Zoning Research Paper

Chapter

Zoning and Land Use

Exclusionary zoning practices usually go unnoticed by the public till the local news makes them public. –Author

Introduction

T

he following narrative is presented as a seed for thought to encourage civic involvement and eldercare advocacy. It might spark spirited discussion on local land use and zoning policies that govern over community design, housing, and health care needs of seniors throughout America.

Important questions - Is your community prepared for the increasing housing needs of seniors? Is there a need to update local land use and zoning policies to address senior issues? Does the community have a balance of or shortage of quality skilled nursing homes, residential care facilities, and other housing

needs? How well do these facilities accommodate the LGBT, developmentally and physically disabled, minorities and with seniors with varying religious beliefs? Are local senior facilities still operating on the premise of “separate but equal doctrine”? Federal and state discrimination laws may be publicized but are they side-stepped with local land use and zoning ordinances and/or blatant community biases? Are any public policy actions taking place in your community to improve the climate in and outside nursing homes (e.g., an inclusive training program for all nursing home and hospital staff, support personnel, patients and their families – focusing on residents’ rights, discrimination laws and years of historical biases based upon myths and misconceptions, and educational programs for community groups that foster respect and care for all seniors)? Cross-check nursing home policies with the local hospital policies – many hospitals will not operate on someone unless they have somewhere to go and be cared for after an operation. These policies come into conflict with seniors who are homeless and other seniors who can’t gain admission into a nursing home for one biased reason or another.
Federal, state and local zoning
Federal and state government have given latitude to cities in applying land use and zoning codes. When codes are challenged in court, judicial interpretations often side with the city codes. In some communities, this issue and Medicare and Medicaid cutbacks have come together to prevent seniors and their families from receiving state of the art nursing care and social support. The new American health care model expounds the ideals of “inclusiveness”, “person-centered care”, and “community based services”. Yet exclusionary zoning practices act as a barrier to providing quality lower cost health care to the elderly in their own neighborhoods. These exclusionary zoning practices usually go unnoticed by the public till the local news makes them public. Land use and zoning practices can be used to undermine state and federal initiatives to shift health care from in-patient to community based settings, which can reduce health care costs. These practices are poor policy, given the speed of our aging population.
Since World War II, most communities accepted nursing homes as compatible with surrounding neighborhoods, although there has been serious pressure to zone them out. America’s aging population is intensifying. The elderly must have quality nursing homes. The old institutional and outdated nursing homes must be closed. Yet, community sentiment remains at odds with this growing need. Seniors are living longer. They are now faced with the fact that their own children started their families late and are working longer hours outside the home. With time, it becomes clear they lack the skills and/or financial resources to address their aging parents’ health and social needs, plus the needs of their own family. They may try to bring their loved ones into their own home but it becomes inevitable that alternative housing must be found. The intense personal, medical, and social needs exceed what can be provided in the home. These demands grow to a point till it becomes clear that an institutional setting is required. In response to this growing need, new nursing homes are attempting to emulate a home environment. A few nursing homes are attempting to design a service model that facilitates interaction between family and community. Their services blend skilled nursing and medical care with recreational events. They bring in community events and speakers and design living spaces to resemble apartments instead of sterile rooms. Their service delivery teams may include social workers, counselors, nurses, and on-call physicians. As advanced as these service models seem, the nursing home developer must first take on the challenges of land use, zoning, and community attitudes of “not in my backyard”. These attitudes can become entrenched and militant if the developer is attempting to build for a group such as the developmentally disabled elderly, those who are HIV positive, or those with specific religious beliefs.
With education, the community can understand one challenge of eldercare is the transition between the home, hospital, short term nursing for rehabilitation, and back home again.

In most cases, these are services Medicare covers. At this time, keeping seniors in their home is best medical and social practice. The idea is to have the same care team supporting a patient both at home and in a nursing

home.
Zoning Issues
As nursing home owners try to integrate these services into their facility design, they come up against zoning codes which can delay or prevent renovation of outdated nursing homes. Codes can also restrict how they can implement creative caregiving (e.g., bringing in community services, level of parking, and professional volunteers). The new change in health care financing is a big part of this scenario. Local health and safety codes, demographic aging trends, and the nature of Medicare and Medicaid health care payments shape how the market forces respond to building new facilities. For eldercare, government funding accounts for an increasing proportion of health care payments. So one must follow the money and how it is associated with zoning implications. Congress reduced Medicare reimbursements to nursing homes. With this reduction of Medicare costs comes the need to reduce the number of persons enrolled in nursing homes. These same Medicare reimbursement rates led to cuts in the average length of a hospital stay. Now patients leave the hospital on average with more complex medical issues than can be addressed at home. So the patient is discharged from the hospital to a nursing home to “rehab” and then back to their community facility or home. If this is a sound medical model for eldercare, then locating a nursing facility in the patient’s neighborhood should be good public policy. For this medical model to work, it will need local zoning boards and administrators to partner with the both medical providers and nursing home developers. Many times the zoning boards side with those opposing nursing homes in residential zones. When nursing facilities are zoned out of residential areas, facility developers are forced into commercial zones with higher land prices and taxes. The costs end-up increasing higher prices for patient care. Faced with these economic issues, potential nursing facility providers walk away, or never enter the market, to build a new facility. As an alternative, they end up building new facilities in green spaces adding to urban expansion beyond the metropolitan area.
Despite the crucial role of nursing homes, many residents work to block plans for them. They are concerned about the reduction in their property values, increased traffic, or personal endangerment from patients or their caregivers. The Federal Fair Housing Act and state housing acts protect certain facilities from discrimination in the zoning and land use process. Court calendars are heavy with such discrimination cases that try to zone eldercare out of residential districts.
The Fair Housing Amendments Act of 1988 (FHAA) extends the protections of the 1968 Fair Housing Act.

The Act prohibits discrimination on the basis of race, color, religion, national origin, and disability. It is taking court cases to sort out issues that still discriminate through zoning codes that on their face appear neutral against the needs of the disabled or other citizens. The term “handicapped” is defined to include persons with physical or mental impairments that impair a person’s major life activities. Examples of major activities include: caring for oneself, walking, seeing, hearing, speaking, breathing, learning, and working. Courts have determined that substance abuse treatment facilities, nursing homes, homeless shelters, hospices, and residential schools are subject to the Fair Housing Amendments Act. The language within the Act recognizes that the right to be free of housing discrimination is essential to the goal of independent living. The Act prohibits restrictions on where people with disabilities can live. With all the discrimination assurances of the Act, it does not have limits on how cities use restrictive zoning. If zoning codes are implemented that change the square footage per bed in a facility, its impact would be to zone a facility out of

business.
One purpose of the Fair Housing Amendments Act was to prohibit discrimination zoning. The Act prohibits special requirements through land use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting residential choices. From the perspective of land use, locating care services near those who need them promotes the goal of reducing sprawl and travel time. Not doing so forces elderly patients and families to travel longer distances on congested and hazardous roads.