Could Maryland enforce state spacing limits on group homes for people with disabilities after the 1988 federal Fair Housing Amendments Act?

Plain-English summary

In 1988, Maryland's General Assembly passed a well-meaning law, HG §2-104(b)(2), directing the Department of Health and Mental Hygiene to write regulations spacing out "community residences" (group homes) for special populations such as people with developmental disabilities, mental illness, or addiction, so that no single neighborhood, building, or block became saturated with them. Only months later, Congress passed the federal Fair Housing Amendments Act of 1988, extending fair housing protections to people with disabilities for the first time. The Department of Health and Mental Hygiene asked the Attorney General whether it could still enforce the state's density and distance limits in light of the new federal law. The Attorney General concluded it could not, at least as to residences serving people with disabilities: the state's numeric caps and spacing rules, however good the intentions behind them, would "make unavailable or deny" housing to people with disabilities once a neighborhood's quota was filled, which is exactly what the federal Fair Housing Amendments Act prohibited. The opinion found that the state law could still be enforced for special populations who did not have disabilities, such as some populations served by the Department of Juvenile Services.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The opinion's own text, as later annotated by the Attorney General's office, records that the specific state siting requirements it analyzed, HG §2-104(b)(2), were repealed by Chapter 425 (House Bill 1007) of the Laws of Maryland 1991, only two years after this opinion issued. This page describes what the Attorney General concluded about a state law that no longer exists in that form; it is not a description of any current Maryland group-home siting rule.

Common questions

Could Maryland enforce its 1988 group-home spacing law against homes for people with disabilities?
No, according to this opinion. It concluded that HG §2-104(b)(2)'s density limits (a 4 percent population cap), building-concentration limits, and 200-foot distance requirements between community residences could not be enforced against residences serving people with disabilities, because doing so would violate the federal Fair Housing Amendments Act of 1988.

Did this mean Maryland's group-home spacing law was entirely dead?
No. The opinion distinguished between special populations that consist of people with disabilities (where the state law could not be enforced) and other special populations covered by the same statute, such as some populations served by the Department of Juvenile Services or the Department of Human Resources, where enforcement would not implicate the federal Fair Housing Amendments Act at all.

Why did the state law conflict with federal law if it didn't mention disability by name on its face?
The opinion explained that the federal Fair Housing Amendments Act prohibits practices with discriminatory effects, not just intentional discrimination. Even a facially neutral density or spacing rule violated the federal act if, in practice, it capped how many people with disabilities could live in a given building, block, or neighborhood once the quota was reached.

What eventually happened to this specific Maryland law?
The opinion's own editor's note records that the General Assembly repealed the siting requirements discussed in this opinion, Chapter 768 (Senate Bill 591) of 1988, by Chapter 425 (House Bill 1007) of the Laws of Maryland 1991.

Background and statutory framework

HG §2-104(b)(2), enacted as Chapter 768 (Senate Bill 591) of the Laws of Maryland 1988 and effective July 1, 1988, grew out of a state planning study that found Maryland lacked a coordinated siting policy for community residential facilities. The statute directed the Department of Health and Mental Hygiene to adopt regulations requiring, among other things, a four percent population cap on the number of people served in community residences relative to an area's total population, a limit on the number of community residences in a multifamily building (the greater of ten percent of units or two units), a 200-foot minimum distance between community residences on the same block, and local government approval for any residence serving 17 or more people. The special populations subject to the law included people served by the Developmental Disabilities Administration, the Mental Hygiene Administration, the Addiction Services Administration, the Department of Juvenile Services, and Maryland's Public Assistance to Adults program.

Barely eight months after Maryland's law took effect, Congress enacted the Fair Housing Amendments Act of 1988, extending the 1968 Fair Housing Act's protections against discrimination to people with a "handicap," defined broadly to include a physical or mental impairment substantially limiting a major life activity. The opinion walked through the federal act's operative provisions, 42 U.S.C. §3604(f)(1) and (f)(2), which bar making a dwelling "unavailable or deny[ied]" because of a disability and bar discriminatory "terms" or "conditions" on housing, and concluded, based on the statute's legislative history (the House Judiciary Committee report explaining that the Act was meant to reach discriminatory zoning, land-use, and health-and-safety rules), that Maryland's density and spacing limits were exactly the kind of facially neutral rule Congress intended to prohibit once it had the effect of capping how many people with disabilities could live in a given area. The opinion catalogued several concrete HUD regulations the state law would likely violate if enforced against people with disabilities, including bars on discouraging a purchase or rental because of handicap and on assigning people to sections of a community because of handicap.

Because the underlying statute grouped several different special populations together, only some of whom have disabilities, the opinion's conclusion applied only to the disabled subset of those populations; it left the law enforceable against non-disabled special populations covered by the same statutory scheme, such as certain populations served by the Department of Juvenile Services or the Department of Human Resources.

Citations and references

Statutes and regulations:

• HG §2-104(b)(2), the Maryland siting-limit statute for community residences serving special populations
• Chapter 768 (Senate Bill 591) of the Laws of Maryland 1988, the law that enacted HG §2-104(b)(2)
• 42 U.S.C. §3601 et seq., the Fair Housing Act as amended by the Fair Housing Amendments Act of 1988
• 42 U.S.C. §3602(h), defining "handicap" for Fair Housing Act purposes
• 42 U.S.C. §3604(f)(1) and (f)(2), the disability-discrimination provisions the opinion applied
• 42 U.S.C. §3603(a)(2), extending the Act's coverage to "all dwellings"
• 24 C.F.R. §100.70(a), §100.70(c), §100.50(b), and §100.400, HUD regulations implementing the Fair Housing Amendments Act's disability protections
• Chapter 425 (House Bill 1007) of the Laws of Maryland 1991, which repealed the siting requirements this opinion analyzed

Cases:

• Smith v. Town of Clarkton, 682 F.2d 1055, 1068 (4th Cir. 1982), on the Fair Housing Act applying regardless of public funding of a housing program
• Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988), on the discriminatory-effects test under the Fair Housing Act
• Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977), cert. denied 434 U.S. 1025 (1978), on the discriminatory-effects test
• United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975), on the discriminatory-effects test
• Roundup Foundation, Inc. v. Board of Adjustment, 626 P.2d 1154 (Colo. App. 1980), and Adams County ARC, Inc. v. City of Westminster, 196 Colo. 79, 580 P.2d 1246 (1978), cited for comparison on other states' group-home spacing statutes

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 164-175 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HOUSING

Fair Housing Act - Handicap Discrimination - State Requirements
Regarding Siting of Community Residences For Special
Populations May Not Be Enforced As To Persons With Disabilities

                        August 7, 1989

John D. Stafford, M.D.
Deputy Secretary for Public Health Services
Department of Health and Mental Hygiene

 Your predecessor, Dr. Mack Bonner, Jr., requested our opinion on

whether certain requirements regarding the siting of State-funded
community residences for special populations, contained in §2-
104(b)(2) of the Health-General Article ("HG" Article), are enforceable
in light of the recently enacted federal Fair Housing Amendments Act
of 1988.

For the reasons given below, we conclude that enforcement of HG

§2-104(b)(2), as it relates to individuals with disabilities, contravenes
the federal law. Consequently, while the Maryland statute may be
enforced as to special populations not comprising individuals with
disabilities, it may not be enforced with respect to individuals with
disabilities.

                                I

                    State Siting Restrictions

HG §2-104(b)(2), enacted as Chapter 768 (Senate Bill 591) of the

Laws of Maryland 1988, became effective July 1, 1988. It authorizes
the Department of Health and Mental Hygiene ("DHMH") to adopt
regulations to govern the siting of State-funded community residences
for special populations.1 It requires these regulations to include
certain area-wide distance or density limits and local government
approval for residences for special populations serving 17 or more
people.

Although "community residences" and "special populations" are not

defined in the statute itself, the law refers to the State agencies that are
covered by its provisions. These include DHMH, the Department of
Housing and Community Development, the Department of Human
Resources, and the Department of Juvenile Services.2 The special
populations served by these agencies include people with developmental
disabilities, mental illness, drug addiction, and alcohol addiction;
children receiving services funded by the Department of Juvenile
Services; and people in certain residences funded by the Public
Assistance to Adults program.3

Specifically, with regard to distance or density limits, HG §2-
104(b)(2)(i) requires the adoption of regulations that:

      1.   Require a 4 percent limit on the number of
           people served in community residences in
           relation to the total population for the areas to be
           monitored;

 1
   Chapter 768 is the product of a comprehensive study conducted by DHMH and

set forth in Planning for Community Residential Facilities (April 1987) and guidelines
developed as a result of that study, Maryland's Proposed Site Selection Standards for
Community Residences ["Proposed Standards"] and Executive Summary ["Summary"]
(1988). Although Bill 591 was a departmental bill, it was extensively amended en
route to passage.
2
The planning materials and guidelines cited in note 1 above, which formed the
basis for Senate Bill 591, define "community residences" as: "Residences for special
populations funded by the Addiction Services Administration, the Department of
Housing and Community Development, the Developmental Disabilities
Administration, the [former] Juvenile Services Agency, and the Mental Hygiene
Administration, and by the Department of Human Resources' Public Assistance to
Adults program."
3
Regulations drafted but not issued by DHMH to implement the statute define
"special populations" as follows: "A group composed of: (a) People with
developmental disabilities; (b) People with mental illness; (c) People with drug
addiction; (d) People with alcohol addiction; (e) Children receiving services funded
by the Juvenile Services Agency; or (f) People in residences by the Public Assistance
to Adults program." Draft COMAR 10.01.13.02B(9).

       2.   Require that the number of community residences
            in a building containing multifamily dwelling
            units may not exceed the greater of 10 percent of
            the units in the building, or 2 units;

       3.   Require that the number of community residences
            in single-family attached dwelling units on a
            section of a street between 2 intersecting streets,
            or between an intersecting street and a dead end,
            may not exceed 2 units with a minimum distance
            of 200 feet between the community residences;
            and

       4.   Limit the distance between single-family
            detached dwellings serving special populations in
            accordance with the general population.

In addition, HG §2-104(b)(2)(ii) requires that "[a]ny residences for
special populations serving 17 or more people shall be subject to local
government approval."

 These provisions arose as a result of a finding by State planning

agencies that Maryland did not then have a coordinated siting policy for
community residential facilities and that it is in the State's interest to
provide clients "with an opportunity to participate in normal societal
interaction."4 Guidelines developed in response to this study stated
that:

            The State of Maryland is committed to helping
       special populations receive decent, appropriate
       housing and related services in community settings.
       These site selection standards should not be construed
       as an attempt on the part of the State to restrict
       access to housing by special populations, or to allow
       communities to discriminate against special
       populations who need housing. Instead, these site
       selection standards are instituted to direct providers

 4 Summary at 1-3.

        of housing services in establishing and maintaining
        normal community residential settings for special
        populations.5

Thus, Chapter 768 reflects a well-intentioned plan to increase housing
opportunities for special populations.6

                                      II

                    Fair Housing Amendments Act

A. Introduction

After the enactment of HG §2-104(b)(2), Congress passed the Fair

Housing Amendments Act, which became effective on March 12, 1989.
Pub. L. No. 100-430, 102 Stat. 1619 (1988), codified at 42 U.S.C.
§3601 et seq. The Act extends to people with disabilities the broad
remedial provisions of the 1968 Fair Housing Act, which prohibits
discrimination on the bases of race, color, religion, national origin and
sex in both public and private housing.

 5
     Proposed Standards at 1-2. See also Preamble to Chapter 768.
  6
     At least one state that has a statutory scheme regulating the spacing of

community residences treats different groups of residents differently. The Colorado
spacing statute regulates the distance between group homes for persons with mental
illness, but it states no spacing requirement controlling the siting of group homes for
individuals with developmental disabilities. Compare Colo. Rev. Stat. §30-28-
115(2)(a) and §31-23-303(2)(a) (policy on group homes for developmentally disabled
persons) with §30-28-115(2)(b.5) and §31-23-303(2)(b.5) (policy on group homes for
persons with mental illness). Colorado's statutory policy on siting of group homes
for individuals with developmental disabilities is discussed and applied in Roundup
Foundation, Inc. v. Board of Adjustment, 626 P.2d 1154 (Colo. App. 1980) and
Adams County ARC, Inc. v. City of Westminster, 196 Colo. 79, 580 P.2d 1246
(1978).
The states of Delaware and Arizona have statutory prohibitions on the
establishment of new community residences serving persons with disabilities within
a certain distance of an existing community residence. Del. Code Ann. Title 9 §4923
(5000 foot spacing requirement); Ariz. Rev. Stat. Ann. §36-582(h)-(k) (1,200 foot
spacing requirement; applies only to facilities licensed, operated, supported, or
supervised by the department). In Connecticut no community residence can be
established within 1,000 feet of any other such residence without approval of the
appropriate zoning authority. Conn. Gen. Stat. Ann. §8-3f.

The Act generally prohibits discriminatory practices against

individuals with any "handicap." The term "handicap" is defined very
broadly to mean "with respect to a person - (1) a physical or mental
impairment which substantially limits one or more of such person's
major life activities, (2) a record of having such an impairment, or (3)
being regarded as having such an impairment ...." 42 U.S.C.
§3602(h).7

The Act's purposes include ending segregation of the housing

available to people with disabilities and giving people with disabilities
the right to choose where they wish to live. Given the specific
provisions of the federal statute and its legislative history, we have
concluded that the requirements of HG §2-104(b)(2) cannot be applied
to individuals with disabilities in a manner consistent with the
subsequently enacted federal legislation.

B. Purpose of Fair Housing Amendments Act

42 U.S.C. §3604(f)(1) makes it unlawful for any individual or
government:

         To discriminate in the sale or rental, or to
       otherwise make unavailable or deny, a dwelling to
       any buyer or renter because of a handicap of -

       (A) that buyer or renter;

 7
   The definition of "handicap" parallels the scope of the comparable term used

in Section 504 of the Rehabilitation Act of 1973, Pub.L. 93-112, 87 Stat. 355, 29
U.S.C. §§701-794, as amended by the Civil Rights Restoration Act of 1988, 29
U.S.C. §706. See Preamble to HUD's final regulations, 52 Fed. Reg. 3245 (January
23, 1989) (stating intention that the definition of "handicap" be interpreted in the same
manner as the definition of "handicap" in Section 504 regulations).
The Fair Housing Amendments Act does not protect people who currently engage
in unlawful use of controlled substances, 42 U.S.C. §3602(h)(3), 24 C.F.R.
§100.201(a)(2), but does protect individuals in a treatment program for drug abuse.
Further, the Act permits exclusion of persons whose tenancy would constitute a direct
threat to the health or safety of other individuals or whose tenancy would result in
substantial physical damage to the property of others. 42 U.S.C. §3604(f)(8), 24
C.F.R. §100.202(d). However, the law does not permit inquiries about possible
violent behavior of people with mental disabilities unless "these inquiries are made
of all applicants, whether or not they have handicaps." 24 C.F.R. §100.202(c).

    (B) a person residing in or intending to reside in that
        dwelling after it is so sold, rented, or made available;
        or

    (C) any person associated with that buyer or renter.


42 U.S.C. §3604(f)(2) further makes it unlawful for any individual

or government to discriminate:

    Against any person in the terms, conditions, or
    privileges of sale or rental of a dwelling, or in the
    provision of services or facilities in connection with
    such dwelling, because of a handicap of -

     (A) that person; or

     (B) a person residing in or intending to reside in that
     dwelling after it is sold, rented, or made available; or

     (C) any person associated with that person.


Regulations adopted by the Department of Housing and Urban

Development ("HUD") to implement the Fair Housing Amendments
Act state that the Act's fundamental purpose is to prohibit practices that
"restrict the choices" of people with disabilities to live where they wish
or that "discourage or obstruct [those] choices in a community,
neighborhood or development." 54 Fed. Reg. 3232, 3285 (January 23,
1989), 24 C.F.R. § 100.70(a).

 While the disability provisions, 42 U.S.C. §3604(f)(1) and (2), do

not mention exclusionary zoning practices, case law interpreting the
Fair Housing Act of 1968 and the legislative history of the Fair
Housing Amendments Act make clear that the statute prohibitions apply
to local government land-use decisions. In reference to 42 U.S.C.
§3604(f)(2), set forth above, the House Committee on the Judiciary
stated:

     This provision is intended to prohibit special
     restrictive covenants or other terms or conditions, or
     denials of service because of an individual's handicap

      and which have the effect of excluding, for example,
      congregate living arrangements for persons with
      handicaps.

H.R. Rep. No. 100-711, 100th Cong. 2d Sess. 23 (1988), reprinted in
1988 U.S. Code Cong. & Admn. News 2173, 2184 ("House Report")
(emphasis added). The Judiciary Committee went on to describe as
follows the applicability of both the above-cited provisions:

         These new subsections would also apply to state or
      local land use and health and safety laws, regulations,
      practices or decisions which discriminate against
      individuals with handicaps. While State and local
      governments have authority to protect safety and
      health, and to regulate use of land, that authority has
      sometimes been used to restrict the ability of
      individuals with handicaps to live in communities.
      This has been accomplished by such means as the
      enactment or imposition of health, safety or land-use
      requirements or congregate living arrangements
      among non-related persons with disabilities. Since
      these requirements are not imposed on families and
      groups of similar size of other unrelated people, these
      requirements have the effect of discriminating against
      persons with disabilities.

          The Committee intends that the prohibition against
      discrimination against those with handicaps apply to
      zoning decisions and practices. The Act is intended
      to prohibit the application of special requirements
      through land-use regulations, restrictive covenants,
      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 in the community....

           Another method of making housing unavailable
      to people with disabilities has been the application or

8 For additional legislative history and remarks of sponsors, see 134 Cong. Rec.

10552, 10556 (daily ed. August 2, 1988).

      enforcement of otherwise neutral rules and
      regulations on health, safety and land-use in a manner
      which discriminates against people with disabilities.

House Report at 24 (emphasis added).

C. Application of Federal Act to HG §2-104(b)(2)

 In analyzing the impact of the Fair Housing Amendments Act and

its legislative history on HG §2-104(b)(2), we must consider whether
the dispersion requirements (specifying the distance required between
community residences) and the concentration limitations (restrictions on
the number of community residences per building, block, or area) of
the State statute have the effect of making dwellings of choice
unavailable to people with disabilities and therefore violate federal
law.9 The Fair Housing Amendments Act prohibits practices with
discriminatory effects, not solely intentional acts of discrimination.10
Thus, even if HG §2-104(b)(2) or the proposed implementing
regulations were neutral on their face, if they have the effect of
limiting housing opportunities for people with disabilities, they might
nevertheless contravene the federal act.11

 9 Under 42 U.S.C. §3603(a)(2), the provisions against discrimination apply to

"all dwellings," with certain exceptions not relevant here. Nothing in the Fair
Housing Act suggests that an otherwise prohibited discriminatory practice is
permissible because a housing program receives public funds. See Smith v. Town of
Clarkton, 682 F.2d 1055, 1068 (4th Cir. 1982).
10
House Report at 24, 25. For a discussion of the use of the effects test under
the Fair Housing Act, see Huntington Branch, NAACP v. Town of Huntington, 844
F.2d 926 (2d Cir. 1988), review declined in part and judgment aff'd, 109 S.Ct. 276
(1988); Metropolitan Housing Development Corporation v. Village of Arlington
Heights, 558 F.2d 1283 (7th Cir. 1977), cert. denied 434 U.S. 1025 (1978); United
States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 U.S.
1042 (1975).
11
HUD is responsible for enforcing the Fair Housing Amendments Act, with
the exception of challenges to state or local zoning or other land-use law or
ordinances that violate the federal act's provisions. This latter authority is under the
jurisdiction of the Justice Department [42 U.S.C. §3610(g)(2)(c)], which, upon
referral from HUD, is charged with the responsibility for taking appropriate action
pursuant to 42 U.S.C. §3614(b)(1), i.e., enforcement of the Act in federal court. See
also House Report at 36.

 The majority of individuals who constitute the "special populations"

to be regulated by HG §2-104(b)(2) have disabilities. These include
virtually all individuals served by the Developmental Disabilities
Administration and the Mental Hygiene Administration; many served
by the Addiction Services Administration; and some served by the
Department of Juvenile Services, the Department of Human Resources,
and perhaps the Department of Housing and Community Development.
Thus, the group of individuals and the zoning decisions or practices to
which HG §2-104(b)(2) applies are in the main exactly those that the
Fair Housing Amendments Act addresses. Of course, to the extent that
the populations served by any of the above agencies, for example, the
Department of Juvenile Services or the Department of Human
Resources, do not consist of individuals with disabilities, enforcement
of HG §2-104(b)(2) with respect to these populations would not
implicate the Fair Housing Amendments Act.

 We can identify the following specific problems if the State law

were enforced with respect to persons with disabilities: HG §2-
104(b)(2)(i)1, imposing a four percent limit on the number of people
served in community residences in relation to the total population,
would violate 42 U.S.C. §3604(f)(1), because enforcement of this
provision would "make unavailable or deny" State-funded housing to
people with disabilities once the four percent numerical quota on the
number of people with disabilities who may live in any one
neighborhood was filled. HG §2-104(b)(2)(i)2, which restricts the
number of residences in a building so that they may not exceed the
greater of ten percent of the units, or two units, would similarly violate
42 U.S.C. §3604(f)(1), in that it would "make unavailable or deny" to
individuals with disabilities housing in a particular building, thereby
obstructing them from living in the neighborhood of their choice, once
that density quota was reached. The same reasoning applies to HG §2-
104(b)(2)(i)3; its distance limitation, which prohibits residences for
special populations from being within 200 feet of each other on the
same block, would clearly "make unavailable or deny" certain housing
opportunities to individuals with disabilities.

Both the concentration limitations and dispersion requirements in

HG §2-104(b)(2) would also violate 42 U.S.C. §3604(f)(2), because
they constitute "terms" or "conditions" that, to the extent they are
applied to congregate living arrangements for individuals with
disabilities, discriminate against these individuals if they limit their
ability to live in the residence of their choice in the community. This
is particularly the case where such requirements are not imposed on
individuals without disabilities.

Final HUD regulations adopted pursuant to the Act also contain

prohibitions that relate to the enforcement of HG §2-104(b)(2). The
regulations prohibit:

     (1) Discouraging any person from ... purchasing or
         renting a dwelling because of ... handicap;

     (3) Communicating to any prospective purchaser that
         he or she would not be comfortable or
         compatible with existing residents of a
         community, neighborhood or development
         because of ... handicap;

     (4) Assigning any person to a particular section of a
         community, neighborhood or development ...
         because of ... handicap.

24 C.F.R. §100.70(c).

HG §2-104(b)(2), as it is intended to be enforced, would

discourage persons with disabilities from residing in certain
neighborhoods, in violation of this regulatory provision. It would also
communicate to individuals that, on the basis of their disabilities, they
would not be compatible with the existing make-up of the residence or
community into which they are moving.

In addition, HUD regulations prohibit certain real estate practices,
making it unlawful to:

     (1) Refuse to sell or rent a dwelling after a bona fide
         offer has been made, or refuse to negotiate for
         the sale or rental of a dwelling because of race,
         color, origin, sex, familiar status, or national
         origin or to discriminate in the sale or rental of
         a dwelling because of a handicap ....

       (3) Engage in any conduct relating to the provision
           of housing which otherwise makes unavailable or
           denies dwellings to persons because of ...
           handicap ....

       (5) Represent to any person because of ... handicap
           ... that a dwelling is not available for sale or
           rental when such dwelling is in fact available.

24 C.F.R. §100.50(b). It is likely that enforcement of HG §2-
104(b)(2) would result in the violation of all of these sections of the
regulations.

 Finally, 24 C.F.R. §100.400 prohibits any attempt to "interfere

with any person in the exercise or enjoyment of" the rights afforded
under the Fair Housing Act or implementing regulations. HG §2-
104(b)(2), as it applies to individuals with disabilities, imposes
restrictions inconsistent with the rights conferred by Congress under the
Fair Housing Amendments Act.

 Thus, although HG §2-104(b)(2) might be neutral on its face, if,

upon implementation, it has the effect of limiting the number of group
residences for individuals with disabilities in a particular building,
block, or area, it would contravene the prohibitions of the Fair Housing
Amendments Act. Similar to the application of such zoning provisions
on the basis of race or religion, application on the basis of disability is
prohibited.12

                                III

                           Conclusion

HG §2-104(b)(2) reflects the best of intentions. The State planning

agencies and the General Assembly sought to accomplish a system
whereby special populations, including individuals with disabilities,

  12
  Huntington, 844 F.2d at 935-36; Metropolitan, 558 F.2d at 1289-

90; Black Jack, 508 F.2d at 1184.

would be afforded greater, not more limited, opportunities for
normalized living arrangements. Nonetheless, the implementation of
HG §2-104(b)(2) as to individuals with disabilities would have the
effect of violating the subsequently enacted federal Fair Housing
Amendments Act of 1988. Accordingly, HG §2-104(b)(2) may not be
enforced to the extent that it impacts upon individuals with disabilities.
However, enforcement of HG §2-104(b)(2), as it relates to individuals
other than those with disabilities, does not contravene the federal act.

                                  J. Joseph Curran, Jr.
                                  Attorney General

                                  Larry Goldberg
                                  Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note:

The siting requirements discussed in this opinion were repealed by
Chapter 425 (House Bill 1007) of the Laws of Maryland 1991.