By Chandler W. Travis, Esq.
Community associations, their board directors and community managers are increasingly being questioned by members as to how a group home can operate within their association. First, it is beneficial to have an understanding as to what constitutes a “group home.” Typically, a group home is a commercial activity being conducted on a residential lot, where there are up to ten (10) persons with a disability who are not related to each other living in a residence along with an employee(s) of the group home operator. The State of Arizona and municipalities have different terms for a group home.
In these e-mails and telephone calls, members rightfully point out that the operation of a group home is a business and not a single-family use of the lot, and, therefore, the association’s recorded CC&Rs should prohibit the operation of the group home. The association’s initial response to these members’ concerns and questions should be to obtain information from the members as to what activity is being conducted on the lot to determine whether there is a group home being operated from the lot.
Also, in this initial response, the association should notify the member that the federal Fair Housing Act and Arizona fair housing statutes take precedence over the association’s CC&Rs. Congress and the Arizona legislature enacted the Fair Housing Act and statues to prohibit discrimination in housing based upon race, color, religion, sex, familial status, national origin, or disability. As noted above, a group home is for the housing of unrelated individuals with a disability. Under A.R.S. §41-1491(5), a person is “disabled” if the person suffers from:
A mental or physical impairment that substantially limits at least one major life activity, a record of such an impairment or being regarded as having such impairment. Disability does not include current illegal use of or addiction to any drug or illegal or federally controlled substance. Disability shall be defined and construed as the term is defined and construed by the Americans disabilities act of 1990 (P.L.101-336) and the ADA amendments act of 2008 (P.L. 110-325; 122 Stat. 3553).
Based on the Fair Housing Act’s broad definition of disability, this would include individuals who are elderly and/or have either physical or mental disabilities who need any form of assistance to perform a major life activity, such as cooking, dressing, bathing, etc.
To verify whether a group home is being operated on the lot, the association may conduct a licensing search for the group home operator at that lot through the Arizona Department of Health Services’ web site (“ADHS”). ADHS maintains a database of licensed group homes and other healthcare providers by facility/provider name, location, and provider type. If a particular asserted group home is not licensed by the ADHS, the association may then write to the owner of the lot seeking information to verify that the individuals residing at the lot meet the Fair Housing Act’s definition of “disabled.” The information as to each person’s disability can be information from a doctor or other medical professional, a peer-support group, a non-medical service agency, credible statement from the individual, or reliable third-party who is in a position to know the individual’s disability.
If the owner of the lot provides information as to the disability of the individuals residing at the lot and requests an accommodation from the association to allow for the housing of these disabled individuals at the lot, the association should grant such accommodation pursuant to the Fair Housing Act. This means the association cannot enforce its restrictive covenants, such as prohibiting the business use or non-single-family residential use of a lot. The association is still able to enforce other restrictive covenants on a lot being operated as a group home such as landscape maintenance and parking restrictions.
While members living near a group home may be upset with the inability of the association to prevent the operation of a group home within the community, members must understand that federal law and state statutes control despite the restrictions in the CC&Rs. An association should look to its legal counsel when investigating and writing to a suspected lot owner who is operating a group home.
The information provided herein is for reference purposes only, is general in nature, and is not intended as legal advice. For specific questions or legal issues regarding your association, please contact us at 480-219-3633.