In Close Vote, Zoning Board Allows Peer Support To Continue Operation

Both InDecatur and the DNO report that Decatur’s Zoning Board of Appeals concurred with the city staff ruling last night that the Peer Support and Wellness Center could continue operation on an R-60 piece of property.

Both outlets reported a 3-2 vote, with Board Chair Mark Burnette, Neil Dobbs, and David Goldberg voting to uphold the zoning administrators decision, and Kyle Williams and Neil Norton voting to overturn it.

According to the DNO’s excellent recap, Burnette summed up the issue at hand by asking “Is this a use that would fundamentally alter the character of an R-60 zoning district?”, noting that there were other allowable public uses where folks came and went “all the time.”  Federal law, permits, and missteps along the way by all parties involved were also discussed.

Those who wish to challenge the board’s ruling now have the option of appealing the case to the State Superior Court.

23 thoughts on “In Close Vote, Zoning Board Allows Peer Support To Continue Operation”

  1. I’m glad that the worst of this mess is finally over with, and hopefully the neighbors and Center will be able to come together and work through the rest of the issues.

    I think one thing that both sides have been troubled by throughout this is the lack of coherence in approach and general apparent incompetence of the city. I think this was true again at the meeting last night. Mark Burnette did an excellent job keeping the board focused, and the members did a good job focusing on the issues for the most part. However, I found it troubling that a few members made it clear that they didn’t understand the issues raised by either side.

    One member claimed he did not know what ultra vires meant even after having it explained to him. And when he realized the path his vote to call the center a PCH was leading down, he wanted to change his vote (this would have handily made the case for an administrative appeal for either side–a big problem, and a big screw up). He came across as clueless and, regardless of the position one has on an issue, it’s bad for the city to have someone on the ZBA voting on issues that affect people’s lives who does not understand those issues.

    1. Unfortunately, I don’t think the Center and neighbors will be able to work out their problems. It’s not that the Center is doing something annoying, it’s that the Center creates a risk to the community and it cannot reduce that risk without changing what it is. It provides respite services to severely mentally ill persons in crisis who are at risk of hospitalization. Some people within that category of persons are aggressive and dangerous to others (as evidenced by the twenty 911 calls from the Center in 18 months.) Unfortunately, the Center cannot screen out persons with a known history of aggression to others because it’s meant to be an open resource that people self-refer themselves to. I think that’s a great service, but it’s inappropriate for a residential community where children are often at play or walk to school by themselves.

      Of course not all or even a majority of people using this center are a danger to others, but the 911 calls suggest that some are. And when you’re talking to parents with children, any level of risk may be too much.

      1. It’s posts like these that helped to make the ADA/FHA claims discussed last night. When will you people learn that claiming that the mentally ill are dangerous merely because they are mentally ill is pretty much dictionary discrimination?

        Have you looked at the 911 calls made? I would encourage you to. They’ve been posted on several blogs and not a single one of them was a result of a crime or violent incident.

        1. “It’s posts like these that helped to make the ADA/FHA claims discussed last night. When will you people learn that claiming that the mentally ill are dangerous merely because they are mentally ill is pretty much dictionary discrimination?Have you looked at the 911 calls made?”

          First, when you say “you people,” what group of people exactly are you disparaging? 😉

          But in response to your charge, I wasn’t claiming the mentally ill are dangerous simply because they’re mentally ill. That’s why I referenced the 911 calls. And I have looked at them. They include 5 “disturbances”, 1 “suicide threat”, 1 “suspicious person”, 1 “criminal trespass” and 1 “person down.” I think you’re sugarcoating things if you want to argue that these incidents created no risk to anyone. You’re right, they may not be crimes, but that wasn’t what I meant either. I said they were evidence that some persons within that group are dangerous or aggressive .

          I also referenced language from the PSWC’s own website which notes that the purpose of the Center is to act as an alternative to hospitalization. The hospitalization referred to there could be a state hospital where patients are hospitalized because they’re a danger to themselves or others. It may be, and it may not, but unfortunately, we can’t know, because the Center can’t screen out persons who are a danger to themselves or others because it doesn’t screen out anyone.

          As for the suggestion that statements like mine made out the ADA claim, I think first of all we need to understand that it’s not discrimination to treat persons with disabilities differently than other people. People with disabilities may need different treatment due to their disabilities (all people don’t need a whellchair ramp, for instance), and the law recognizes that. That’s why the Board referenced whether or not it would be a “fundamental alteration” to allow the PSWC in R-60 zoning. What the law requires is that the policies or procedures be modified (people be treated differently) when it’s necessary to prevent discrimination against the disabled. Unfortunately, the Board in my mind confused the necessity to modify policies to ensure equal acess to benefits with the benefit itself, and what it modified was the benefit; therefore fundamentally altering the nature of the program.

          For instance, a state that provides welfare benefits has to ensure equal access to those benefits and has to modify policies, if necessary, to ensure disabled people can access the benefits. But if a disabled person argues that they need larger benefits (e.g. they’re diabetic, therefore food costs more, and they need more food stamps), the state doesn’t have to provide more benefits because that fundamentally alters the nature of the service provided. In this case, I think the Personal Care Home would be akin to the “benefit” provided by the city and while the city would need to modify policies, e.g. have a hearing at someone’s home so they could argue their case, they don’t need to modify the definition of a Personal Care Home itself, which they arguably did here.

          Anyways, this is too much writing. But I just want to note that ensuring equal rights for the disabled doesn’t mean we ignore their condition or their needs or their disability. We could probably agree on that. But I’d also argue that the flip side of that, is that we not ignore the treatment they need to address those needs or the risk to themselves or others if they do not receive the treatment they need.

          1. The fundamental alteration language used by the board is lifted directly from Ginsburg’s majority opinion in Olmstead v LC and EW,. Obviously, someone consulted and attorney well-versed in disability rights law.

            This decision expanded the ADA’s integration mandate to specifically cover the rights of individuals to live outside of a hospital/institutional setting and find a reasonable accommodation in the community. I don’t know if you quite get what fundamental alteration means in this context.

            You say: “What the law requires is that the policies or procedures be modified (people be treated differently) when it’s necessary to prevent discrimination against the disabled. ”

            This isn’t actually how the integration mandate and Olmstead really work. It’s about civil rights and avoiding segregation of individuals with mental and physical disabilities. The discrimination addressed in Olmstead is in context of segregation from the community. It’s nothing to do with special rights or getting different treatment. It’s to do with being given the same rights as you to enjoy living in a community- something a disabled person cannot do without an appropriately integrated setting. Georgia currently does not have a proper Olmstead community integration plan in place, unlike many other states, therefore fundamental alteration as an affirmative defense for an entity (ie the city) to deny a zoning variance is less likely to come into play.

            1. Nellie,

              The Board may have lifted the “fundamental alteration” language from Ginsberg’s opinion in Olmstead, but she in turn lifted that language from the regulations of the ADA, which were being interpreting in Olmstead. The ADA contains a general requirement that reasonable modifications in policies are required when necessary to avoid discrimination, unless it would “fundamentally alter the nature of the service, program, or activity.” That’s what I was referring to and what I assumed the Board and the Concerned Decaturite were referring to.

              Olmstead was about a specific ADA regulation that requires services to be provided in the most integrated setting. The Court found in Olmstead that the unnecessary institutionalization of persons may be a form of discrimination, but then put limits on what states were expected to do by crafting a defense for states from the reasonable accommodation and fundamental alteration language in the law and regulations. In the Olmstead decision, fundamental alteration referred to state programs and state budgets, and applying the use of that term here to a City of Decatur zoning spat, doesn’t make sense.

              But applying Olmstead to this case doesn’t make sense to me. Olmstead refers to State obligations not city obligations. The State has an obligation to treat persons in the most integrated setting, but the City of Decatur is not treating anyone in this case. If anyone is providing treatment to anyone, it’s the state, which contracts with the PSWC to provide an alternative to hospitalization (or institutionalization). The State thus has an obligation to provide these services in the community and there are other areas zoned for services like this that the State could provide those services in. I don’t think the City has any Olmstead obligations in this case whatsoever.

              1. I do understand Olmstead. In fact I have not a little personal experience with it. The reason I quoted Ginsburg in this context rather than the ADA is that fundamental alteration because I possibly wrongly assumed the zoning attorney consulted would be pulling from the Olmstead application of the ADA. Ginsburg’s use of that language is one of the more controversial aspects of the decision among advocates. And Olmstead is not nearly as narrow as you claim. It requires the integrated housing and alternatives for the disabled and is considered the Brown v Education for the disabled.


                The application may not be direct, but the integration mandate in the ADA is very clear as is the expansion of this mandate directly to the disabled.

              2. Of course it does. I do understand that the language is from the ADA but salient issue is Ginsburg’s use of it in Olmstead, which is much less narrow than you think.

              3. In reality, the the integration mandate in Olmstead has little to do with the PSWC case aside from providing the city with a heavy policy consideration, and arguing that the integration mandate requires exceptions to local zoning ordinances would be dubious. In that regard, Decatur Heights Resident is correct that the Attorney General’s integration mandate did not control this case and did not apply to the City of Decatur. (I would like to think, though, that the ongoing mental health crisis in Georgia and the State’s ongoing need to have residential programs would weigh on the decision of our officials.)

                However, municipalities must make reasonable accommodations to zoning for people with disabilities, and may have to make accommodations not available to others. In that regard, the “fundamental alteration” argument by DH Resident is, while creative, not supported by case law. There are plenty of ADA and FHA zoning cases where the courts have held that cities must make exceptions to local codes to accommodate halfway houses, shelters, and other sorts of facilities catering to individuals with disabilities.

                Here’s a statement of the rule by the 11th Circuit:

                Whether a particular rule is “essential” to a zoning scheme will, of course, turn on the facts of each case, but a few general principles guide us. The basic purpose of zoning is to bring complementary land uses together, while separating incompatible ones. Thus, ordering a municipality to waive a zoning rule ordinarily would cause a “fundamental alteration” of its zoning scheme if the proposed use was incompatible with surrounding land uses. In determining whether the reasonableness requirement has been met, a court may consider the extent to which the accommodation would undermine the legitimate purposes and effects of existing zoning regulations. On the other hand, if the proposed use is quite similar to surrounding uses expressly permitted by the zoning code, it will be more difficult to show that a waiver of the rule would cause a “fundamental alteration” of the zoning scheme. Similarly, if the municipality routinely waives the rule upon request, it will be harder to show that the rule is “essential.”

                Now, the PSWC went well beyond this and cited specific cases and the facts of those cases and showed how the case considerations from previous cases apply to the PSWC.

                This was not simply a matter of relying on Olmstead, in spite of its great rhetorical flourish, really don’t control zoning matters. This is a matter of relying on a large foundation of case law, much of which came from the 11th Circuit.

                If the City had tried to oust the PSWC here, they would have had a very real and very problematic ADA and FHA claim on their hands. An argument like this: “the Board in my mind confused the necessity to modify policies to ensure equal acess to benefits with the benefit itself, and what it modified was the benefit; therefore fundamentally altering the nature of the program” is interesting, but losing, argument.

              4. Good stuff, PWD. I’ll let you have the last word on the application of the ADA in the city zoning context. I’ll just add that the neighborhood persons who pursued this case can at least take solace in a symbolic victory. As I understand it, the decision of the Decatur Zoning Board was ultimately based on applying what they saw as a reasonable accommodation to current zoning requirements–namely, the definition of Personal Care Home. The only reason this case started was because the city claimed the PSWC was a Personal Care Home, and the neighborhood argued that it clearly wasn’t. Rather than try to make the case that it was a PSWC as the city claimed, it seems the Zoning Board agreed the PSWC didn’t fit within that definition and so instead relied on the ADA to allow them to make a “reasonable” accommodation to current zoning laws. It’s not the victory they wanted, but I think the decision of the board shows the neighborhood had a valid argument and weren’t making a foolhardy argument because they were blinded by hatred or bias, as some seemed to think.

              5. Not to drag this out, but the ZBA actually voted that the PSWC qualified as a personal care home and didn’t even finish discussing the ADA and FHA. Burnette voiced surprise at this, and I was surprised by it myself.

      2. You are aware that, in every other home in Decatur heights, as well as churches and schools, it’s also impossible to “screen out” those who are dangerous, right?

        so what makes this facility any different? your post leads one to conclude it is your fear of the mentally ill.

      3. also, I thought the neighbors’ issue was with the daytime services, not the respite services. Apparently it’s now a respite issue as well.

        Good lord.

        Ok, I’m done.

  2. Actually, any appeal would be to DeKalb Superior Court. There is not State Superior Court in Georgia. The Georgia Court of appeals is the next level above Superior Court, and then the State Supreme Court.

  3. I apologize for appearing clueless, I hope it was just appearance, because I actually spent a lot of time in preparation for this case. The issues were complex. This was my last meeting as I have served my term, six years. The position requires knowledge of the code and rules of the board. Other than that, I strongly feel the board should be staffed by not just by attorneys but a cross section of the residents of the City. I am proud of my service and the perspectives I have brought to the board, although I do need to bone up on the latin terms.

    1. Neil,

      Fair enough. I agree with you, and think some of the problems with the zoning board are not with the people who staff it but with the way it has been structured. I know there are attorneys on the board, but they can’t really act in their capacity as attorneys. Perhaps having a non-voting attorney there to answer questions and advise would be helpful going forward. This way it could still be a resident board without compromising its judicial functions. Hopefully that makes sense. I’m all for resident boards. Hell, I’d like to see a wider cross section of residents on the board, but I think it’s times like these that the importance of good legal advice becomes clear.

      In any case, we’re all grateful for your service (ultra vires or no ultra vires 🙂 . Enjoy your break from the stress of the ZBA.

    2. Neil,

      The attention that you’ve given to this PSWC situation was very evident last night. You’d clearly considered it from all angles. I am at peace with the decision that was reached. I do think that updating the City’s zoning laws need to be a major focus– NOW, not later. Not just in regards to the PSWC, but to address the other vague language concerns that impact zoning decisions (as y’all mentioned last night.)

      And I don’t know the fancy latin terms either, but your point last night about reconsidering the PSWC as a Personal Care Home was correct. (That whole earlier discussion was very confusing, as neither the Center nor the Opposed Side has ever regarded the PSWC to be a Personal Care Home. At the March Hearing, the GMHCN Director stated that it is not a PCH. The Opposed Side said that, while they would willingly accept a licensed PCH as a neighbor, that was not what the PSWC claims to be. Or is.)

      Hopefully, everyone that’s been a part of (or followed) this neighborhood situation is taking away valuable life lessons from it. I know I sure have.

      And, Neil, your voice on the Zoning Board will be greatly missed!

  4. Decatur Resident, I think you make a good suggestion about having a non-voting attorney that can provide advice. But it’s important to remember that one lawyers facts are another lawyers misguided opinions. A lawyer would have had time to research the issue before the zoning board last night, but if another contentious issues pops up out of nowhere, I’m not sure that I’d want any rushed opinions, by a lawyer or anyone else, taken as fact without due research.

    I strongly agree that the zoning board should be comprised of a cross-section of Decatur’s citizens. There really is no such thing as iron-clad zoning code. It’s always going to have ambiguous spots, and at that point the zoning board members have to be guided by their principles and insight into the community’s values. I hope that’s what guided the zoning board members last night. If people are still upset by the decision, that’s what the appeals process is for. Send it to the courts and let the lawyers battle it out.

    1. Jc,

      I actually think a big part of the problem is the poorly written zoning code. this came up several times, both in the hearings and in the briefs I saw. Time for a revamp, for sure.

      People will always be upset by decisions, but upset does not equal grounds for an appeal. At this point I can’t imagine anyone would want to dole out the thousands of dollars it would cost to fight this. Never mind the cost to the city. It would be an ugly mess.

      1. I don’t know. That letter to me sounds a bit like a resignation speech. This may be the end of it. *double sigh*

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