Could Maryland keep holding public hearings on group home licenses for people with mental disabilities after the federal Fair Housing Amendments Act?

Plain-English summary

The federal Fair Housing Amendments Act of 1988 extended the Fair Housing Act's protections to people with disabilities, prohibiting practices that make housing unavailable because of a handicap, including practices with discriminatory effects rather than just intentional discrimination. Maryland licensed group homes for people with developmental disabilities under HG Title 7 and private group homes for people with mental disorders under HG Title 10, and both licensing schemes included public hearings. The Executive Director of the State Planning Council on Developmental Disabilities asked whether those hearings could lawfully continue.

The opinion drew a line between having a hearing and misusing one. Licensing group homes and gathering information at a public hearing were reasonable exercises of the state's health and safety authority. What federal law forbade was letting the hearing become a channel for community opposition based on the future residents' disabilities, or letting procedure impose the kind of delay that "otherwise makes unavailable" a dwelling. Measured against that standard, the Title 7 process passed: its licensing criteria in HG §7-609 were legitimate, community acceptance was not among them, only the applicant had party status and appeal rights, and the timeline (hearing within 75 days of application, decision within 30 days of the hearing) kept delay minimal. The Title 10 process did not pass as administered. Its statute stated a policy of community acceptance, a regulation described the hearing's purpose as assuring the home "is accepted in the community," and DHMH had treated community opponents as parties entitled to administrative and judicial appeals, which had delayed group home openings by a year or more. The opinion recommended repealing the community-acceptance regulations and ending party status for opponents, reading the statute to avoid conflict with federal law.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion did not survive as Maryland's position: an editor's note in the published volume states that it "was overruled by 78 Opinions of the Attorney General ___ (1993) [Opinion No. 93-030 (July 30, 1993)]." Anyone researching Maryland group home licensing or Fair Housing Act obligations needs to start from the 1993 opinion and current law, not from this one.

Common questions

Could neighbors block a group home for people with disabilities in Maryland?
Not on the basis of disability. The opinion read the Fair Housing Amendments Act to bar the state from giving any effect to community opposition based even in part on the residents' mental disabilities. Community acceptance simply could not be a licensing factor.

Were public hearings on group home licenses illegal?
No. The opinion concluded that holding a hearing to gather information on legitimate licensing criteria (zoning compliance, fitness of the applicant, program standards) was permissible. The violation came from considering improper factors at the hearing or from procedures that imposed significant delay.

What was wrong with the Mental Hygiene Law process?
Two things. Its statute and regulations treated "community acceptance" as a purpose of the hearing, and DHMH gave community opponents party status, letting them pursue appeals that delayed group home openings, sometimes for more than a year. The opinion viewed that delay as a prohibited discriminatory effect and recommended repealing the regulations and ending opponents' party status.

Did community residents get to appeal a group home license under the Developmental Disabilities Law?
No. Under Title 7 the only "aggrieved person" in the contested case was the applicant, so residents had no right to appeal a granted certificate and no procedural lever to delay an approved home.

Is this opinion still Maryland's position?
No. The published volume's editor's note records that a 1993 Attorney General opinion (No. 93-030, July 30, 1993) overruled it. Treat this page as history.

Background and statutory framework

The Fair Housing Amendments Act of 1988, codified at 42 U.S.C. §3601 et seq., made it unlawful to discriminate in the sale or rental of dwellings, or to "otherwise make unavailable or deny" a dwelling, because of handicap, with "handicap" defined broadly in 42 U.S.C. §3602(h) and HUD regulations including mental retardation and mental illness (24 C.F.R. § 100.201(a)(2)). The House Report made clear the Act reaches discriminatory effects, and the caselaw under the 1968 Act (Smith v. Town of Clarkton, Huntington Branch NAACP, Arlington Heights, City of Black Jack, Yonkers, City of Birmingham) established that bowing even in part to opposition based on a protected characteristic violates the Act. HUD's regulation at 24 C.F.R. §100.70(a) also barred procedures that discourage or obstruct housing choices.

Under HG Title 7, group home applicants needed a certificate of approval from DHMH, judged against the criteria of HG §7-609 (consistency with the state plan, proper person, appropriateness, licensing and zoning compliance, accessibility). A public hearing was required (HG §7-611), the Secretary had to decide within 30 days (HG §7-612), and appeal rights ran only to a "person aggrieved" in a contested case, which meant the applicant. Under HG Title 10, licensing criteria appeared in HG §10-518(a), but HG §10-515 stated a policy of community acceptance, COMAR 10.21.04.03C(1)(c) described the hearing as assuring community acceptance, and DHMH practice gave opponents party status and appeal rights under HG §10-524. The opinion noted the Secretary had never actually denied a license for lack of community acceptance, citing the Guide, Inc. and Revisions, Inc. hearing decisions, but found the scheme legally vulnerable and recommended reinterpretation, invoking the canon from Yangming Transport v. Revon Products that statutes should be construed to avoid serious constitutional doubt, and noting that 42 U.S.C. §3615 invalidates state laws permitting discriminatory housing practices.

Citations and references

Statutes and regulations:

• Fair Housing Amendments Act of 1988, 42 U.S.C. §3601 et seq., including §3604(f), the definition of handicap in §3602(h), and the invalidation provision in §3615; HUD regulations at 24 C.F.R. §100.70 and § 100.201(a)(2)
• HG Title 7 (Developmental Disabilities Law): §§7-608 through 7-612, especially the criteria in HG §7-609; appeal provisions HG §7-407 and HG §2-206(c)
• HG Title 10 (Mental Hygiene Law): HG §10-515 (community acceptance policy), HG §10-518(a) (licensing criteria), HG §10-520 (hearing), HG §10-521, HG §10-524 (appeals)
• COMAR 10.21.04.03C(1)(c) and COMAR 10.21.07.03C(1); SG §10-201(c) (definition of contested case)

Cases:

• Smith v. Town of Clarkton, 682 F.2d 1055 (4th Cir. 1982); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir. 1988); Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974); United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985); United States v. City of Birmingham, 538 F. Supp. 819 (E.D. Mich. 1982); Sullivan v. City of Pittsburgh, 620 F. Supp. 935 (W.D. Pa. 1985); Familystyle of St. Paul, Inc. v. City of St. Paul, 1990 U.S. Dist. LEXIS 746 (D. Minn. 1990) (federal courts)
• Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (U.S. Supreme Court)
• City of Baltimore v. State Department of Health and Mental Hygiene, 38 Md. App. 570 (1978); Yangming Transport v. Revon Products, 311 Md. 496, 536 A.2d 633 (1988) (Maryland courts)

Related AG opinion: 74 Opinions of the Attorney General 164 (1989)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 291-307 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

HOUSING

Handicapped — Fair Housing Act — Applicability to Hearings Under Developmental Disabilities Law and Mental Hygiene Law

March 7, 1990

Ms. Catherine A. Raggio
Executive Director
Maryland State Planning Council
on Developmental Disabilities

 You have requested our opinion on whether the federal Fair Housing Amendments Act of 1988 allows the State to continue to hold public hearings as part of the process by which it considers applications for licensure of group homes for people with mental disabilities.

For the reasons given below, we conclude that the public hearing process established under Title 7 of the Health-General Article ("HG" Article), the Developmental Disabilities Law, may be maintained because it does not contravene the federal law. The public hearing process established under HG Title 10, the Mental Hygiene Law, may also be maintained but must be modified somewhat to assure compliance with the federal act.

I

Fair Housing Amendments Act

A. Introduction

 The Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619, codified at 42 U.S.C. §3601 et seq., generally prohibits discriminatory practices against individuals with handicaps. It extends to people with disabilities the broad remedial provisions of the 1968 Fair Housing Act, which prohibits discrimination on the basis of race, color, religion, national origin, or sex in both public and private housing.

42 U.S.C. §3604(f)(1) makes it unlawful for any individual or government:

     To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of —

         (A) that buyer or renter;

         (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

         (C) any person associated with that buyer or renter.

42 U.S.C. §3604(f)(2) further makes it unlawful for any individual or government to discriminate:

    Against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap or —

         (A) that person; or

         (B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or

         (C) any person associated with that person.

The term "handicap" in the Act is defined very broadly to mean "with respect to a person — (1) a physical or mental impairment which substantially limits one or more of such person's major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment ...." 42 U.S.C. §3602(h). Under regulations adopted by the Department of Housing and Urban Development, "physical or mental impairment" includes mental retardation and mental illness. See 24 C.F.R. § 100.201(a)(2).

In an opinion issued last year, we discussed in detail the legislative history and purpose of the 1988 amendments. 74 Opinions of the Attorney General 164 (1989).1 We shall not repeat that detailed discussion here. In brief, the Fair Housing Amendment Act's purposes include ending segregation of the housing available to people with disabilities and giving people with disabilities the right to choose where they wish to live.

 The Fair Housing Amendments Act prohibits practices with discriminatory effects, not solely intentional acts of discrimination. H.R. Rep. No. 100-711, 100th Cong., 2d Sess. 23 at 24-25, reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2184 ("House Report"). See generally Aoki, Fair Housing Amendments Act of 1988, 24 Harv. Civ. Rts.-Civ. Lib. L. Rev. 249 (1989). Thus, if the procedures in HG Titles 7 and 10 have the effect of limiting housing opportunities for people with disabilities, they would contravene the federal act. See Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir. 1982). See also Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926 (2d Cir.), review declined in part and judgment aff'd, 109 S.Ct. 276 (1988); Metropolitan Housing Development Corporation v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975). But see Familystyle of St. Paul, Inc. v. City of St. Paul, 1990 U.S. Dist. LEXIS 746 (D. Minn. Jan. 18, 1990) (upholding siting limitation on group homes despite discriminatory effect).

B. Application to Group Home Licensing Laws Generally

We are not aware of any court decision applying the federal act to the kind of licensing procedures in question here. The premise of our analysis, however, is that no court would invalidate the underlying requirement that group homes be licensed.

 To be sure, the very requirement itself treats people with mental disabilities differently than other people who seek to live congregately. It is unimaginable that the State could require a group of co-religionists, for example, to obtain a license as a prerequisite to establishing a group residence.

 But the legislative history of the 1988 amendments makes clear that states are not precluded from imposing reasonable requirements intended to protect the welfare of their citizens: States retain their "authority to protect safety and health, and to regulate use of land," so long as these powers are not "used to restrict the ability of individuals with handicaps to live in communities." House Report at 24. Laws like HG Titles 7 and 10 seek to protect persons with mental disabilities against exploitation or improper care. In our view, federal law does not rule out special protections of this kind.

 Nor can we conclude that the mere holding of a public hearing necessarily violates the federal act. A decision on whether to grant a license is best made after a decisionmaker has as much pertinent information as possible. A public hearing is a reasonable means of acquiring information. We know of no Fair Housing Act case suggesting that hearings are per se impermissible.

What is impermissible, we believe, is the misuse of public hearings, either by allowing the consideration of improper decisional factors or by imposing undue delay on those seeking the housing.

The Fair Housing Amendments Act prevents the State from giving any effect to community opposition based, even in part, on the fact that the occupants of a group home will have a mental disability. Under federal law, whether a community "accepts" residents who have disabilities simply cannot be taken into account by the State.

In United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276 (S.D.N.Y. 1985), aff'd 837 F.2d 1181 (2d Cir. 1987), a case in part involving racial discrimination in the siting of public housing, the court acknowledged that opponents to public housing had used a variety of arguments, some of which did not run afoul of the law. 624 F. Supp. at 1308. But the legal standard is that race "is impermissible even as a secondary motive for action ...." 624 F. Supp. at 1293. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66 (1976). In Yonkers, city officials had allowed "community opposition [that] was based, at least in part, upon the race of the potential occupants of public housing" to influence their decisions about where to locate the housing. 624 F. Supp. at 1310. The city thereby violated the Fair Housing Act.

 Similarly, in Smith v. Town of Clarkton, 682 F.2d 1055 (4th Cir. 1982), the town withdrew its support of a public housing project because of public opposition. Significantly, the court pointed out that nonracial objections to the project—fears about the overburdening of schools, sanitary services, and public safety services—had already been addressed. 682 F.2d at 1062. In reality, the town had bowed to public opposition, "a significant portion of [which] was racially inspired ...." 682 F.2d at 1066.2 See also United States v. City of Birmingham, 538 F. Supp. 819, 830 (E.D. Mich. 1982) (city violates Fair Housing Act if it acts partly in response to those who fear "that an influx of black people into a community decreases property values").3

Further, the Fair Housing Amendments Act does more than rule out "community acceptance" as a decisional factor. It also disallows any procedure that "discourage[s] or obstruct[s] choices" about housing by persons with disabilities. 24 C.F.R. §100.70(a).

The House Report at 24 explains that even neutral procedures may not be applied if the effect is discriminatory:

          Another method of making housing unavailable to people with disabilities has been the application or enforcement of otherwise neutral rules and regulations on health, safety and land-use in a manner which discriminates against people with disabilities .... These and similar practices would be prohibited.

In our view, federal law does not permit a procedure that, through significant delay, "obstructs" the opportunity of persons with disabilities to obtain the housing of their choice. Delay is itself a device by which, in the statutory language, a dwelling is "otherwise [made] unavailable" to a person with a disability.

In sum, when we consider the legality of the hearing procedures under HG Titles 7 and 10, we examine whether those procedures either allow the consideration of improper decisional factors or cause undue delay.

II

Application of Federal Act to HG Title 7, Developmental Disabilities Law

A. Decisional Factors

A person seeking to establish a private group home for the developmentally disabled must apply for a certificate of approval from the Department of Health and Mental Hygiene ("DHMH").4 HG §§7-608 and 7-610. DHMH then conducts an investigation of the applicant. HG §7-611(a).

The criteria for establishment of a group home are set forth in HG §7-609:

      To qualify for a certificate of approval, an applicant shall satisfy the Secretary that:

           (1) The proposed private group home is consistent with the State plan;

            (2) The applicant is a proper person to receive a certificate of approval;

           (3) The proposed private group home is appropriate for the stated purpose;

           (4) The proposed private group home meets or, on completion, will meet the licensing requirements of Subtitle 9 of this title;

           (5) The proposed private group home meets or, on completion, will meet all of the general zoning requirements that apply to the site and that relate to:

               (i) The height and size of any buildings that are involved;

             (ii) The land that may be covered or occupied;

               (iii) The open space requirements;

               (iv) The density requirements; and

               (v) The use of any land or buildings.

          (6) The applicant's facilities meet the federal regulation requirements on program accessibility (45 C.F.R. §§84.21 through 84.23).

These criteria are reasonable in themselves and are plainly linked to legitimate State concerns.

The hearing officer may only take account of testimony at the public hearing that touches on the legitimate factors set out in HG §7-609.5 Community acceptance is not identified as a permissible decisional factor in the statute. Therefore, the hearing officer may not take account of community acceptance.

B. Delay

DHMH "shall hold a public hearing on the application" after publication of notice. HG §7-611(b) and (c)(1)(i). Notice is to be provided to the local government (and, upon request, to the local delegation to the General Assembly) and published in various newspapers within 60 days of the filing of the application. HG §7-611(c)(1) and (d). The hearing occurs between seven and 15 days after publication. HG §7-611(c)(2)(iv).

The hearing is legislative in character. There are no rules of procedure, right to cross-examination, or requirement for written findings of fact. The hearing serves as a forum in which interested persons may express their views on whether the applicant has met all the relevant criteria. Under HG §7-612, the Secretary, within 30 days of the hearing, must issue a certificate of approval to any applicant who meets the statutory requirements; if the Secretary does not act, the application is deemed approved.

 If the Secretary denies an application, the applicant may take an appeal pursuant to HG §7-407: "Any person aggrieved by a final decision of the Secretary in a contested case, as defined in §10-201 of the State Government Article, may take an appeal as allowed in §§10-215 and 10-216 of the State Government Article." In addition, a "person aggrieved by [the Secretary's] decision" is entitled, under HG §2-207(a), to appeal to the Department's Board of Review from "[a] decision of the Secretary or any unit in the Department in a contested case that is subject to judicial review under §10-215 of the State Government Article." HG §2-206(c)(1). Section 10-215 of the State Government Article ("SG" Article), in turn, affords judicial review to "[a] party who is aggrieved by the final decision in a contested case ...."

Thus, both HG §7-407 and HG §2-206(c)(1) require that there be a contested case as an element of the right to appeal. SG §10-201(c) defines "contested case" as a proceeding before an agency to determine:

           (1) a right, duty, statutory entitlement, or privilege of a person that is required by law to be determined only after an opportunity for an agency hearing; or

          (2) the grant, denial, renewal, revocation suspension or amendment of a license that is required by law to be determined only after an opportunity for an agency hearing.6

The "aggrieved person" or "party aggrieved" in a proceeding to determine whether to issue a certificate of approval for a group home under Title 7 is the applicant, since the applicant seeking the certificate is the only one who is subject to the Secretary's determination. The "entitlement ... required by law to be determined after an ... agency hearing" is the qualified applicant's entitlement to a certificate. Similarly, under SG §10-201(c)(2), only the applicant's "license" is at issue.

 These provisions mean that community residents are not entitled to party status at the hearing. They do not become "aggrieved persons" if the application is approved. Therefore, community residents do not have a right to appeal the issuance of certificates of approval to group homes for persons with developmental disabilities.7 Because they do not have that right, residents do not have the power to force a significant delay in the opening of a group home that the Secretary has determined to license.

 To be sure, the public hearing requirement causes some delay. But it is minimal: The hearing must occur within 75 days of the application, and the decision must be made within 30 days of the hearing. We do not believe that this degree of delay, necessitated by a public hearing limited to proper purposes, is significant enough to violate federal law.

C. Conclusion

 In sum, we conclude that the existing hearing procedures under HG Title 7 do not violate the Fair Housing Amendments Act.

III

Application of Federal Act to Title 10, Mental Hygiene Law

A. Decisional Factors

 A person seeking to establish a private group home must apply for a license from DHMH.8 DHMH then conducts an investigation of the application.

The criteria for establishment of a group home are set forth in HG §10-518(a):

           To qualify for a license, an applicant shall satisfy the Secretary that the proposed private group home:

           (1) Is needed;

           (2) Is compatible with the nature and character of the area involved;

           (3) Is not within 1,000 feet of another private group home, a jail, a detention center, a correctional camp, or a group home for special populations, such as parolees, mentally retarded individuals, juveniles, alcoholics, or drug addicts;

           (4) Is near transportation facilities;

           (5) Meets or, on completion, will meet the requirements of this subtitle and the rules and regulations that the Secretary adopts under this subtitle; and

           (6) Meets or, on completion, will meet all general zoning requirements that apply to the site and that relate to:

             (i) The height and size of any buildings that are involved;

             (ii) The land that may be covered or occupied;

              (iii) The size of yards that require open space;

              (iv) The density of population; and

              (v) The use of the land and buildings.

 DHMH holds a public hearing within 60 days of the application, after publishing notice of the hearing. HG §10-520(a), (b), and (c).9 Pursuant to HG §10-521, the Secretary must issue a license to any applicant who meets the requirements of this subtitle. These provisions are generally consistent with federal law.10

However, HG §10-515 states the following legislative policy:

           It is the policy of this State that:

          (1) An individual who has a mental disorder and who is placed in a private group home have, as far as possible, an opportunity for placement in a residence in the community of origin of the individual; and

          (2) To assure, as far as possible, that a community will accept a private group home, the private group home should be located:

           (i) After consultation with the local government; and

            (ii) In a manner consistent with the principles of normalization and statewide standards.

(Emphasis added.)

The predecessor statute to HG §10-520(d), former Article 59, §64 went further: It made community acceptance the major purpose of the public hearing.11 Moreover, a DHMH regulation, reflecting the "community acceptance" concept, provides that the public hearing is "to assure that the home is accepted in the community for which it is proposed." COMAR 10.21.04.03C(1)(c). See also COMAR 10.21.07.03C(1) (application procedures for therapeutic group homes).

 To summarize, no provision in HG Title 10 expressly incorporates "community acceptance" as a factor that must be considered by the Secretary in deciding whether to grant a license for a group home. Community acceptance is not included in HG §10-518, which itemizes the criteria that an applicant must meet. The regulation, however, in its expansion on the purpose of the hearing, seems to suggest that "community acceptance" is a relevant issue.

We understand that, in practice, the Secretary has not allowed community opposition to control a group home licensing determination under Title 10. No application for a group home is denied on this basis.12

Nevertheless, in our view, the hearing procedure under HG Title 10 is legally vulnerable because it allows community acceptance to be taken into account by the decisionmaker. As we explained in Part I above, the Fair Housing Amendments Act and its regulations seek to make irrelevant any contention by neighborhood residents that people with disabilities are incompatible with other residents of the neighborhood. See 24 C.F.R. §100.70(c)(3).

B. Delay

 The appeal process under Title 10 is largely similar to that under Title 7, with the applicant — that is, the "aggrieved person" in a "contested case" — having the right to further administrative and judicial review.13 HG §10-524 provides as follows:

          Any person aggrieved by a final decision of the Secretary in a contested case ... may:

           (1) Appeal that decision to the Board of Review of the Department; and

           (2) Take any further appeal allowed by the Administrative Procedure Act to the circuit court for the county where the private group home is located or planned.

Because both statute and regulation refer to community acceptance as a desirable goal (see Part III A above), community residents who participate in the hearings by expressing their views about the establishment of a group home have been considered by DHMH to be parties to the licensure hearing. Further support for this practice derives from HG §10-520(d)(2), which provides that the author of the investigatory report on an applicant "is available for cross-examination by any party at the hearing."14 Residents have also been recognized as "aggrieved" persons if a license is granted despite community opposition and thereby have been treated as parties for the purpose of pursuing administrative and judicial appeals of the Secretary's determination.

 By affording party status to community opponents of a group home applicant, the procedure allows those opponents to use their procedural status as a way of delaying significantly the opening of a group home, sometimes for more than a year.15 We believe that a court would likely find this to be a prohibited discriminatory effect.

C. Conclusion

We recommend that DHMH (i) repeal COMAR 10.21.04.03C(1)(c) and 10.21.07.03C(1) and take no further cognizance of "community acceptance" in its decisionmaking; and (ii) alter its practices so that, while community residents may participate in a public hearing to comment on whether the applicant meets the statutory criteria, they no longer will be afforded the procedural rights of an "aggrieved person."

If this change in practice amounts to a reinterpretation of HG §§10-515 and 10-520(d)(2), the reinterpretation is necessary to avoid a conflict with the federal act. A statute is to be construed, whenever reasonably possible, "to avoid casting serious doubt upon its constitutionality." Yangming Transport v. Revon Products, 311 Md. 496, 509, 536 A.2d 633 (1988). See also, e.g., NLRB v. Bishop of Chicago, 440 U.S. 490, 500 (1979).16

IV

Conclusion

 In summary, it is our opinion that the hearing process under HG Title 7, the Developmental Disabilities Law, does not violate the Fair Housing Amendments Act. The hearing process under HG Title 10, the Mental Hygiene Law, should be revised to assure that opposition to a group home does not result in the kind of discriminatory effects prohibited by federal law.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                            Jack Schwartz
                                            Chief Counsel
                                              Opinions & Advice*

* Former Assistant Attorney General Larry J. Goldberg contributed substantially to the drafting of this opinion, but left the office prior to preparation of the final version of it.

Editor's Note:

This opinion was overruled by 78 Opinions of the Attorney General ___ (1993) [Opinion No. 93-030 (July 30, 1993)].

1
We advised that certain distance and density requirements imposed by State law on housing for special populations violated the federal law.

2
Some of the opposition took the form of "'camouflaged' racial expressions" — talk of "an influx of 'undesirables,'" concern about "personal safety due to the influx of 'new' people." Id.

3
In what is said to be the first suit brought by the Justice Department to enforce the Fair Housing Amendments Act, the town of Chicago Heights, Illinois, agreed to a settlement of charges of discrimination in the application of its zoning laws. The Justice Department charged that Chicago Heights had denied a permit for a group home "because of opposition arising from 'fears and prejudices concerning the mentally retarded.'" Washington Post, Jan. 17, 1990, at A3. The town agreed to issue the permit and pay $45,000 in damages.

4
HG §7-101(h) defines "group home" as a residence that:

      (1) Provides residential services for individuals who, because of developmental disability, require specialized living arrangements;
      (2) Admits at least 4 but not more than 8 individuals; and
      (3) Provides 10 or more hours of supervision, per home, per week.

5
There are indications in the legislative history of HG Title 7 that some proponents of the public hearing requirement might have intended it as a means by which community opposition could veto a proposed group home. See, e.g., bill file on Senate Bills 359 and 893 (1978 Session). Whatever the original intention, however, the statute has not been — and, in light of the federal act, may not be — administered that way.

6
A license includes an approval, a certificate, a charter, a permit, or a registration. SG §10-201(d)(3).

7
HG §2-206(c)(2) gives the Board of Review jurisdiction over an appeal from "[a]ny decision of the Secretary or any unit in the Department that is subject to judicial review under any provision of law other than §§10-125, 10-128 and 10-215 of the State Government Article." Because HG §7-407 speaks of "an appeal as allowed in [SG §]10-215," we doubt that HG §7-407 is a "provision of law other than ... [SG §]10-215" triggering review under HG §2-206(c)(2). In any event, a person seeking to appeal under HG §2-206(c)(2) must be "aggrieved." HG §2-207(a).

8
HG §10-514(d)(1) defines "Private group home" as "a residence in which individuals who have been or are under treatment for a mental disorder may be provided care or treatment in a homelike environment." See also HG §10-514(b) ("large private group home") and 10-514(e) ("small private group home").

9
HG §10-520(a)(2) requires that notice of the application be given to the local governing body. The hearing must be held "in the county where the private group home is to be located and as close as possible to the proposed location." HG §10-520(b)(2). The statute also spells out the particulars of public notice. HG §10-520(c).

10
HG §10-518(a)(3), the distance limitation, is not enforceable, for the reasons discussed in 74 Opinions of the Attorney General at 164.

11
As a result of amendments in Chapter 21 of the Laws of Maryland 1982, community acceptance was qualified by the phrase "as far as possible" and made a statement of legislative policy under HG §10-515(2) rather than a qualification of licensure.

12
In the case of Guide, Inc., Hearing Office Docket No. 86-M-207 (June 25, 1987), the Secretary determined that community rejection of a proposed private group home cannot "defeat an otherwise validly applied-for permit for a private group home." In the matter of Revisions, Inc., Hearing Office Docket No. 87-M-142 (May 2, 1989), the Secretary determined that "while the statute and adopted regulations embrace the local community, and its acceptance of the proposed facility, as a meaningful part of the application, . . . 'community acceptance,' as used in the statute and carried forward in the regulations, is not tantamount to a 'veto power'." Thus, the Secretary has recognized that while community acceptance is a relevant consideration, community opposition is not a factor on which a licensing decision is to be based. See City of Baltimore v. State Department of Health and Mental Hygiene, 38 Md. App. 570, 574 (1978); Sullivan v. City of Pittsburgh, 620 F. Supp. 935, 944-946 (W.D. Pa. 1985), aff'd 811 F.2d 171 (3d Cir. 1987).

13
Under Title 10, the Secretary considers an exceptions stage prior to the formal decision. SG §10-212; COMAR 10.01.02.11.

14
DHMH has submitted legislation to change this language so that it would read "is available to answer questions from any person at the hearing." House Bills 212 and 903 (1990 Session).

15
For example, the Revisions proceeding, referenced in footnote 12 above, took from October 13, 1987 (application for licensure) until November 6, 1989, when the Circuit Court for Baltimore County affirmed the DHMH decision to grant the license. DHMH partially ameliorated the consequences of the delay by granting the license on January 30, 1989 upon the determination of the Secretary, prior to the eventual decisions of the DHMH Board of Review and of the Circuit Court.

Similarly, Threshold Services (Montgomery County) applied for its group home license in May, 1986 and received it in April, 1987. More recently, Bless (Charles County) applied in March, 1989 and was licensed in November, 1989.

16
The supremacy clauses of the United States Constitution, Article VI, cl. 2, and the Maryland Declaration of Rights, Article 2, render unenforceable any state law that conflicts with a federal law. Moreover, the Fair Housing Act expressly invalidates any state law "that purports to require or permit any action that would be a discriminatory housing practice" under the act. 42 U.S.C. §3615.