July 27, 2005
Dear City Recorder:
You have the following question: Is a certain group home designed to house eight mentally handicapped persons in one building, but in eight separate units each with its own entrance, and two families which have a handicapped member, in a separate duplex, authorized to locate in an R-1 zone in the city, without action on the part of the city to rezone the property to R-2. As I understand the facts, the Counseling Center is the sponsor of that housing development, and is a legitimate nonprofit community mental health center that provides assistance to handicapped persons, and has received a federal grant to upgrade the housing situations for the handicapped persons who will occupy that housing development.
The answer is that Tennessee Code Annotated, '13-24-101et seq. permits the location of those residences in any zoning district of the city in which single family residences are allowed, without action on the part of the city to rezone the property to R-2, or to any other higher density residential, or to grant a variance. That statute in a sense "rezones"the property in every municipality in Tennessee to permit the residential use at issue.
Tennessee Code Annotated, '13-24-101 et seq. is a statutory scheme that removes zoning obstacles "which prevent mentally retarded, mentally handicapped or physically handicapped persons from living in normal residential surroundings."[Tennessee Code Annotated, '13-24-101] It exempts certain kinds of handicapped persons from its coverage, but that exemption is not an issue here.
The statutory scheme declares that:
For the purpose of any zoning law in Tennessee, the classification "single family residence"includes a home in which eight (8) or fewer unrelated mentally retarded, mentally handicapped or physically handicapped individuals reside, and may include three (3) additional persons acting as houseparents or guardians, who need not be related to each other or to any of the...persons residing in the home. [ Tennessee Code Annotated, '13-24-102]
By statute, then, the General Assembly has declared that a single family residence includes the kind of home indicated in that statute, regardless of what the zoning ordinance provides. While in one of the residential buildings at issue in your City, the mentally- handicapped persons will occupy separate units in the facility and will have separate entrances, and while the other residential building at issue in your City is a duplex that will house two families who have a handicapped member, and the handicapped persons will not require houseparents or guardians to live with them, no reason occurs to me why that statute would not apply to that kind of residential arrangement. In fact, Tennessee Code Annotated, '13-24-102 says that in addition to the eight residents of the building three additional houseparents "may"reside. The "may"indicates they are not necessarily required to live in the home/s for those homes to qualify under that statute.
The statutory scheme also provides that, "This part take precedence over any provision in any zoning law or ordinance in Tennessee to the contrary."[Tennessee Code Annotated, '13-24- 103] For that reason, Tennessee Code Annotated, '13-24-101 et seq., takes precedence over any provision of your City's zoning ordinance that would keep the residences at issue out of any zoning districts in the city that allow single family residences.
That statutory scheme was upheld in Nichols v. Tullahoma Open Door , 640 S.W.2d 13 (Tenn. Ct. App. 1982), against a challenge that it violated the City of Tullahoma's zoning ordinance restricting R-1 districts to single family dwellings (and certain other uses). The zoning ordinance defined family as "one or more persons occupying a single family dwelling unit, provided that unless all members are related by blood or marriage, no such family shall contain over five (5) persons...."As indicated above, Tennessee Code Annotated, '13-24-101 et seq., provided that for the purposes of any zoning ordinance "single family residence"included eight unrelated persons who came within the protection of that statute.
In upholding that statute, the Court of Appeals declared that:
The purpose of the legislation under attack is stated in T.C.A. '13- 24-101 and that is to "remove any zoning obstacles which prevent mentally retarded, mentally handicapped or physically handicapped persons from living in normal residential surroundings. There is evidence in the record that these statutes address one aspect of a broader state-wide program to deinstitutionalize mentally and physically handicapped persons and to integrate them into society to the greatest degree possible consistent with their abilities.
The legislation under attack opens up residential neighborhoods to family-like groups of handicapped persons and houseparents allowing them to live in areas where zoning laws would otherwise prevent them from living. [At 17]
The unreported case of Pioneer Subdivision Homeowner's Association, Inc. v. Professional Counseling Services, Inc ., 2002 WL 31442318 (Tenn. Ct. App), also held that Tennessee Code Annotated, '13-24-101 et seq., allowed a home for handicapped residents to go into an R-1 district even though the home was not allowed in an R-1 district under the City of Dyersburg's zoning, and even though the location of the home violated a restrictive covenant! Unreported cases do not have the precedential value of reported cases, but there is no doubt that at least with respect to the City of Dyersburg's zoning ordinance, that Pioneer Subdivision Homeowner's Association, Inc. was consistent with Nichols v. Tullahoma Open Door.
Sidney D. Hemsley
Senior Law Consultant