Citing a ruling by a federal judge, the Baltimore City Planning Commission endorsed changes to the city’s zoning code designed to bring the city into compliance with the Americans With Disabilities Act (ADA). In its regular meeting on April 19, the commission, which oversees the city’s planning and zoning regulations, endorsed a bill titled “Residential Substance-Abuse Treatment Facilities,” which was introduced at the April 16 City Council meeting.
“The judge basically said that the city’s zoning code on its face needs to be fixed, but the way the city handles residential substance abuse facilities in practice is OK,” says Matthew Nayden, the city’s lead lawyer handling the case.
On Feb. 29, Federal District Judge J. Frederick Motz released an opinion granting summary judgment in a case filed in 2009 by the Maryland Disability Law Center and the U.S. Department of Justice. The complaint said that the city’s zoning laws, and the way they were administered, violated the rights of recovering drug addicts under the ADA and the federal Fair Housing Act. Both laws bar discrimination against people with disabilities. In his opinion, Motz granted the plaintiff’s motion for summary judgment—but he did not say that the city had actually violated the law in general practice.
“I find that the City does not discriminate against larger [residential drug treatment programs] in requiring them to obtain a [certificate of occupancy],” Motz wrote in his opinion. “Likewise, the record appears to establish that the City does not discriminate against smaller [drug treatment programs] that do not self-identify as [drug treatment programs] in their zoning applications because the City permits them to locate through other zoning classifications for which they are eligible.”
The only time the city’s zoning practices might violate the law, Motz found, is in those rare cases when smaller drug treatment programs apply for zoning permission. This forces them into a thicket of bureaucracy known as the “reasonable accommodations process,” under which they must convince city officials to allow exceptions to some of the strict regulations in the zoning law. Although all of the programs cited by plaintiffs were allowed to open under the law, “the reasonable accommodation process itself is a burden,” Motz wrote, “imposing additional costs and delay.”
The new zoning language would banish archaic terms like “homes for the rehabilitation of non-bedridden alcoholics” and streamline the zoning process to allow residential drug treatment for up to 16 unrelated people in any of the zoning districts—R-6 through R-10—where that density is allowed. Programs seeking to serve more than 16 residents would still need to go through the reasonable accommodation process.
Motz originally gave the city 60 days to comply with his order but that deadline has been stretched so that the city can go through its normal law-making process. Nayden says he and Ellen Weber, the lawyer for the lead plaintiff, now attend regular status conferences with Motz. “He said we have a reasonable amount of time” to rewrite the code, Nayden says.
At an April 19 status conference held just after the Planning Commission meeting, Nayden says Weber objected to some of the provisions in the new bill. “They say that new legislation would not permit facilities with between five and 16 persons [to locate] anywhere [they want] in the city—and that’s not good enough,” Nayden says. “And [Weber says] we should permit multifamily dwellings of unlimited size in those districts where multifamily districts are permitted.”
Nayden says these are small details with little practical significance, since drug treatment providers don’t build apartments but instead tend to house people in dormitory-style buildings with shared kitchens. “It’s really a sideshow,” he says. “They’re wanting to try to get something out of this ruling that basically said, ‘You lose, you’re wrong.’”
Weber tells City Paper via e-mail that she is “still involved in litigation regarding this matter, and I’m unable, under those circumstances, to provide comments.”
Residential drug treatment has been a hot-button issue in several neighborhoods in recent years. Some residents on the west side have said that some large treatment facilities effectively warehouse clients in often substandard “recovery houses,” exacerbating squalor and crime in some areas. Such houses—now more often called “supportive housing”—do not provide drug treatment per se, but, when run well, can be a crucial part of a person’s recovery. They can also be lucrative for people who would otherwise be regarded as slumlords.
“Our experience is the ones who come through the official process have not been a problem,” Eric Tiso, a city planner, said after the Planning Commission meeting. “It’s the others, and there are still remedies available for overcrowding conditions and other nuisances, as always.”
Nayden says such problems are fairly rare, but that the federal case may backfire on the drug treatment industry. “By litigating this, she’s stoking up the issue, drawing out the neighborhoods to come out and fight this issue,” Nayden says. “It scares the neighbors. That just causes more trouble for people who want more drug treatment.”