The Padavan Law

So your son or daughter and your family have decided that it is time to move into a home in the community, maybe with some old friends...or with some new friends! Afterthe agency you choose gets approval to go ahead with the project and then finds a house, the site selection process begins. In New York State this procedure was established in 1978 though Section 41.34 of the Mental Hygiene Law, also known as the Padavan Law, named after Senator Frank Padavan who sponsored it. Prior to this law, local municipalities could use their own zoning laws to prevent group homes from opening, which resulted in a great deal of difficulty in group home development and subsequently many court cases. Since the Padavan Law takes precedence over local zoning laws, it aimed to prevent litigation thereby making it easier to open certified community residences. The purpose of the law was to promote and encourage development of homes in communities thus providing the least restrictive environment for the individual.

The Padavan Law requires that localities get a notice of the proposed home, with information on the type of residence and how many residents there will be. The community has forty days to review the information, approve the site, suggest an alternate site, or object to the site based on over-concentration or “saturation.” This means that there are too many community residences or combination of residences with other state-licensed agencies so that “the nature and character of areas within the municipality would be substantially altered” (S 41.34). The term “areas” is not defined in the law. If there is an objection and both sides cannot agree on an alternate site, then a request for a hearing can be made to the Commissioner of OMRDD. The hearing must occur within 15 days of the request. The Commissioner then makes a determination based on need and legitimacy of over-concentration concerns within 30 days of the hearing. Since agencies are diligent in their search for homes, the claim of over-concentration is not valid in most cases. Therefore, the process mandated by this law generally favors the agency developing the home.

When a municipality receives notice of a site, it “may hold a public hearing” (S 41.34) before it responds. Most times it does. And often this hearing is contentious. Neighborhoods may cite safety and traffic concerns, but there is often an underlying lack of understanding about who their new neighbors are. This is evidenced by the fact that many times the strongest opponent to a home will later become a good neighbor. In most instances, the Commissioner rules in favor of the agency, and the home is certified to open. However, in some cases there is an appeal, which prolongs the process.

Although the intent of the law is to aid in the inclusion of group homes in communities, there are concerns about the site selection process. First, the community hearing can be very upsetting for families; in fact most agencies urge the families NOT to attend so they will not be subject to nasty remarks. The hearings also add to the time frame for development of a home. There could be months of searching for an appropriate house followed by hearings and possible appeals, and then most houses will need renovations. When an individual and family finally make the decision to move, it is tough to have to wait so long to finally get in! Agencies could also be deterred from starting a development project because of these community confrontations. The most important concern, however, is that the law requires persons with developmental disabilities to go through a procedure that no other citizen has to in order to move into a home. Many families and advocates argue that the Fair Housing Act prohibits discrimination on the basis of disability so that individuals should not have to ask a neighborhood for permission to move in!

In the 30 years since the Padavan Law was enacted community inclusion has become the ideal in terms of day programs, work, recreation, and residences. Homes are smaller now; most new ones have no more than 6 residents. How can they possibly “alter the character of a neighborhood?” Many find that language insulting. On theother hand, negative community attitudes still exist, and the Padavan Law does afford protection against local zoning regulations. The fear exists that modifying the law may lead to a backlash, to the old ways of doing business.

So the question is this: Is the end result of the Padavan process (most likely favorable) worth the indignities involved? Some say yes, don’t rock the boat. Others say no. What do you think? Are there alternatives or amendments that can be made? Send your comments to me at info@grow-ny.org and we’ll publish them in the next newsletter.

Marilyn Vitale, Editor

 

 

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