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BartEsq
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Experience:  Juris Doctor
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Hello, we are a faith based nonprofit organization located

Customer Question

Hello, we are a faith based nonprofit organization located in Oak Ridge, Tn. 37830 Recently we applied to our locale zoning board of appeals (BZA) in an effort to locate and start a 23 bed drug & alcohol addiction treatment facility. We were denied on the basis that the board did not like the idea of recovering addicts or alcoholics being located near a school, daycare approx 1/4 mile away, and finally a local bar located approx same distance away as the daycare. Is there a law that prevents this location?
The boards advisors or staff stated in their brief to the board that our plan seemed "ideal" on paper and asked for some additional provisions that we had no objection too. We prepared a 14 page presentation to address the issues as outlined, but the board spent mere moments in review of the presentation, and in comments appeared to be predetermined and bias in their decision to deny. We can not find any legal standing of law or code regarding the stated reasoning for denial. There are provisions to appeal the decision but there is no format we can find to submit the appeal to the chancery court for appeal. No explanation of how one files or conditions or format to follow.

Obviously there are other issues that accompanied this hearing that we feel are pertinent but we would like an initial eval of someone like yourself to help us decide if there are sufficient grounds to go forward. Any help or direction you might offer would be greatly appreciated. Do we have legal standing sufficient enough to proceed as a business under states appeal process

Regards, Ray & Dorothy Sisson
Recovery Living, llc.

We believe we are protected by the following acts:
Fair Housing Act
Religious Land Use and Institutionalized Persons Act of 2000
and others
Submitted: 2 years ago.
Category: Business Law
Expert:  BartEsq replied 2 years ago.

bart0358 :

Hello, I'm researching your answer now.

bart0358 :

Why don't you just find another location where you can start they treatment facility?

Customer :

We want to be in Oak Ridge our home town

Customer :

we sent the following request for information

Customer :

Subject: Request for copy of written decision by Board of Zoning Appeals for 2-14-2012 Recovery Living, llc. facility use hearing.

To whom it concerns,

While we hope not to burn any future bridges with the City of Oak Ridge we believe one must pursue his or her dream and legal rights to its absolute end or achievement. It has been two weeks since our appearance before the board and we have not yet received a written decision of facts used in determining the denial decision of the board for our request for building use at 278 Royce Circle, Oak Ridge, Tn. 37830 as a “group home”.

We request the city provide a statement of causes or legal reasoning for denial of our request. This should include the following information:

1) Legal reasoning; code or actual law that prohibits a group home/halfway house/ treatment facility to be located by or near a school. Is there a zoning ordinance that prevents such a use near a school? We are unable to find such a rule or code.

2) Copies of replies of letters to adjoining property owners, or community members stating they object, or not, to our request.

a) This request is made because there was not one single person at the hearing to oppose our request yet it was denied.

3) Copy of impact study conducted to arrive at decision that facility would or wouldn’t impact the surrounding community or city as a whole, and findings positive or negative.

a) To include your comparison of other such facilities and their impact, or lack of, on the communities they are located in currently.

b) Comparison of other such facilities and their location proximity to similar issues stated in our hearing (schools, daycare, and bars) with any impact they have caused or lack of impact found.

4) A statement of what the board felt was the exact threat recovering addicts within a controlled environment of treatment, present or pose to their surroundings, as this was stated as the primary reasoning or statement made for/in support of the denial of our request.

5) A copy of the city’s stated criteria as required by the state; stating under which conditions this type of facility would be allowable. A copy of the states warning and requirements is listed on the last page of this request.

6) We also request a copy of the board minutes for 2-14-2012 @ 17:30 for our review of exact verbiages recorded of the meeting.

We feel five (5) business days from the date of this request is a reasonable period of time to reply in writing to our request as requested information should already be a matter of record.

In closing, we feel our request was reasonable, and the board’s decision unreasonable. The decision was not based on a well-informed (mere moments were spent in review of presentation documents) board, but rather hastily made decisions of personal preferences vs. the actual impact of such a facility at the requested location based on the facts we presented, and the fats or lack of facts presented to the board by city staff/officials charged with reviewing and stating opposition to or possible adverse impacts or the lack of in regard to our request. “We don’t like the idea of addicts living across from our schools” is not a legal standing, and we feel would not be viewed as “just” legal reasoning to deny our request if brought before the chancery court on appeal. Add the statement of the BZA administrative staff that on paper our proposal seemed “ideal” and one has to wonder the exact reasoning of the denial.

Further, based on the staff’s statements we took great effort to compile a 12 page presentation to address specific issues of the staff, and further explain our daily program activities, how the facility would be operated, by whom and with what certifications, how it would be governed, and a copy of our approval for state licensing. All of which was viewed in mere moments, and we feel not properly reviewed or considered. This is/was partially due to the inability of an applicant to present fact or information to the board for review prior to coming before the board, and the time constraints of a normal hearing.

We look forward to your reply so we may make our final decision whether to appeal with the chancery court the board’s decision to deny our request, or not. Our decision to proceed will be based solely on the stated facts you present in answer to our request for information in regard to our questions 1-5 , and the facts you state were used by the city & board to make the decision to deny our request.

Best Regards,

Ray & Dorothy Sisson

Recovery Living, LLC.

Legal Note: “The decision to allow or deny a use on appeal is given to Boards of Zoning Appeals, specifically the power to hear and decide requests for special exceptions.xxv While the broader powers of a BZA will be discussed later, this specific power deserves explanation. A BZA, acting administratively, will hold a public hearing and determine whether a particular use is consistent with a zones intent and purpose. How this determination is made can be crucial to fulfilling the zoning intent and preventing a successful challenge in court. A decision on a special exception should be made deliberately, with a review of the use against stated criteria or conditions that must be met for approval. Many zoning ordinances are over-broad in this area, providing only that the use be “compatible” with other uses, or similar generic language. A decision made on this basis could well be challenged as having been arbitrary, possibly a reaction to a neighborhood’s opposition to a use rather than a true review of the facts. A better method is for the zoning ordinance to provide, in some level of detail, the conditions under which the particular use would be acceptable. Limitations on building size, parking, buffering, noise, odors, vibrations are all acceptable conditions for approval and give a BZA specific grounds to review the request. They also provide for an honest explanation of a uses effect on its surroundings to better inform residents of what to expect. Determining a use on appeal should not be confused with other BZA functions, such as granting variances. A variance is an exception to a zoning rule in cases where a literal interpretation would result in unnecessary hardship for the applicant, while a use on appeal is a determination to allow a use that is acceptable under certain qualifying conditions. xxvi Using the BZA to add a use that is not listed either by right or on appeal is not a valid exercise of either of these functions, but is instead in effect a rezoning of the property that can only be accomplished by the legislative body.xxvii “

Additionally, Recovery Living is a Faith based Non-profit organization catering to the needs of by federal definition; handicapped individuals. Who by admittance to our facility are effectively institutionalized until released or by refusal of treatment leave treatment.

Residences of retarded or handicapped persons - TCA Title 13, Chapter

24, Section 13-24-101 through 13-24-104.

In addition to state proscriptions cited above, there are several federal statutes and

regulations that pre-empt local zoning controls. Among these are federal regulations that

prohibit local governments from unreasonably restricting licensed amateur radio

communication structures and facilities. A more far reaching preemption is contained in

the Religious Land Use and Institutionalized Persons Act passed in August 2000 that

exempts from any zoning or other land use regulation religious organizations and

structures if the regulation would place any substantial burden on the practice of

religion.xxiii we are faith based and our clients are by definition institutionalized for the term of their treatment.

bart0358 :

I think you can probably find standing, and definitely keep the zoning board on their toes when it comes to following procedure, and it sounds like you're doing exactly just that.

bart0358 :

But at the end of the day, zoning regulation authority is quite broad as long as it does not offend the Constitution.

bart0358 :

I cannot see any constitutional argument based on these facts would help you achieve your goal.

bart0358 :

You may be able to challenge the procedural acts of the zoning board but the end result I fear will still be the same.

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