The term “Not in My Back Yard,” familiarized by the acronym NIMBY, held true with particular force in New York in the 1970’s with regard to group homes for the mentally ill. Towns, villages, and cities, often with misplaced and misinformed fears about the effect the mentally ill will have on their neighborhoods successfully barred group homes from their communities. This goal was achieved mainly through zoning restrictions that limited the number of non-related people that could live under the same roof.
In 1978, recognizing the need for an integrated placement of the mentally ill in community, the legislature passed, N.Y. Mental Hygiene Law §41.34, colloquially called the Padavan Law. The law derived its name from State Senator, Frank Padavan, who shepparded the law’s passage through the legislature. In essence, the Padavan Law exempts qualifying group homes from zoning laws, thereby eliminating the main barrier communities erected to their opening. The Padavan Law, however, does place requirements upon the proprietors of group homes before they can open their doors to residents with a mental illness. The Padavan Law still allows municipalities to object to the opening of a facility because of an over-concentration of facilities in the area.
The Padavan Law
The law applies to facilities that provide a residence to four to fourteen mentally ill people that provide on-site supervision, and is operated by, or subject to licensure by the New York State Office of Mental Health (“OMH”). The law defines these facilities as community residential facilities. The law further directs any organization wishing to open a community residential facility to provide written notice of the location and activities of the facility to the chief executive officer of the municipality where the facility will be located. Within 40 days of receiving notice, the municipality has one of three options: (1) approve the site; (2) suggest at least one alternative site within the municipalities jurisdiction that is suitable to accommodate the proposed facility; or (3) object to the establishment of the facility on the basis that, when taking into account other like facilities in the area, there will be such an over concentration of facilities that the nature and character of the area would become substantially altered. Prior to issuing its response the municipality may hold a public hearing to debate the pros and cons of the facility in its neighborhood.
If the municipality recommends an alternate site, the facility has up to 15 days to accept this site or reject it. Where a disagreement persists between the facility and the municipality over the suitability of an alternate site, OMH will intervene and render a decision on the appropriateness of the municipality’s alternate site suggestion.
When the municipality chooses the third option, and objects to the facility outright, OMH will conduct a hearing within 15 days to determine if the proposed facility will in fact create such an over-concentration of facilities that it would alter the nature and character of the area. The law also allows for judicial review of any decision by OMH.
The Padavan Law in Practice
Since the Padavan Law’s inception, some communities have continued to challenge the opening of group homes for the mentally ill. Instead of circumventing the law or outright objecting to its validity, objecting communities have attempted to use the law itself to further their NIMBY goals. There has been a great deal of litigation pitting objecting communities against group home proprietors where the community has invoked the Padavan’s Law’s over-concentration language. Despite this litigation, no community has ever successfully challenged an OMH determination that a facility would not fundamentally alter the nature and character of an area, and therefore the residence should be allowed to open.
Communities have argued that opening facilities will affect such disparate concerns as overloading the septic system, increasing traffic, eroding of the tax base and fears of residents over what they perceived to be the unsavory nature of the proposed residents. Yet, Courts have concluded that these concerns are not valid and the only consideration is whether or not an over-concentration of facilities will result from the opening of the proposed facility.
Concerns with the Padavan Law
While on its face the Padavan Law appears to do nothing but good for the mentally ill and those wishing to erect housing on their behalf, there is some ambivalence. Understandably, there is some concern over the Padavan Law’s allowance for a community to conduct a public hearing in order to discuss the pros and cons of the opening of a group home. Which of us would appreciate our future neighbors and colleagues gathering at a public meeting and debating whether or not they want us to move into their community?
Secondly, the process that the Padavan Law dictates takes a substantial amount of time. If a community wishes to challenge OMH’s determination in court, that process has taken upwards of three years to conclude. In that time, those whom the facilities would be a home to are either left homeless or in much more restrictive facilities, like a psychiatric hospital.
Some have argued that the Padavan Law, and similar laws in other parts of the country, are in fact unconstitutional because they conflict with the federal Fair Housing Amendments Act (“FHAA”) of 1988. The FHAA extended the protections of the 1968 Fair Housing Act, which eliminated housing discrimination on the basis of sex, race or religion, or to the physically and mentally disabled. This includes barring land-use regulations and special use permits, which leads to de-facto discrimination. From a legal perspective, the question then becomes, does the Padavan Law conflict with the FHAA? In reviewing similar laws in other states some courts have concluded that they do and some have concluded that they do not. No Court has yet to rule on a direct challenge to the Padavan Law in New York.
Apart from the legal question, is a question of practicality. For 30 years the Padavan Law has guided the opening of group homes for the mentally ill. And while there has been difficulty with the law, which is described above, the procedures and practices are well known to providers of housing for the mentally ill. Moreover, the Padavan Law has established firm legal rights and housing for the mentally ill has flourished during its tenure. The question then becomes, despite its problems, is doing away with the law riskier than it is worth?