How much authority do New York local governments have to use zoning to control where group homes, soup kitchens, and substance abuse treatment facilities can locate?

Plain-English summary

The State Advocate for Persons With Disabilities asked the Attorney General for a road map: when can a New York town, village, county, or city use its zoning power to control where group homes, soup kitchens, substance abuse treatment centers, and similar human services facilities locate, and when does state or federal law take that power away?

The 1997 formal opinion lays out a layered framework. New York gives local governments broad zoning power under the home-rule provisions of the State Constitution, Municipal Home Rule Law § 10, and the parallel grants in County Law § 220, General City Law § 20, Town Law § 261, and Village Law § 7-700. But the Legislature has withdrawn that power in defined areas. Mental Hygiene Law § 41.34 preempts local zoning over "community residential facilities" for the mentally disabled. Social Services Law § 390(12)(a) and (b) preempt local zoning over family and group family day care.

For substance abuse treatment facilities, by contrast, the Court of Appeals held in Incorporated Village of Nyack v Daytop Village, Inc., 78 NY2d 500 (1991), that state regulation of those facilities does not preempt local zoning, so the two regulatory levels coexist. A locality can apply generally applicable zoning so long as it has not tailored the rules to block treatment facilities.

Even when state preemption is not in play, three other constraints apply. First, state constitutional limits on local zoning: a zoning ordinance must be a valid exercise of the police power, with restrictions that bear a substantial relation to the health, welfare, and safety of the community (Kurzius). Ordinances enacted for exclusionary purposes or with unjustifiably exclusionary effect are invalid. Second, due process and equal protection limits in both the State and Federal Constitutions: McMinn v Town of Oyster Bay invalidated an Oyster Bay ordinance restricting "family" definitions; City of Cleburne v Cleburne Living Center invalidated a Texas ordinance excluding group homes for the mentally retarded as resting on irrational prejudice. Third, federal civil rights statutes: the Fair Housing Amendments Act of 1988 protects disabled persons and families with children, the Americans With Disabilities Act applies to zoning as a public-entity "activity," and the Rehabilitation Act applies to municipalities receiving federal funds.

Currency note

This opinion was issued in 1997. 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.

Common questions

Q: What counts as a "community residential facility" preempted by Mental Hygiene Law § 41.34? A: Section 41.34 covers residential facilities for the mentally disabled that are licensed by the responsible state agency. The state commissioner approves proposed sites; the municipality can approve the site, suggest other suitable sites, or object on the narrow ground that the location would create a concentration of specified residential care facilities substantially altering the area's nature and character. Other objections are not available, and a hearing must resolve disputes.

Q: How is substance abuse treatment different? A: In Daytop, the Court of Appeals held that the State's regulation of substance abuse treatment under the Mental Hygiene Law did not preempt local zoning. The state's interest in controlling substance abuse and the village's interest in regulating its present shape and future growth could coexist. The state had not "expressly withdrawn" zoning authority as it had for mental disability residential facilities, and the regulatory scheme contemplated joint state-local effort. A locality cannot tailor its zoning to block treatment facilities, but it can apply genuinely neutral zoning rules.

Q: When does a zoning ordinance violate state constitutional limits? A: When it is arbitrary, lacks a substantial relation to community health, welfare, and safety, has an exclusionary purpose, or has an unjustifiably exclusionary effect that ignores regional needs (Kurzius v Upper Brookville). The McMinn case is a useful comparison: Oyster Bay's restriction on unrelated persons in a "family" had no reasonable relation to its stated zoning purposes and so violated the state due process clause.

Q: What did City of Cleburne add?
A: Cleburne held that a Texas ordinance, as applied to a group home for the mentally retarded, failed the federal equal protection rational-basis test. The city's concerns about "negative attitude" of neighbors and unsubstantiated fears were not legitimate zoning grounds. Permitting boarding houses, fraternity houses, and nursing homes in the same zone, but excluding a group home for the mentally retarded, rested on "irrational prejudice."

Q: How does the Fair Housing Amendments Act apply to local zoning? A: The FHAA extends Fair Housing Act protections to disabled persons and families with children. Local zoning that targets these protected classes, even indirectly (Bangerter v Orem City; Larkin v State of Michigan), can violate the FHAA. Courts have analyzed disparate-impact and reasonable-accommodation claims under the statute against municipalities. Larkin invalidated a Michigan statute restricting adult foster care locations and requiring neighbor notification; Bangerter held a plaintiff stated a prima facie FHAA claim against conditions placed on a group home zoning approval.

Q: What about the ADA and the Rehabilitation Act? A: Innovative Health Systems, Inc. v City of White Plains (SDNY 1996) held zoning is an "activity" of a public entity to which the ADA applies, and that plaintiffs could state a Rehabilitation Act claim by alleging federal aid and discriminatory denial of a substance abuse treatment facility relocation. Other federal disability and civil rights statutes may apply depending on the facts.

Q: What's the practical workflow for a planning board reviewing a human services agency application? A: Step 1: identify the type of facility (mentally disabled residential, family day care, substance abuse treatment, soup kitchen, counseling center, group home, etc.). Step 2: check for state preemption (Mental Hygiene Law § 41.34, Social Services Law § 390(12)). Step 3: check whether state regulation, even if not preemptive, leaves room for local zoning (Daytop). Step 4: confirm the zoning rule has a substantial relation to legitimate community purposes and is not arbitrary or exclusionary. Step 5: screen for federal Fair Housing Act, ADA, and Rehabilitation Act issues.

Background and statutory framework

New York's zoning authority is layered. Article IX of the State Constitution and Municipal Home Rule Law § 10(1)(ii)(a)(11), (12), and (14) give municipalities broad police-power authority to enact local laws for the physical environment, the well-being of persons and property, and zoning specifically. Parallel statutory grants appear in County Law § 220, General City Law § 20, Town Law § 261, Village Law § 7-700, and Statute of Local Governments § 10(6). These powers are constrained by the rule that local laws cannot conflict with the State Constitution or general state law, and they yield to state preemption (express or implied from a comprehensive state regulatory scheme).

Mental Hygiene Law § 41.34 is the leading example of express preemption. It establishes a state-controlled siting process for community residential facilities for the mentally disabled and limits the municipality's role to a narrow concentration-based objection, with hearing rights. Social Services Law § 390(12)(a) and (b) preempt local zoning of family and group family day care under state permits and forbid different standards on sanitation, health, fire safety, and building construction.

Implied preemption is harder to establish. Daytop is the leading case: the Court of Appeals refused to find preemption even though the state had enacted a "broad and detailed program" for substance abuse treatment, because the statutes contemplated a joint state-local effort and the Legislature had not expressly withdrawn local zoning power. The takeaway is that the existence of a state regulatory scheme is not enough; local zoning yields only when the state has clearly displaced it.

The federal layer brings constitutional and statutory constraints. The state and federal due process and equal protection clauses limit arbitrary or exclusionary zoning. Cleburne shows the federal equal protection rational-basis test can invalidate ordinances resting on irrational prejudice against protected groups. The FHA and FHAA (42 U.S.C. §§ 3601 to 3606), the ADA (42 U.S.C. §§ 12101 et seq.), and the Rehabilitation Act (29 U.S.C. § 794) each create independent claims that constrain how a municipality may use its zoning power against group homes and similar facilities.

Citations and references

Statutes:

• N.Y. Mental Hygiene Law § 41.34 (community residential facilities for the mentally disabled)
• N.Y. Social Services Law § 390 (family and group family day care)
• N.Y. Municipal Home Rule Law § 10 (home-rule powers)
• N.Y. Town Law § 261 (town zoning power)
• N.Y. Village Law § 7-700 (village zoning power)
• Fair Housing Act, 42 U.S.C. §§ 3601-3606
• Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq.
• Rehabilitation Act, 29 U.S.C. § 794

Key cases:

• Incorporated Village of Nyack v Daytop Village, Inc., 78 N.Y.2d 500 (1991) (substance abuse treatment facilities not preempted from local zoning)
• Robert E. Kurzius, Inc. v Incorporated Village of Upper Brookville, 51 N.Y.2d 338 (1980) (zoning must bear substantial relation to community welfare)
• McMinn v Town of Oyster Bay, 66 N.Y.2d 544 (1985) (zoning definition of "family" violated due process)
• City of Cleburne v Cleburne Living Center, Inc., 473 U.S. 432 (1985) (equal protection invalidates zoning resting on irrational prejudice)
• Group House of Port Washington, Inc. v Board of Zoning and Appeals, 45 N.Y.2d 266 (1978) (functional-equivalent-of-family group home protected)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/97-F6_pw.pdf

Original opinion text

NY CONST ART IX, § 2(c); COUNTY LAW § 220; GENERAL CITY LAW § 20; MENTAL HYGIENE LAW § 41.34; MUNICIPAL HOME RULE LAW § 10(1)(i), (1)(ii)(a)(11), (1)(ii)(a)(12), (1)(ii)(a)(14); SOCIAL SERVICES LAW § 390(12)(a) and (b); STATUTE OF LOCAL GOVERNMENTS § 10(6); TOWN LAW § 261; VILLAGE LAW § 7-700; 29 USC § 749; 42 USC
§§ 3601-3606; 42 USC §§ 12101, et seq., PUBLIC LAW NO. 100-130 (FAIR HOUSING AMENDMENTS ACT OF 1988); PUBLIC LAW NO. 90-284 (FAIR HOUSING ACT); 82 Stat. 81; 102 Stat. 1619 (1988). The Legislature has withdrawn localities' authority to use zoning to regulate some defined types of human services. State and local regulation of other types may coexist. Federal law, including the Fair Housing Amendments Act of 1988, the Americans With Disabilities Act and the Rehabilitation Act must be considered in evaluating local zoning laws. August 25, 1997 Hon. Richard Warrender Formal Opinion State Advocate No. 97-F6 Office of Advocate for Persons With Disabilities One Empire State Plaza, Suite 1001 Albany, NY 12223-1150 Dear Mr. Warrender: Your counsel asked for an opinion regarding the authority of local governments to regulate the placement and operation of human services agencies such as soup kitchens, substance abuse treatment facilities, counseling centers, group homes and others. Specifically, you inquire about the extent of local government authority to use zoning and land use review powers to control the location of human services organizations and to regulate the operations and services offered by such organizations. The validity of any local zoning measure as it is applied to human service agencies will depend on the particular facts and circumstances of each individual case. The following discussion sets forth general principles and identifies factors to be considered in evaluating local measures. Article IX of the New York State Constitution grants municipalities broad home rule powers. In accord with this provision, Municipal Home Rule Law § 10(1)(ii)(a)(11) gives counties, cities, towns and villages the power to enact local laws for the protection and enhancement of their "physical and

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visual environment". Subsection (1)(ii)(a)(12) grants municipalities the power to enact local laws regarding the "government, protection, order, conduct, safety, health and wellbeing of persons or property therein". In addition to these extremely broad grants of police power to local governments, the Legislature expressly has authorized them to enact zoning laws. County Law § 220; General City Law § 20; Town Law § 261; Village Law § 7-700; Statute of Local Governments § 10(6); Municipal Home Rule Law § 10(1)(ii)(a)(14). The broad authority of municipalities to enact zoning measures is not unlimited. A local government may not adopt laws that are inconsistent with the Constitution or with any general law of the State. NY Const, Art IX, § 2(c); Municipal Home Rule Law § 10(1)(i), (ii). A local government also may not adopt local laws when State law has preempted local regulation of a given subject. The State's intent to preempt local legislation may be expressed in a statute or other declaration of State policy. Where there is no expression of such intent, it may be inferred from enactment of a comprehensive and detailed regulatory scheme. New York State Club Assoc. v City of New York, 69 NY2d 211 (1987), affd, 487 US 1 (1988); Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99 (1983). The Legislature has withdrawn or limited the zoning powers of local governments in some areas. For example, the Legislature has preempted local regulation of the location of facilities defined as "community residential facilities" for the mentally disabled by enacting Mental Hygiene Law § 41.34. That provision empowers the Commissioner of the State agency or department responsible for licensing such facilities to approve proposed sites. It also permits a municipality to approve the proposed site, to suggest other suitable sites, or to object to the establishment of a community residential facility at the proposed site only on the ground that it would create such a concentration of specified residential care facilities that the nature and character of the area would be substantially altered. The Commissioner must hold a hearing to resolve any dispute. See, Matter of Jennings v NYS Office of Mental Health, NY2d (6/12/97). Thus, local zoning regulations may not be used to exclude such facilities from a particular municipality. Similarly, Social Services Law § 390(12)(a) and (b) provide that municipalities may not prohibit use of specified dwellings for group family day care if the State Department of Social Services has issued a permit for such use. Under those provisions, municipalities also may not impose standards for sanitation, health, fire safety or building construction on a

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dwelling used to provide family day care or group family day care that are different than those that would apply if child care were not provided on the premises. See also, People v Town of Clarkstown, 160 AD2d 17 (2d Dept 1990)(town's zoning ordinance provisions regulating family day care homes preempted by Social Services Law). Not all State regulation of a particular subject preempts local regulation in the same area. In some instances, State and local regulations may coexist. In Incorporated Village of Nyack v Daytop Village, Inc., 78 NY2d 500 (1991), for example, the Court held that State oversight of the location and operation of substance abuse treatment facilities pursuant to the Mental Hygiene Law does not preempt the application of local zoning laws to such facilities. Daytop involved a proposal to site a residential substance abuse treatment facility in an area of the village zoned for commercial use. The village's code expressly prohibited any residential uses in the zone. The responsible State agency had conducted a detailed review of the proposal, including physical plant requirements, and had approved operation of the facility at the site in question. The village objected. The Appellate Division held that the State had preempted the field of substance abuse treatment regulation and that the agency need not comply with local zoning laws. The Court of Appeals reversed, concluding that the State law and local regulation could be harmonized. 78 NY2d at 504. The Court acknowledged that the State had enacted a broad and detailed program to combat substance abuse and to regulate its treatment. It found, however, that this did not mean that all local laws with an impact, "however tangential," on the siting of treatment facilities were preempted. 78 NY2d at 506. The Court recognized that the State's interest in controlling substance abuse and the village's interest in regulating its present shape and future growth were both significant. It noted that the State had not expressly withdrawn the zoning authority of local governments in this area, as it had with respect to the siting of community residential facilities for the mentally disabled. 78 NY2d at 506-507. The Court next reasoned that preemption could not be implied. It examined the governing statutes and concluded that they contemplated a joint effort by State and local officials to address the problem of substance abuse. 78 NY2d at 508. Accordingly, the Court concluded that two separate levels of regulation could coexist. It noted that no showing had been made that the village had tailored its zoning law to block the placement of treatment facilities within its borders and that the

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village was well within its authority in creating commercial zones. 78 NY2d at 508. These precedents necessitate a careful analysis of any State regulation of a particular human services agency's function to determine whether local zoning measures have been preempted or whether they may be harmonized with State enactments. In addition to examining the preemptive effect of State law on local zoning, courts have recognized limits on a municipality's use of its zoning powers. There is no clear-cut formula for separating legitimate and improper uses of the zoning power; surrounding circumstances and conditions must be examined. Maldini v Ambro, 36 NY2d 481, cert denied, 423 US 993 (1975). While a municipality may use its zoning power to maintain the nature and character of residential neighborhoods, it may not apply completely arbitrary restrictions. In upholding a local ordinance that established a five-acre minimum lot requirement, for example, the Court of Appeals stated: In general, the enactment of a zoning ordinance is a valid exercise of the police power if its restrictions are not arbitrary and they bear a substantial relation to the health, welfare and safety of the community. Robert E. Kurzius, Inc. v Incorporated Village of Upper Brookville, 51 NY2d 338, 343 (1980), cert denied, 450 US 1042 (1981). The Court also stated that a zoning ordinance assertedly enacted for a permitted purpose will be invalidated if it can be demonstrated that it was enacted for an improper or exclusionary purpose, or if it ignores regional needs and has an unjustifiably exclusionary effect. 51 NY2d at 345. To be upheld, an ordinance must have been enacted in furtherance of a legitimate governmental purpose and there must be a reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end. McMinn v Town of Oyster Bay, 66 NY2d 544 (1985). In City of Cleburne, Texas v Cleburne Living Center, Inc., 473 US 432 (1985), for example, the Court determined that a local ordinance, as applied to a group home for the mentally retarded, violated the equal protection clause. The zoning ordinance at issue provided that within an "R-3 Apartment House District" a number of uses were permitted. These included boarding houses, fraternity houses, private clubs, nursing homes and convalescent homes, but excluded hospitals or homes for the insane,

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feeble-minded, alcoholics or drug addicts. A special use permit was required for such uses. When the group home, which was intended to house about 13 mentally retarded individuals, applied for a special use permit the city held a public hearing and then denied the permit. The Court addressed the ordinance as applied in the particular case before it and did not examine its facial validity. The Court found an equal protection violation, stating:
[T]he City Council's insistence on the permit rested on several factors. First, the Council was concerned with the negative attitude of the majority of property owners located within 200 feet of the Featherston facility, as well as with the fears of elderly residents of the neighborhood. But mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like. It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause . . . and the city may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." . . . (Citations omitted.) 473 US at 448. The Court noted that the city also had taken a number of other factors into account. These included the location of the home across the street from a junior high school and within a flood plain, doubts about the legal responsibility for actions the mentally retarded residents might take, the size of the home and the number of people who would occupy it, traffic congestion, the serenity of the neighborhood and others. The Court concluded that there was no rational basis for treating the mentally retarded differently from other groups who were allowed to reside in the R-3 zone. The Court stated:

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The short of it is that requiring the
permit in this case appears to us to rest on an irrational prejudice against the mentally retarded, including those who would occupy the . . . facility and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law. 473 US at 450. In McMinn, supra, the Court held that a local zoning ordinance violated the due process clause of the State Constitution. It restricted certain areas to single family homes and defined "family" as any number of persons related by blood, marriage or adoption or two unrelated persons age 62 or older. The Court of Appeals found there was no reasonable relation between the zoning purposes, which included reduction of noise, traffic and parking problems, and the limitation on unrelated persons who could constitute a "family". See also, Group House of Port Washington, Inc. v Board of Zoning and Appeals, 45 NY2d 266 (1978)(zoning ordinance allowing "one-family" residence may not be used to exclude small group home used for foster care of children; excluding functional equivalent of family is arbitrary); City of White Plains v Ferraioli, 34 NY2d 300 (1974)(small group home consisting of couple, their children and foster children could not be excluded from one-family residential district). The impact of Federal law upon local zoning ordinances also must be considered. For example, the Fair Housing Amendments Act of 1988 (FHAA), Public Law No. 100-130, 102 Stat. 1619 (1988) extends to individuals with handicaps and families with children the same protections that the Fair Housing Act, Public Law No. 90-284, 82 Stat. 81 (codified as amended at 42 USC
§§ 3601-3606 [Supp 1994]), has provided for the past twenty years in prohibiting housing discrimination based on race, color, religion, national origin and sex. Numerous cases challenging State and local efforts to regulate the siting of human services agencies have been brought under this statute. The law in this area is still evolving. See, e.g., Bangerter v Orem City Corp., 46 F3d 1491, 1498 (10th Cir 1995)(plaintiff established a prima facie case of violation of FHAA by conditions placed by municipality on zoning approval for group home for mentally retarded and governing state statute, both of which expressly applied only to group homes for handicapped); Larkin v State of Michigan, 89 F3d 285 (6th Cir 1996)(Michigan statute restricting location of adult foster care homes and requiring neighbor notification violated and was preempted by FHAA); Huntington Branch, NAACP v Town of Huntington, 844 F2d 926 (2d Cir), affd, 488 US 15 (1988)(town violated FHA when it refused to amend an

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ordinance that restricted multifamily housing projects to predominantly minority area so that construction could take place in another area). Other Federal laws also may be applicable to local zoning measures. See, e.g., Innovative Health Systems, Inc. v City of White Plains, 931 F Supp 222 (SDNY 1996)(appeal pending)(holding zoning is an "activity" of a public entity to which the Americans With Disabilities Act [42 USC §§ 12101, et seq.] applies, and that plaintiffs stated claim under the Rehabilitation Act [29 US
§ 794] by alleging that city received Federal aid and that city's instrumentalities discriminated against them in refusing to permit a substance abuse treatment facility to relocate). In sum, a number of factors must be considered in evaluating a municipality's authority to use its zoning powers to control the location of human services agencies. The Legislature has withdrawn localities' authority to use zoning to regulate some defined types of human services. In other instances, State and local regulation may coexist. Courts have held local zoning laws valid if their restrictions are not arbitrary and bear a substantial relation to the health, welfare and safety of the community. Federal law, including the Fair Housing Amendments Act of 1988, the ADA and the Rehabilitation Act also must be considered in evaluating a local zoning law. Very truly yours,

DENNIS C. VACCO
Attorney General