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Making Space for a Spectrum of Community Residences: Building Sustainable and Inclusive Communities Through New York’s Padavan Law

Making Space for a Spectrum of Community Residences: Building Sustainable and Inclusive Communities Through New York’s Padavan Law

Adam Schmelkin

Regulating group homes for marginalized groups, including developmentally disabled people, has social justice implications that extend beyond the traditional environmental, economic, and technical considerations that generally underlay land use decisions.  Group homes are community residential facilities: homes that are integrated in residential neighborhoods, but contain support professionals that do not ordinarily exist in the archetype nuclear families that have historically predominated the American residential landscape.

Neighbors, often skewed by prejudice against the people that live in group homes and a desire to exclude different uses from “their backyards,” may oppose the siting of these residences, contending that these homes are not true residential uses.  Should the prejudiced public have the right to exclude group homes under the guise of “promoting public health, safety, and general welfare?”  Many states have enacted legislation to prevent discrimination against the siting of group homes.  New York, for example, adopted the Padavan Law to prevent such discrimination. The Padavan Law requires that “community residential facilities” for developmentally disabled people be treated as a single “family unit for . . .  purposes of local laws and ordinances.”

After the Supreme Court in City of Cleburn v. Cleburn Living Center invalidated an ordinance that singled out group homes for developmentally disabled people to first acquire a special use permit was declared unconstitutional under the Equal Protection Clause, scholars began paying attention to the issue of whether local zoning laws and ordinances would survive constitutional scrutiny. Following this trend, I will begin by tracing both the legal and historical evolution of this issue. Part I will consider both the institutionalization era – when developmentally disabled people were taken away from their families and treated in often deplorable conditions – and the subsequent deinstitutionalization era – when policymakers sought to reintegrate developmentally disabled people back into mainstream society through the use of group homes in residential neighborhoods.  Part II will provide an overview of the different regimes governing group home regulation in the United States, including the federal Fair Housing Amendments Act (FHAA), the Americans with Disabilities Act (ADA), and finally, New York’s Padavan Law as a model for state group home regulation laws.

The heart of this Note will be the Recommendations Section.  I propose that the Padavan Law’s procedural language be revisited in order to streamline the siting of group homes and remove administrative hurdles.  After remedying these procedures, I propose that its most notable provision – Section 41.34(f)’s preemptive requirement that local laws treat group homes for developmentally disabled people as single “family units” – be broadened to include other categories of group homes.

While there is, undoubtedly, a range of other kinds of group homes that could benefit from such treatment, I propose that the following types be explicitly included in the Padavan Law: (1) substance abuse recovery homes, (2) homes for troubled youth (including “permanent” foster care homes, which are where one or two adults permanently choose to act as a guardian for foster children and to live in that residence, even though their foster children eventually age out of the system and they take in new foster children), (3) homes for lesbian, gay, bisexual, transgender, and queer (LGBTQ) homeless youth, and (4) alternative elderly care homes. Though the purpose of each of these group homes differ, their underlying purposes mirror the purposes of the Padavan Law: to provide “the least restrictive environments . . . [for] persons in normal community settings” in order to maximize their individual “capabilities” and ensure they receive “treatment, care, rehabilitation, and education.” Part IV will conclude by analyzing how this revised version of the Padavan Law would fare in the courts based on common law interpretations of the Padavan Law and group home laws under the FFHA and ADA.

Sustainable communities are inclusive communities. In order to truly be sustainable, tomorrow’s communities must not only be powered by renewable energy and fueled by organic gardens; but rather, must include a diverse group of people and value the voices of those who have traditionally not been part of the conversation.  By living and working in ordinary community surroundings, these populations stand a lot to gain through their own personal development.  Likewise, everyday suburbanites and urbanites can learn from people that live differently from them.  Such mutual understanding is the cornerstone of tomorrow’s sustainable communities, an understanding that can be achieved today if the laws that regulate group homes are revised to make it easier to site residences that empower marginalized groups.

Questions and inquiries regarding this Note may be forwarded to the author at

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