Does Tennessee's statute capping intellectual/developmental disability residential facilities at four people, and requiring spacing between facilities, violate equal protection or fair housing law?

Plain-English summary

Tenn. Code Ann. § 33-2-418 imposes two licensing limits on residential facilities for persons with intellectual or developmental disabilities: no license for a facility that houses more than four such persons, and no license for more than two such facilities within 500 yards of each other in any direction (the four-person cap does not apply to facilities licensed as of June 23, 2000).

The AG was asked three questions. First, does the statute facially violate the state or federal constitutions? The AG concluded probably not. The U.S. Supreme Court in City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), declined to recognize intellectual disability as a suspect or quasi-suspect class, so rational-basis review applies. The state can articulate a deinstitutionalization rationale (encouraging small, family-like settings integrated into the community), which the Sixth Circuit recognized as a "legitimate goal" in Larkin v. Mich. Dep't of Social Servs., 89 F.3d 285 (6th Cir. 1996). That makes facial invalidation unlikely.

Second and third, do the four-person cap and the 500-yard spacing rule violate the constitution as applied? The AG concluded that both restrictions are "defensible" but vulnerable to challenge under the federal Fair Housing Amendments Act ("FHAA"), 42 U.S.C. §§ 3601 to 3619, or to an as-applied equal-protection challenge. Larkin struck down a Michigan 1,500-foot spacing rule under the FHAA because the state could not show how the spacing requirement was warranted by the special needs of disabled residents. Smith & Lee Associates v. City of Taylor, 102 F.3d 781 (6th Cir. 1996), required the city to make a reasonable accommodation by permitting nine elderly disabled residents instead of six, because the six-person cap rendered the facility economically unviable. Tennessee's restrictions differ from Michigan's (and Tennessee's spacing rule is less restrictive than Michigan's was), but the same legal theories apply, and specific applications could fail.

Currency note

This opinion was issued in 2014. 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: Why rational-basis review and not strict or intermediate scrutiny?
A: The U.S. Supreme Court in City of Cleburne expressly declined to treat intellectual disability as a suspect or quasi-suspect class. That places intellectual-disability classifications in rational-basis territory. The state's burden is only to identify a conceivable legitimate purpose.

Q: What does Cleburne say about rational-basis review of disability-based classifications?
A: In Cleburne, the Court applied rational-basis review but still struck down a special-use-permit requirement for a group home in an R-3 zone, because the city could not identify any rational reason for treating that home differently from apartments, boarding houses, fraternities, dormitories, hospitals, nursing homes, or private clubs that were permitted as of right. Rational-basis review is deferential but not toothless.

Q: How does the Fair Housing Amendments Act add to the analysis?
A: The FHAA prohibits intentional discrimination against disabled persons in housing and also requires reasonable accommodations to give disabled persons equal opportunity to use and enjoy a dwelling. 42 U.S.C. § 3604(f)(1)(B) and (3)(B). A facially neutral or even rationally based licensing rule can still violate the FHAA if it fails the reasonable-accommodation requirement or if it operates as intentional discrimination as applied.

Q: What did the Sixth Circuit say about Michigan's spacing rule in Larkin?
A: Michigan barred licensing an Adult Foster Care facility within 1,500 feet of another state-licensed residential facility. The Sixth Circuit held the rule facially discriminatory because it applied only to facilities housing the disabled. Michigan's claimed deinstitutionalization purpose was a "legitimate goal," but the state failed to show how the 1,500-foot rule actually furthered that goal, so the FHAA preempted the state spacing rule.

Q: And what did the Sixth Circuit say about Michigan's six-resident cap in Smith & Lee?
A: It treated the six-resident cap as reasonable in principle but required the city to make a reasonable accommodation in that case (permitting up to nine elderly disabled residents) because expert proof established that the facility was economically unviable with fewer than nine residents. The case stands for the proposition that an across-the-board cap on disabled residents can sometimes require case-by-case adjustments to comply with the FHAA's reasonable-accommodation requirement.

Q: How does Tennessee's statute compare?
A: Tennessee's four-person cap is lower than Michigan's six-person cap, which means the FHAA reasonable-accommodation argument may have more force in Tennessee for facilities that need a higher resident count to be financially viable. Tennessee's 500-yard spacing rule (between facilities, when there are already two within range) is less restrictive than Michigan's 1,500-foot rule, which the AG suggested makes the Tennessee rule "more defensible." But the rule's vulnerability depends on whether the state can document how it actually advances deinstitutionalization or community integration.

Background and statutory framework

Tennessee's licensing scheme for residential facilities serving persons with intellectual or developmental disabilities sits in Title 33, Chapter 2. The four-person cap and the 500-yard spacing rule in § 33-2-418 reflect a policy decision to favor small, family-like community settings over larger congregate residences. The AG grounded that policy in the deinstitutionalization rationale the Sixth Circuit recognized in Larkin.

The federal-law constraint comes from the FHAA, which extends fair-housing protections to disabled persons. Two FHAA theories are relevant: intentional discrimination and failure to make a reasonable accommodation. A facially neutral cap or spacing rule can fail under either theory if the rule does not have a basis in the unique needs of the disabled residents or if accommodation in specific applications is needed to give the residents equal use and enjoyment.

The AG's bottom line preserves the statute against a facial attack but flags the as-applied risks. The Sixth Circuit's decisions in Larkin and Smith & Lee control here because Tennessee is in the Sixth Circuit. Anyone enforcing the statute against a specific facility should consider whether the state can document the cap's tie to legitimate disability-specific concerns and whether accommodations are practical for facilities that need a higher head count to be viable.

Citations and references

Constitutional and statutory provisions:
- U.S. Const. amend. XIV (Equal Protection)
- Tenn. Const. art. XI, § 8 (Equal Protection)
- 42 U.S.C. §§ 3601 to 3619 (Fair Housing Amendments Act)
- 42 U.S.C. § 3604(f)(1)(B), (3)(B) (FHAA disability protections)
- Tenn. Code Ann. § 33-2-418 (residential facility licensing limits)

Cases:
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (U.S. Supreme Court; rational-basis review for intellectual disability)
- Larkin v. Mich. Dep't of Social Servs., 89 F.3d 285 (6th Cir. 1996) (federal court of appeals; FHAA preemption of state 1,500-foot spacing rule)
- Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996) (federal court of appeals; FHAA reasonable accommodation)
- Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003) (Tennessee Supreme Court; presumption of constitutionality)
- Waters v. Farr, 291 S.W.3d 873 (Tenn. 2009) (Tennessee Supreme Court; facial challenge standard)
- Brown v. Campbell Cnty Bd. of Educ., 915 S.W.2d 407 (Tenn. 1995) (Tennessee Supreme Court)
- Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993) (Tennessee Supreme Court)
- F. S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920) (U.S. Supreme Court)
- Caudill v. Foley, 21 S.W.3d 203 (Tenn. Ct. App. 1999) (Tennessee Court of Appeals)

Subject

Opinion No. 14-85, Validity of Restrictions on Licensure of Facilities Housing Persons with Disabilities, September 18, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-085.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 18, 2014
Opinion No. 14-85
Validity of Restrictions on Licensure of Facilities Housing Persons with Disabilities

QUESTIONS

1. Does Tenn. Code Ann. § 33-2-418, which restricts the licensure of certain residential facilities that house persons with intellectual or developmental disabilities, facially violate any provision of the state or federal constitutions?

2. Does Tenn. Code Ann. § 33-2-418 violate any provision of the state or federal constitutions when used to prohibit licensure for any facility that houses more than four (4) individuals with intellectual or developmental disabilities?

3. Does Tenn. Code Ann. § 33-2-418 violate any provision of the state or federal constitutions when used to prohibit licensure of more than two facilities housing persons with intellectual or developmental disabilities within 500 yards from other such facilities?

OPINIONS

1. It is unlikely that Tenn. Code Ann. § 33-2-418 would be found to be facially unconstitutional.

2 and 3. Depending upon the specific circumstances in which it may be applied, Tenn. Code Ann. § 33-2-418 is defensible but could be susceptible to a challenge under the federal Fair Housing Amendments Act, 42 U.S.C. §§ 3601 to 3619, or to an as-applied constitutional challenge.

ANALYSIS

1. The State of Tennessee licenses residential facilities that provide services to persons with intellectual or developmental disabilities pursuant to Title 33, Chapter 2, of the Tennessee Code. Tenn. Code Ann. § 33-2-418 imposes specific limitations on the licensure of residential facilities for intellectually and developmentally disabled persons. Under this statute, and subject to certain exceptions, no license may be issued to a residential facility that houses more than four disabled persons, nor may a license be issued for more than two residential facilities within 500 yards in any direction from other such facilities. Id. § 33-2-418(a).

Acts of the General Assembly are presumed constitutional, and this presumption applies with greater force when a statute's facial validity is challenged. Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003). A statute is facially constitutional unless no set of circumstances exists under which the statute as written would be valid. Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009). Tenn. Code Ann. § 33-2-418 places specific restrictions on licensure for residential homes providing services to disabled persons that do not apply to residential homes for non-disabled persons. The primary challenge to a law that imposes restrictions on one group of citizens that differ from restrictions on other groups would be one alleging a denial of equal protection, and both the Fourteenth Amendment to the United States Constitution and Article XI, § 8, of the Tennessee Constitution guarantee to citizens the equal protection of the laws. See Brown v. Campbell Cnty Bd. of Educ., 915 S.W.2d 407, 412 (Tenn. 1995). These provisions "confer essentially the same protection upon the individuals subject to those provisions" by guaranteeing that "all persons similarly circumstanced shall be treated alike." Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152-53 (Tenn. 1993) (quoting F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).

Because of the similarities between the federal and state equal-protection provisions, Tennessee courts utilize the same framework developed by the United States Supreme Court for analyzing equal-protection claims. Under this framework, unless a legislative classification interferes with a fundamental right or adversely affects a suspect class, the classification is subject to rational-basis review. Caudill v. Foley, 21 S.W.3d 203, 211 (Tenn. Ct. App. 1999). "Under rational basis scrutiny, a legislative classification will be upheld if a reasonable basis can be found for the classification or if any set of facts may reasonably be conceived to justify it." Id. The United States Supreme Court has declined to recognize the intellectually or developmentally disabled as a suspect class or a quasi-suspect class, see City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446-47 (1985), so rational-basis review applies to such a classification, id.

In Cleburne, the Supreme Court struck a local zoning ordinance, as applied to the facts in the case, as a violation of the Equal Protection Clause. 473 U.S. at 450. The ordinance required all group homes for intellectually disabled persons to obtain a special-use permit to operate in an R-3 zone. The Court found that the city lacked a rational purpose for requiring a special-use permit for these group homes when it did not require such permits for apartment houses, boarding and lodging houses, fraternity or sorority houses, dormitories, hospitals, nursing homes for convalescents or the aged, private clubs, or other uses. Id. at 448. While the Court acknowledged that the intellectually disabled as a group are indeed different from others not sharing their misfortune, it found this difference to be largely irrelevant for zoning purposes, unless the particular group home and its occupants would threaten legitimate interests of the city in a way that the other permitted uses would not. But the Court determined that "the record does not reveal any rational basis for believing that the [proposed] home would pose any special threat to the city's legitimate interests." Id. at 448.

Tenn. Code Ann. § 33-2-418 does not require local approval of special-use permits for residential facilities housing persons with intellectual or developmental disabilities; it instead restricts the licensure of such facilities on the basis of the number of persons served and on the basis of the facility's location relative to the location of other such facilities. One can conceive of a rational basis for such occupancy and spacing restrictions; the State has an interest in deinstitutionalizing those with intellectual or developmental disabilities and integrating them into the community by licensing residential facilities that approximate single-family living situations. See, e.g., Larkin v. Mich. Dep't of Social Servs., 89 F.3d 285, 291 (6th Cir. 1996) (recognizing that "deinstitutionalization is a legitimate goal for the state to pursue"). It is therefore unlikely that Tenn. Code Ann. § 33-2-418 would fall to a facial equal-protection challenge.

2 and 3. Tenn. Code Ann. § 33-2-418 could, however, be susceptible to challenge under the federal Fair Housing Amendments Act ("FHAA"), 42 U.S.C. §§ 3601 to 3619, or to an as-applied equal-protection challenge, depending upon the specific circumstances in which the state statute may be applied. The FHAA prohibits both intentional discrimination against and the failure to make reasonable accommodation for the handicapped. 42 U.S.C. § 3604(f)(1)(B), (3)(B).

In Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781 (6th Cir. 1996), the United States Court of Appeals for the Sixth Circuit considered a challenge under the FHAA to the application of a Michigan statute that permitted operation of Adult Foster Care ("AFC") residential facilities ("AFC") for six or fewer residents in all residential zones statewide. The statute further provided that an AFC home may house more than six residents only with the approval of the local municipality. The plaintiff, a for-profit AFC, sought and was denied approval by the city to house 12 disabled adults in a residential zoning area; the plaintiff challenged the refusal on the grounds that the city had intentionally discriminated and had failed to make a reasonable accommodation. Id. at 786.

The Sixth Circuit determined that the city's refusal to approve an override of the six-resident limitation in this instance amounted to a failure to make a reasonable accommodation. Id. at 795. While the court considered it reasonable to place a limitation on the number of residents, it found that enforcing the six-person limit in this case would render the facility unviable and reduce the opportunity for the elderly disabled to reside in a residential neighborhood. Id. at 796. Relying on the expert proof that it was not economically feasible for AFC homes to operate with fewer than nine residents, the court held that the city must accommodate the disabled by permitting AFC homes to operate with nine or fewer elderly residents. Id. at 797.

In Larkin v. Michigan Dep't of Soc. Servs., 89 F.3d 285 (6th Cir. 1996), the Sixth Circuit considered a challenge to another part of the same Michigan statute, which prohibited licensure of an AFC residential facility if another state licensed residential facility exists within the 1,500-foot radius of the proposed location, unless permitted by local zoning ordinance, or if the issuance of the license would contribute to an excessive concentration of state-licensed residential facilities within the city or village. Id. at 287. The plaintiff sought to operate an AFC facility but was denied a license because the city refused to waive the spacing requirement.

The Sixth Court found the spacing restriction to be facially discriminatory because it applied only to AFC facilities that house the disabled and not to other living arrangements. Id. at 290. The restriction could thus survive the FHAA challenge only if the state could demonstrate that the restriction was "warranted by the unique and specific needs and abilities of those handicapped persons" to whom the regulations apply. Id. Michigan argued that the 1,500-foot spacing requirement was intended to integrate the disabled into the community, prevent clustering, and promote deinstitutionalization of the disabled, id., but the court determined that the state had not met its burden, it had not shown how the special needs of the disabled warranted intervention to ensure that they were integrated, and it had not explained how the 1500-foot spacing restriction fostered deinstitutionalization. Id. at 291-92. Consequently, the court held that the spacing restriction violated the FHAA and was thus pre-empted by it. Id. at 292. Because of this holding, the court did not reach the plaintiffs' equal-protection claims.

The court stressed in Larkin that it "in no way mean[t] to intimate that the FHA, as amended by the FHAA, prohibits reasonable regulation and licensing procedures for AFC facilities." Id. The restrictions at issue in Smith & Lee and Larkin differ from those in Tenn. Code Ann. § 33-2-418; indeed, Tennessee's distance requirements are less restrictive than those in Larkin and are likely more defensible. But those case do suggest that certain applications of the Tennessee restrictions could be susceptible to challenge under the FHAA.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

MARY BYRD FERRARA
Assistant Attorney General

Requested by:
The Honorable Reginald Tate
State Senator
320 War Memorial Building
Nashville, Tennessee 37243