categories of disabilities, people in recovery often drive

and have a motor vehicle. A vehicle is critical for the recovery of many, espe-

cially if public transportation is not easily accessible. An essential component of

their rehabilitation is relearning how to live on their own in a sober manner. So

one of the most common conditions of living in a legitimate recovery community

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 45

69. Florida Statutes, §419.001(8) (2016).

or sober living home is that each resident agrees to spend the day at work, look

ing for a job, or attending classes. They cannot just sit around the house during

the day. Visitor parking can be accommodated on the street as it is for all resi-

dential uses. In warm–weather climates like Pompano Beach, many recovery

homes residents own and drive electric or gas–powered scooters which, obvi-

ously require less space to park than automobiles.

It is, however, rational to require off–street parking for staff, whether it be

live–in staff or staff that works on shifts. The city needs to carefully craft off–

street parking requirements for community residences for people with disabili-

ties that allow for the varying needs of community residences for people with

different disabilities.

Factoring in the Florida state statute on locating community residences

The State of Florida has adopted statewide zoning standards for a mixed bag

of what it calls “community residential homes” licensed by the Department of

Elderly Affairs, the Agency for Persons with Disabilities, the Department of Ju-

venile Justice, the Department of Children and Families, or the Agency for

Health Care Administration.

Some of

these homes house people with disabili-

ties while others do not.

This review

focuses on community residences occu-

pied by people with disabilities, the

class protected under the nation’s Fair

Housing Act.

Before reviewing the impact of the

State of Florida’s statute on zoning for

community residences, it is important

to note that the statute gives localities

some leeway to craft local zoning provi-

sions:

Nothing in this section re-

quires any local government to

adopt a new ordinance if it has

in place an ordinance govern-

ing the placement of commu-

State Statute’s Limited Scope

It is vital to remember that

limitations on local zoning that the

state statute on the location of

“community residential homes”

establishes apply only to the

community residences licensed by

the five state agencies. Local

jurisdictions are perfectly free to

establish different zoning

regulations for community

residences not licensed by these five

state agencies. None of these five

state agencies licenses recovery

residences.

70. The zoning standards appear in Title XXX, Social Welfare, Chapter 419, “Community Residential

Homes,” §419.001, “Site selection of community residential homes,” Florida State Statutes,

§419.001 (2016).

71. The nature of the residents of these homes are defined in Florida State Statutes. Among those

with disabilities are ”frail elder”as defined in §429.65, ”person with handicap” as defined in

§760.22(7)9(a), and ”nondangerous person with a mental illness” as defined in §394.455. Two

other categories that may or may not include people with disabilities are “child found to be

dependent” as defined in §39.01 or §984.03 and “child in need of services” as defined in §984.03

or §985.03. As of this writing, the State of Florida does not require licensing of community

residences that serve people in recovery, althought it offers voluntary credentialing.

nity residential homes that meet the criteria of this section.

State law on community residential homes controls over local

ordinances, but nothing in this section prohibits a local govern

ment from adopting more liberal standards for siting such

homes.

Consequently, any local jurisdiction is free to adopt its own zoning regula-

tions for community residences for people with disabilities that are “more lib-

eral” or less restrictive than the state’s.

As will become apparent from the analysis that follows, the state statute is a

bit confusing, seems to contradict itself, and contains a provision that, if chal-

lenged in court, would very likely be found to run afoul of the nation’s Fair

Housing Act.

No state law, including Florida’s, provides a “safe harbor” for local zoning. A

state statute that regulates local zoning for community residences for people

with disabilities can violate the nation’s Fair Housing Act. For example, the

State of Nevada had a state statute that required municipalities and counties to

treat certain types of community residences for people with disabilities as resi-

dential uses, much like Florida’s statute does. In 2008, a federal district court

found that several other provisions in the Nevada’s statute on community resi-

dences for people with disabilities violated the Fair Housing Act.

When sued in 2015 over its zoning treatment of community residences for

people with disabilities, Beaumont, Texas claimed that it was merely comply-

ing with a 1987 state law that established a half–mile spacing distance be-

tween community residences for people with disabilities. Beaumont was

applying that spacing distance to group homes that fit within its zoning code’s

definition of “family” which limits to three the number of unrelated people that

can constitute a “family.” Beaumont settled the case for $475,000 in damages

while agreeing to discontinue imposing its unsupportable half–mile spacing

distance as well as its excessive building code requirements.

In Florida, the state statute defines “community residential home” as a

dwelling unit licensed by one of the five state agencies listed above that “pro-

vides a living environment for 7 to 14 unrelated residents who operate as the

functional equivalent of a family, including such supervision and care by sup-

portive staff as may be necessary to meet the physical, emotional, and social

needs of the residents.”

This language gives the impression that “community

residential homes” house seven to 14 residents.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 47

72. Florida State Statutes, §419.001(10) (2016). Emphasis added.

73. While the author has never before seen statutory language using the phrase “more liberal,” the

most rational interpretation of the phrase is that it means the same as “less restrictive.”

74. Nevada Fair Housing Center, Inc. v. Clark County, 565 F.Supp.2d 1178 (D. Nevada, 2008).

75. United States of America v. City of Beaumont, Texas, Consent Decree Civil Action No. 1:15–cv–

00201–RC (E.D. Texas, May 4, 2016).

76. Florida State Statutes, §419.001(1)(a) (2016).

That’s not the case. Later the statute speaks of “[h]omes of six or fewer resi

dents which otherwise meet the definition of a community residential home

shall be deemed a single–family unit and a noncommercial, residential use for

the purpose of local laws and ordinances.”

Without any stated rational basis, the statute treats homes for up to six resi-

dents differently than those for seven to 14 residents. Community residential

homes for up to six residents must “be allowed in single–family or multifamily

zoning without approval by the local government, provided that such homes are

not located within a radius of 1,000 feet of another existing such home with six

or fewer residents or within a radius of 1,200 feet of another existing commu-

nity residential home.”

“Another existing community residential home” ap-

pears to mean a home for seven to 14 residents.

The smaller homes are not required to comply with the statute’s notification

provisions if, before it receives its license, the “sponsoring agency” supplies to

the local jurisdiction the “most recently published data complied from the li-

censing entities that identifies all community residential homes within the ju-

risdictional limits of the local government in which the proposed site is to be

located.” This is required in order to show that the proposed homes would not

be located within the 1,000 foot spacing distance from an existing community

residential home for six or fewer residents or the 1,200 foot spacing distance of

an existing community residential home for seven to 14 individuals. When the

home is actually occupied, the sponsoring agency is required to notify the local

government that the requisite license has been issued.

This statute does not affect the legal nonconforming use status of any com-

munity residential home lawfully permitted and operating by July 1, 2016.

addition, the statute states that nothing in the statute “shall be deemed to af-

fect the authority of any community residential home lawfully established

prior to October 1, 1989, to continue to operate.”

The state statute departs from the rationality of sound planning and zoning

practices when it flips basic concepts on their head and requires a more inten-

sive review of “community residential homes” in multiple family zoning dis-

tricts than in single–family districts.

Unlike in single–family districts, the

77. Ibid. at §419.001(2) (2016).

78. Ibid.

79. Ibid. A sponsoring agency is “an agency or unit of government, a profit or nonprofit agency, or

any other person or organization which intends to establish or operate a community residential

home.” At §419.001(1)(f) (2016).

80. Ibid.

81. Idid. At §419.001(9) (2016).

82. Florida’s statute is the first time in more than 40 years of monitoring zoning regulations for

community residences that the author has seen more heightened scrutiny for locating

community residences in multiplefamily zones than in single –family zones. Normally the greater

scrutiny is applied in single–family zones. The basis on which the legislature wrote this provision

is an unknown.

state statute gives local governments the ability to approve or disapprove of a

proposed “community residential home.”

When a site for a community residential home has been se-

lected by a sponsoring agency in an area zoned for multifamily,

the agency shall notify the chief executive officer of the local

government in writing and include in such notice the specific

address of the site, the residential licensing category, the num-

ber of residents, and the community support requirements of

the program. Such notice shall also contain a statement from

the licensing entity indicating the licensing status of the pro-

posed community residential home and specifying how the

home meets applicable licensing criteria for the safe care and

supervision of the clients in the home. The sponsoring agency

shall also provide to the local government the most recently

published data compiled from the licensing entities that identi-

fies all community residential homes within the jurisdictional

limits of the local government in which the proposed site is to

be located. The local government shall review the notification

of the sponsoring agency in accordance with the zoning ordi-

nance of the jurisdiction.

If a local government fails to render a decision to approve or disapprove the

proposed home under its zoning ordinance within 60 days, the sponsoring

agency may establish the home at the proposed site.

This provision appears to conflict with the earlier paragraph in the state stat-

ute establishing that “community residential homes” for six or fewer individuals

“shall be allowed in single–family or multifamily zoning without approval by

the local government” when the spacing distances are met.

The state statute specifies three bases on which a local government can deny

the siting of a “community residence home” if the proposed home:

Doesn’t conform to “existing zoning regulations applicable to other

multifamily uses in the area”

Doesn’t meet the licensing agency’s applicable licensing criteria,

“including requirements that the home be located to assure the safe

care and supervision of all clients in the home”

Would result in such a concentration of community residential homes

in the area in proximity to the site selected, or would result in a

combination of such homes with other residences in the community,

such that the nature and character of the area would be substantially

altered. A home that is located within a radius of 1,200 feet of another

existing community residential home in a multifamily zone shall be an

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 49

83. Ibid. at §419.001(3)(a) (2016).

84. Ibid. at $419.001(3)(b) (2016).

85. Ibid. at §419.001(2) (2016).

86. Ibid. at $419.001(3)(c)1. (2016).

87. Ibid. at $419.001(3)(c)2. (2016).

overconcentration of such homes that substantially alters the nature

and character of the area. A home that is located within a radius

of 500 feet of an area of single-family zoning substantially

alters the nature and character of the area.”

While the first criterion is most reasonable, it is also unnecessary because

all residential uses are naturally required to conform to zoning regulations. It

is unclear why the state statute needed to single out community residences for

people with disabilities.

The second standard is unnecessary because a proposed home that doesn’t

meet the licensing agency’s criteria would not receive the license required to op-

erate. It is unclear what circumstances might exist where a community resi-

dence would receive a state license and then fail to “be located to assure the safe

care and supervision of all clients in the home.”

The third criterion almost certainly runs afoul of the nation’s Fair Housing

Act in several ways. The statute declares that locating a new community resi-

dence within the spacing distance constitutes “an overconcentration” of commu-

nity residences “that substantially alters the nature and character of the area.”

In more than 40 years working with zoning for community residences for

people with disabilities, we have never come upon any factual basis for that

conclusion. The rationale behind this report’s recommendation to require a spe-

cial exception for a community residence proposed to locate within the spacing

distance is to enable a case–by–case examination of the facts to determine

whether the proposed home would, indeed, interfere with the ability of any ex-

isting community residence to achieve its core functions of normalization and

community integration of its residents. We are unaware of any factual informa-

tion to suggest that the mere presence of another community residence within

the spacing distances of an existing community residence always creates an

overconcentration or that it always substantially alters the nature and charac-

ter of any area.

Finally, the statute’s declaration that locating a community residential home

within 500 feet of single–family zoning “substantially alters the nature and char-

acter of the area” simply lacks any factual foundation. It is difficult to imagine a

scenario in which a legal challenge to this statutory provision would fail.

The state statute simply does not allow for the proper review of an applica-

tion to establish a community residence within the spacing distance required to

be allowed as of right. It is critical that zoning allow for the case–by–case re-

view of proposals for such homes to evaluate on the facts presented whether al-

88. Ibid. at $419.001(3)(c)3. (2016). Emphasis added.

89. Ibid. at §419.001(3)(c)3 (2016).

90. For a thorough discussion of these points, see American Planning Association, Policy Guide on

Community Residences (Chicago: American Planning Association, Sept. 22, 1997) 8, and for more

detailed analysis, Daniel Lauber, “A Real LULU: Zoning for Group Homes and Halfway Houses

Under the Fair Housing Amendments Act of 1988” John Marshall Law Review, Vol. 29, No 2,

Winter 1996, 369–407.

lowing the proposed community residence would actually result in an

overconcentration or actually alter the character of the surrounding neighbor-

hood. The Florida statute effectively prevents the proper review.

These state statute provisions regarding overconcentrations and alteration

of the nature and character of an area constitute unsubstantiated conclusions

that obstruct the ability of a local jurisdiction to make the “reasonable accom-

modation” that the nation’s Fair Housing Act requires for community resi-

dences for people with disabilities. The state needs to remove these provisions

from the state law if it wishes to comply with the Fair Housing Act.

However, as explained beginning on page 46, the state statute allows local

jurisdictions to adopt zoning provisions less restrictive than the state’s —

which authorizes cities and counties to ignore these unjustifiable and almost

certainly illegal state provisions and avoid exposing themselves to legal liabil-

ity for housing discrimination. As Beaumont, Texas learned so painfully, fol-

lowing an illegal state statute does not protect the city from legal liability.

The actual zoning amendments for community residences for people with

disabilities will be crafted to abide by with the provisions of the state statutes

that comply with the nation’s Fair Housing Act.

Impact of Florida statute on vacation rentals

In some circles there appears to be confusion over the major differences be-

tween vacation rentals and community residences for people with disabilities.

These are diametrically different land uses subject to different zoning and li-

censing or certification treatments.

The Florida legislature has adopted a state statute that pre–empted home

rule and now allows vacation rentals in residential zoning districts throughout

the state. Local laws regulating vacation rentals, like Pompano Beach’s that

were in place on June 1, 2011, were allowed to stand.

This state law has no impact on how a jurisdiction can zone for community

residences for people with disabilities. Vacation rentals are nothing like com-

munity residences for people with disabilities. The former are commercial uses

akin to a mini–hotel while the latter are residential uses. The former do not

make any attempt to emulate a biological family; the host is a landlord and

there is no effort for the guests to merge into a single housekeeping unit with

the owner of the property.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 51

91. Local governments have learned that state statutes that violate the Fair Housing Act do not offer

a “safe harbor.” The statutes of the State of Texas had required a plainly illegal 2,500 foot spacing

distance between group homes for people with disabilities. Attempts by cities to justify their

2,500 foot spacing distances based on the state statute failed to shield them from being in

violation of the Fair Housing Act.

92. Florida State Statutes, §509.032(7)(b) (2016).

The language in the state statutes does not suggest any similarities between

vacation rentals and community residences for people with disabilities. The

Florida state statutues define “vacation rental” as:

any unit or group of units in a condominium or cooperative or

any individually or collectively owned single–family, two–fam-

ily, three–family, or four–family house or dwelling unit that is

also a transient public lodging establishment but that is not a

timeshare project.

The state statutes define “transient public lodging establishment” as:

any unit, group of units, dwelling, building, or group of build-

ings within a single complex of buildings which is rented to

guests more than three times in a calendar year for periods of

less than 30 days or 1 calendar month, whichever is less, or

which is advertised or held out to the public as a place regu-

larly rented to guests.

Community residences for people with disabilities constitute a very different

land use than a “transient public lodging establishment.” No community resi-

dence for people with disabilities is “held out to the public as a place regularly

rented to guests” [emphasis added]. Each community residence houses people

with a certain type of disability — not members of the general public. In fact, by

definition, occupants of a community residence are not “guests” in any sense of

the word. They are residents, not vacationers.

In contrast to a “vacation rental” which, by state law, is a “transient public

lodging establishment,” a community residence by definition is a single house-

keeping unit that seeks to emulate a biological family to achieve normalization

and community integration of its occupants with disabilities. Family commu-

nity residences offer a relatively permanent living arrangement that can last

for years — far different than a vacation rental. Transitional community resi-

dences establish a cap on length of residency that can be as much as six months

or a year — very different than vacation rentals.

Unlike the guests in a vacation rental unit, the occupants of a community

residence for people with disabilities constitute a vulnerable service–depend-

ent population for which each neighborhood has a limited carrying capacity to

absorb into its social structure. The occupants of a community residence are

seeking to attain normalization and community integration — two core goals

absolutely absent from vacation rentals. The occupants of a community resi-

dence rely on their so–called “able bodied” neighbors to serve as role models to

help foster habilitation or rehabilitation — a concept completely foreign to a

transient public lodging establishment. It is well–documented that the vulner-

able occupants of a community residence need protection from unscrupulous

operators and care givers. In terms of type of use, functionality, purpose, opera-

tions, nature of their occupants, and regulatory framework, there is nothing

93. Florida State Statutes, §509.242(1)(c) (2016).

94. Florida State Statutes, §509.013(4)(a)1 (2016).

comparable between community residences for people with disabilities includ

ing recovery residences and transient public lodging establishments including

vacation rentals.

Summary

The proposed regulatory approach offers the least restrictive means needed to

achieve the legitimate government interests of protecting people with disabilities

from unscrupulous operators, assuring that their health and safety needs are met,

enabling normalization and community integration to occur by preventing cluster-

ing of community residences, and preventing the creation of de facto social service

districts. Protecting the residents of community residences for people with disabil-

ities also protects the neighborhoods in which the homes are located. These provi-

sions help assure that adverse impacts will not be generated. As with all zoning

issues, city staff will enforce zoning code compliance.

The proposed amendments will not change the cap of three unrelated individuals

functioning as a single housekeeping unit in the zoning code’s definition of “family.”

The zoning amendments will treat community residences that comply with the cap

of three unrelated individuals in the city’s definition of “family” the same as any

other family. They will impose no additional zoning requirements upon them.

However, when the number of unrelated occupants in a proposed commu-

nity residence exceeds three unrelated individuals, the proposed amendments

will make “family community residences” for people with disabilities a permit-

ted use in all residential districts subject to objective, rationally–based licens-

ing and spacing standards. Transitional community residences will be

permitted as of right in all multifamily districts subject to these same two crite-

ria and allowed in single–family districts via a special exception based on stan-

dards that are as objective as possible to promote compatibility with the single–

family neighborhood.

When a proposed community residence for four or more people does not sat-

isfy the spacing and licensing criteria to be permitted as of right, the height-

ened scrutiny achieved by requiring a special exception is warranted.

Consequently, the operator would have to obtain a special exception if her pro-

posed community residence would be located within the 660 feet spacing dis-

tance from an existing community residence for four or more people or if the

proposed home does not fit within any licensing, certification, or accreditation

program of the State of Florida, the federal government, or the Oxford House

Charter. The burden rests on the operator to show that the proposed home

would meet the standards Pompano Beach requires for issuing a special excep-

tion. A community residence that has not been issued a required license, certifi-

cation, or accreditation would not be allowed in Pompano Beach at all. But

when no certification, licensing, or accreditation is required or available, then

the community residence operator can seek a special exception under the spe-

cial exception backup provision.

Since the zoning amendments that will be proposed are strictly for commu-

nity residences for people with disabilities, there will be no change in how Pom

pano Beach regulates halfway houses for prison pre–parolees or sex offenders.

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 53

To implement and administer these amendments, the city will need to main

tain a map and its own internal database of all community residences for people

with disabilities within and around Pompano Beach

— otherwise it would be

impossible to implement the spacing distances required by the proposed zoning

and by existing state licensing of some types of community residences. To bal-

ance the privacy interests of the residents of community residences for people

with disabilities with implementing the zoning amendments, availability of the

map should be limited to city staff and verified potential applicants seeking to

establish a community residence for people with disabilities — as much as is

permitted under federal and Florida law.

95. Since it is possible that community residences for people with disabilities may be located within

whatever spacing distance the city chooses to adopt, it is critical that the city be fully aware of

any community residences outside its borders, but within the chosen spacing distance. The

adverse effects of clustering community residences do not respect municipal boundaries.

Appendix A: Representative studies of

community residence impacts

Christopher Wagner and Christine Mitchell, Non–Effect of Group Homes on Neighboring Residential Prop-

erty Values in Franklin County (Metropolitan Human Services Commission, Columbus, Ohio, Aug. 1979)

(halfway house for persons with mental illness; group homes for neglected, unruly male wards of the

county, 12–18 years old).

Eric Knowles and Ronald Baba, The Social Impact of Group Homes: a study of small residential service pro-

grams in first residential areas (Green Bay, Wisconsin Plan Commission June 1973) (disadvantaged chil-

dren from urban areas, teenage boys and girls under court commitment, infants and children with

severe medical problems requiring nursing care, convicts in work release or study release programs).

Daniel Lauber, Impacts on the Surrounding Neighborhood of Group Homes for Persons With Developmental

Disabilities, (Governor’s Planning Council on Developmental Disabilities, Springfield, Illinois, Sept. 1986)

(found no effect on property values or turnover due to any of 14 group homes for up to eight residents;

also found crime rate among group home residents to be, at most, 16 percent of that for the general popu-

lation).

Minnesota Developmental Disabilities Program, Analysis of Minnesota Property Values of Community Interme-

diate Care Facilities for Mentally Retarded (ICF–MRs) (Dept. of Energy, Planning and Development 1982) (no

difference in property values and turnover rates in 14 neighborhoods with group homes during the two

years before and after homes opened, as compared to 14 comparable control neighborhoods without group

homes).

Dirk Wiener, Ronald Anderson, and John Nietupski, Impact of Community–Based Residential Facilities for

Mentally Retarded Adults on Surrounding Property Values Using Realtor Analysis Methods, 17 Education

and Training of the Mentally Retarded 278 (Dec. 1982) (used real estate agents’ “comparable market anal-

ysis” method to examine neighborhoods surrounding eight group homes in two medium–sized Iowa com-

munities; found property values in six subject neighborhoods comparable to those in control areas; found

property values higher in two subject neighborhoods than in control areas).

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 55

More than 50 scientific studies have been conducted to identify whether the presence of a community

residence for people with disabilities has any effect on property values, neighborhood turnover, or neigh-

borhood safety. No matter which scientifically–sound methodology has been used, the studies have con-

cluded that community residences that meet the health and safety standards imposed by licensing and

that are not clustered together on a block have no effect on property values — even for the house next

door— nor on the marketability of nearby homes, neighborhood safety, neighborhood character, park-

ing, traffic, public utilities, nor municipal services.

The studies that cover community residences for more than one population provide data on the im-

pacts of the community residences for each population in addition to any aggregate data.

The following studies constitute a representative sample. Few studies have been conducted recently

simply because this issue has been studied so exhaustively and their findings of no adverse impacts have

been so consistent. Consequently, funding just isn’t available to conduct more studies on a topic that has

been studied so exhaustively.

Montgomery County Board of Mental Retardation and Developmental Disabilities, Property Sales Study of

the Impact of Group Homes in Montgomery County (1981) (property appraiser from Magin Realty Com-

pany examined neighborhoods surrounding seven group homes; found no difference in property values

and turnover rates between group home neighborhoods and control neighborhoods without any group

homes).

Martin Lindauer, Pauline Tung, and Frank O’Donnell, Effect of Community Residences for the Mentally Re-

tarded on Real–Estate Values in the Neighborhoods in Which They are Located (State University College

at Brockport, N.Y. 1980) (examined neighborhoods around seven group homes opened between 1967

and 1980 and two control neighborhoods; found no effect on prices; found a selling wave just before

group homes opened, but no decline in selling prices and no difficulty in selling houses; selling wave

ended after homes opened; no decline in property values or increase in turnover after homes opened).

L. Dolan and J. Wolpert, Long Term Neighborhood Property Impacts of Group Homes for Mentally Retarded

People, (Woodrow Wilson School Discussion Paper Series, Princeton University, Nov. 1982) (examined

long–term effects on neighborhoods surrounding 32 group homes for five years after the homes were

opened and found same results as in Wolpert, infra).

Julian Wolpert, Group Homes for the Mentally Retarded: An Investigation of Neighborhood Property Im-

pacts (New York State Office of Mental Retardation and Developmental Disabilities Aug. 31, 1978) (most

thorough study of all; covered 1570 transactions in neighborhoods of ten New York municipalities sur-

rounding 42 group homes; compared neighborhoods surrounding group homes and comparable con-

trol neighborhoods without any group homes; found no effect on property values; proximity to group

home had no effect on turnover or sales price; no effect on property value or turnover of houses adja-

cent to group homes).

Burleigh Gardner and Albert Robles, The Neighbors and the Small Group Homes for the Handicapped: A Sur-

vey (Illinois Association for Retarded Citizens Sept. 1979) (real estate brokers and neighbors of existing

group homes for the retarded, reported that group homes had no effect on property values or ability to

sell a house; unlike all the other studies noted here, this is based solely on opinions of real estate agents

and neighbors; because no objective statistical research was undertaken, this study is of limited value).

Zack Cauklins, John Noak and Bobby Wilkerson, Impact of Residential Care Facilities in Decatur (Macon

County Community Mental Health Board Dec. 9, 1976) (examined neighborhoods surrounding one

group home and four intermediate care facilities for 60 to 117 persons with mental disabilities; mem-

bers of Decatur Board of Realtors report no effect on housing values or turnover).

Suffolk Community Council, Inc., Impact of Community Residences Upon Neighborhood Property Values

(July 1984) (compared sales 18 months before and after group homes opened in seven neighborhoods

and comparable control neighborhoods without group homes; found no difference in property values or

turnover between group home and control neighborhoods).

Metropolitan Human Services Commission, Group Homes and Property Values: A Second Look (Aug. 1980)

(Columbus, Ohio) (halfway house for persons with mental illness; group homes for neglected, unruly

male wards of the county, 12–18 years old).

Tom Goodale and Sherry Wickware, Group Homes and Property Values in Residential Areas, 19 Plan Canada

154–163 (June 1979) (group homes for children, prison pre–parolees).

City of Lansing Planning Department, Influence of Halfway Houses and Foster Care Facilities Upon Property

Values (Lansing, Mich. Oct. 1976) (No adverse impacts on property values due to halfway houses and

group homes for adult ex–offenders, youth offenders, alcoholics).

Michael Dear and S. Martin Taylor, Not on Our Street, 133–144 (1982) (group homes for persons with men-

tal illness have no effect on property values or turnover).

John Boeckh, Michael Dear, and S. Martin Taylor, Property Values and Mental Health Facilities in Metro

politan Toronto, 24 The Canadian Geographer 270 (Fall 1980) (residential mental health facilities have

no effect on the volume of sales activities or property values; distance from the facility and type of facil-

ity had no significant effect on price).

Michael Dear, Impact of Mental Health Facilities on Property Values, 13 Community Mental Health Journal

150 (1977) (persons with mental illness; found indeterminate impact on property values).

Stuart Breslow, The Effect of Siting Group Homes on the Surrounding Environs (1976) (unpublished) (al-

though data limitations render his results inconclusive, the author suggests that communities can ab-

sorb a “limited” number of group homes without measurable effects on property values).

P. Magin, Market Study of Homes in the Area Surrounding 9525 Sheehan Road in Washington Township,

Ohio (May 1975) (available from County Prosecutors Office, Dayton, Ohio). (found no adverse effects on

property values.)

Principles to Guide Zoning for Community Residences: Pompano Beach, Florida 57

Appendix B: Sample zoning compliance

application form

In order the implement the proposed zoning amendments, Pompano Beach will need to cre-

ate a form for applicants wishing to establish a community residence for any number of people

with disabilities. The form will enable city staff to determine whether the proposed commu-

nity residence:

Is allowed as of right under the zoning code’s definition of “family”

Is allowed as of right in the zoning district in which it would be located,

Is required to apply for a special use permit (a special exception in the case of

Pompano Beach)

Needs to also request a reasonable accommodation to house more than ten

individuals

Meets the minimum floor area requirements to which all rental housing is subject,

and

Provides the required minimum number of off–street parking spaces.

The application form that Delray Beach uses is a good example of such a form. It can be

adapted for use in Pompano Beach.

It is crucial that the operators of all proposed community residences be required to com-

plete this form so the city can identify spacing distances between community residences and

determine appropriate zoning treatment. Completing this form places no burden on people

with disabilities while offering them substantial benefits by helping to prevent clustering to

foster the normalization and community integration essential to operate a community resi-

dence.

1|Page

CommunityResidenceZoningApplication

Applicants:Pleasecompletethisformsocitystaffcanidentifythezoningrequirementsthat

applytoyourproposedcommunityresidenceforpeoplewithdisabilities.

Instructions:

Thisa

pplicationmustbe

completed



tablish



communityresidenceforpeoplewith

disabilitiesinDelrayBeachortorecertifyareasonableaccommodationappliedforbeforeJuly19,2017.

Thecitywillissueadeterminationonanapplicationtoestablishsuchacommunityresidencefor3orfewer

occupantswithin2businessdaysofreceivingthecompletedapplication.Whenanapplicationtoestablish

suchacommunityresidencefor4ormoreoccupantsmeetsthecriteriaforacommunityresidencefor

peoplewithdisabilitiesallowedasofrightbytheDelrayBeachLandDevelopmentRegulations,thecity

willissueastatementofapprovalwithin10businessdaysofreceivingthecompletedapplication.Any

review of a completed application that takes longer that stated here does not constitute automatic

approvaloftheapplication.Nopublichearingisrequired.Ifaconditionalusepermitisrequired,apublic

hearing is necessary and you will need to apply for a conditional usepermit.Ifareasonable

accommodationisneeded,staffwillprovideinstructionsandanyrequiredapplicationform.

Pleasekeepacopyofthiscompletedapplicationforyourrecords.

DatethisapplicationsubmittedtotheCityofDelrayBeach:_______________________,20

_

__

Fulladdressofproposedcommunityresidence:_______________________________________________________

Zoningdistrictinwhichtheproposedcommunityresidencewouldbelocated:__________________________

ApplicationPurpose(checkonly one):

 Initialapplication RecertificationofreasonableaccommodationappliedforbeforeJuly19,2017

Applicantinformation:

Applicant’snameandtitle:



_________________________________________________________________

Applicant’ssignature:



_____________________________________________________________________

Bysigningthisform,Iattestunderpenaltiesofperjury,thattheinformationprovidedistrueandaccurate.

Nameofentity(orindividual)thatownstheproposedcommunityresidence:

___________________________________________________________________________________________

 Checkboxifownerofthepropertyisalsotheoperator

Ownerofthepropertycontactinformation

Address:____________________________________________________________________________________

City–State–ZipCode:



_______________________________________________________________________

Telephone:__________________________________________

Cellphone:



____________________________________



 Email: _____________________________________

Operatorinformationifdifferentthanowneroftheproperty:

NameofOperator(entityorindividual):___________________________________________________

Address:___________________________________________________________________________________

City–State–ZipCode:



________________________________________________________________________



Telephone:__________________________________________

Cellphone:



__________________________________

Email: _______________________________________

2|Page



Owner’sConsent:(ThisconsentsectionmustbecompletedbyALLpropertyowners.

Reproducethispageforadditionalownersandincludewithyourapplication.)

I,  , (print

owner’sn

ame)thefeesimpleownerofthe

property located at _________________________________, Delray Beach, Florida, Property Control

Number____________________,herebypetitiontotheCityofDelrayBeachfor(checkone):



Zoningapprovaltoestablishacommunityresidenceattheaforementionedaddress





RecertificationofthereasonableaccommodationforthispropertythatwasgrantedbeforeJuly

19,2017toestablishacommunityresidenceforpeoplewithdisabilitiesatthisaddress



IcertifythatIhaveexaminedtheapplicationandthatallstatementsanddiagramssubmittedaretrueand

accuratetothebestofmyknowledge.Iconsenttoinspectionandphotographingofthesubjectproperty

by the Planning and Zoning Department staff for purposes of consideration of this application and/or

presentationtotheapprovingbodyorentity.Further,Iunderstandthatthisapplication,attachmentsand

feesbecomepartoftheOfficialRecordsoftheCityofDelrayBeach,Florida,andarenotreturnable.

Owner’ssignature:



______________________________________

The foregoing instrument was acknowledged before me this ___________ day of

_______________________, 20_____ by ____________________________________________,whois

personallyknowntomeorhas produced ___________________________________________________

(typeofidentification)



asidentificationandwhodid(didnot)takeanoath.



____________________________________  ______________________________________

(Printednameofnotarypublic)   (Signatureofnotarypublic)



Commission#:_________________  Mycommissionexpires:__________________



(Notary’sSeal)

3|Page



Ifananswertoaquestionwillnotfitwithinthespaceallotted,

pleasefeelfreetoaddadditionalpagesasneeded.



Numberofoccupants

ANumberofpeoplewithdisabilitieswhowillliveintheproposedcommunityresidence:______

BNumberoflive–instaff(ifany):_______

Totalnumberofoccupants:AddA+B=_______

TodeterminecompliancewiththeCityofDelrayBeach’sHousingCode,pleaseentertherequested

information:

Bedroom

Widthandlength

infeetofeach

bedroom

excludingclosets

Totalsquarefeet

inbedroom

excludingclosets

Numberofresidents

(includinganylive‐in

staff)tosleepineach

bedroom

Totalgrossfloorarea

ofallhabitable

rooms

1



Ifunsurehowto

measurethis,askcity

staffforinstructions.



Printthetotalgross

floorareainthecell

below



2



3



4



5



6



Totals

________residents

________squarefeet



Residency

Checkandfillinthemaximumlengthoftimeresidentsmayliveintheproposedcommunityresidence:



____

days





____

month(s)





____year(s)





____

Nolimitation



Howlongwillresidentstypicallyliveinthehome?______week(s)_______month(s)______year(s)

4|Page



LicensingandCertification

Describethegeneralnatureoftheresidents’disabilities(developmentaldisabilities,recoveryfrom

addiction,mentalillness,physicaldisability,frailelderly,etc.).Donotdiscussspecificindividuals:



Checktheappropriatebox(es)belowandprovidetheinformationrequested:





TheStat eofFl orida(includingFARR)h asissuedthecertifica t ionorrequiredlicenseortooperatethis

communityresidenceasa______________________________________________________________

(Licensecategoriesinclude,butarenotlimitedto:“communityresidentialhome”and“assistedliving

facility”;certificationincludes“recoveryresidence”)

FARRCertificationLevel(ifapplicable):_____________________

NameofCertifiedRecoveryResidenceAdministrator(ifapplicable):______________________________

Nameofstatelicensingorcertificationagency:

_____________________________________________________________________________________

Statutorynumberunderwhichlicenseisrequired:____________________________________________

Provideofficialverificationthatcertificationortherequisitelicensehasbeenissuedorappliedfor.





Checkhereifcertificationhasbeenappliedforandprovisionalcertificationhasbeenissued.

Dateonwhichprovisionalcertificationwasissued:____________________,20____



Ifprovisionalcertification,annualcertification,orarequiredlicensehasnotbeenissued,pleaseexplain

whyandwhenitisexpectedtobeissued:







TheStateofFloridadoes

not

requirealicenseoroffercertificationforthistypeofcommunity

residence





TheproposedcommunityresidenceissanctionedbyCongress(example:OxfordHouse)

Off‐streetparking

Numberofresidentsallowedtohaveamotorvehicleonthesite:_______

Numberofstaffpresentatanyonetime(excludesduringshiftchanges):_______

A

Numberofoff‐streetparkingspacesonthesite:________spaces

Numberofoff‐streetparkingspacesoffthesiteataremotelocation(s):________spaces

Totalnumberofoff‐streetparkingonthesiteandoffthesiteatremotelocation(s):

Add

A+B



=

_______

Address(es)ofoff–sitelocation(s)foranyremoteoff–streetparking:



5|Page

ZoningDetermination

Checkallapplicableboxes





Off‐streetparkingrequirementsaremet



ComplieswithDelrayBeachHousingCode



Useconstitutesa“family”of3orlessandis

allowedwithoutspacingorlicensing





Useisallowedasofright



Userequiresaconditionalusepermit



Userequiresareasonableaccommodation



Useissuedstatelicenseorcertification



Usemayopenonlyafterreceivingstate

licenseorprovisionalcertification



Recertifyexistingreasonableaccommodation



Applicationdenied



(

Checkallapplicablereasons):



Lackscertificationorrequiredlicense



Notallowedasofright



Noteligibleforaconditionalusepermit



Notacommunityresidenceforpeoplewith

disabilities



Doesn’tcomplywithHousingCode



Doesn’tmeetoff–streetparkingminimum



Doesn’tmeetrequirementstorecertify

existingreasonableaccommodation

Staffreviewconductedby:

____________________



Signed:___________________________________

Date:_________________,20__

ForCITYStaffUseOnly

Findings

ZoningDistrict:__________________

Theclosestexistingcommunityresidenceswithina660footradiusoftheproposedcommunityresidence:

Address Distancefromproposedcommunityresidence

_____ Numberofresidentswhoarepeoplewithdisabilities

_____ Totalnumberofresidentsincludinglive‐instaff[morethan10requiresareasonableaccommodation

unlessthehomeislicensedbytheStateofFlorida;then14areallowed]

_____ MaximumnumberofoccupantsallowedunderDelrayBeachHousingCode

_____ Minimumnumberofoff‐streetparkingspacesrequiredonsiteoratremotelocation(s)

Proposeduseisa(checkonlyone):



Familycommunityresidence



Transitionalcommunityresidence



Notacommunityresidenceforpeoplewithdisabilities

Licensing/CertificationStatus

(checkallthatapply):



TheStateofFloridarequiresastatelicensetooperatetheproposedcommunityresidence



TheStateofFloridadoes

not

requireastatelicenseor

doesnotoffer

certificationforthisuse



Proposeduseoroperatorhasbeenissuedarequiredstatelicense,statecertification,oris

sanctionedbyCongress(OxfordHouse)[seenextlineforprovisionalcertifications]



Operatorhasbeenissuedprovisionalcertificationtooperatetheproposedrecoveryresidence



Operatorhasappliedforstatecertificationorarequiredstatelicense,buthasnotbeenissuedthe

certificationorlicensesought.Expecteddateofissuance:_______________,20___



Operatororproposedusehasbeen

denied

certificationorrequiredstatelicense

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Principles to Guide Zoning for Community Residences for (City of Pompano Beach)

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