P.L. 1997, CHAPTER 321, approved January 8, 1998
Assembly, No. 2773
An Act concerning zoning and amending P.L.1978, c.159.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1978, c.159 (C.40:55D-66.1) is amended to read as follows:
1. Community residences for the developmentally disabled, community shelters for victims of domestic violence, community residences for the terminally ill and community residences for persons with head injuries shall be a permitted use in all residential districts of a municipality, and the requirements therefor shall be the same as for single family dwelling units located within such districts[; provided, however, that, in the case of a community residence for the developmentally disabled, community shelter for victims of domestic violence or community residence for persons with head injuries housing more than six persons, excluding resident staff, a zoning ordinance may require for the use or conversion to use of a dwelling unit to such a community residence or shelter, a conditional use permit in accordance with section 54 of the act to which this act is a supplement (C.40:55D-67). Any requirements imposed for the issuance of a conditional use permit shall be reasonably related to the health, safety and welfare of the residents of the district; provided, however, that a municipality may deny such a permit to any proposed community residence for the developmentally disabled, community shelter for victims of domestic violence or community residence for persons with head injuries which would be located within 1500 feet of an existing such residence or shelter; provided further, however, that a municipality may deny the issuance of any additional such permits if the number of persons, other than resident staff, resident at existing such community residences or community shelters within the municipality exceeds 50 persons, or 0.5% of the population of the municipality, whichever is greater].
(cf: P.L.1993 ,c.329, s.7)
2. Section 2 of P.L.1978, c.159 (C.40:55D-66.2) is amended to read as follows:
2. As used in this act: a. "community residence for the developmentally disabled" means any community residential facility licensed pursuant to P.L.1977, c.448 (C.30:11B-1 et seq.) providing food, shelter and personal guidance, under such supervision as required, to not more than 15 developmentally disabled or mentally ill persons, who require assistance, temporarily or permanently, in order to live in the community, and shall include, but not be limited to: group homes, halfway houses, intermediate care facilities, supervised apartment living arrangements, and hostels. Such a residence shall not be considered a health care facility within the meaning of the "Health Care Facilities Planning Act," P.L.1971, c.136 (C.26:2H-1 et al.). In the case of such a community residence housing mentally ill persons, such residence shall have been approved for a purchase of service contract or an affiliation agreement pursuant to such procedures as shall be established by regulation of the Division of Mental Health and Hospitals of the Department of Human Services. As used in this act, "developmentally disabled person" means a person who is developmentally disabled as defined in section 2 of P.L.1977, c.448 (C.30:11B-2), and "mentally ill person" means a person who is afflicted with a mental illness as defined in R.S.30:4-23, but shall not include a person who has been committed after having been found not guilty of a criminal offense by reason of insanity or having been found unfit to be tried on a criminal charge.
b. "Community shelter for victims of domestic violence" means any shelter approved for a purchase of service contract and certified pursuant to standards and procedures established by regulation of the Department of Human Services pursuant to P.L.1979, c.337 (C.30:14-1 et seq.), providing food, shelter, medical care, legal assistance, personal guidance, and other services to not more than 15 persons who have been victims of domestic violence, including any children of such victims, who temporarily require shelter and assistance in order to protect their physical or psychological welfare. c. "Community residence for persons with head injuries" means a community residential facility licensed pursuant to P.L.1977, c.448 (C.30:11B-1 et seq.) providing food, shelter and personal guidance, under such supervision as required, to not more than 15 persons with head injuries, who require assistance, temporarily or permanently, in order to live in the community, and shall include, but not be limited to: group homes, halfway houses, supervised apartment living arrangements, and hostels. Such a residence shall not be considered a health care facility within the meaning of the "Health Care Facilities Planning Act," P.L.1971, c.136 (C.26:2H-1 et al.).
d. "Person with head injury" means a person who has sustained an injury, illness or traumatic changes to the skull, the brain contents or its coverings which results in a temporary or permanent physiobiological decrease of mental, cognitive, behavioral, social or physical functioning which causes partial or total disability.
e. "Community residence for the terminally ill" means any community residential facility operated as a hospice program providing food, shelter, personal guidance and health care services, under such supervision as required, to not more than 15 terminally ill persons.
(cf: P.L. 1993, c.329, s.8)
3. This act shall take effect immediately.
STATEMENT
This bill provides that "community residences for the terminally ill," which is defined as residences providing hospice care and housing not more than 15 persons, be an unconditional permitted use in all municipalities. Under section 1 of P.L.1978, c.159, which is part of the "Municipal Land Use Law," a municipality must permit under its zoning scheme community residences for the developmentally disabled, community shelters for victims of domestic violence, and community residences for persons with head injuries, if those residences house no more than six persons. One portion of the statute provides that a municipality may impose conditions on or deny a zoning variance to community residences for the developmentally disabled, community shelters for victims of domestic violence, and community residences for persons with head injuries if such a residence will house more than six persons.
Two court decisions have invalidated this portion of the statute as violating the federal "Fair Housing Amendments Act of 1988"; The ARC of New Jersey, Inc. v. State of New Jersey, ___ F. Supp. _____ (D.N.J. 1996), 1996 WL 748224, and Association for Advancement of the Mentally Handicapped, Inc. v. City of Elizabeth, 874 F.Supp. 614 (D.N.J. 1994). These decisions hold that the enabling statute allowed disparate treatment of the handicapped.
Therefore, this bill amends the statute to comport with these judicial judgments, and adds a new class of community residence for hospice care, to those residences which shall be permitted uses in residential zones.
Amends zoning enabling statute to comport with federal "FairHousing Amendments Act of 1988;" adds certain community residences for hospice care as permitted use.